QlnrnpU ICam ^rlynol SItbtaty 
 
Cornell University Library 
 KF 1250.A73 1876 
 
 V.I 
 
 Wrongs and their remedies.A treatise on 
 
 3 1924 019 249 394 
 
Cornell University 
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 The original of tiiis book is in 
 tine Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019249394 
 
WRONGS AND THEIR REMEDIES. 
 
 A TREATISE 
 
 THE LAW OF TOETS. 
 
 O. a. A.r>I3ISO]N^, Esq. 
 
 FOURTH ENGLISH EDITION, 
 Br F. S. P. WOLFERSTAN, Esq., 
 
 OF THE UfNER TEMFLB, BAUKISTBB-AT-IJIW, 
 
 BY 
 
 JAMES M. DUDLEY AND EDWIN BAYLIES, 
 
 COT7NSEI.LOR9-AT-LAW. 
 
 Vol. I. 
 
 BANKS & BROTHERS, 
 
 473 AND 475 BROADWAY, ALBANY} 
 
 144 NASSAU ST., NEW YORK. 
 
 1876. 
 
i6 'is'io r 
 
 Entered aocordin^ to act of Congress, in the year eighteen hundred and seTenty-six, 
 Br BAIiTKS & BEOTHEES, ' 
 In the office of Uie Librarian of Congress, at Washington. 
 
 Charles van Benthuvsen & Sons, 
 
 Printers, Stereotypers, Papennakers and Binders, 
 
 Albany and Castleton, K. T. 
 
EXTRACT FROM THE PREFACE TO THE FIRST 
 ENGLISH EDITION. 
 
 To those readers who are unacquainted with English law terms it 
 may be desirable to explain, that the word Tort, handed down to us 
 from our Norman jurists, is used in our law at the present day to 
 denote a civil wrong, for which compensation in damages is recoverable, 
 in contradistinction to a crime or misdemeanor, which is punished by 
 the criminal law in the interests of society at large. Every invasion 
 of a legal right, such as the right of property, or the rights incident 
 to the possession of property, or the right of personal security, consti- 
 tutes a Tort ; and so does every neglect' of a legal duty, and every 
 injury to the person, or character, or reputation of another. 
 
 The Law of Torts, or civil wrongs, therefore, having for its object 
 the protection of our property, and the security of our persons and 
 reputation, is a branch of law of general interest and importance, 
 and there are few persons of any property or station in the country to 
 whom some knowledge of it does not become essentia] at some time or 
 another, either for the purpose of maintaining themselves in their just 
 rights, or for the purpose of ascertaining the nature and extent of 
 their legal duties and responsibilities. 
 
 Torts, it has truly been observed, are infinitely various, and it 
 would be an endless task to enumerate all the wrongs of which the 
 law takes cognizance, and in respect of which redress, in the shape 
 of compensation in damages, is afforded. It is not intended to treat 
 herein of all civil wrongs of every sort and description, but of such 
 vfrongs and injuries to property, to the person, and to reputation, as 
 constantly occur in the ordinary intercourse of mankind, and daily 
 occupy the attention of the lawyer : such as wrongful infringements 
 
 c 
 
FREFACE. 
 
 of the rights and privileges incident to the ownership and possession, 
 and use and enjoyment, of landed property ; nuisances and injunes 
 arising from the negligent use and management of such property; 
 injuries to lands and tenements from waste, negligence, and fire; 
 injuries from trespasses and unlawful entry on land, in disturbance of 
 the possessory and proprietary rights of occupiers and landlords ; 
 wrongful seizure and conversion of chattels ; injuries from the negli- 
 gent use and management of chattelg, and the negligent performance 
 of work ; injuries from negligence and breach of duty on the part of 
 bailees, common carriers, and common innkeepers ; wrongful distress 
 and sale of things distrained; assault and battery, and wrongful 
 imprisonment; malicious arrest, malicious prosecution, and malicious 
 abuse of legal process ; trespasses and injuries committed in the exe- 
 cution of void or irregular legal process, or in the execution of warrants 
 and orders of justices ; injuries resulting from the exercise, or intended 
 exercise, of statutory powers and authorities; injuries from libel 
 and slander; fraudulent misrepresentation and deceit; fraudulent 
 concealment, breach of warranty and false pretences; matrimonial 
 and parental injuries ; adultery and seduction- 
 
 In the following Treatise the Author has endeavored to present to 
 the reader an accurate view of the present state of the law on the 
 subjects treated of, without burthening his mind with technical legal 
 learning which is now obsolete, or unnecessarily penplexing his judg- 
 ment with contradictory and conflicting decisions ; and it is hoped 
 that the task has been faithfully and carefully .accomplished. 
 
 IBNEB Temple, 
 
 Jioie, 1860, 
 
PREFACE TO THE FOURTH ENGLISH EDITION 
 
 The favorable reception whicli the last edition of this work, pub- 
 lished only three years ago, has met with from the profession and the 
 public, renders it unnecessary to say more as a preface to the present 
 one, than that the same care has been exercised in preparing it for 
 the press, to render the book worthy of being still considered the 
 standard authority on the subjects of which it treats. 
 
 The alterations rendered necessary by the Bankruptcy Act, 32 & 33 
 Vict. c. 71 (which was passed after the last edition had passed through 
 the press), have been made ; and, although this edition contains the 
 results of more than 470 new cases decided since the last edition was 
 published, the size of the work has not been materially, if at all, 
 increased. 
 
 The cases decided and statutes passed whilst the work was in the 
 press, to the end of November, 1872, will be found, so far as they have 
 not been incorporated in the text, in the Addenda ; and by a fresh 
 method of printing and arrangement of the Index it will be found, it 
 is hoped, easier of reference than in the last edition, 
 
 Temple, November, 1872. 
 
 E 
 
PREFACE TO THE AMERICAN EDITION. 
 
 The favorable reception given in this country by the Bench and Bar 
 to the several English editions of " Addison on the Law of Torts," ren- 
 ders an apology for offering to the profession an American edition of 
 the work unnecessary. 
 
 In J)reparing the present edition for the press, it has been the aim 
 of the editors to incorporate in the American notes, within as small 
 a compass as was compatible with the necessary statement of the 
 principles involved, all that was necessary or important to explain, 
 modify or illustrate the text, and to present the rules of law as they 
 at present exist in this country. 
 
 It has also been the intention of the editors to give' full- and copi- 
 ous references to the statutes of the several States, and to the reported 
 decisions of the courts of last rfe^ort in this country. 
 
 In doing this work, we have used the latest English edition, and, 
 for convenience of reference, have cited the American cases, under the 
 same letters with the English, making no distinction between them. 
 
 This plan, we believe, will facilitate the examination of the cases ; 
 and while greatly increasing the labor, it has rendered that labor 
 less perceptible to the casual reader. 
 
 The amount of labor will, however, be apparent, when the fact is 
 remembered that in the English edition there are not half a dozen 
 American cases cited. 
 
 In this edition we have cited more than six thousand American 
 cases, besides the numerous references to statutes. The cases cited 
 cover a period from the time of the earliest reports in our country 
 down to the reports in press, when the manuscript of this edition was 
 put into the hands of the printer. 
 
 p 
 
PREFACE. 
 
 We have also added to this edition the chapter on torts by municipal 
 corporations. This seemed necessary to an American edition, as the 
 subject forms an important element in a work on the law of wrongs, 
 and is not treated at any length in the English work. 
 
 That other cases and decisions might have been added to the notes 
 we are well aware ; but lyith a text written by one of the ablest 
 English authors, supported by a line of decisions extending from the 
 Year Books down to the present time, and embracing more than 
 twelve thousand reported cases, both English and American, we may 
 be pardoned for assuming that the profession will find the work 
 herewith presented a satisfactory, and, we venture to hope, a very 
 useful and reliable treatise on the law of torts and their remedies. 
 ^ JAMES M. DUDLEY, 
 
 EDWIN BAYLIES. 
 
 Johnstown, January, 1876. 
 
 a 
 
CONTENTS. 
 
 CHAPTER I. 
 
 THE LAW OF TORTS, 1-68. 
 
 Section I. — Of actionable wrongs, and 
 injuries that are not oustiondble, 1-44. 
 
 Of the conjunction of damages and wrong 
 necessary to create a tort, 2 
 
 Ex damno sine injuria non oritur actio, 
 tb. 
 
 Damage and wrong — Dangerous things 
 set in motion, ih. 
 
 Damage without wrong, 3 
 
 Wrong without damage, 5 
 
 Damage too remote to give rise to a 
 cause of action, 6 
 
 Damage, though remote, sufficiently- 
 connected with the wrong, 7 
 
 It is not necessaiy to show that actual 
 pecuniary damage has been sus- 
 tained, 8 
 
 Every injury to a right imports a dam- 
 age, 9 
 
 The procurement of the violation of a 
 right ci'eates a cause of action, 11 
 
 The general legal rights of mankind are 
 the rights of personal security, per- 
 sonal liberty, or private property, 12 
 
 Injuries to property brought about by 
 menace or fraud, ih. 
 
 Literary and artistic property, 13 
 
 Interference by force or fraud with the 
 free exercise of another's trade or 
 occupation, or means of livelihood, ib. 
 
 Interference with a man's trade by fair 
 competition, 15 
 
 Disturbance of a ferry, ib. 
 
 Disturbance of a market, 16 
 
 Market tolls, 17 
 
 Torts founded on contract, i&. 
 
 Breach of duty, 18 
 
 Breach of duty on the part of assigtiees 
 of leases, 19 
 
 Breach of duty on the part of public 
 officers, 19 
 
 Breach of duty by postmasters — Non- 
 delivery of letters, 21 
 
 Negligence and breach of duty on the 
 part of consignors and bailors of chat- 
 tels, 22 
 
 Torts founded on negligence, ib. 
 
 Contributory negligence on the part of 
 the plaintifiF, 24 
 
 Liabihty of the defendant in respect of 
 the remote, ulterior, and unusual con- 
 sequences of a negligent act, 28 
 
 Liability of the master for the negli- 
 
 fence of his servant, 30 
 emnification of the master by the 
 servant, 34 
 
 Fraud and falsehood are mala in se, 
 35 
 
 A refusal to obey the lawful decree of a 
 court of justice, 36 
 
 Malicious injuries, ih. 
 
 Malicious procurement of loss or dam- 
 age to another, 37 
 
 Abuse of authority by governors of col- 
 onies, 38 
 
 Abuse of authority on the part of naval 
 and military officers, 39 
 
 Torts committed by British subjects in 
 foreign countries, ib. 
 
 Suspension of the remedy by action 
 when the tort amounts" to a felony, 40 
 
 Merger of a trespass in a felony, 41 
 
 Cheating by forgery, 42 
 
 Actions for bigamy, ib. 
 
 Actions for misdemeanors, ib. 
 
 Public and private wrongs, 43 
 
 Of the legal maxim that there is no 
 wrong without a remedy, ih. 
 
 Waiver of tort, 44 
 
VI 
 
 CONTENTS. 
 
 Section IX.— Of rights, duties, and, ob- 
 ligations created by by-law and by 
 statute, 45-68. 
 
 By-laws founded on statute, imposing' 
 penalties' for the suppression of cer- 
 tain torts, 45 
 
 By-laws of municipal coi'porations, ib. 
 
 By-laws for the prevention of indecent 
 bathing, 47 
 
 By-laws by public commissioners, local 
 boards, and public companies, 48 
 
 By-laws in restraint of trade, ih. 
 
 Remedies for the enforcement of statu- 
 tory duties and obligations, ih. 
 
 Of the imposition of a penalty as a cumu- 
 lative, exclusive, or alternative remedy 
 for the protection of a right, or the 
 suppression of a wrong, 50 
 
 Infringement of statutory copyright — 
 Penalties and actions for damages, 
 51 
 
 Infringement of copyright in lectures — 
 Penalties and actions for damages, 53 
 
 Infringement of copyright in published 
 
 dramatic literary property and musi- 
 cal compositions, 54 
 
 Unlawful representation of dramatic, 
 pieces and musical compositions, 55 
 
 Infringement of the Sculpture Copyright 
 Acts, 56 
 
 Piracy of useful and ornamental de- 
 signs, ib. 
 
 Piracy of prints and engravings, 57 
 
 Infringement of copyright in paintings, • 
 drawings, an(J photographs, 58 _ 
 
 Registration of the proprietorahip of 
 the copyright, ib. 
 
 Proof of the copyright, 59 
 
 Penalties for the use of counterfeit trade 
 marks, ib. 
 
 Penalties for the commission of nuisan- 
 ces, 59 
 
 Of patent right, ib. 
 The subject-matter of a patent, 61 
 Remedies for infringement, 84 
 Remedies for infringement by as- 
 signees and licensees, 65 
 Want of novelty or utility, 66 
 
 Statutory benefits and burdens, 68 
 
 CHAPTER II. 
 
 OP INFRINaEMBNTS TTPON RIGHTS NATTJB.ALLT INCIDENT TO THE POSSESSION 
 ANB OWNERSHIP OP LAND, 69-94. 
 
 Seotion I. — Of the right and bv/rthen of 
 natural servitude, 69-84. 
 
 Torts arising from the disturbance of 
 rights of servitude, 69 
 
 Natural and necessary servitudes, 70 
 
 Dominant and servient tenements, ib. 
 
 Prsedial and urban servitudes, 71 
 
 Natural and necessary servitudes ac- 
 cessorial to the drainage of land, ib. 
 
 Statutory powers for the impi-ovement 
 of the drainage of land, 73 
 
 Of the natural servitude of support from 
 adjoining land, ib. 
 
 Of the natural servitude of support 
 from the subsoil to the surface of 
 land, when the surface and subsoil 
 constitute separate freeholds vested 
 in different proprietors — Mutual righ ts 
 and duties of separate owners of the 
 surface and subsoil, 74 
 
 Abiidgment of the right and servitude 
 of support by express contract, 76 
 
 Transfer of natural servitudes, ib. 
 
 Torts arising from the diversion of run- 
 ning water, 77 
 
 Diversion of water for purposes of irri- 
 gation and drainage, 77 
 Effect of acquiescence in the unlawful 
 
 diversion of water from a running 
 
 stream, 79 
 Of the right to pen back water, 80 
 Injuries from the defilement of streams,i& 
 Disturbance of the permissive use and 
 
 enjoyment of water, 81 
 Of the right of landowners to weU- ■ 
 
 water, 82 
 Of the flooding of lands from artificial 
 
 collections of underground water, 83 
 Statutory _ property and interest of 
 
 navigation companies in the water of 
 
 a navigable river, 84 
 
 Section II.— 0/ the remedy by action 
 and by injunction for infringements 
 of rights incident to the possession 
 and ownership of land, 84-94. 
 
 Direct and consequential injuries, 84 
 Parties to be made plaintiffs— Tenant 
 and reversioner, ib. 
 
CONTENTS. 
 
 vu 
 
 Parties to be made defendants, 85 
 
 Of the plaintiff's declaration of his cause 
 
 of action — Venue, ih. 
 Declarations for infringements of the 
 natural right to suppoi't from adjoin- 
 ing land, 87 
 Pleas by the defendant, not guilty, 88 
 Of the plea of leave and license, 89 
 Pleas of a prescriptive right, ih. 
 Evidjsnce at the trial — Proof on the part 
 
 of the plaintiff, ih. 
 Proof of seizin of lands and tenements, ih . 
 
 Damages recoverable, 90 
 
 By tenant and reversioner, 91 
 
 Injunction to prevent the disturbance of 
 rights naturally incident to the pos- 
 session and ownership of land, 91 
 
 Injunction to i-estrain the diversion of 
 water, 93 
 
 Injunction to restrain a disturbance of 
 the right to support, ib. 
 
 Injunction to prevent obstruction to the 
 repair of a watercourse in alieno solo, 
 94 
 
 CHAPTER III. 
 
 OP CONVENTIONAL AND PRESCRIPTIVB SERVITUDES — EASEMENTS AND 
 PROFITS A PRENDRE, 95-190. 
 
 Section I. — Of eonventional and pre- 
 scriptive servitudes — Easements and 
 profits a prendre, 95-170. 
 
 Easements, 95 
 
 Profits a prendre, 96 
 
 Unlimited-claims in the nature of ease- 
 ments, profits, and servitudes, 97 ■ 
 
 Grants of rights of servitude — Licenses, 
 ih. 
 
 Reservation of privileges amounting to 
 an express gi-ant, 101 
 
 Implied reservation or grant of ease- 
 ments, ih. 
 
 Privileges and servitudes which pass as 
 accessorial to the use and enjoyment 
 of the principal thing granted — Omne 
 accessoriiimi sequitw suv/m principale, 
 104 
 
 "Ways of necessity, 105 
 
 Necessary incidents to a grant of a riglit 
 of way or watercourse, 106 
 
 Right of towing on the banks of a navi- 
 ' gable river, 107 
 
 When an easement of support from the 
 adjoining land of the grantor passes 
 as accessorial to a grant of land or of 
 a tenement, ih. 
 
 Of the light to search for minerals un- 
 der lands weighted by railways and 
 canals, 108 
 
 Servitude of support from one house to 
 another, where several houses have 
 been built together, so as to require 
 mutual suppoi't, 111 
 
 Accessorial servitude of support where 
 the separate floors of a building are 
 granted to several different proprie- 
 tors, 112 
 
 Grants of the privilege of a free pass- 
 age of light and air, 113 
 
 When the privilege of free passage for 
 light and air across adjoining land 
 passes as accessorial to a grant or 
 conveyance, ih. 
 
 Of the rule or maxim of law that no 
 man shall derogate from his own 
 grant, 115 
 
 Of the transfer from one person to an- 
 other of easements and profits i pren- 
 dre, 116 
 
 Easements and profits i prendre in 
 gross, ih. 
 
 Where the grant is of a liberty, license, 
 power or authority to dig, work, mine, 
 and search for, raise and carry away, 
 metals and minerals, 119 
 
 Exclusive licenses, 121 
 
 The Roman Law, ib. 
 
 Rights over another's land claimable by 
 
 custom, ib. 
 (When a profit a prendre is claimable by 
 custom — Manorial customs — Rights of 
 common, 123 
 
 Common appendant, 125 
 
 Common aijpurtenant, 126 
 
 Common of shack, 127 
 
 Right of common pur cause de vicinaffe,ih. 
 
 Common of turbary, ib. 
 
 Common of estovers, ib. 
 
 Common in gross, 129 
 
 Rights of sole and several pasturage — 
 Cow-grasses and cattle-gates, 130 
 
 Rights of tinbounders to search for tin 
 in Cornwall, ib. 
 
 The lord, by his grant of common, gives 
 everything accessorial to the enjoy- 
 ment of the right, 131 
 
VIH 
 
 CONTENTS. 
 
 Inconsistent rig-hts of common, 131 
 
 Of the servitude of maintaining and re- 
 pairing' sea-walls, ditches and sluices, 
 %b. 
 
 Of customary rights of fishing, and driv- 
 ing stakes for nets in the sea-shorey 
 132 
 
 Customary and prescriptive rights of 
 bathing on the sea-shore, 133 
 
 Title by prescription, 134 
 
 Prescriptive right to a pew in a church, 
 135 
 
 Prescriptive rights founded on the pre- 
 sumption of a grant — Presumption of 
 a. grant from long-continued uninter- 
 rupted user and enjoyment as of right, 
 ib. 
 
 Of the Prescription Act, 138 
 
 What profits or benefits may be claimed 
 by user and enjoyment under the Pre- 
 scription Act, 141 
 
 In order to gain a prescriptive title from 
 uninterrupted user and i enjoyment 
 under the first and second sections of 
 the Prescription Act, it mustbe proved 
 that the enjoyment has been " as of 
 right," 142 
 
 Enjoyftient by consent or agreement, 
 ib. 
 
 User and enjoyment as of right against 
 all persons having an estate or inter- 
 est in the land, 143 
 
 What sort of enjoyment is essential to 
 the gaining of a prescriptive right of 
 way, ih. 
 
 Enjoyment of a way over land out on 
 lease, ib. 
 
 Enjoyment of a right of common by a 
 tenant over land in the possession and 
 occupation of his landlord, 144 
 
 What sort of enjoyment is essential to 
 the gaining of a prescriptive right to 
 the use of any watercourse or water — 
 Natural and artificial watercourses, 
 ih. 
 
 Prescriptive right to pen back water, 
 145 
 
 Prescriptive right to foul the pure water , 
 of a stream, and convert a natural * 
 watercourse into a sewer, i6. 
 
 User and enjoyment of water from arti- 
 ficial drainage, 146 
 
 What sort of enjoyment is essential to 
 the gaining of a right of support to 
 buildings from the adjoining land of 
 a neighboring proprietor, 147 
 
 Houses resting against each other, 
 148 
 
 What sort of enjoyment of the benefit of 
 a boundary fence is requisite to gain 
 a prescriptive right to have the fence 
 kept up at the expense of one land- 
 ■ owner for the benefit of another, 
 149 
 
 What sort of enjoyment is essential to 
 the gaining of a prescriptive right to 
 the access of light to windows, i6. 
 
 Unity of ownership of the dominant and 
 servient tenements preventing the ac- 
 quisition of a prescriptive right to the 
 free access of light, 151 
 
 Enlargement of windows — Enjoyment of 
 enlarged windows, 152 
 
 What interruption in the enjoyment pre- 
 vents the acquisition of title by pre- 
 scription, 153 
 
 Of the necessity of a continuous enjoy- 
 ment as of right and without inter- 
 ruption, J54 
 
 What breaks the continuity of the enjoy- 
 ment — Asking leave, 156 
 
 Of the necessity of a continuous enjoy- 
 ment down to the period of the com- 
 mencement of the action, ib. 
 
 Exclusion from the computation of the 
 thirty and twenty years' enjoyment of 
 those periods during which parties 
 otherwise capable of resisting the 
 claim were infants, idiots, feme eo- 
 vertes, or tenants for life, 157 
 
 Of the right of reversioners to exclude 
 from the computation of the forty 
 years the period of the enjoyment of 
 a way or watercourse, and use of- 
 water over lands demised for life or 
 years, 158 
 
 Waiver and extinguishment of ease- 
 ments, 159 
 
 Parol abandonment of incorporeal 
 rights, 160 
 
 Waiver and extinguishment of an ease- 
 ment of light and air, 162 
 
 Extinguishment of an easement of light 
 by alterations in windows and build- 
 ings, 163 
 
 Disuse of right of way, 164 
 
 Extinguishment of ways of necessity, 
 165 
 
 Suspension and forfeiture of rights of 
 way and watercourse by the non- 
 performance of conditions annexed to 
 the grant, ib. 
 
 Disuse of right to water, 166 
 
 Merger and extinguishment of ease- 
 ments and servitudes by a unity of 
 ownership of the dominant and servi- 
 ent tenements, i6. 
 
 What sort of unity of ownership is es- 
 sential to the extinguishment of ease- 
 ments, ib. 
 
 Revival and re-creation of easements 
 and servitudes which have been ex- 
 tinguished or suspended by unity of 
 ownership, ib. 
 
 Effect of the destruction or alteration of 
 the dominant tenement, 169 
 
 Of the maintenance and repairs of ways 
 and watercourses, 170 
 
CONTENTS. 
 
 IX 
 
 Section II. — Remedy for the infringe- 
 ment of incorporeal, rights, 172-190. 
 
 Abatement of obstructions to the enjoy- 
 ment of easements and profits a yreii- 
 dre, 172 
 
 Of the rig-ht to distrain beasts wrong-- 
 fuUy put upon a common, ib. 
 
 Of actions for the infring-ement of incor- 
 poreal rights, ib. 
 
 Actions for taking manure from com- 
 mons, ib. 
 
 Actions for surcharging of commons, 
 173 
 
 Actions for obstructions to the enjoy- 
 ment of a private right of way, ib. 
 
 Of the parties to be made plaintiffs, 174 
 
 Tenant and reversioner, ib. 
 
 Parties to be made defendants, 175 
 
 Of the plaintiff's declaration — Venue — 
 Statement of the cause of action, ib. 
 
 Declarations for an obstruction to the 
 plaintiff's lights or privileged win- 
 dows, 179 , 
 
 What may be given in evidence under 
 the plea of not guilty — Not guilty by 
 statute, 180 
 
 Traverse of the right, ib. 
 
 Plea of leave and license, ib. 
 
 Evidence at the trial, ib. 
 
 Pi'oof of enjoyment so as to gain a pre- 
 sci'iptive title, at common law or under 
 _ the Prescription Act, 181 
 
 Proof of right of way, ib. 
 
 Proof of a i-ight to the ft-ee access of 
 light, 182 
 
 Proof of obstruction to the right of way 
 — Erection of gates, 183 
 
 Proof of obstructions to the access of 
 light, ib. 
 
 Proof of right to an ancient weir and 
 fishery in a navigable river, ib. 
 
 Proof of the servitude of maintaining 
 and repairing fences, 184 
 
 Inadmissibility in evidence of state- 
 ments and declarations by a tenant' in 
 derogation of the title of his land- 
 lord, ib. 
 
 Of the damages recoverable in actions 
 for the infringement of incorporeal 
 rights, ib. 
 
 Injunction to prevent the disturbance of 
 easements granted by parol, 186 
 
 Injunction to prevent obstructions to the 
 free access of light to vyindows, 187 
 
 Injunction to prevent the working of 
 mines and quarries so as to deprive 
 the adjoining or supei;jacent land of 
 its necessary support, 189 
 
 Bill of peace, ib. 
 
 CHAPTER IV. 
 
 OP NUISANCES AND INJURIES FROM THE NEGLIGENT USE AND MANAGE-- 
 
 MENT OP KBAL PKOPERTT, AND FROM KEEPING FEROCIOUS 
 
 ANIMALS, 191-276. 
 
 Sbction I. — Of Nuisances and injuries 
 from the negligent itse and manage- 
 ment of real propeirty, and from keep- 
 ferodous aniinals, 191-232. 
 
 Of nuisances, 192 
 
 Nuisances from the non-repair of, or 
 from neglecting to cleanse, sewers, 
 drains, and watercourses, 193 
 
 Offensive smells and noisome trades, ib. 
 
 Brick-buraing, 194 
 
 Of presci-iptive rights to the exercise of 
 a noisome trade, 196 
 
 Nuisances from privies, chimneys, and 
 manufactories — Liability of the land- 
 lord and occupier,. i&. 
 
 Defilement of springs and running 
 streams, 198 
 
 Noisy nuisances, ib. 
 
 Collection of crowds, 199 , 
 
 Injuries from spring-guns, man-traips;. 
 dog-spears, engines, and machines- 
 placed on land, 200 
 
 Injuries to animals from dog-traps,, i&i 
 
 Injuries from unguarded wells, mining.' 
 shafts, areas, and cellars. i6. 
 
 Injuries from the dangerous state- of 
 private ways, 202 
 
 Nuisances adjoining highways — Danger- 
 ous pits and excavations — SfSam 
 engines and windmills, 203 
 
 The use of locomotive steam-engines- on 
 highways, 204 
 
 Dangerous excavations adjoining high- 
 ways, ib. 
 
 Dedication of a highway to the- public 
 subject to certain risks and incon- 
 veniences, 205 
 
 Obstructions in public thoroughfares,206 
 
 Obstructions in navigable rivers, 208 
 
CONTEA'TS. 
 
 Obstructions from sunken vessels, an- 
 chors, telegraph wires, etc., 209 
 
 Where the public right of free naviga- 
 tion is taken away,, and the power of 
 removing obstructions is vested in 
 the hands of conservators of the 
 river, ib. 
 
 Injuries to land from the erection of 
 groins, sea-walls, and defences against 
 tides and currents, 210 
 
 Negligent overloading of floors of ware- 
 houses and buildings, ib. 
 
 Non-repair of ruinous houses — Liability 
 of landlord and occupier, 2ll 
 
 Negligence in pulling down houses — 
 Negligent excavations, 212 
 
 Ruinous party-walls, 213 
 
 Insecure fences, hedges, and gates, 214 
 
 Railway fences— Statutoiy servitude 
 imposed upon railway companies of 
 keeping up and maintaining fences, ib. 
 
 Negligent use and management of rail- 
 way stations — Insufficient lights and 
 g;uards, 217 
 
 Ruinous and insecure railway bridges, 
 viaducts, and embankments, 219 
 
 Neglect of railway companies to erect 
 
 ^ and maintain bridges over highways, 
 ib. 
 
 Negligent management of railway gates 
 placed across public carriage roads, 
 220 
 
 Negligent management of gates placed 
 across tramways, ib. 
 
 Leaving open accommodation gates, 221 
 
 Dangerous canals, ib. 
 
 Negligent management of docks and 
 wharves 222 
 
 Dangerous machinery, 223 
 
 Injuries to servants from dangerous 
 premises, ib. 
 
 Exemption of the master from liability 
 when the danger is known to the 
 servant, 224 
 
 Where the workman is employed in the 
 use of dangerous machinery, 225 
 
 Injuries to workmen from defective 
 hoisting-tackle in mines, and insecure 
 scaffolding and ladders, 226 
 
 Injuries to guests from the dangerous 
 .state of the premises of their host, 327 
 
 Contributory negligence on the part of 
 plaintiff, ib. 
 
 Where the plaintiff's right to recover is 
 not defeated by his being a trespasser, 
 228 
 
 Nuisances and injuries from the keep- 
 ing of ferocious animals, 229 
 
 Effect of putting up a notice to beware 
 of the dog, 230 
 
 Dogs worrying sheep and destroying 
 game, 231 
 
 Of the keeping dogs reputed to have 
 been bitten by a mad dog, ib. 
 
 Injuries from driving ferocious animals 
 along a public thoroughfare, 231 
 
 Sectiok ll.^Abatement of nuisances — 
 Statutory remedies and penalties — 
 A ctions — Prohibition^InJunetion and 
 indictment, 233-257. 
 
 Abatement of nuisances, 233 
 
 Abatement of nuisances upon commons, 
 235 
 
 Removiil of ruinous buildings, 236 
 
 Abatement of nuisances arising from 
 th e exei'cise in excess of limited rights, 
 ib. * 
 
 Removal of obstructions in public thoi*- 
 oughfares and watercourses, 238 
 
 Removal of obstructions to the naviga- 
 tion of navigable rivers, ib. 
 
 Obstructions to fishing, 239 
 
 Pulling down i-uinous houses adjoining 
 a public thoroughfare, ib. 
 
 Statutoiy remedies and penalties in re- 
 spect of'nuisances from gas-works, 240 
 
 Penalties for fouling water, 241 
 
 Penalties for the non-consumption of 
 smoke, ib. 
 
 By-laws for the suppression of nuisances, 
 ib. 
 
 Actions for nuisances — Private injuries 
 from a public nuisance, ib. 
 
 When a notice to abate or discontinue a 
 nuisance should be given before com- 
 mencing an action, 242 
 
 Continuing nuisances, ib. 
 
 Parties to be made plaintiffs, ib. 
 
 Parties to be made defendants, 244 
 
 Declarations for nuisances, 247 
 
 Declarations for injuries from the keep- 
 ing of ferocious animals, 249 
 
 Plea of not guilty, 250 
 
 Pleas justifying the fouling of the water 
 of a stream under a prescriptive right 
 to discharge into it the refuse of dye- 
 houses and manufactories, and the 
 washings of mines, 251 
 
 Pleas justifying the obstruction of a 
 watercourse, ib. 
 
 Pleas justifying the poisoning of the at- 
 mosphei-e with noxious smells and ex- 
 halations, under a prescriptive right 
 to carry on an offensive trade, ib. 
 
 Evidence at the trial — Proof on the part 
 of the plaintiff, 252 
 
 Evidence for the defence, 255 
 
 Damages recoverable, ib. 
 
 Section III. — Prevention of nuisances 
 by injunction and indictment, 258-276. 
 
 Injunction, 258 
 
 Acquiescence precluding equitable re- 
 lief, 259 
 
conte:^ts. 
 
 XI 
 
 Injunction to prevent the continuance 
 of noisy nuisances, 260 
 
 Prevention of public nuisances, ib. 
 
 Prevention of public nuisances by in- 
 dictment, 262 
 
 Nuisances in public highways, 264 
 
 Indictment against a corporation, ib. 
 
 Proof of dedication of way to the pub- 
 lic, 265 
 
 User of a way by the public is by no 
 means conclusive of the way being a 
 public way, 266 
 
 Proof of animus dedicandi, 267 
 
 Occupation roads, 269 
 
 No particular time of enjoyment is 
 necessary for evidence of dedication, 
 ib. 
 
 There may be a highway by dedication 
 to the public, where there~ is no 
 thoroughfare, ib. 
 
 Who may dedicate — A mere tenant or 
 
 lessee has no power to throw open 
 
 land to the public, 270 
 Commissioners of public works have no 
 
 power to dedicate, ib. 
 Limited dedication, ib. 
 Gates across a highway, 271 
 There can be no dedication for a limited 
 
 tim6, ib. 
 Common highway of necessity, ib. 
 Proof of highway by proof of pariah 
 
 repairs, ib. 
 Indictable obstructions in public thor- 
 oughfares, ib. 
 Indictable obstructions in navigable 
 
 rivers, 272 
 Repairs of highways, sea-bank§ and 
 
 sewers, 273 
 Liability to repair ratioTie clausnros, 
 
 274 
 Repair by district highway board, 275 
 Ditches of turnpike roads, 276 
 
 CHAPTER V. 
 
 OF INJURIES TO LANDS AND TENEMENTS PROM WASTE, NEGLIGENCE AND 
 
 FIRE, 277-320. 
 
 SECTioif I. — Of injuries to lands -and 
 tenements from waste, negligence and 
 fire, 277-305. 
 
 Waste, 277 
 
 Commissive and permissive waste, 278 
 
 Permissive waste by lessees for terms 
 of years, ib. . 
 
 Commissive waste by tenant for terms 
 of years, 279 
 
 Waste by tenant from year to year, 282 
 
 Tenant-at-will, 283 
 
 Tenant for life, ib. 
 
 Waste in trees and woods, 284 
 
 Where timber is decaying, 285 
 
 Waste by taming and reclaiming deer, 
 ib. 
 
 Equitable waste — Where tenant for life 
 holds without impeachment for waste, 
 ib. 
 
 Tenant in fee simple subject to an exe- 
 cutory devise over, 286 
 
 Lessee for term <of years without im- 
 peachment of waste, ib. 
 
 The words "without impeachment of 
 waste," as applied to trustees, ib. 
 
 Waste by trustees, 287 
 
 Parties having only an equitable inter- 
 est in land, ib. 
 
 The Court of Chancery does not in gen- 
 
 eral interfere to prevent permissive 
 waste, 287 
 
 Ecclesiastical dilapidations, ib. 
 
 Waste by copyholders, 290 
 
 Tenants-in-common, ib. 
 
 Waste from the removal of fixtures, ib. 
 
 The right to remove fixtures, 292 
 
 Landlord's fixtures, ib. 
 
 Tenant's fixtures, 294 
 
 Agiicultui-al tenant's fixtures made re- 
 movable by statute, 296 
 
 Ornamental fixtures, 297 
 
 Domestic and trade fixtures, ib. 
 
 Fixtures removable by local custom and 
 usage, 298 
 
 Abandonment of the right to disannex 
 and remove ornamental and trade- 
 fixtures, ib. 
 
 Inability of the tenant to remove fix- 
 tures after the expiration of the term 
 of hiring, ib. 
 
 Right of purchasers, or mortgagees, to 
 enter and remove fixtures, 299 
 
 Waste committed by strangers upon 
 land demised to a tenant or lessee, 
 300 
 
 License to commit waste, 300 
 
 Right of reversioners to enter upon 
 lands in the possession of their lessees 
 to inspect waste, 301 
 
XU 
 
 CONTENTS. 
 
 Injuries to lands and tenements from 
 
 fire, 301 
 Accidental fires, 303 
 Fire spi-eading from blast furnaces and 
 
 steam-engines, 305 
 Fire spreading from railways to the 
 1 adjoining property, ih. 
 Fires occasioned by the negligence of 
 
 servants, 307 
 Injuries from gunpowder and explosive 
 
 substances — Explosions of gas, 308 
 
 Section II. — Remedies at common law 
 for injuries to lands from waste, neg- 
 ligence, and fire, 309-316 
 
 The writ of prohibition for waste, 309 
 
 Actions for waste, ib. 
 
 Actions by owners of insured premises, 
 
 310 
 Parties to actions for waste, ib. 
 Declarations for waste, 311 
 Declai-ations upon the custom of the 
 
 realm for the negligent keeping of a 
 
 fire, 312 
 
 Pleas, 312 
 
 Evidence at the trial — Proof on.the pari 
 of the plaintiff, ib. 
 
 Damages recoverable in respect of 
 the severance and sale of fixtures, 
 313 ■ 
 
 Effect of the recovery of nominal dam- 
 ages, 314 
 
 Assessment of damages, ib. 
 
 Damages recoverable from a tenant 
 who obstructs the reversioner in the 
 exercise of his right to enter upon the 
 demised premises to inspect waste, 
 315 
 
 Sectioit hi. — Of injunction to prevent 
 waste, 316-320. 
 
 Prevention of commissive or wilful waste 
 
 by injunction, 316 
 Effect of acquiescence in the commission 
 
 of waste, 319 
 Effect of laches or delay in seeking a 
 
 remedy, 320 
 Parties entitled to sue in equity, ib. 
 
 CHAPTER VI. 
 
 OP TRESPASS T3P0N KBAL PROPERTY — TITLE TO LANDS AND TENE- 
 MENTS, 321-389. 
 
 Section I. — Of trespasses upon lands 
 and tenements, 321-332. 
 
 What constitutes a trespass, 322 
 
 Abuse of a license or authority render- 
 ing a party a trespasser ah initio, 
 %b. 
 
 Trespasses by cattle and domestic ani- 
 mals, 324 
 
 Trespasses from want of fences, and 
 from defective fences, 327 
 
 Who is bound to fence and repair fences, 
 328 
 
 Destruction of crops by rabbits and 
 pigeons, 329 
 
 Damage done by intruding dogs, ib. 
 
 Trespasses where the surface and sub- 
 soil of land constitute separate free- 
 holds, 330 
 
 Forcible entry and detainer, ih. 
 
 Of trespasses upon the soil of highways 
 set out and dedicated to the public by 
 private proprietors, 331 
 
 Of continuing trespasses, 333 
 
 SacTioif II. — Of the title to land, fences, 
 and hoimdary-walls, 333-354. 
 
 Proof of possession of land and pernancy 
 of the rents is prima fade evidence 
 of a seisin in fee of a person pos- 
 sessed, 833 
 
 Trial of title in an action of trespass, i6. 
 
 Title to realty from twenty years' pos- 
 session — ^Limitation of actions for the 
 recovery of realty, ih. 
 
 Accrual of the right on dispossession or 
 discontinuance of possession, 334 
 
 What is a dispossession or discontinu- 
 ance of possession causing the time of 
 limitation to begin to run, 335 
 
 Occupation by poor relations and ser- 
 vants — The possession of the servant 
 the possession of the master, ih. 
 
 Accrual of the right on death, aliena- 
 tion, forfeiture, etc., 336 
 
 Conversion of defeasible tenancies-at- 
 will into an indefeasible title^Pos- 
 session of land by a cestvA que trust, ib. 
 
CONTENTS. 
 
 Title of hond-fide purchasers of trust es- 
 tates, 337 
 
 Acquisition of title by parties who ob- 
 tained possession originally as ten- 
 ants from year to year, 338 
 
 Kflfect of continued wrongffal receipt of 
 rent, ibl 
 
 Entry upon land, and continued claim, 
 339 
 
 Possession of coparceners, joint-tenants, 
 and tenauts-in-common, ib. 
 
 Possession of younger brothers or rela- 
 tions, ib. 
 
 Acknowledgments of title, ib. 
 
 Ecclesiastical and eleemosynary corpo- 
 rations, ib. 
 
 Disabilities, ift. 
 
 Preservation of the rights of the land- 
 owner by re-entry and resumption of 
 possession of lands before the expira- 
 tion of the period of limitation, 341 
 
 Rights of mortgagees, 343 
 
 Title to the church, chancel, and church- 
 yard, ib. 
 
 Title to the sea-shore and bed of navi- 
 gable rivers, 345 
 
 Title to the soil of rivers or fresh-water 
 lakes, 348 
 
 Of the. title to waste uninclosed land 
 adjoining the sea-shore, 349 
 
 Kight to the soil of turnpike-roads and 
 highways, ib. 
 
 Of the right to the soil of accommoda- 
 tion-ways and private roads, 350 
 
 Title to waste lands adjoining public 
 highways, ib. 
 
 Of the right to the soil of towing-paths 
 and the banks of rivers and canals,351 
 
 Right of property in trees and bushes, 
 352 
 
 Of the ownership of trees standing in 
 boundary-hedges, 353 
 
 Right of property in boundary-walls 
 and fences, ib. 
 
 Of the ownership of ditches and hedges, 
 354 
 
 Title to a pew in a church, 355 
 
 Sbctioit III. — Of actions for trespasses 
 upon lands and tenetnents, 355-388. 
 
 Of actions against the hundred for 
 
 damage done to tenements by rioters, 
 
 355 
 Parties to be made plaintiffs in actions 
 
 for trespasses — Heirs-at-law, 356 
 Tenants-in-common, ib. 
 Tenant and reversioner, 357 
 Parties to be made defendants, 358 
 Declaration for trespasses upon land — 
 
 Venue, 359 
 What may be given in evidence under 
 
 the plea of not guilty, 360 
 
 Of pleas denying the plaintiflfs title or 
 right of possession, 360 
 
 Of the plea of liberum tenementwm, or 
 plea of freehold, 361 
 
 Replication — Estoppel, ib. 
 
 Of the plea of leave and license — Equit- 
 able defence, ib. 
 
 Special pleas of matters in confession 
 and avoidance — Matters of excuse, 362 
 
 Of pleas of justification of trespass, 363 
 
 Justification of trespass under the 
 powers and provisions of an act of 
 parliament, ib. 
 
 Pleas justifying the breaking and enter- 
 ing a dwelling-house without warrant, 
 364 
 
 Of pleas of justification under a pre- 
 scriptive title, ib. 
 
 Pleas of justification in the exercise of 
 a right of way, 365 
 
 Replications traversing the prescriptive 
 right set up by the defendant's pleas, 
 366 
 
 Traverse of the enjoyment as of right 
 and without interruption, 367 
 
 Replications traversing the enjoyment 
 of a right of way, 368 
 
 Facts and circumstances which must be 
 specially replied, and cannot be given 
 in evidence under a general traverse 
 of the enjoyment as of right and 
 without interi'uption for the periods 
 ' named in the Prescription Act, ib. 
 
 Replication of the existence of a tenancy- 
 for-life dui-ing part of the period of 
 enjoyment relied upon by the plea, 
 370 
 
 Rejoinder traversing the fact of the 
 existence of the tenancy-for-life dur- 
 ing part of the period of enjoyment, ib. 
 
 Evidence at the trial — Proof on the 
 part of the plaintiff, ib. 
 
 Proof under a traverse of the plaintiffs 
 possession, or right of possession, of 
 the locus in quo, 371 
 
 Proof by the reversioner, 374 
 
 Heir-at-law, ib. 
 
 Proof of disseisin and re-entry, ib. 
 
 Evidence for the defence, 375 
 
 Proof of leave and license, 376 
 
 Proof of pleas of justification, 378 
 
 Proof of right of way — Pleas of justifir 
 cation, ib. 
 
 Proof of deviations extra via/m in the 
 case of private ways, 379 
 
 Proof of a public right of way, 380 
 
 Proof of a right of way over vacant or 
 waste strips of land extending along- 
 side a public thoroughfare, ib. 
 Proof of entry on the plaintiff's land for 
 the purpose of depositing thereon the 
 plaintiff's own goods, or removing 
 therefrom the goods of the defendant, 
 ib. 
 
XIV 
 
 CONTENTS. 
 
 Of the damages recoverable in actions 
 for trespasses upon real property, 
 381 . ,, 
 
 Trespasses on land after notice or warn- 
 ing not to trespass, ib. 
 
 Damages in respect of trespasses in 
 dwelling-houses, ih. 
 
 Assessment of damages in cases of in- 
 jury to buildings, 383 
 
 Assessment of damages for digging and 
 can-ying away coal and earth, ib. 
 
 Assessment of damages in respect of 
 trespasses by diseased cattle, 384 
 
 Assessment of damages where the plain- 
 tiff has no certain or determinate in- 
 terest in the property, 384 
 
 Apportionment of damages as between 
 tenant arid reversionor, ib. 
 
 Damages recoverable from one of sev- 
 eral co-trespassers, 385 • 
 
 Damages recoverable from tenants who 
 hold over wrongfully after the expira- 
 tion of a notice to quit, ib. 
 
 Trespass for mesne profits, 386 
 
 Prevention of trespasses by injunction, 
 387 
 
 CHAPTER VII. 
 
 OP TRESPASS AND CONVERSION OP CHATTELS — TITLE TO CHATTELS, 
 
 391-464, 
 
 Section I. — Qf trespass and conversimi 
 of chattels, 391-483. 
 
 Trespass upon personalty, 392 
 
 Conversion of chattels, 396 
 
 Wrongful destruction of chattels, ib. 
 
 Fixtures severed from the inheritance, 
 397 
 
 Conversion of chattels by purchasers 
 without title, ib. 
 
 When a demand and refusal must be 
 proved in order to establish a conver- 
 sion, ib. 
 
 What is a sufficient demand and i^efusal, 
 ib. 
 
 Goods not in the possession of the de- 
 fendant at the time of the demand, 400 
 
 Goods found, ib. 
 
 Goods deposited in the hands of public 
 officers, servants and bailees, ib. 
 
 Fraudulent deposits, 403 
 
 Conversion of goods by railway com- 
 panies, ib. 
 
 Conversion of bills and notes, ib. 
 
 Conversion of lost or stolen bank notes 
 or negotiable securities, 404 
 
 Conversion of chattels by one of several 
 partners, joint-tenants or tenants-in- 
 common, 405 
 
 Conversion of trust property, 407 
 
 Right of lien, 408 
 
 Sbotioit II. — Of the title to chattels ^er- 
 sonal, 410-443. 
 
 Title to things altered by a wrongdoer, 
 410 
 
 Title to timber severed from the inheri- 
 tance, 411 
 
 Title to chattels by finding, 411 
 
 Title to wild birds and animals feroB 
 naturm — Right of the hunter to the 
 game he tills, 412 
 
 TQtle of the fishermen to the fish he har- 
 poons or nets, 413 
 
 Title to chattels by gift, 414 
 
 Title to clothes by hiring and service, 
 415 
 
 Of the right to the possession of grants 
 of arms, title-deeds, leases, bonds and 
 securities, ib. 
 
 Right to the possession of documents 
 and securities <for money as between 
 trustee and cestui que trust, 416 
 
 The right of property in letters, ih. 
 
 Title to chattels by purchase in market 
 overt, ib. 
 
 Title to chattels by private sale and 
 transfer, 418 
 
 Colorable transfers, 419 
 
 Title of innocent purchasers from fraud- 
 ulent vendors, 420 
 
 Transfers of chattels in the hands of 
 bailees, 421 
 
 Title by delivery order, ih. 
 
 Title by purchase ffom the .sheriff, 422 
 
 Title, to bills, notes and cheques, ib. 
 
 Title to the property of bankrupts, 
 423 
 
 Leaseholds — Onerous property, ib. 
 
 Contracts or dealings with the bankrupt 
 without notice, 425 
 
 Title to chattels purchased from a bank- 
 rupt after an act of bankruptcy, 426 ^ 
 
 Transfer of property by bankrupts con- 
 stituting an act of bankruptcy — 
 Fraudulent preference, ib. 
 
 Executions levied on the property of 
 bankrupts, 428 
 
CONTENTS. 
 
 XV 
 
 Title of trustee in bankruptcy to prop- 
 erty settled or transferred by bank- 
 rupt, 429 
 
 Title to chattels of which a banki-upt 
 was reputed owner, at the time of his 
 bankruptcy, ih. 
 
 Recovery of possession of the goods by 
 the true owner before notice of the 
 act of bankruptcy, 430 
 
 What things are comprehended under 
 the words " goods and chattels," ih. 
 
 What possession is within the statutes, 
 431 
 
 Reputation o.f ownership, 432. 
 
 Things sold by the bankrupt, and left 
 in his possession — Raw materials of 
 manufacture, 433 
 
 Goods and chattels which have never 
 been the property of the bankrupt, 
 435 
 
 Possession by manufacturers, workmen 
 and depositaries, 436 
 
 Possession, sale and disposition of chat- 
 tels by factors and commission agents 
 for sale, 437 
 
 Non-consent of the true owner, 439 
 
 Possession by a bankrupt cestui que 
 trust, ih. 
 
 Possession by bankrupt trustees, ih. 
 
 Goods in the apparent possession of the 
 bankrupt within the Bills of Sale Act,^ 
 
 • Title to trust property, 441 
 Right of property in things taken and 
 converted after recovery of judgment 
 in an action for the conversion of 
 them, ib. 
 
 Section III. — Remedies for the wrongful 
 conversion of chattels, 442-464. 
 
 Recaption of goods wrongfully seized 
 
 or stolen, 442. 
 Of the plaintiffs in actions of trespass 
 
 and conversion, 443 
 
 Joinder of joint-owners as plaintiffs — ■ 
 Joint-tenants and tenants-in-common 
 of chattels, 446 
 
 Parties to be made defendants, ih. 
 
 Of the staying of proceedings on the 
 delivery of the chattels to the plain- 
 tiff, 448 
 
 Declarations for a trespass, or for the 
 conversion of chattels, ih. 
 
 What may, be given in evidence under 
 the plea of not guilty, 449 
 
 Pleas denying the plaintiff's right of 
 property in, or his right to the pos- 
 session of, the chattel, 450 
 
 Pleas of justification, 451 
 
 Evidence at the trial — Proof, by the 
 plaintiff, 452 
 
 Proof of constructive possession of chat- 
 tels, ih. 
 
 Proof of title of trustees of bankrupts, 
 executors, and nominal parties, 454 
 
 Proof of conversion, ib. 
 
 Evidence for the defence, 455 
 
 When the defendant is estopped from 
 disputing the title of the plaintiff, 456 
 
 Evidence under pleas of justification, 
 ih. 
 
 Of the assessment of damages, 457 
 
 Assessment of damages where the plain- 
 tiff has only a limited or doubtful in- 
 • terest in the goods, 461 
 
 In cases between pawnor and pawnee, 
 ih. 
 
 Damages for the conversion of bills and 
 notes, ib. 
 
 Of the damages recoverable where the 
 plaintiff has offered to return the 
 goods, or the defendant has received 
 them back after the commencement 
 of the action, 462 
 
 Damages in the nature of interest, over 
 and above the value of the goods; 
 463 
 
 Special damages, ih. 
 
 Damages in actions for seizures under 
 the Customs' Act, 464 
 
 CHAPTER VIII. 
 
 OP TRESPASSES AND INJURIES FROM NEGLIGENCE — NEGLIGENT MANAGE- 
 MENT OP CHATTELS, 465-520. 
 
 SBCTioif I. — Of trespasses and injuries 
 from negligence — Negligent 'manage- 
 ment of chattels, 465-502. 
 
 Negligence and inevitable accident, 
 
 465 
 Negligence of carriers of passengers fbr 
 
 hire, 467 
 
 When. the very occurrence of a railway 
 accident is prima facie proof of negli- 
 gence, 472 
 
 Accidents at level crossings, 473 
 
 Injuries from secret defects in carriages 
 or race-stands, 474 
 
 Collisions in public thoroughfares— Neg- 
 ligent driving, 475 
 
XVI 
 
 CONTENTS. 
 
 Liability of the master for the negli- 
 
 g^ence of his servant, 475 
 Liabilities of owners of carriages let to 
 hire who select and send their own 
 coachmen, 478 
 Liabilities of borrowers of carriages for 
 
 the negligence of their drivers, 479 
 Identification of the passenger with his 
 
 driver, ib. 
 Negligence of servants in breaking-in 
 
 and training horses, 480 
 Collisions in public thoroughfares, i&. 
 Collisions between vessels — Compulsory 
 
 pilotage, ih. 
 Collisions with foreign ships, 483 
 Non-observance of statutory or Admi- 
 ralty regulations, ib. 
 Collisions between vessels — Limitation 
 
 of liabihty, 486 
 Negligent navigation causing damage 
 
 to owners of cargoes, ih. 
 Duty of master or shipowner as to goods 
 
 damaged on voyage, 487 
 Negligent stowage causing injury to 
 
 goods, ih. 
 Negligent navigation causing personal 
 
 injury — Damage to sea-walls, etc., 488 
 Negligence of masters causing injuiy to 
 
 their servants, 488 
 Injuries to one fellow-servant from the 
 
 negligence of another fellow-servant, 
 
 490 
 Injuries to volunteers who assist gratu- 
 itously in work of a dangerous na- 
 ture, 493 
 Contributory negligence on the part of 
 
 the plaintiff, ib. 
 Negligence on the part of the plaintiff 
 
 forming no impediment to an action 
 
 for damages, 495 
 Injuries from the negligence of skilled 
 
 workmen and professional men, ih. 
 Negligence of attorneys and solicitors, 
 
 496 
 Negligence of bai-risters, 500 
 Negligence of surveyors or valuers, i&. 
 
 Negligence of bank managers, 501 
 Negligence of directors of public com- 
 panies, ib. 
 
 SBCTiour II. — Of ctctions fornegligeTice — 
 Direct and consequential injuries, 502- 
 520. 
 
 Actions for compensating the families of 
 persons killeid by neghgence, 502 
 
 Actions at law, and proceedings in the 
 High Court of Admiralty for negli- 
 gence, 504 
 
 Parties to be made plaintijfe, 505 
 
 Joint and separate rights of action, ib. 
 
 Parties to be made defendants, 506 
 
 Contractor and sub- contractor, 508 
 
 Negligence of servants working under 
 builders, contractors, and sub-con- 
 tractors, 509 
 
 Voluntary and involuntary trespasses — 
 Direct and consequential injuries, 
 510 
 
 Joint and separate liabilities, 511 
 
 Declarations for injuries from negli- 
 gence, ib. 
 
 Plea of not guilty, 513 
 
 Evidence at the trial — Proof of negli- 
 gence, ib. 
 
 Proof of retainer and employment, 516 
 
 Proof of the ownership of chattels 
 damaged by negligence, ib. 
 
 Evidence for the defence — Questions for 
 the jury, ib. 
 
 Damages recoverable, 517 
 
 Damages not too remote, 518 
 
 Negligent management or navigation 
 of vessels, ih. 
 
 Damages when the plaintiff is insured 
 against loss, or has received full in- 
 demnity under a contract of insur- 
 ance, 519 
 
 Damages recoverable by personal rep- 
 resentatives in cases of death from 
 negligence, ih. 
 
 CHAPTER IX. 
 
 OF NEGLIGENCE ON THE PART OP BAILORS AND BAILEES — DETENTION AND 
 LOSS OP CHATTELS BY BAILEES, 521-566. 
 
 Section I. — Of negligence on tTie part 
 of bailors and bailees — Detention 
 aTid loss of chattels by bailees, 521- 
 553. 
 
 Of bailments of chattels, 522 
 Negligence of bailors, ib. 
 
 Of the negligent keeping of chattels by 
 bailees, 522 
 
 Loss of chattels by workmen, 527 
 
 Theft by servants, ib. 
 
 Negligent keeping of goods by ware- 
 housemen, wharfingers, and deposit- 
 aries for hire, 529 
 
CONTENTS, 
 
 XVU 
 
 Distinction between robbery ?ind theft, 
 530 
 
 Losses occasioned by the negligence of 
 the bailor, ib. 
 
 Loss of chattels by wharfing-ers," 531 
 
 Loss of cattle— Liabilities of agisters of 
 cattle, tt>. 
 
 Deposit of luggage and parcels at rail- 
 way stations, 532 
 
 Depvisit of goods under a speoi3,l con- 
 tract, ih'. 
 
 Loss of goods by pa,rties receiving them 
 to be carried, but who are common 
 caj-riers, 533 
 
 Limitation of liability of shipowners, 536 
 
 Detention of chattels by bailees under 
 a claim of lien, ib. 
 
 Particular liens and general liens, 537 
 
 Ordinary lien of workmen and artificers, 
 538 
 
 A person cannot set up a, right of lien 
 which is at variance with the terms 
 or conditions, or implied understand- 
 ing, upon which he received the 
 property, 539 
 
 Parties against whom a lien may be 
 claimed, 541 
 
 General lien, 542 
 
 Lien of factoids and brokers, 543 
 
 Insurance brokers, ib. 
 
 Lien of bankers, 545 
 
 Lien of attorneys and solicitors, ib. 
 
 Certificated conveyancers have no lien, 
 547 
 
 Lien of shipmasters, ib. 
 
 Lien for freight, 548 
 
 Lien of consignees, ib. 
 
 Notices that goods will be held subject 
 to a general lien, ib. 
 
 General lien by custom of trade — 
 Warehouse keepers — Whai'fingers, ib. 
 
 Lien of policy-brokers, 549 
 
 Extinguishment of lien by abandonment 
 of possession, 550 
 
 Statutory power of sale in discharge of 
 a right of lien, 551 
 
 Tender of the debt in extinguishment of 
 the right of lien, 551 
 
 Detention of goods and chattels, deeds 
 and securit^s, by one of several joint- 
 owners or tenants-in-common, 552 
 
 Re-delivery of chattels to one of several 
 joint-bailors, ib. 
 
 Section II. — Of aetionsfor the negligent 
 management, negligent keeping, and 
 unlawful detaining of goods and 
 chattels, 553-566. 
 
 Parties to be made plaintiffs, 553 
 
 Joint and separate rights of action, 555 
 
 Power to compel rival claimants to 
 establish their title by garnishment 
 and by interpleader, 556 
 
 Declai-ations against bailees for loss of 
 chattels, 557 
 
 Declarations against bailees for damage 
 to chattels, 558 - 
 
 Plea of not guilty, ib. 
 
 Plea of non-detinet, ib. 
 
 Pleas of delivery to one of several joint- 
 plaintiffs, 559 
 
 Pleas denying the- plaintiff's property, 
 ib. 
 
 Pleas justifying detention imder claim 
 of lien, 560 
 
 Pleas of payment of money into court, 
 ib. 
 
 Evidence — Proof on the part of the 
 plaintiff, 561 
 
 Evidence for the defence, 562 
 
 Proof of abandonment of possession 
 before commencement of action, 563 
 
 Damages recoverable — Orders for de- 
 livery of the specific thing detained, 
 564 
 
 Assessment of value, 565 . 
 
 Assessment of damages where the 
 whole, or part, of the goods have 
 been delivered up after action, ib. 
 
 Evidence in mitigation of damages, 566 
 
 CHAPTER X. 
 
 OF NBGLIQENCE OP BAILORS AND BAILEES — LIABILITIES OP COMMON 
 
 CARRIERS, COMMON FERRYMEN, COMMON INNKEEPERS, AND 
 
 LODGINQ-HOUSB KEEPERS, 567-632. 
 
 Bbctiow I. — Of negligence and breach of 
 duty on the part of common carriers, 
 568-606. 
 
 Duties and responsibilities of common 
 carriers, 568 
 
 Ad. — ^B 
 
 Who may be said to be a common cai'- 
 
 rier, 571 
 Public profession of railway companies 
 
 through their time-tables and toU- 
 
 tables, ib. 
 Duty of railway and canal companies to 
 
XVIU 
 
 CONTENTS. 
 
 afford reasonable facilities for the car- 
 rying of passengers, merchandise, and 
 chattels, 572 
 
 Loss of goods by common carriei-s, 574 
 
 Concealment of risk by consignors, 578 
 
 Contributoiy negligence, ib. 
 
 Inability of the common carrier to rid 
 himself of the public duties imposed 
 upon him, 579 
 
 Statutory protection of common caniers 
 in respect of the carriage of gold and 
 silver, title-deeds, valuables, etc., 580 
 
 Of the fixing up of notices required by 
 the statute, 581 
 
 When a declaration of value is a condi- 
 tion precedent to any liability on the 
 part of the common carrier, 582 
 
 By whom the declaration of value is to 
 be made, and the increased rate of 
 carriage paid, 583 
 
 Articles to which the statute extends, 
 lb. 
 
 Losses covered by the statute, 585 
 
 Loss of goods from theft by the common 
 carrier's servants, ib. 
 
 Inability of railway and canal compa- 
 nies to exonerate themselves from lia- 
 bility for their own neglect, default, or 
 breach of duty by notice, condition, 
 or declaration, 586 
 
 Signatui'e of notices, conditions, dfecla- 
 rations, and special contracts, 589 
 
 What are just and reasonable conditions 
 respecting the receiving, forwarding, 
 and delivering goods, 590 
 
 Commencement and duration of the lia- 
 bility — Damage or loss of goods in 
 warehouses, 593 
 
 Delivery of goods at the place of desti- 
 nation, ih. 
 
 Delivery of luggage at railway stations, 
 595 
 
 Acceptance of goods and passengers to 
 be carried beyond the limits of the 
 ordinary destination, ih. 
 
 Loss of passengers' luggage by railway 
 companies, ,598 
 
 Loss of merchandise carried as luggage, 
 599 
 
 Limitation of the liability of shipowners, 
 600 
 
 Refusal of the consignee to receive the 
 goods — Liability of the carrier as 
 bailee, ib. 
 
 Landing of goods by shipowners where 
 the consignee fails to take them away, 
 ib. 
 
 Lien of common earners, 601 
 
 Railway charges, 603 
 
 Charges for packed parcels, 604 
 
 Passenger fares— Bight of a passenger 
 to alight at intermediate stations, 604 
 
 Duties and responsibilities of common 
 ferrymen, 605 
 
 Loss of rgoods by common ferrymen and 
 common hoymen, ih. 
 
 Section II. — Negligence of common inn- 
 keepers and lodging-hoiise keepers 
 606-619. 
 
 Of the duty of common innkeepers to 
 provide food and shelter for travellers 
 and wayfaa-ers, 606 
 
 %ho may be said to be a common inn- 
 keeper, 607 
 
 Duty of the innkeeper to protect his 
 guest from i-obbery and theft, 608 
 
 Limitation by statute of the liability of 
 innkeepers, 613 
 
 Losses occasioned by the misconduct of 
 the guest, 614 
 
 Who are guests and travellers, 615 
 
 Lien of innkeepers, 616 
 
 Detention of the person of the guest, 617 
 
 Liability of lodging-house keepers, ib. 
 
 Section III. — Remedies against common 
 carriers and cmmnon innkeepers for 
 negligence and breach of duty, 618- 
 632 
 
 Summary proceedings against railway 
 and canal companies, 618 
 
 Parties to be made plaintiffs in actions 
 against carriers, ib. 
 
 Parties to be made defendants, 620 
 
 Declarations against k common carrier 
 for refusing to carry, 622 
 
 Declarations against an innkeeper for 
 the loss of chattels deposited within 
 the precincts of the inn, ib. 
 
 Plea of not guilty, ib. 
 
 Special pleas, 623 
 
 Evidence at the trial — Proof of the bail- 
 ment, ib. 
 
 Proof of a special contract, 625 
 
 Proof of felony by a carrier's servants, ib. 
 
 Proof of jus tertii by a common cai-rier, 
 ib. 
 
 Damages recoverable, 626 
 
 Loss of, or injury to, chattels from neg- 
 ligence, ib. 
 
 Damages in respect of delay in delivery, 
 628 
 
 Injunction against railway companies to 
 enforce compliance with the Railway 
 and Canal Traffic Act, 629 
 
CONTENTS. 
 
 CHAPTER XI. 
 
 OP WRONaPUL DISTRESS — DISTRESS POR RENT- 
 PEASANT, 633-688. 
 
 -DISTRESS DAMAGE 
 
 SscTioir l.-^Of iinlawfiel and excessive 
 distresses, 633-666. 
 
 Distress for rent in arrear, 638 
 
 When there is no certain ascertained 
 rent there is no right to distrain, 636 
 
 Of conditions precedent to the right to 
 distrain, 638 
 
 Distress for rent payable in advance — 
 Rent when due — Several demises, ib. 
 
 Distress after the tej-minatiou of the 
 term of hiring-, 639 
 
 Distress by agents — Joint tenants — Ten- 
 nants-in-common, etc., 641 
 
 Distress by executors and administra- 
 tors, 643 
 
 Agreements not to distrain, ib, 
 
 Acceptance of a bill or note by way of 
 payment, ib. 
 
 Tender of rent before disti-ess, 643 
 
 Time, mode and place of distraining, ib. 
 
 Things not distrainable, 644 
 
 Perishable articles, growing crops, frmt, 
 money, etc., 645 
 
 Property of strangers on the demised 
 premises in their own possession, 646 
 
 Property of strangers placed on the de- 
 mised premises, with the leave and 
 license of the landloi-d, 647 
 
 Materials placed on the demised prem- 
 ises to be manufactured or worked 
 upon, 648 
 
 Property of gniests at a common inn 
 cannot be distrained, ib. 
 
 Chattels in the custody of the law are 
 not distrainable, ib. 
 
 Statutory exemption from distress in 
 favor bf foreign ambassadors and 
 public companies in liquidation, 649 
 
 Things distrainable — Chattels of traders 
 left on the demised premises in the 
 possession of the tenant, 650 
 
 Distress of chattels mortgaged by the 
 tenant, 651 
 
 Things distrainable under a license to 
 distrain, 652 
 
 Disti-ess and seizure of things fraudu- 
 lently removed, 653 
 
 What amounts to a distress for rent, 654 
 
 Abtlse of the .right to distrain rendering 
 parties trespassers ab initio, 655 
 
 Of unlawful distress when no rent was 
 in aiTear, 656 
 
 Kxcessive.djstresses, ib. 
 
 Distress for more rent than is due, 657 
 
 Repeated distress for the same rent, 658 
 
 Impounding the goods — Pound-breach, 
 659 
 
 Abandonment of distress, 660 
 
 Statutory power of sale, ib. 
 
 Tender of rent rendering a sale unlaw- 
 ful, ib. 
 
 Parties to whom tender may be made, 
 661 
 
 Power of sale of growing crops and 
 things fi'audulently removed — Tender 
 before sale, .ib. 
 
 Notice of distress, 662 
 
 Appraisement and sale, 663 
 
 Costs and expenses, ib. 
 
 Effect of non-compliance with the stat- 
 utes authorizing the sale, 664 
 
 Keeping the distress without selling, 665 
 
 Indemnification of bailiffs, ib. 
 
 Section II. — Of distress damage feasant, 
 666-671. 
 
 Seizure and impounding of animals and 
 chattels damage feasant, 666 
 
 Right to distrain animals trespassing 
 and doing damage on unfenced lands 
 adjoining public highways, 667 
 
 What things may be distrained damage 
 feasant, 668 
 
 Distress by I'ailway companies of loco- 
 motive engines damage feasant, 669 
 
 Telxder of amends, ib. 
 
 Sale of impounded animals, 670 
 
 Duties and responsibilities of pound- 
 keepers, 671 
 
 Section III. — Remedies for unlawful 
 and excessive distresses, 671-688. 
 
 Replevin of things distrained, 671 
 Replevin in the county court, 673 
 Replevin in the superior courts, 674 
 Actions of replevin of things distrained 
 
 damage, feasant, ib. 
 Actions for unlawfully selling impound- 
 ed animals and cattle, ib. 
 Actions for unlawful and excessive dis- 
 tresses, 675 
 Parties to be made plaintiffs, ib. 
 Parties to be made defendants, 676 
 
zx 
 
 CONTENTS. 
 
 Declarations in replevin, 677 
 
 Declarations for a wi'ongful and exces- 
 sive distress, i6. 
 
 Declarations for distraining: and selling 
 goods without notice of distress, or 
 without appraisement, or for not sell- 
 ing for the best piice, ih. 
 
 Pleas in replevin — Non cepit, 678 
 
 Avowiies in replevin, ih. 
 
 Avowries for double rent, 679 
 
 Avowries by joint tenants, coparcenei'S, 
 and tenants-in-common, ib. 
 
 Pleas in bar to an avowry — Non-teuuit 
 — Riens in aiTere, 680 
 
 Payment of money into court, 681 
 
 Of the plea of not guilty " by statute " 
 
 . in actions of trespass, or upon the case 
 for an unlawful distress, ib. 
 
 Pleas justifying an entry upon land for 
 the purpose of • distraining goods 
 fraudulently removed, ib. 
 
 Pleas justifying the seizure of animals 
 damage feasant, 682 
 
 Pleas of a recovery of the goods in ten 
 actioTr of replevin, 682 
 
 Evidence at the trial — Proof of Jistress, 
 ib. 
 
 Proof of no rent being due, and of un- 
 la-wful and excessive distresses, US3 
 
 Proof of material averments in the deo 
 laration, 684 
 
 Proof that the defendant ordered or 
 authorized the distress, ib. 
 
 When proof of special damage is neces- 
 sary, ib. 
 
 Proof of waiver of right of action, ib. 
 
 Proof of tenancy, as between plaintiff 
 ♦and defendant, ib. 
 
 Proof of the nature and terms of a ten- 
 ancy, 685 
 
 Damages recoverable^Double value, 
 686 
 
 Pamages recoverable where the entry 
 upon the premises was effected in an 
 unlawful manner, 687 
 
 Recovery of special damage, ib. 
 
 CHAPTER XII. 
 
 OP ASSAULT AND BATTERY, AND WRONGFUL IMPRISONMENT, 689-737. 
 
 Section I. — Of assault and battery, and 
 mayhem, 689-697. 
 
 What constitutes an assault, 689 
 
 Assaults resulting from acts of negli- 
 gence, 691 
 
 Assaults by constables — HandcuflBng 
 unconvicted prisoners, ib. 
 
 Assault and battery, 692 
 
 Mayhem and wounding, ib. 
 
 Assault and batteiy in self-defence, 693 
 
 Assault in defence of the possession of a 
 house, or close, or of property, ib. 
 
 Assault in resistance of a forcible entry, 
 or to prevent a seizure of chattels, 694 
 
 Resistance to a forcible entry by a land- 
 lord, ib. 
 
 Assaults in preservation of the public 
 peace, 695 
 
 Battery and wounding in self-defence, 
 or in defence of the possession of 
 tenements or chattels, ib. 
 
 Sbctiok II. — Of false imprisonment, 
 697-710. 
 
 False imprisonment, 697 
 Constructive imprisonment, ib. 
 Imprisonment by order of a judge or 
 judicial officer, 698 
 
 Arrest in execution of warrants of jus 
 tices, 698 
 
 Arrest by constables without warrant, i6, 
 
 Arrest by private persons without war 
 rant, 700 
 
 Arrest for a misdemeanor, ib. 
 
 Arrest of the wrong party, 701 
 
 Arrest for malicious injuries to prop- 
 erty, ih. 
 
 Wilful and malicious trespass, 702 
 
 Arrest of persons committing indictable 
 offences in the night, ih. 
 
 Arrest for an assault and bi-each of the 
 peace, ih. 
 
 Arrest during the continuance of an af- 
 fray, 703 
 
 What amounts to a breach of the peace, 
 704 
 
 An-est of persons disturbing divine ser- 
 vice, ib. 
 
 Arrest of vagrants and persons found 
 committing acts of public indecency, 
 705 
 
 AiTCst under the Merchant Shipping 
 Act, ib. 
 
 Arrest of a principal by his bail, ih. 
 
 Arrest for offences committed within the 
 limits of the Metropolitan Police <Ma. 
 trict, 706 
 
 AiTest by servants of railway compa- 
 nies, 707 
 
CONTEyTS. 
 
 XXI 
 
 Detention of recruits and deserters, 708 
 Imprisonment of dangerous lunatics, ib. 
 
 Sbction III. — Of actions for assault 
 and battery, and for false imprison- 
 ment, 709-737, 
 
 Statutory protection to constables and 
 their assistants from vexatious ac- 
 tions, 709 
 
 Protective clauses in favor of parties 
 acting in the execution of acts of par- 
 liament, 711 
 
 Limitation of actions, and notice of ac- 
 tion, 712 
 
 Notice of action to pei-sons acting in 
 exftcution of the Lai-ceny Act, 714 
 
 Notive of action to persons acting in 
 evceution of the Metropolitan Police 
 AcJ, 71 S 
 
 Perso.as entitled to the benefit of the 
 pi"otection, ib. 
 
 Length of notice of action, ih. 
 
 Statement of the cause of action, 716 
 
 Tender of amends, 717 
 
 Payment of money into court, ib. 
 
 Parties to be made plaintiffs— Master 
 and servant, ib. 
 
 Of tha parties to be made defendants, ib. 
 
 Liability of a corporation to an action 
 for an assault, 720 
 
 Subsequent ratification of wrongful im- 
 prisonment rendering the ratifying 
 party responsible for the wrong, 721 
 
 Declarations for an assault and false 
 imprisonment, 722 
 
 What may be given in evidence under 
 the plea of not guilty, 723 
 
 Not guilty by statute, 724 
 
 Pleas setting forth a previous hearing 
 and dismissal by magistrates, ib. 
 
 Pleas of justification, 726 
 
 Defence of neighbors and friends, 727 
 
 Moderate correction by parents, school- 
 masters, masters of ships, etc., ib. 
 
 Pleas of justification of imprisonment, 
 728 
 
 Evidence of trial — Proof of an assault, 
 780 
 
 Proof o^ an arrest and imprisonment, 
 731 
 
 Evidence for the defence, ib. 
 
 Damages recoverable, 733 
 
 Damages where there are several co- 
 trespassers, 734 
 
 Prospective damages, ib. 
 
 Special damages in action for false im- 
 prisonment, 735 
 
 Evidence in mitigation of damages, 73^. 
 
 CHAPTER XIII. 
 
 OP ttlALICIOUS CONSPIRACY, MALICIOUS PROSECUTION AND ARREST — 
 MALICIOUS ABUSE OP LEGAL PROCESS, 739-768. 
 
 Sbctioit I. — Of malicious conspiracy, 
 malicious prosecution and arrest — 
 Malicious abuse of legal process, 739- 
 758. 
 
 Malicious conspiracy, 739 
 
 Malicious exhibition of articles of the 
 peace against another, 741 
 
 Malicious prosecution, 742 
 
 What is evidence of a want of reason- 
 able and probable cause, and of 
 malice, ib. 
 
 Prosecution by persons who manifest a 
 consciousness of the innocence of the 
 accused, 744 
 
 Prosecutions under the advice of coun- 
 sel, 746 
 
 Malicious complaints before magistrates 
 — Maliciously causing a justice's war- 
 rant to be issued against the plaintiflf, 
 748 
 
 Continuance by defendant of proceed 
 ings commenced without his knowl- 
 edge, 750 
 
 Efl'ect of the complaint or information 
 before the magistrate being followed 
 up by a conviction of the plaintiff, ib. 
 
 Maliciously causing a search-waTrant 
 to issue, 751 
 
 Malicious indictment, ib. 
 
 Malicious prosecution by court-martial, 
 ib. _ 
 
 Malicious assertion of a legal right, ib. 
 
 Malicious and unfounded actions, 752 
 
 Maliciously putting the process of the 
 law in motion in the name of a pauper 
 or insolvent, ib. 
 
 Maliciously issuing execution for a 
 larger siim than is due upon a judg- 
 ment, 753 
 
 Maliciously causing an extent to issue, 
 754 
 
XXll 
 
 CONTENTS. 
 
 Malicious proceedings in bankruptcy, 
 
 754 
 Malicious abuse of legal process, 755 
 Malicious detention of judgment-debtors 
 
 after tender of the debt and costs, 
 
 ib. 
 Malicious arrest, 756 
 What amounts to a malicious arrest — 
 
 Proof of actual custody, 757 
 
 SECTioif II. — Of actions for malicious 
 arrest and inalicious prosecfution, 758- 
 768. 
 
 Parties to be made defendants, 758 
 Pendency of a rule for a criminal infor- 
 mation against the defendant, 759 
 
 Declarations for a maUcions prosecu- 
 tion, 759 
 
 Of the plea of not guilty in actions for a 
 malicious arrest and malicious prose- 
 cution, 760 
 
 Pleas of justification, ib. 
 
 Evidence at the trial — Proof on the part 
 of the plaiutiflF — Malicious arrest, or 
 prosecution, 761 
 
 Proof of malicious informations and 
 complaints l)efore magistrates, 762 
 
 Proof by certified copy of the record of 
 the prosecution and acquittal, 763 
 
 Proof of malice and of want of reason- 
 able and probable cause, 764 
 
 Pft)of on the part of the defendant, 766 
 
 Of the damages recoverable in actions;, 
 for a malicious prosecution, 767 
 
 CHAPTER XIV. 
 
 OP TRESPASS IN EXECUTION OP VOID OR IRREaULAR PROCESS — RESPON- 
 SIBILITY OP JUDQES AND MINISTERIAL OPFICBRS OP JUSTICE, 
 AND PERSONS SETTING THEM IN MOTION, 769-821. 
 
 SECTioif I. — Of trespasses in execution 
 of void or irregular process — Hespon- 
 sibility of judges and, ministerial offi- 
 cers of coiirts of justice, and persoiis 
 setting them in motion, 769-779. 
 
 Exemption of judges from actions in re- 
 spect of things done in the exercise of 
 their judicial functions, 770 
 
 Arbitrators, 771 
 
 Conditions precedent to the existence of 
 juiisdiction on the part of a judge, 772 
 
 Disqualification of judges on account of 
 interest, 77S 
 
 Exemption of judges from actions where 
 they had a primd facie jui-isdiction, 
 and no objection is taken to their jur- 
 isdiction, ib. 
 
 Orders of commitment by county court 
 judges, 775 
 
 Commitments for contempt, ib. 
 
 Statutoiy foiTus of commitment by 
 county court judges, 776 
 
 Who are judges and judicial officers, ib. 
 
 Delegation of judicial functions, 777 
 
 Removal of the proceedings of inferior 
 courts for a. revision by a superior 
 tribunal, ib. 
 
 Pi'oceedings against county court judges" 
 to compel them to act in particxilar 
 cases, 778 
 
 Proceedings of courts martial, 779 
 
 Sbction II. — Of the duties and responsi- 
 bilities of ministerial officers of courts 
 of Justice, 779-805. 
 
 Illegal assumption of the judicial office 
 
 by ministerial officers, 779 
 Neglect of duty by ministerial officers 
 
 of courts of justice, 780 
 Duties and responsibilities of the sheriff 
 
 and his officers— Execution of wiits, 
 
 ib. 
 Priority of writs of execution, 781 
 Trespasses by the sheriff and his officers, 
 
 782 
 Execution of writs by special bailiflTs, 
 
 783 
 Trespasses in dwelling-houses by sher- 
 ' iffs and their officers under color of 
 
 the execution of legal process, ib. 
 Of the breaking open the outer door of 
 
 a dwelling-house in the execution of 
 
 legal process, 784 
 What amounts to a breaking of the 
 
 outer door, 785 
 Of the breaking open of inner doors in 
 
 the execution of a writ, ib. 
 Illegality of arrest or seizure of goods 
 
 eifected through the medium of an act 
 
 of trespass, 786 
 When the sheriflT becomes a trespasser 
 
 by remaining on premises an unrea- 
 sonable time, 787 
 
CONTENTS. 
 
 XXlll 
 
 Seizure of the goods of the wrong per- 
 son, 787 
 
 Seizure by sheriffs and their officers of 
 privileged or protected goods, 789 
 
 Power of the sheriff to compel rival 
 claimants to interplead and establish 
 their title, 790 
 
 Claims of landlords on sheriffs for rent 
 in arrear, 793 
 
 Sale by sheriffs of goods taken in exe- 
 cution, 794 
 
 Capture of the wrong person, i6. 
 
 A^rrest of the right person under a wrong 
 name, ib. 
 
 Illegal arrest on Sundays, 795 
 
 Incurability of a wrongful imprisonment- 
 — Arrest under one of several writs, 
 ib. 
 
 Arrest of privileged persons, 796 
 
 Countermand of writs and warrants, 
 ib. 
 
 Liability of the sheriff for an escape, 
 797 
 
 Recapture upon fresh pursuit, 798 
 
 Discharge of debtoi-s taken in execu- 
 tion, ib. 
 
 Arrest of the person and seizure of 
 goods under void or irregular process, 
 799 
 
 Exemption of sheriffs and others from 
 responsibility when the injury has 
 been brought about by the misrepre- 
 sentation of the plaintiff, 800 
 ( False returns to writs of execution, 801 
 
 Extortion by sheriffs and their officers, 
 ib. 
 
 Duties and responsibilities of the high- 
 bailiff, bailiffs and registrars of the 
 county court, 802 
 
 Liability of ministerial officers where 
 the court has no jurisdiction, and no 
 authority to issue the process, ib. 
 
 Duty of bailiffs of the county court to 
 satisfy the landlord's claim for rent, 
 803 
 
 Liabilities of gaolers, 804 
 
 Liability of the messenger of the Court 
 of Bankruptcy, 805 
 
 Section III. — Of actions against judges, 
 sheriffs and ministerial officers and 
 their assistcurcts, and parties setting 
 them in motion, 805-821. 
 
 Actions against county court judges — 
 
 Notice of action, 805 
 Remedies against sheriffs and oflScers 
 
 for an escape, 806. 
 
 Actions to recover money in the hands 
 
 of the sheriff, 806 
 Actions against high-bailiffs of county- 
 courts and their assistants, ib. 
 Statutory protection to high-bailiffs, and 
 
 persons acting by their order, or in 
 
 their aid, in the execution of county- 
 court warrants, ib 
 Of the staying of proceedings in actions 
 
 against high bailiffs and officers of 
 
 the county-court, 807 
 Plaintiffs in actions against sheriffs, 809 
 Of the defendants in actions for wrongs 
 
 done under color of legal process, ib. 
 Declaration against a sheriff for not 
 
 executing the Queen's writ, or for an 
 
 escape, 810 
 Declarations against sheriffs for remov- 
 ing goods taken in execution without 
 
 paying rent due to the landlord, i6. 
 Declarations against sheriffs for treble 
 
 damages for extortion, ib. 
 The plea of not guilty, 812 
 Pleas of justification, ib. 
 Justification in the execution of legal 
 
 process, ib. 
 Replications, 813 
 Evidence at the trial — Proof on the part 
 
 of the plaintiff, 814 
 Proof of judgments, writs, and process 
 
 from the superior courts, ib. 
 Delivery of Ihe wi'it to the sheriff to be 
 
 executed, ib. 
 Proof the sheriff's having directed or 
 
 authorized the commission of the 
 
 wrongful act, ib. 
 Proof of false return to a writ, 816 
 When admission by an under-sheriff 
 
 and bailiffs are evidence against the 
 
 sheriff, ib. 
 Proof of the removal of goods taken in 
 
 execution without paying the land- 
 lord's rent, ib. 
 Evidence of the process under which 
 
 the sheriff acted, 817 
 Evidence for the defence — Proof of rent 
 
 being in arrear at the time of the 
 
 levy, ib. 
 Proof of proceedings in the county-court, 
 
 ib. 
 Damages recoverable in actions against 
 
 sheriffs and officers — Negligence and 
 
 breach of duty, ib. 
 Assessment of damages in actions for an 
 
 escape, 818 
 Special damages, 820 
 Exemplary damages, 821 
 Recovery of treble damages for extor 
 
 tion, ift. 
 
xxnr 
 
 CONTENTS. 
 
 CHAPTER XV. 
 
 OP TRESPASSES AND INJURIES COMMITTED IN EXECUTION OP WARRANTS 
 
 AND ORDERS OP JUSTICES — RESPONSIBILITY OP MAGISTRATES, 
 
 CONSTABLES, THEIR ASSISTANTS, AND PERSONS 
 
 SETTING THEM IN MOTION, 823-879. 
 
 Section I. — Of trespasses and injuries 
 committed in the execution of warrants 
 and orders of jiistices, 824-886. 
 
 Of the jurisdiction of justices of the 
 peace, 824 
 
 Jurisdiction of justices residing or being 
 out of the county for which they are 
 justices, 826 
 
 Jurisdiction of borough justices under 
 the Municipal Corporation Act, ib. 
 
 The power of summary conviction, 827 
 
 Liability of justices for misconduct in 
 the exercise cf their judicial func- 
 tions, 828 
 
 Of the granting of search-waiTants by 
 magistrates, ib. 
 
 Liability of justices for acts done by 
 them without jurisdiction," or in excess 
 of their jurisdiction, 829 
 
 Exemption of justices from actions in 
 cases where they had a prima fade 
 jui'isdiction, and no objection was 
 taken to their jurisdiction until after 
 they had adjudicated, ib. 
 
 Wrongful proceedings by justices inter- 
 ested in the matter before them, 688 
 
 Wrongful commitment and imprison- 
 ment by justices, 831 
 
 Acts of a justice of the peace who has 
 not duly qualified, 834 
 
 Of the foi"m of commitment, ib. 
 
 Commitment by justices of accused per- 
 sons for trial — Examination of the 
 witnesses, 835 
 
 Effect of the depositions being taken in 
 the absence of the magistrate who 
 acts upon them, ib. 
 
 Convictions by magistrates on their own 
 view, 836 
 
 Summary convictions founded upon in- 
 formations, ib. 
 
 Statutoi-y provisions respecting sum- 
 mary convictions and orders of jus- 
 tices, 837 
 
 Requisites of the information or com- 
 plaint, ib. 
 
 Of the time within which the informa- 
 tion or complaint must be laid, 838 
 
 Proceedings upon information or com- 
 plaint, 839 
 
 Unlawful proceedings of justices when 
 there is no information or complaint 
 before them, 840 
 
 When a complaint once made cannot be 
 settled and withdrawn, ib. 
 
 Convictions by justices in excess of their 
 jurisdiction, 841 
 
 Ouster of the jurisdiction of justices by 
 setting up a claim of title, ib. 
 
 To what extent a justice of the peace is 
 protected in the exercise of a dis- 
 cretionary powei", 843 
 
 Wrongful ministerial acts, 844 
 
 Convictions upon by-laws, 845 
 
 Of the ^drawing up of convictions and 
 orders, 846 
 
 Disclosure of the authority and jurisdic- 
 tion of justices on the face of their 
 proceedings, 847 
 
 Description of the offence or subject- 
 matter of complaint, ib. 
 
 Of singling out the offender, 848 
 
 Description of the locality of the offence, 
 849 
 
 Orders and adjudications by justices, 
 ib. 
 
 Statutory forms of convictions and or- 
 ders, 851 
 
 Immateiiality of mere surplusage, ib. 
 
 Effect of the conviction, 852 
 
 Warrants of distress and commitment, 
 ib. 
 
 Exemption of justices from actions in 
 respect of waiTants of distress for 
 poor-rate, 854 
 
 Warrants of distress and commitment in 
 case of non-payment of costs by an 
 informer or complainant, ib. 
 
 Service of a copy of the minute of the 
 order before the issue of a warrant of 
 commitment or distress, ib. 
 
 The power of appeal to the court of 
 quarter sessions against summary 
 convictions and orders of justices, ib. 
 
 Excess of jurisdiction may be made a 
 gi'ound of appeal, 855 
 
 Of the execution of convictions and or- 
 dei-s after notice of appeal, 856 
 
 Exemption of justices from liability 
 where a defective conviction or order 
 has been confii-med upon appeal, ib. 
 
CONTENTS. 
 
 XXV 
 
 Statement of a case to the superior 
 courts by way of appeal from decis- 
 ions of justices, 857 
 
 Of the quashing of convictions and or- 
 dei-s — Remox'al of orders and convic- 
 tions by certiorari, 858 
 
 Decisions which are final, and cannot be 
 reviewed by certiorari or mandamus, 
 ih. 
 
 Commitment for contempt, 859 
 
 When the writ of certiorari is not taken 
 away by express statutory prohibi- 
 tion, ib. 
 
 Proof by afBdavit of the facts and cir- 
 cumstances calling for the interfer- 
 ence of the superior court, 860 
 
 Amendment of orders or judgments of 
 justices on return to a certiorari, 862 
 
 Of testing the legality of a commitment 
 by writ of habeas corpus, 863 
 
 Proceedings against justices to compel 
 them to act in particular cases, 864 
 
 Right of county justices to order the ex- 
 pense of county litigation to be de- 
 frayed out of the county funds, ib. 
 
 Of the power of justices to give costs, 865 
 
 SRCTioif II. — Exemption of constables 
 and their assistants from liability 
 when acting in the execution of war- 
 rants and orders of magistrates, 865- 
 868. 
 
 Exemption of constables, officers, and 
 their assistants from liability for acts 
 done by them in obedience to a war- 
 rant of justices, 865 
 
 Excess of authority on the part of con- 
 stables and officers — Handcuffing un- 
 convicted prisoners, 867 
 
 Abuse of a search-warrant, ib. 
 
 Section III. — Remedies for wrongs done 
 under color of convictions and war- 
 rants of justices, 868-879. 
 
 Replevin of chattels distrained under 
 
 warrant of justices, 868 
 Of actions against justices, 869 
 
 When the action is brought in respect of 
 things done without jurisdiction, or in 
 excess of jurisdiction, 869 
 
 When the action is brought for a mali- 
 cious conviction, commitment, or dis- 
 tress, or a malicious abuse by a mag- 
 istrate of the functions of his office, 
 870. 
 
 Effect of the existence of a power of 
 tappeal on the right to bring an ac- 
 tion, 870 
 
 Objections by justices to actions against 
 them in the county coui-t, 871 
 
 Of setting aside certain actions brought 
 against justices of the peace, ib. 
 
 Limitation of actions against justices of 
 the peace, ib. 
 
 Of notice of action'against justices, 872 
 
 Statement of the cause of action on the 
 face of the notice, 874 
 
 Tender of amends before action, ib. 
 
 Of the computation of the month's no- 
 tice, and of the time for tendering 
 amends, ib. 
 
 Of the statutory protection to consta- 
 bles, officers, and their assistants from 
 vexatious actions, 875 
 
 Parties to be made defendants — Wrong- 
 ful convictions and orders by one jus- 
 tice acted upon by another justice, ib. 
 
 Liability of persons who set justices and 
 constables in motion, ib. 
 
 Evidence at the trial of actions against 
 justices, 876 
 
 Proof of malice and of the want of rea- 
 sonable and probable caiise, ib. 
 
 Evidence at the trial of actions against 
 constables and officers — Proof of the 
 injm-y having been done in execution 
 of a warrant of justices, 877 
 
 Proof of waiTant of justices — Secondaiy 
 evidence of the contents of a waiTant, 
 878 
 
 Proof by the plaintiff of his demand of 
 the perusal and copy of the warrtot, 
 ib. 
 
 Proof by the defendant of the produc- 
 tion of' the warrant — Production and 
 perusal of a copy of the warrant, ib. 
 
 Damages recoverable in actions against 
 justices of the peace, 879 
 
XXVI 
 
 CONTENTS. 
 
 CHAPTER XVI, 
 
 OP INJURIES PROM THE EXERCISE OP STATUTORY POWERS — STATUTOBl 
 COMPENSATION FOR INJURIES AUTHORIZED BY STATUTE, 881-923. 
 
 Sectiok I. — Of injuries from the ex- 
 ercise of statutory powers, 881-896. 
 
 Exemption of persons from personal 
 liability in respect of things done 
 under statutory authority, 882 * 
 
 Injuries from the negligent execution 
 of statutoi-y powei's, 883 
 
 Nuisances from the negligent working 
 of railways, 885 
 
 Duties and responsibilities of boards of 
 public works, trustees, and commis- 
 sioners — Contractors and woi-kmen 
 acting in the exercise of statutoiy 
 powers, a. 
 
 Surveyors of highways and county 
 bridges, 888 
 
 Effect of clauses in particular statutes 
 exonerating persons from all personal 
 liability in resiject of things done in the 
 hon& fide execution of the statute, 889 
 
 Right of commissioners, trustees, and 
 public officers to indemnify themselves 
 in respect of the costs and expenses 
 they incur out of the public funds they 
 are authorized to administer, 890 
 
 When expenses incurred through blun- 
 ders or negligence may be charged 
 upon a public or trust-fund, 891 
 
 Creation of nuisances in the bona fide 
 exercise of statutory powers, ih. 
 
 Pollution of streams and injuries to 
 docks, wharfs, towing-paths, etc., in 
 the exercise of statutory powers, 892 
 
 Cre&tion of nuisances in the, exercise of 
 the statutory powers contained in the 
 Towns Improvement Clauses Act, 893 
 
 The Metropolis Local Management Act, 
 894 
 
 Of the power to. take lands and streams 
 for public pui-poses, ib. 
 
 Licenses to enter upon land authorized 
 to be taken for public works, 895 
 
 Seizure and detention of goods by cus- 
 tom-house officers acting in the ex- 
 ecution of statutory powers, ib. 
 
 Sectioit II. — Of statutory remedies for 
 the recovery of compensation for in- 
 juries authorized by, statute, 896-911. 
 
 Injuries establishing a right to statutory 
 compensation, 896 
 
 Of ascertaining the amount of statutory 
 damage by arbitration, 897 
 
 Jurisdiction of the arbitrator, 898 
 
 Damages recoverable befoi'e justices of 
 the peace, and not by action, ib. 
 
 Of the statutory remedy for the recovery 
 of compensation under the provisions 
 of the Lands Clauses and Railway 
 Clauses Consolidation Acts, 899 
 
 Of statutory compensation to tenants 
 and occupiei's of lands taken for 
 public works, 903 
 
 Notices by claimants of the nature and 
 extent of the injury sustained, and of 
 the amount of compensation required, 
 ib. 
 
 Assessment of damages, 904 
 
 Future damages, 905 
 
 Assessment of damages to which the 
 claimant is not legally entitled — Re- 
 moval of the inquisition by certiorari, 
 906 
 
 Recovery of the amount of compensa- 
 tion assessed by a jury, 907 
 
 Declaration in actions for railway com- 
 pensations, ib. 
 
 Pleadings— Defences — Traverse of the 
 injury to the land, 908 
 
 Remedy for subsequent unforeseen 
 damages, ib. 
 
 Remedy in cases of severance, 910 
 
 Compulsory pui-chase of house by rail- 
 way company, 911 
 
 Section III. — Reinedies by action and 
 by injunction in respect of injuries 
 from the negligent doing of things au- 
 thorized to be done by statute, 912-923 
 
 Limitation of actions in respect of things 
 done under local and personal stat- 
 utes, 912 
 
 Accrual of the cause of action and com- 
 mencement of the period of limitation, 
 ib. 
 
 Of notice of action^ 913 
 
 Notice of action to gas companies and 
 trading corporations and their officers. 
 i6. 
 
 Notice of action to toll and tax-coilectora 
 and revenue officers, 914 
 
 Notice of action against contractors, 
 etc., under local boards of health, 915 
 
CONTENTS. 
 
 XXVll 
 
 Notice of action against surveyors and 
 
 persons acting in execution of the 
 
 highway acts, 915 
 Tender of amends before action, 917 
 Parties to be made defendants, ih. 
 Pleadings— Plea of not guilty, 918 
 Plea of tender of amends before action, 919 
 Pleas of justification under the authority 
 
 of an Act of Parliament, ih. 
 Evidence at the trial — Proof of notice 
 
 of action, ih. 
 
 Power of the Court of Chancery to grant 
 an injunction to pi-event unnecessary 
 injury fi'om the execution of statutory 
 powers, 919 
 
 Injunction to restrain nuisances created 
 by public bodies acting in the exer- 
 cise of statutory powers, 920 
 
 Injunction to prevent misuse by com- 
 panies and public bodies of land 
 acquired by them under statutory 
 authority, 16. 
 
 CHAPTER XVII. 
 
 OP LIBEL AND SLANDER, 925-1001. 
 
 Skction I. — Of libel and written slarir 
 der, 925-952. 
 
 Of the distinction between slander by 
 word of mouth and slander in a pub- 
 lished writing, 926 
 
 Oral slander rendered actionable by 
 being printed and published— Exemp- 
 tion of the author and liability of the 
 publisher, 927 
 
 What wiitings are libellous and action- 
 able, 928 
 
 Of malice, 930 
 
 Privileged writings and communica- 
 tions, 931 
 
 Defamatory writings in courts of justice, 
 933 
 
 Defamatory petitions to the Queen, to 
 Parliament, or to ministers or officers 
 of state, respecting the conduct of 
 magistrates and officers, 935 
 
 Criminatory communications by public 
 officers acting in discharge of a public 
 duty. 936 
 
 Criminatoiy pastoral letters, and printed 
 communications from clergymen to 
 their parishoners, ib. 
 
 Defamatory letters respecting clergy- 
 men, 938 
 
 Privileged confidential cdmmunications 
 between relations respecting the 
 character of a person proposing mar- 
 riage, ib. 
 
 Privileged confidential communications 
 between friends to prevent an injury 
 939 
 
 Privileged communications by persons 
 having a pecuniary interest involved 
 in the matter of the communication, 
 940 
 
 Reckless and inconsiderate communi- 
 cations, 941 
 
 Disclosures made bond fide in the course 
 of an investigation set on foot by the 
 plaintiflf himself, 941 
 
 Communications between subscribers to 
 charities, 942 
 
 Privileged communications respecting 
 the character of servants, ib. 
 
 Comments in excess of the privilege, 
 945 
 
 Of the effect of addressing privileged 
 communications to a wrong party by 
 mistake, 946 
 
 Reports of trials containing defamatory 
 matter, ib. 
 
 Publications of ex parte statements, and 
 of proceedings preliminary to a trial, 
 947 
 
 Publication of speeches and proceedings 
 in parliament, 948 
 
 Defamatory reports of proceedings at 
 vestries and public meetings, 949 
 
 Reviews and criticisms in public papers, 
 ib. ' 
 
 Criticisms by one public journalist upon 
 another, 950 
 
 Criticisms upon handbills and . adver- 
 tisements, 951 
 
 Criticisms upon sermons and clergy- 
 men, ib. 
 
 Comments upon the public character of ' 
 public men, 951 
 
 Disparaging criticisms by one trades- 
 man upon the goods of a rival trades- 
 man, 952 
 
 Sbction II. — Of verbal slander, 953-971. 
 
 When defamatory words are actionable, 
 953 
 
 Defamatory words not actionable with- 
 out special damage, 954 
 
XXVUl 
 
 CONTENTS. 
 
 Defamatory words actionable per se 
 without proof of any special damage, 
 955 
 
 In what cases actionable words are ren- 
 dered not actionable by precedent or 
 subsequent words, 956 
 
 Defamatory words imputing to the plain- 
 tiff that he is afflicted with a conta- 
 gious disorder, 957 
 
 Defamatory words concerning trades- 
 men and professional men, ib. 
 
 Words imputing misconduct or gi'oss 
 ignorance or incapacity to professional 
 men, 958 
 
 Words imputing official misconduct to a 
 person in an office of profit or trust, 
 960 
 
 AYords rendered actionable by reason of 
 special damage, ib. 
 
 Slanderous denunciations from the pul- 
 pit causing loss of custom, situation, 
 or employment, 961 
 
 Effect of the dismissal of a slandered 
 servant, being a wrongful dismissal 
 on the part of the master, 962 
 
 Effect of the slander being disbelieved 
 by the master, ib. , 
 
 Special damage, not being the immedi- 
 ate and natural consequence of the 
 words spoken — Spontaneous and un- 
 authorized repetition of verbal slan- 
 der, 963 
 
 Special damage directly resulting from 
 the repetition of oi'al slander, 964 
 
 Circumstances rebutting the presump- 
 tion of malice, ib. 
 
 Privileged communications — Proof of 
 malice, 965 
 
 Privileged charges of felony made bona 
 fide, with reasonable grounds for sus- 
 picion, ib. 
 
 Privileged statements and comments by 
 advocates in the course of judicial 
 proceedings, or in the conduct of a 
 cause, 966 
 
 Defamatory statements by a party in 
 open court conducting his own cause, 
 967 
 
 Privileged comments and charges by 
 judges and magistrates in the exercise 
 of the duties of their office, 968 
 
 Of the interpretation and application of 
 the words used, ib. 
 
 Slander of title, 969 
 
 Section III. — Of actions for libel and 
 slander, 971-1003. 
 
 Consolidation of actions for the same 
 
 libel, 971 
 Parties to be made plaintiffs, ib. 
 Parties to be made defendants, 972 
 Declarations for libel and slander, ib. 
 
 Of the innuendo or defamatory sense 
 attributed to the wi'iting or words or 
 the face of the declaration, 973 
 
 Statement of special damage in actions 
 for verbal slander, 975 
 
 What may be given in evidence under 
 the plea of not guilty, 976 
 
 Plea that the Hbel was inserted without 
 malice or gi-oss negligence, and that 
 an apology was published — Payment 
 of money into court, 977 
 
 Pleas of justification, 97-8 
 
 Evidence for the plaintiff — Printed pla- 
 cards — Proof of publication, 979 
 
 Publication in newspapei'S, 981 
 
 Proprietorship of newspapers contain- 
 ing libels, 982 
 
 Proof of the utterance of the words 
 charged in actions for verbal slander, 
 983 
 
 Proof of the singing of libellous songs, 
 ib. 
 
 Application of the libel to the plaintiff, 
 984 
 
 Proof of the defamatory sense of the 
 woi'ds used, ib. 
 
 Admissibility of evidence of surround- 
 ing circumstances to explain and 
 point the libel — Intei'pretation of the 
 words used, 986 
 
 Proof of subsequent libels to explain 
 and point the libel charged in the 
 declaration, 987 
 
 Proof of successive libels to show mal- 
 ice, ib. 
 
 Evidence of malice, 988 
 
 Proof of injury to the plaintiff, 989 
 
 Evidence of special damage, ib. 
 
 Proof of the trade, or profession, or offi- 
 cial character of the plaintiff, 990 
 
 Proof that the words were spoken con- 
 cerning a tradesman or professional 
 man in the way of his trade or pro- 
 fession, ib. 
 
 Evidence on the part of the defendant — 
 Traverse of material allegations, 990 
 
 Proof of the truth of the charge or accu- 
 sation, ib. 
 
 The damages recoverable in actions for 
 defamation, 992 
 
 Evidence in aggravation of damages, 
 993 
 
 Mitigation of damages, ib. 
 
 Proof of libels by the plaintiff on the 
 defendant, 996 
 
 Evidence of offers of apology in mitiga/- 
 tion of damages, ib. 
 
 Of the judge's direction to the juiy, 997 
 
 Setting aside verdict — Arrest of judg- 
 ment, 998 
 Indictments for hbel and slander, 999 
 When the truth of the matter may be 
 
 given in evidence, 1000 
 Evidence for the defence, ib. 
 
CONTENTS. 
 
 XXIX 
 
 CHAPTER XVIII. 
 
 OP FRAUDULENT MISREPRESENTATION AND DECEIT, FRAUDULENT CONCEAL- 
 MENT, BREACH OP WARRANTY, AND FALSE PRETENCES, 1003-1078. 
 
 Section I. — Of fraudulent misrep7-esen- 
 tatiun and deceit, fraudulent eonceal- 
 me^it, and breach of warranty, 1004- 
 1033. 
 
 Of wilful deceit, 1004 
 
 Unintentional deception, 1005 
 
 False representations under pretence of 
 a claim of right — False claim of lien, 
 1006 
 
 Representations by a person of his 
 knowledge of a particular fact, when 
 he knows that he has no knowledge 
 at all atiout it, 1007 
 
 Statements and representations which 
 must be authenticated by a signed 
 writing — False representations con- 
 cerning the conduct, credit, ability, 
 trade or deahngs of third persons, 
 1008 
 
 Representations concerning the charac- 
 ter, credit, trade, or dealings of co- 
 partnerships and joint-stock com- 
 panies — Authentication thereof by a 
 signed writing, 1009 
 
 Misrepresentation by directors and 
 officers of public companies — Publi- 
 cation of deceitful prospectuses and 
 reports, ib. 
 
 Fraudulent breach of warranty, 1012 
 
 Warranties made pending a negotiation 
 for the sale of property, 1014 
 
 Private representations made prior to 
 a sale by auction forming no part of 
 the public contract of sale, ib. 
 
 False representations amounting to a 
 warranty by a person of his knowl- 
 edge of a particular fact, where the 
 means of knowledge lie peculiarly or 
 exclusively within his reach, 1015 
 
 Representations concerning matters 
 which are obvious to . oi'dinary in- 
 telligence, and which lie as much 
 within the knowledge of one party 
 as the other, 1016 
 
 Representations amounting merely to 
 expressions of opinion and belief, 
 ib. 
 
 Statements in answer to inquiides-^In- 
 formation to sheriffs and public 
 officers, 1017 
 
 Warranties by vendors on sales of real 
 property, 1018 
 
 False representations of title by vendors 
 of corporeal and incorporeal heredita- 
 ments — Representations not amount- 
 ing to a warranty, 1019 
 
 Representation of title on sales of 
 chattels amounting to a wai'ranty, 
 ib. 
 
 False representation by manufacturers 
 of the character and quality of the 
 articles they manufacture and sell, 
 1020 
 
 Representations by a vendor who is 
 told that the purchaser wants the 
 article he proposes to buy for a par- 
 ticular purpose, 1021 
 
 False representation by vendors made 
 to absent purchasers amounting to a 
 warranty, 1022 
 
 False representations by vendors where 
 the purchaser has means of exami- 
 nation and judgment — Sale of goods 
 by sample, ib. 
 
 False representations by railway com- 
 panies amounting to a waiTanty, 
 1024 
 
 False representation of authority — Pre- 
 tended agency' — Deceit by agents, 
 1025 
 
 When a principal is responsible for the 
 fraud of his agent, 1027 
 
 False assumption of authority, as be- 
 tween master and servant, employer 
 and employed, 1028 
 
 Counterfeiting |;rade-marks — Fraudu- 
 lent use by one person of the trade- 
 mark of another with intent to deceive, 
 ib. 
 
 Warranty of the genuineness of articles 
 with trade-marks, 1029 
 
 Warranty of description as to quantity 
 or country, ib. 
 
 Fraudulent assumption of the name of 
 a bank, 1030 
 
 Deceit by provision-dealers in selling 
 unwholesome food, ib. 
 
 False and fraudulent representations by 
 married women and infants, 1031 
 
 Fraudulent concealment, ib. 
 
 Fraudulent concealment of the dan- 
 gerous nature of articles delivered 
 to a bailee to be warehoused or 
 canied, 1033 
 
 Fraudulent sales with all faults, i6. 
 
XXX 
 
 CONTENTS. 
 
 SBOrroN II.— 0/ actions for fraud and 
 deceit, and the remedy by injunction, 
 1034-1055. 
 
 Actions for deceit — Parties to be made 
 
 plaintiffs, 1034 
 Parties to be made defendants — Pi-in- 
 
 cipal and agent, 1036 
 Joint-stock companies, 1087 
 Of declarations for deceit, 1038 
 Declarations for breach of waiTanty on 
 
 the sale of a horse, 1039 
 Declaration by an agent against a 
 
 principal for a false representation, 
 
 ib. 
 Declaration for fraudulently inducing 
 
 an architect to withhold his certificate, 
 
 1040 
 Of the plea of not guilty, ib. 
 Proof of fraudulent misrepresentation 
 
 and deceit, 1041 
 Proof of the representation having been 
 
 made to the plaintiff, ib. 
 Proof that the plaintiff relied upon the 
 
 representation, and not upon his own 
 
 examination and judgment, 1042 
 Proof of waiTanties, 1043 
 Proof of the terms and conditions of 
 
 warranty by proof of public notices 
 stuck up in an auction-room or re- 
 pository where the thing warranted 
 was sold, 1048 
 
 Evidence of breach of warranty of a 
 horse — ^What constitutes unsoundness, 
 ib. 
 
 Proof of manifest defects not covered 
 by the warranty, 1044 
 
 Proof of vice, 1045 
 
 Proof of the use of counterfeit trade- 
 marks, ib. 
 
 Remedies in equity for a false repre- 
 sentation, ib. 
 
 Of the damages recoverable in actions 
 for fraudulent misrepresentation and 
 deceit, 1046 
 
 Special damages — Breach of wai-ranty, 
 ib. 
 
 Special damages — False assumption of 
 agency, 1047 
 
 Prevention of fraud by indictment, 1048 
 
 Indictments for obtaining, or endeavor- 
 ing to obtain, money or goods by 
 false pretences, ib. 
 
 Injunction to prevent fraud, 1049 
 
 Injunction to prevent the fraudulent 
 use of trade-marks, 1050 
 
 .CHAPTER XIX. 
 
 OF MATRIMONIAL ANB PAEENTAL INJURIES, 
 SEDUCTION, 1057-1100. 
 
 ADULTERY, AND 
 
 Sbction I. — Of the iiifringetaent of mat- 
 rimonial and parental rights, 1057- 
 ■ 1087. 
 
 Rights of wives deserted by their hus- 
 bands, 1057 
 
 Right of action of married women after 
 they have obtained an order for pro- 
 tection, 1059 
 
 What amounts to desertion, ib. 
 
 Of the restitution of conjugal rights, ib. 
 
 Of judicial separation on the ground of 
 adulteiy, cruelty, or desertion, 1060 
 
 What amounts to cnielty, 1061 
 
 Revival of condoned cruelty, 1068 
 
 What amounts to desei-tion without 
 cause, 1064 
 
 Rights of married women after a decree 
 for a judicial separation, 1066 
 
 Alimony in case of judicial separa 
 ib. 
 
 Of adultery and the dissolution of the 
 marriage contract, ib. 
 
 Adultery and desertion on the part of 
 the husband, 1068 
 
 Wilful neglect or misconduct on the part 
 of the husband conducing to adultei-y 
 on the part of the wife, ib. 
 
 Connivance or toleration of adultery, 
 1069 
 
 Condonation of adultery, 1070 
 
 Alimony in cases of dissolution of mar- 
 riage contract, 1071 
 
 Orders for the settlement of property 
 for the benefit of the innocent party 
 and children, ib. 
 
 Power of the Divorce Court over mar- 
 riage settlements, ib. 
 
 Orders respecting the custody of chil- 
 dren, 1072 
 
 Of the common-law right of fathers to 
 the custody of their infant children, 
 1074 
 
 Eight of guardians for nurture to the, 
 custody of infant children, 1075' 
 
 Inability of courts of common law to 
 interfere with the right of the father 
 to the custody of his children, ib. 
 
 Of the controlling power of the Court 
 of Chancery over the father's right 
 
CONTENTS. 
 
 XXXI 
 
 to the custody of his infant children, 
 1076 
 
 Jurisdiction of the Court of Chancery 
 over the custody of the children of 
 British subjects born abroad, 1077 
 
 Jurisdiction of the Court of Chancei-y 
 over the children of foreigners in this 
 country, 1078 
 
 Right of access of mothers to their infant 
 children, and to the custody of chil- 
 dren under seven years of age, it. 
 
 Of the right of the mother to the cus- 
 tody of her children on the death or 
 transportation of the father, 1079 
 
 Of the obligation of pai-euts to provide 
 for their children, ih. 
 
 Evidence on the hearing of petitions — 
 Competency of the husband and wife 
 to give evidence, 1080 
 
 Ti'ial of questions of fact before a jury,i6. 
 
 Petitions for damages from adulterers, 
 1081 
 
 Evidence at the trial of a claim for dam- 
 ages for adulteiy — Proof of the mar- 
 riage, ih. 
 
 Proof of maiTiage by certified extracts 
 from parochial registers of marriages, 
 1082 
 
 Proof of marriage through the medium 
 of examined copies and certified ex- 
 tracts from non-parochial registers, 
 1083 
 
 Of the damages recOTerable in cases of 
 adultery, 1084 
 
 Evidence of the defendant's circum- 
 stances or property, 1086 
 
 Application of the damages recovered — 
 Payment of costs, ih. 
 
 Section II.— 0/«e(i«efiora, 1086-1099. 
 
 Of the harboring of married women 
 and inducing them to live apart from 
 their husbands, 1087 
 
 Of the seduction and loss of service of 
 servants, 1088 
 
 Of injuries to parents in being depi'ived 
 of the services of their children 
 through the tortious act of another, 
 1089 
 
 Of injuries to parents from the seduc- 
 tion of their daughters, ih. 
 
 Effect of the absence of the daughter 
 from the pai'ent's roof at the time of 
 the seduction, 1090 
 
 Pretended hiring of girls for the pur- 
 poses of seduction, 1092 
 
 Seduction of married daughters, 1093 
 
 Effect of pi'oof that the defendant, 
 though he seduced the girl, was not 
 the father of the child of which she 
 was delivered, ih. 
 
 Effect of the seduction and loss of ser- 
 vice having been occasioned by the 
 plaintiff's own misconduct and neg- 
 lect of his parental duties, ih. 
 
 Of the parties entitled to maintain an 
 action for seduction, 1094 
 
 Of the pleadings ih actions for seduc- 
 tion, ih. 
 
 Evidence at the ti-ial in actions for se- 
 duction — Proof of the relationship of 
 master and servant, 1095 
 
 Of the damages recoverable in actions 
 for seduction, 1096 
 
 Evidence in aggravation of damages — 
 Proof that the defendant made his 
 advances to the daughter under the 
 guise of matrimony, ih. 
 
 Evidence in mitigation of damages, 
 1097 
 
 Damages recoverable in actions for in- 
 ducing or persuading wives, servants, 
 or workmen to abandon their duties, 
 or neglect the fulfilment of a contract, 
 1098, 
 
 Indictment for the abduction of unmar- 
 ried girls, 1099 
 
 CHAPTER XX. 
 
 OF ACTIONS EX DELICTO — PARTIES THERETO — NON-JOINDER AND MIS- 
 JOINDER OP PARTIES, 1101-1136. 
 
 Sectiok I. — Of actions ex delicto and the 
 parties to he made plaintiffs in such 
 actions, 1101-1113. 
 
 Parties to be made plaintiffs in actions 
 
 of tort founded on contract, 1101 
 Of the remedies which tenants-in-com- 
 
 mon and joint-tenants have against 
 each other, 1104 
 
 Rights of the survivor of two joint-ten- 
 ants or tenants-in-common, ih. 
 
 Trustee and cestui que trust, 110.^ 
 
 Bailees of goods, ih. 
 
 Master and servant, ih. 
 
xxxu 
 
 CONTENTS. 
 
 Husband and wife, 1106 
 
 Actions by married women after a judi- 
 cial separation, or an order for pro- 
 tection, 1108 
 
 Infants, 1109 
 
 Heir-at-law, devisee, and personal rep- 
 1 esentatives, ih. 
 
 Administrators, 1112 
 
 Trustees of bankrupts, ih. 
 
 Transfer of rig-hts and liabilities ex de- 
 licto to trustees of bankrupts, 1113 
 
 Right of the trustee to the bankrupt's 
 wife's choses in action, 1114 
 
 Of the number of the plaintiffs in ac- 
 tions ex delicto — Joint and separate 
 rights of action, i6. 
 
 Section II. — Of actions ex delicto and 
 the parties to be made defendants in 
 such actions, 1116-1132. 
 
 Tenants-in-common, 1116 
 
 Corporations, 1117 
 
 When a joint-stock company is respon- 
 sible for the tortious acts of the direc- 
 tors and managers, 1119 
 
 Trustees and .commissioners of public 
 works, 1120 
 
 Military and naval ofiicers, 1121 
 
 Master 'and servant, ib. 
 
 Principal and agent, ib. 
 
 Subsequent i-atification and adoption of 
 a wrongful act by parties for whose 
 use and benefit the act was done, 1122 
 
 ■What amounts to evidence of ratiflca- 
 tion of a wrongful act, 1122 
 
 Servants and agents, 1123 
 
 Husband and wife, ib. 
 
 Infants, 1126 _ 
 
 Executors and administrators, ll-^' 
 
 Wrongs committed by a deceased per- 
 son within six months before his 
 death, 1128 
 
 Actions against the executor of a pre- 
 pendary, vicar, and incumbent ot a 
 benefice, 1129 . '^ 
 
 Liabilities of executors and admimstra-;] 
 tors for their own wrongful acts, ib. 
 
 Trustees in bankruptcy,' 1130 
 
 Of the continued Hability of a bankrupt 
 to actions ex delicto, and to. arrest, ib. 
 
 Of the number of the defendants in ac- 
 tions ex delicto— Parties jointly and 
 severally liable, 1131 , 
 
 Section III. — Of non-joinder and mis-^ 
 joinder of parties — Amendment before ' 
 and at the trial, 1132-1136. 
 
 Amendment of non-joinder and mis- 
 joinder before trial, 1133 
 
 Amendment at the trial, ib. 
 
 Amendment after notice or plea in abate- 
 ment of non-joinder of parties, 1134 , 
 
 Mis-joinder of defendants, 1135 
 
 Effect of marriage, death, and bank- 
 ruptcy upon the proceedings in an- 
 action, ib. 
 
 CHAPTER XXI. 
 
 OP ACTIONS EX DEtlCTO, PLEADINGS, DEFENCES, AND EVIDENCE, 1137-1182| 
 
 Section I. — Of pleadings, defences, and 
 evidence in actions ex delicto, 1137- 
 1168. 
 
 Of actions in the county court, 1137 
 
 General jurisdiction of the county court, 
 1138 
 
 Copyright of design, 1139 
 
 Friendly societies, ib. 
 
 Ouster of jurisdiction of county court in 
 cases where the title to land, etc., is 
 in question, 1140 
 
 Recovei-y of possession of small tene- 
 ments in the county court, 1142 
 
 Equitable jurisdiction, 1143 
 
 Admiralty jurisdiction, ib. 
 
 Jurisdiction by consent, 1145 
 
 Waiver of objection to jui'isdiction, ih. 
 
 Of actions in the superior courts — Dijl 
 ferent forms ;of action— Joinder cl 
 different causes of action in the sam; 
 suit, 1146 ^■. 
 
 Requisites of the declaration, ib. 
 
 Statement of special damage, 1147 
 
 Several counts in declarations in respect 
 of the same cause of action, 1148 ' 
 
 Pleas, ib. 
 
 Pleas to the jurisdiction— Privileges c 
 ambassadors, ib. . 
 
 Elea of not guilty, 1149 
 
 Not guilty by statute, ib. 
 
 Of pleading several matters of defeuc 
 ih. 
 
 Traverses by the defendant, 1150 
 
 Traverses by the plaintiff, ih. 
 
 Requisites of special pleas, 1151 
 
CONTENTS. 
 
 ^ctitious and needless averments in 
 pleading, 1151 
 
 Defences arising after the commence- 
 ment of the action, 1152 
 
 •f ayment of money into court by way 
 of compensation or amends, ib. 
 1153 °'^y ^° actions ex delicto, 
 
 Plea of accord and satisfaction, ib. 
 
 flea 01 the pendency of another action 
 tor the same wrong, 1154 
 
 Plea of judgment recovered, 1156. 
 
 (-ontmmng: injui-ies— Judsment recov- 
 ered, 1160 
 
 Effect of the recovery of judgment in 
 actions for the conversion of property 
 1161 
 
 Recoveiy of judgment in rem, lb. 
 
 Plea of the bankruptcy of the plaintiff, 
 
 Pleas of the Statute of Limitations, 
 ib. 
 
 Commencement of the period of limita- 
 tion, 1163 
 
 Extension of the period of limitation in 
 certain cases, 1165 
 
 Equitable pleas and defences, ib. 
 
 Joinder of issue, 1166 
 
 Pleading^ construed distributively, ib. 
 
 New assignments, 1167 
 
 Section II. — Proceedings and Evidence 
 at the trial, 1168-1195. 
 
 Right to begin. .1168 
 
 Proof on the part of the plaintiff, 116& 
 
 Effect of payment of money into court, ib 
 
 Primary and secondary evidence, 1170 
 
 Notice to produce a written document 
 to let in secondary evidence of its 
 contents, 1172 
 
 Proof of facts resting on hearsay and 
 reputation, 1173 
 
 Entries of deceased persons against 
 their interest, 1175 #»• 
 
 Entries made by decease^ persons in 
 the exercise of their duties, ib. 
 
 Statements and declarations accoinpa- 
 nying an act, ib. 
 
 When the adverse party in a suit is 
 estopped from giving evidence to con- 
 tradict his own statements and repre- 
 sentations to the plaintiff, 1177 
 
 Evidence of manorial customs, 1179. 
 
 Evidence of title and seizin, ib. 
 
 Amendment of variances between the 
 declaration of the cause of action, 
 and the proof adduced^iu support of 
 it, 1180 
 
 Admissiops of liability, 1182 
 
 Illness of witness, ib. 
 
 CHAPTER XXII, 
 
 OP THE DAMAGES AND COSTS RECOVERABLE IN ACTIONS EX DELICTO, 
 
 1183-1226. 
 
 Bonos I. — Of damages recoverable in 
 actions ex delicto, 1184-1204 
 
 f the assessment of damages in actions. 
 ex delicto, 1184 
 ""/amages recoverable in particular ac- 
 ' tions,1185 
 ipecial and extraordinary damages, 
 
 ■damages too remote, and not naturally 
 
 resulting from the wrong done, 1187 
 
 images in actions of tort founded on 
 
 conti-act, i6. . . , j -^ noo 
 
 xtiense of obtaining legal advice, 1188 
 
 ■ Hs of previous legal proceedings, ib. 
 
 coveiy of damages which the plaintiff 
 
 •B? become liable to pay through -the 
 
 :5an)tof the defendant, 1190 
 
 tSeai. expenses — Physician's fees, 
 
 r- Ad.— c 
 
 Prospective damages, 1191 
 
 Exemplaiy and vindictive damages, 119? 
 
 Evidence in mitigation of damages, 1194 
 
 Joint-trespasses — Recovery of damages 
 from one of several co-trespassers, 
 1196 
 
 Damages when the plaintiff has insured 
 against loss, or has received full in- 
 demnity under a contract of insur- 
 ance, 1197 
 
 Double and treble damages, 1198 
 
 New trial on the ground of excessive 
 and outrageous damages, 1199 
 
 New trial on account of the smallness 
 of the damages, 1201 
 
 Arrest of judgment where the plaintiff 
 has a verdict for greater damages 
 than he is legally entitled to, 1202 
 
 Inquisition of damages before the sher- 
 iff, 1203 
 
XXXIV 
 
 CONTENTS. 
 
 Sbction II ■ -Q/' the recovery of costs in 
 actions ex delicto, 1203-1226. 
 
 Award of costs to a successful plaintiff 
 in the superior courts, 1203 
 
 Costs to a successful defendant, 1204 
 
 Costs on pleas setting up matters of de- 
 fence which have arisen since the last 
 pleading, 1205 
 
 Costs on a stay of proceedings, ib. 
 
 Costs on arrest of judgment, or judg- 
 ment non obstante veredicto, 1206 
 
 Where the court has no jurisdiction it 
 ha'S no power to give costs, ib. 
 
 Effect oncosis of withdrawing a juror, ib. 
 
 Costs in actions of slander and libel, 1207 
 
 When the certificate of a judge or pre- 
 siding officer is necessary to enable 
 the plaintiff to recover co^ts, 1209 
 
 Certificate that the action was brought 
 to try a righ*^, ib. 
 
 Within what time the certificate must 
 be granted, 1210 
 
 County Court Acts depriving the plain- 
 tiff of costs in the superior courts, ib. 
 
 When the foundation of the action \^ m 
 contract, 1211 
 
 When money has been paid into court, 
 1212 
 
 The certificate that it appeared to the 
 judge that there was sufficient reason 
 for bringing the action in the superior 
 court, 1213 
 
 Costs on references, 1215 
 
 Costs of refei-ence, 1216 
 
 Certificate for fuU costs in actions for 
 wilful and malicious grievances, ib. 
 
 FuU costs in actions for wilful and ma- 
 licious trespass, or after notice not to 
 trespass, ib. 
 ' Costs in the superior courts in actions 
 against justices, 1217 
 
 In actions against constables and offi- 
 cers, and parties acting or intending 
 to act in the execution of statutory 
 powers, 1218 
 
 Certificate for costs in actions for things 
 done in supposed pursuance of the 
 Act for the Protection of Property 
 from Malicious Injuries, i6. 
 
 Costs in actions against executors, ib. 
 
 Costs in actions for duties and penalties 
 at the suit of the Crown, 1219 
 
 In actions upon judgments, ib. 
 
 Costs on new trials, ib. 
 
 In cases of appeals from the decision of 
 a county-court judge, or judge of an 
 inferior tribunal, ib. 
 
 In the case of an appeal from a supe- 
 rior court to the Court of Exchequer 
 Chamber, 1219 
 
 Costs on removal of actions by writ of 
 certiorari, 1220 
 
 In cases of prohibition, ib. 
 
 On indictments for libel and slander, ib. 
 
 Costs of writs of mandamus and injunc- 
 tion, 1221 
 
 On an application for an injunction 
 under the Railway and Canal Traffic 
 Act, ib. 
 
 Repeal of divers statutes enabling plain- 
 tiffs in certain actions to recover 
 double coste, ib. 
 
 Costs in compensation cases, i6. 
 
 Taxation of costs, 1222 
 
 Costs of particular issues, 1223 
 
 Where costs are to be taxed by the 
 court in which the action is brought, 
 1224 
 
 Secuiity for costs, ib. 
 
 Award of costs in the county court, 1225 
 
 Costs of prosecutions, 1226 
 
 As to costs of injunction under Commoni 
 Law Procedure Act, U>. I 
 
 CHAPTER XXIII. / 
 
 OP DAMAGES IN CHANCERY, AND THE REMEDY BY INJUNCTION, PROHIBM 
 TION, AND CERTIORARI, 1227-1253. \ 
 
 Section I. — Of da/mages in CTumcery, 
 and the remedy by injunction, 1227- 
 1239. 
 
 Award of damages in the Court of Chan- 
 cery, 1227 
 
 The writ of injunction issuing out of 
 Chanceiy, 1228 
 
 Injunction to restrain a public company 
 from exceeding its statutorv powers, 
 1229 
 
 Injunction to restrain disturbance oi- 
 grave-yards, and obstructions \& 
 rights of burial, 1230 ♦ 
 
 Injuncfeon to restrain the infringement 
 of patent rights and copyiight, ih. , 
 
 Injunction to resti'ain the sale or det' a- 
 tion of chattels, 1232 
 
 Effect of laches and delay in apply! ig 
 for an injunction, i6. 
 
 Acquiescence precluding a plaintiff fi in 
 relief, ib. 
 
COJVTENTS. 
 
 Of the statutoiy obligation upon the 
 Court of Chancery to decide all ques- 
 tions of law and fact, on the determi- 
 nation of which the title to relief in 
 equity depends, 1233 
 
 Of the remedy by injunction at common 
 law, 1235 
 
 Injunction at common law to restrain 
 infringements of patent right and 
 copyrigM, 1236 
 
 Injunctions and orders to stay proceed- 
 ings, 1237 
 
 Section II. — Of the remedy iy proMbi- 
 tion for the prevention of judicial 
 wrongs, 1237-1248. 
 
 The writ of prohibition, 1237 
 
 Prohibition before judgment, 1238 
 
 Prohibition after judgment and execu- 
 tion, 1239 
 
 Prohibition where appeal lies, 1240 
 
 Prrfhibition to the ecclesiastical courts, 
 1240 
 
 Notwithstanding an appeal entered, 
 1241 
 
 The writ of prohibition to restrain a, 
 county court judge, 1342 
 
 Prohibition to the Lord Mayor's Court, 
 1246 
 
 Proceedings in prohibition, ih. 
 
 The application for a prohibition, 1247 
 
 The rule or summons to show cause why 
 a, writ of prohibition should not issue 
 to a county court, 1247 
 
 Notice of the issue of the writ, ih. 
 
 Refusal of writ when final, 1247 
 
 Of the setting aside writs of prohibition 
 issuing out of Chancery, 1248 
 
 Skction III. — Of the remedy by eeri/io- 
 ran, 1248-1253. 
 
 The wi'it of certiorari, 1248 
 
 Where the inferior court has jurisdic- 
 ' tion, ih. 
 
 Where the inferior court has no juris- 
 diction, 1249 
 
 Limitation of time for issuing the writ, 
 ib. 
 
 Grounds for the issue of the writ, 1250 
 
 Certiorari to remove causes from the 
 county court, ih. 
 
 Of the concurrent remedy by appeal and 
 by certiorari — County court appeals, 
 1251 
 
 The application for the writ, 1252 
 
 Affidavits when necessary, ih. 
 
 Notice of the issue of the writ, 1253 
 
 The effect of the issue of the writ, ih. 
 
 The effect of the refusal of a writ of cer- 
 tiorari, ih. 
 
 Proceedings after removal, ih. 
 
 Quashing of the wi"it — Procedendo, ih. 
 
 CHAPTER XXIV. 
 
 OF THE REMEDY BY MANDAMUS, 1255-1295. 
 
 Sectioit I. — Of the remedy hy manda- 
 mus for the vindication of rights, and 
 the enforcement of the performance of 
 public duties, 1255-1288. 
 
 The prerogative writ of mandamus, 1256 
 
 Mandamus to enforce statutory, corpo- 
 rate, and public duties and obliga- 
 tions, ib. 
 
 Mandamus to judges, magistrates, and 
 judicial officers, commanding them to 
 hear and adjudicate, 1258 
 
 Mandamus to ministerial officers, 1260 
 
 Mandamus to overseers or clergymen 
 to bury the dead body of a pauper, 
 1262 
 
 Of the granting of the writ where there 
 is another remedy, 1263 
 
 Mandamus to compel the surrender of 
 J)ublic documents, 1264 
 
 A mandamus to restore a public officer 
 to a freehold office from which he has 
 been wrongfully dismissed, 1267 
 
 How a freehold office may be forfeited 
 and vacated, 1269 
 
 Offices held at will, 1270 
 
 Visitatorial power excluding the pro- 
 ceeding by mandamus, ih. 
 
 Mandamus to restore the name of a 
 medical practitioner to the medical 
 register, 1271 
 
 Mandamus to test the validity of an 
 election, ib. 
 
 Mandamus to elect corporate and public 
 officers, ih. 
 
 Mandamus to enforce an appointment 
 to a public or corporate office, 1272 
 
 Mandamus to chartered companies and 
 corporations, 1273 
 
 Mandamus to make calls, 1275 
 
XXXVl 
 
 CONTENTS. 
 
 Mandamus to local boards, commission- 
 ers, trustees, and public oiflcers to 
 levy rates and satisfy and discharge 
 • a judg-m^nt debt or a pecuniary obli- 
 gation, 1276 
 
 Mandamus to railway companies, corpo- 
 rate bodies, and local boards, to make 
 compensation for lands taken or inju- 
 ries inflicted upon private persons,1278 
 
 Mandamus to boards of hiealtli to riiake 
 compensation, ih. 
 
 Effect of laches or delay in applying for 
 the -writ, 1279 
 
 The proceedings upon a mandamus, ih. 
 
 Proceedings by mandamus in respect of 
 corporate officei-s in boroughs, 1280 
 
 Conditions precedeilt to the is^ue of the 
 writ, ih. 
 
 Requisites of the wi'it, 1281 
 
 Parties to whom the writ is to be di- 
 rected, ih. 
 
 Service of the writ, 1282 
 
 Return to the writ, ib. 
 
 The return to a mandamus to restore a 
 dismissed public officer to his oflftee, i 
 1283 
 
 Return setting up inability or impossi- 
 bility of performance — Expiration of 
 statutory power, ih. 
 
 fleas to the return — Traverse of ma- 
 terial allegations, ih. 
 
 Statutory protection to certain public 
 officers, 1284 
 
 Time for taking objections to the writ, 
 1286 
 
 Review of the proceedings in manda- 
 mus by writ of error, ih. 
 
 Damages and costs, 1287 
 
 Judgment non ohstante veredicto, i&. 
 
 Action or information for a false return, 
 ih. , 
 
 Attachlheftt for disobedience of the per- 
 emptory writ of mandamus, 1288 
 
 SacTioir n. — Of the claim to a writ of 
 mancla/mus in an action at cominon 
 law, 1288-1295. 
 
 Of the union of an action in respect of a 
 private injury with an application fot- 
 a mandamus, 1288 
 
 Actions in which a claim for a man- 
 damus may bfe sustamed, 1290 
 
 Actions in which a claini for a man- 
 damus cannot be sustained, 1292 
 
 Declaration in an action for a man- 
 damus, 1293 
 
 The pleadings in the action, 1294 
 
 Orders for. the rectification of the regis- 
 ter of shareholders in joint-stock com- 
 panies, ih. 
 
 CHAPTER XXV. 
 
 TORTS BT MUNICIPAL CORPORATIONS AND REMEDIES THEREFOR. 
 
 SBCTIOlf I.- 
 
 -Liahility of municipal cor- 
 porations. 
 
 General rule as to liability for torts, 
 1297 
 
 Liability of quasi corporations, 1298 
 
 Implied liability of municipal corpora- 
 tions proper, 1300 
 
 Liability for torts of officers and agents, 
 ih. 
 
 No liability in respect to exercise of dis- 
 cretionary powers, 1304 
 
 Property destroyed by mobs, 1305 
 
 Buildings destroyed to prevent fire, 1306 
 
 Not liable for consequential damages, ih. 
 
 Liability for defective streets and side- 
 walks, 1308 
 
 Liability for defective drains and sew- 
 ers, 1313 
 
 Liability as to watercourses and surface 
 
 water, 1315 
 Liability for nuisances maintained on 
 
 corporate property of, ih. 
 Liability for obstructions to navigation, 
 
 1316 
 Miscellaneous liabilities, i6. 
 
 Sbction II. — Remedies for torts hy mvr 
 nicipal corporations, 1318. 
 
 Remedy by action or indictment, 1318 
 Parties to actions for torts of, 1319 
 Pleadings in action's for torts of, 1320 
 Evidence in actions for torts of, ih. 
 Damages recoverable in actions against, 
 
 1321 
 Remedy by indictment, 1322 
 
TABLE OF AMERICAN CASES CITED. 
 
 Abbott V. Abbott, 374 
 
 Abbott V. Stewartstown, 165 
 
 Abrams v. Foshee, 955 
 
 Abrahams v. Kidney, 1093-1095 
 
 Acheson v. Miller, 1195 
 
 Achtenhagen v. Watertown, 26 
 
 Ackerman v. Desha County, 1257 
 
 Ackle V. Southeastern R. R. Co., 470 
 
 Ackley v. Tarbox, 1108 
 
 Adams v. Brereton, 281 
 
 Adams v. Carlisle, 1809 
 
 Adams v. Clem, 615 
 
 Adams v. Prothingham, 210 
 
 Adams v. Goddard, 397 
 
 Adams v. Lawson, 928 
 
 Adams v. Lisher, 765 
 
 Adams v. O'Conner, 443 
 
 Adams v. Rankin, 926 
 
 Adams v. Rivers, 323 
 
 Adams v. Saratoga & Washington R. R., 
 332 
 
 Adams v. Van Alstyne, 96, 149 
 
 Adams v. Waggoner, 691, 693, 736 
 
 Adams v. Walker, 72 ' 
 
 Adkins v. Brewer, 770, 771, 829 
 
 Adkins v. Williams, 988 
 
 Admr's of Chambers v. Ohio, etc., Ins. 
 
 Co., 1315 
 Administrator v. Jns. Co., 1323 
 Aersten v. Brady, 727 
 Ahem v. Collins, 12 
 Aiken v. Benedict, 192 
 Aiken v. Buck, 371 
 Aikin v. Western R. R. Co., 16 
 Albin V. Lord, 371 
 Albin V. Presley, 613 
 Albright v. Penn, 606 
 Albro v. Agawam Canal Co., 490, 492 
 Alcorn v. Philadelphia, 1303 
 Alderman v. French, 993 
 
 Alden v. New York Central R. R. Co., 
 
 468 
 Aldrich v. Boston and Worcester R. R., 
 
 529 
 Aldrich V. Palmer, 1199 
 Aldrich V. Press Printing Co., 952, 972 
 Aldrich V. Tripp, 1318 
 Aldridge v. Churchill, 743 
 Alexander v. Fisher, 316 
 Alexander v. McDoweU, 1280 
 Alexander v. Milwaukee, 1307 
 Alford V. Dewin, 1115 
 Alger V. Lowell, 28 
 
 Alger V. Mississippi, etc., R. R. Co., 216 
 Allen V. Board of Freeholders, 261 
 Allen V. Crary, 395 
 Allen V. Crofoot, 322 
 Allen V. Mackay, 495 
 Allen V. Sackrider, 571, 733 
 Allen V. State, 195, 162, 1172 
 Allen V. Willard, 508 
 AUentown v. Kramer, 1307 
 Allison V. Chandler, 322, 1184, 1193 
 Allison V. Farmers' Bank of Virginia, 417 
 Allison V. King, 403 
 Alley V. Carleton, 105, 165 
 AUgor V. Stilwell, 760 
 AXlred v. Bray, 1123 
 Almonds v. Nugent, 496 
 Alsbrook v. Hathaway, 44 
 Alston V. Huggins, 1186 
 Althause v. Rice, 360 
 Althorf V. Wolfe, 302, 519, 1198 
 Alvord V. Ashley, 265 
 Ambler v. Church, 770 
 Ameiican Co. v. Bradford, 106, 136, 138 
 American Contract Co. v. Cross, 570 
 American Express Co. v. Perkins, 579 
 American Express Co. v. Sands, 587 
 American Express Co. v. Second Nar 
 
 tional Bank, 596 
 American Express Co v. Stack, 594 
 
xxxvm 
 
 TABLE OF AMERICAN CASES CITED. 
 
 American Print "Works, 1306 
 American River Water Co. v. Ams- 
 
 dem, 346 
 Ames V. Hazard, 978, 979 
 Ames V. Ratlibun, 747 
 Amick V. Frazier, 372 
 Ammerman V. Crosby, 743, 766 
 Ammerman v. Wyoming-, etc., Co., 222 
 Amoskeag Manufacturing Co. v. Spear, 
 
 1050 
 Amoi-y V. Myn, 413 
 Anderson v. Brown, 1259 
 Anderson v. Foresman, 533 
 Anderson v. Milliken, 37 
 Anderson v. Nicholas, 397 
 Anderson v. Ryan, 1096 
 Anderson v. Saylors, 1195 
 Andover v. Gould, 49 
 Andrew v. Dietervich, 420 
 Andrews v. Kneeland, 1023, 1024 
 Andrews v. Shattuck, 399 
 Andrews v. Stone, 722 
 Angle V. Mississippi, etc. , R. R. Co., 596 
 Angus V. Dickerson, 524 
 Anthony v. Lapham, 78 
 Anthony v. Stephens, 995, 996 
 Antisdel v. Chicago & Northwestern R. 
 
 R. Co., 216, 221 
 Aortsen v. Ridgway, 1031 
 Appleby v. Obert, 361 
 Appling V. Bailey, 1256, 1259 
 Arbeery v. Bearers, 1265 
 Archer v. McMechan, 543 
 Armstrong v. Ai-mstrong, 1070 
 Armstrong v. Cooley, 32 
 Armentrout v. Moranda, 928 
 Arnold v. Foot, 78, 79, 93 
 Arnold v. Jones, 575 
 Arnold v. Munday, 345 
 Arnold v. Shields, 1237 
 Arnold v. Stevens, 160 
 Arlington v. Van Houton, 1264 
 Artieta v. Artieta, 5, 6, 954 
 Artie, etc., Ins. Co. v. Austin, 571 
 Arctic Fire Ins. Co. v. Austin, 28 
 Ash v. Putnam, 395 
 Ashbrook v. Commonwealth, 195, 196, 
 
 252 
 Ashley v. Ashley, 96, 174, 244 
 Ashmore v. Penn. Central R. R. Co., 587 
 Ashley v. Wolcott, 78 
 Atchison v. Twiner, 1306 
 Atkins V. Boardman, 106, 151, 171, 182 
 Atkinson v. Hartley, 954 
 Atkinson v. Reading, 935 
 Atlantic & Great Western R. R. Co. v. 
 
 Dunn, 12, 733 
 Atterby v. Powell, 979 
 Attoraey-General v. Forbes, 261 
 Atty.-Gen. v. Hvidson R. R. Co., 261 
 Attorney- General v. Heishon, 161 
 Atwater v. Baltimoi-e, 1303 
 Atichmuty v. Ham, 30, 230, 231 
 Am-ora v. Pulfer, 1321 
 
 Aurora v. Reed, 1315 
 
 Austin V. Hudson River R. R. Co., 12, 
 
 300 
 Austin V. New i Jersey Steamboat Co., 
 
 485, 495, 574 
 Averett v. Thompson, 799 ' 
 
 Avery v. Ray, 736 
 Avery v. Slack, 1319 
 Aylesworth v. Harrington, 326, 328, 329 
 
 B 
 
 Babcock v. Utter, 99 
 
 Bach«lder v. Heagan, 306 
 
 Bachelder v. Wakefield, 136 
 
 Bacon, Ex parte, 1259 
 
 Bacon v. Boston, 1309 
 
 Bacon v. Towne, 728,. 759, 765 
 
 Backus v. Richardson, 957 
 
 Badgley v. Decker, 1094 
 
 Bailey v. Bailey, 1064 
 
 Bailey v. Bussing, 1195 
 
 Bailey v. Dean, 970 
 
 Bailey v. Mayor, etc., of New York, 
 
 305, 1300 
 Bailey v. Miltenberger, 345 
 Bailey v. Wright. 639, 643 
 Bailey v. Quint, 550 
 Bailey v. Wiggins, 770, 828 
 Bainbridge v. Sherlock, 345, 346 
 Bakeman v. Talbot, 182, 379 
 Baker v. Boston, 1304 
 Baker v. Cook, 546 
 Baker v. Crosby, 165, 168 
 Baker v. Davis, 294 
 Baker v. Drake, 458, 1184 
 Baker v. Fuller, 543 
 Baker v. Hopkins, 767 
 Baker v. Johnson, 1265 
 Baker v. Wheeler, 410, 460 
 Baker v. Young, 983, 289 
 Baulch V. Patten, 44 
 Baldwin v. American Express Co., 571 
 Baldwin v. Cooley, 1237 
 Baldwin v. Miiriro, 458 
 Baldwin v. United States Telegraph Co., 
 • 536 
 
 Ball V. Armstrong, 193 
 Ball V. Bruce, 1094, 1095 
 Ball V. Lappins, 1257 
 Ball V. Liney, 402 
 Ballard v. Butler, 167 
 Ballen v. Alexander, 417 
 Ballentine v. North Missouri R. R. Co., 
 
 574 
 Ballon v. Hale, 1116 
 BaUou V. Hopkinton, 93 
 Baltimore v. Branman, 1309 
 Baltimore, etc., R. R. Co. v. Blocher, 12, 
 
 461, 1193 
 Baltimore, etc., R. R. Co. v. Brady, 
 
 587, 625 
 Baltimore, etc., R. R. Co. v. Dorsey, 885 
 
TABLE OF AMERICAN CASES CITED. 
 
 XXXIX 
 
 Baltimore, etc., R. R. Co. v. Shumacker, 
 
 529 
 Baltimore, etc., R. R. Co. v. Skeels, 587 
 Baltimore, etc., R. R. Co. v. State, 23, 
 
 494 
 Blatimore, etc., R. R. Co. v. Wheeler, 
 
 545 
 Balton V. Beers, 733 
 Banderburgh v. Bassett, 452 
 Bangor v. Lansil, 72, 1315 
 Bank v. Mayor, etc., 1302, 1304 
 Bank of the Metropolis v. New England 
 
 Bank, 545 
 Bankhead v. AUoway, 1005 
 Banlcs v. Bussey, 261 
 Baunon v. Angler, 160, 164 
 Banton v. Wilson, 1266 
 Barb v. Fish, 442 
 Barber v. Essex, 1317 
 Barber v. Morgan, 1038 
 Barber v. Roxborough, 1311 
 Barclay v. Commonwealth, 234 
 Bard v. Tohn, 83, 477, 1132 
 Barger v. Barger, 955 
 Barker v. Braham, 810 
 Barker v. Commonwealth, 199, 263 
 Barker v. Savage, 476 
 Barnes v. Allen, 11, 1088 
 Barns v. Brian, 797 
 Barnes v. Chapin, 29 
 Barnes v. City of Racine, 208 , 
 Barnes v. Trundy, 975 
 Barnes v. Martin, 690, 733 
 Barnes v. Webb, 978 
 Barnard v. Kellogg, 1023 
 Barnard v. Poor, 304, 306 
 Barnett v. Reed, 755, 1193 
 Barnett v. Stanton, 1022 
 Barney v. Burstenbinder, 578 
 Barney v. Lowell, 1384 
 Barnstable v. Thatchef, 371 
 Barnnm v. Van Dusen, 384 
 Barret v. Jarvis, 954 
 Barring v. Commonwealth, 243 
 Barron v. Cobleigh, 411 
 Barron v. Eldredge, 593 
 Barron v. Mason, 766 
 Barrows v. Bell, 933 
 Barrows v. Carpenter, 978, 991 
 Barrows v. Massachusetts Medical So- 
 ciety, 1271 
 BaiTy V. Inghs, 736 
 Barstow v. Sprague, 371 
 Bartholomew v. Hamilton, 300 
 Bartis v. Buffalo and State Line R. R. 
 
 Co., 596 
 Bartlett v. Churchill, 732 
 Bartlett v. Crittenden, 13 
 Bartlett v. Hoppock, 1023 
 Bartlett v. Prescott, 99, 103, 366 
 Bartlett v. Wood, 293 
 Bartley v. Richtmyer, 1090, 1091, 1094, 
 
 1095, 1098 
 Barton v. Barton, 1116 
 
 Barton v. Holmes, 987 
 
 Barton v. Kavanaugh, 767 
 
 Barton v. Springfield, 1316 
 
 Barton v. Syracuse, 1305, 1313, 1314, 
 
 1318 
 Barwick v. Wood, 456 
 Bass V. Chicago, Burlington and Quincy 
 
 R. R. Co., 306 
 Bassell v. Elmore, 964, 975, 988, 989, 990 
 Bassett v. City of St. .Joseph, 1312 
 Bassett v. Green, 418 
 Bassett v. Salisbury Manufacturing Co., 
 
 79, 82, 92, 259, 262 
 Bassett v. Spafford, 972 
 Bates V. Plymouth, 1267 
 Batty V. Duxbury, 1317 
 Bauer v. Clay, 745 
 Bann v. Mullen, 1036, 1124 
 Baxter v. Second Avenue, 476 
 Baxter v.Winoski Turnpike Co., 222, 241 
 Bayine v. Steamship Co., 627 
 Beach v. Hancock; 690, 733 
 Beach v. Livergood, 375 
 Beach v. Parmenter, 475 
 Beach v. Ranney, 969 
 Beach v. Schmulty, 411 
 Beal V. Finch, 1195 
 Beard v. Durald, 294 
 Beardsley v. Bridgman, 5, 826, 960, 
 
 961, 988 
 Beardsley v. Smith, 1322 
 Beardsley v. Tappin, 941, 974 
 Beasley v. Meigs, 993 
 Beatty v. Gillmore, 1316, 1321 
 Beatty v. Gregory, 99 
 Beaty v. Perkins, 799 
 Beavors v. Trimmer, 178, 19S, 242, 244, 
 
 249 
 Bechtell v. Carslake, 261 
 Bechtell v. Shatler, 973 
 Beckwith v. Boyce, 297 • 
 Beckwith v. Griswold, 194, 243, 256, 
 
 1160, 1163 
 Beckwith v. Shordike, 329 
 Beckley v. Howard, 402 
 Bedford v. Hunt, 68 
 Bedell v. Long Island R. R. Co., 307 
 Beebe v. Robert, 1023, 1024 
 Beekman v. Kreamer, 132 
 Beekman v. Shouse, 580 
 Beers v. St. John, 299 
 Beers v. Williams, 1021 
 Beggarly v. Croft, 1199 
 Beguhl V. Swan, 1259 
 Beirne v. Dord, 1024 
 Beisiegel v. New York Central R. R. 
 
 Co., 473 
 Belden v. Henriques, 35, 1031 
 Belger v. Dinsmore, 571 
 Belknap v. Boston, etc,, R. R. Co., 733 
 Bell V. Byerson, 1016 
 Bellv. Drew, 570 
 Bell V. Hansley, 691 
 Bell v. Hogan, 561 
 
x] 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Bell V. Pearcy, 743, 744 
 
 Bell V. Potter, 635 
 
 Bell V. Troy; 417 
 
 Bellinger V. N. Y. Central R. R., 882, 885 
 
 Bemis v. Connecticut & Passumpsic 
 Rivers R. R. Co., 214 
 
 Bemis v. Upham, 93 
 
 Benaway v. Conyne, 974 
 
 Bendetson v. French, 614 
 
 Benedict v. Goit, 1307 
 
 Benkert v. Benkert, 1065 
 
 Bennett v. Appleton, 732 
 
 Bennett v. Bennett, 1062 
 
 Bennett v. Buffalo, 1382 
 
 Bennett v. Bullock, 356 
 
 Bennett v. Clemence, 357 
 
 Bennett v. Chicago, etc., R. R. Co., 217 
 
 Bennett v. Button, 568 
 
 Bennett v. Filyan, 596 
 
 Bennett v. Judson, 1027, 1036 
 
 Bennett v. Matthews, 994 
 
 Bennett v. O'Brien, 523 
 
 Bennett v. Smith, 11 
 
 Bennett v. Williamson, 926 
 
 Benoist v. Sollee, 634 
 
 Bensell v. Lynch, 814 
 
 Benson v. Suarez, 211 
 
 Benton v. Baxter, 476 
 
 Berard v. Hoffman, 772 
 
 Berks County, etc. v. Myers, 1319 
 
 Berkshire Woollen Co. v. Proctor, 609, 
 616 
 
 Berry v. Borden, 726 
 
 Berry v. Carle, 346 
 
 BeiTy V. Carter, 926 
 
 Bertram v. Curtiss, 353 
 
 Berry v. Dryden, 983 
 
 Berry v. Fletcher, 1123, 1195 
 
 Besson v. Southard, 728, 742, 743, 764 
 
 Best V. Allen, 1193 
 
 Beswick v. CBappel, 955 
 
 Betts V. Farmers' Loan, etc., Co., 591, 
 592 
 
 Betts V. Lee, 410, 460 
 
 Betts V. Mouser, 443 
 
 Bevan v. Crooks, 648 
 
 Beveridge v. Lacey, 261 
 
 Bickel V. Polk, 132 
 
 Biddle v. Ash, 183 
 
 Big Mountain Improvement Co.'s Ap- 
 peal, 96, 259 
 
 Biggs, Ex parte, 775 
 
 Biggs V. D'Aquin, 1193 
 
 Bigelow V. Hartford Bridge Co., 261 
 
 Bigelow V. Randolph, 1299 
 
 Bigelow V. Young, 461 
 
 Bill V. Norrick, 1312, 131b 
 
 Billings V. RusseU, 799 
 
 Binney's Case, 259, 320 
 
 Binney v. Hull, 96 
 
 Birge v. Gardiner, 26 
 
 Bircher v. Parke, 299 
 
 Bimey v. New York & Washington 
 Telegraph Co., 535 
 
 Birchard v. Booth, 1193, 1199 
 Birdsey v. Frost, 1013 
 Bisbey v. Shaw, 994 
 BisseU V. Michigan Southern and Nor- 
 thern Indiana R. R. Companies, 597 
 Bissell V. New York Central R. R. Co., 
 
 268, 349, 350, 470, 533, 591 
 Bissell V. Price, 601 
 Bishop V. Banks, 258 
 Bishop V. Blair, 1117 
 Bishop V. Mayor of Macon, 1202 
 Bixby V. Brundidge 765 
 Bizzell V. Booker, 2 
 Black V. Auditor, 1256 
 Black«(r. Grant, 371 
 Black V. Philadelphia, etc., R. R. Co., 
 
 261 
 Blackley v. Sheldon, 444 
 Blackstock v. New York and Erie R. R 
 
 Co., 575 
 Blaisdell v. Roberts, 372 
 Blair v, Milwaukee R. R. Co. 217 
 Blake v. Everett, 181 
 Blake v. Ferris, 245, 510 
 Blake v. Jerome, 100 
 Blake v. St. Louis, 1312 
 Blake v. Sturtevant, 1172 
 Blanchard v. Baker, 78 
 Blanchard v. Isaacs, 624 
 Blanchard v. Page, 619 
 Blanchard v. Porter, 346 
 Blanchard v. Steams, 37 
 Blanche v. Bradford, 651 
 Bland v. Adams Express Co., 575 
 Bland v. Womack, 533 
 Blane v. Klumpke, 43, 208, 241 
 Blaukenshipp v. Peri'y, 402 
 Blass V. Gregor, 743 
 Bleker v. St. Louis Law Commissioner, 
 
 1259 
 BlickenstaflFv. Pen-in, 994, 996 
 Blin V. Mayo, 531 
 Bliss V. Greeley, 116 
 Bliss V. Kennedy, 93 
 Bliven & Mead v. Hudson River R. R. 
 
 Co., 625 
 Block V. McGuire, 12 
 Bloch V. PfaflF, 96 
 Blodgett V. Boston, 1299, 1309 
 Blodgett V. Brattleboro, 1193 
 Blood V. Sayre, 771, 829 
 Bloodgood V. Jamaica, 1320 
 Bloomhuff V. State, 263 
 Bloss V. Toby, 974 
 Blossom V. Barrett, 42 
 Blossom V. Dodd, 587, 625 
 Blossom V. GrifKth, 593 
 BlumenthaU v. Brainard, 587, 589 
 Blunt V. Little, 742 
 
 Board of Commissioners v. Hicks, 1264 
 Boardman v. Meriden Brittania Co., 
 
 1052 
 Bodfish V. Bodfish, 155 
 BodweU V. Bragg, 607 
 
TABLE OW AMERICAN OASES CITED. 
 
 xli 
 
 Bodwell V. Osgood, 749 
 
 Boggs V. Martin, 603 
 
 Bogert V. Phelps, 799 
 
 Bohm V. Dunphy, 633 
 
 Boland v. Missouri R. R. Co., 26, 494 
 
 Boldt V. New York Central R. R. Co., 
 
 491, 492 
 Bolivar Manufacturing Co. v. NepouSet 
 
 Manufacturing Co., 90, 173 
 Bolton V. Colder, 476 
 Bolton V. Miller, 1091 
 Bond V. Clark, 1038 
 Bonesteel v. Bonesteel, 697 
 Bonner v. McPhail, 955 
 Bonner v. State, 1272 
 Bonsall v. McKay, 382 
 Boody V. Keating, 40, 417 
 Boom V. City of Utica, 1301, 1302 
 Boon V. Orr, 293, 294 
 Boorman v. Jenkins, 1023, 1024 
 Bootli V. Northrop, 1038 
 Booth V. Powers, 462 
 Booth V. Sherwood, 356 
 Boston & Albany R. R. Co. v. Shauly, 
 
 578 
 Boston, etc. v. Dana, 417 
 Boston V. Springfield, 1309 
 Bostwick, Ex ■parte, 1258, 1259 
 Bostick V. Rutterforth, 667, 765 
 Bottoms, Ex parte, 1259 
 Boucher v. New Haven, 1317 
 Bowen v. Coker, 444 
 Bowen v. N. Y. Central R. R. Co., 467 
 Bowie V. Bowie, 1061 
 Bowland v. Nixon, 1156 
 Bowling Green Savings Bank v. Todd, 
 
 546 
 Bowlsby v. Speer, 72 
 Bowman v. Coi-nell, 818 
 Bowman's Devisees v. "Walthen, 346, 348 
 Bowmau v. Eaton, 400 
 Bowman v. Parker, 1185 
 Bowman v. Wickliffe, 267 
 Boyce v. Brockway, 394 
 Boyce v. Brown, 173 
 Boyce v. California Stage Co., 468, 1185 
 Boyce v. Russell, 1264 
 Boyd V. Byrd, 1091 
 Boyd V. Brent, 981 
 Boyleston v. Kerr, 702 
 Boynton v. Newton, 1276 
 Boynton v. Remington, 952 
 Brackett v. Hayden, 550 
 Bracy v. Kibbe, 1094 
 Bradbury v. Gilford, 324, 328 
 Bradford v. Manly, 1024 
 Bradley, Ex parte, 1259 
 Bradley v. Ballard, 3229 
 Bradley v. Buffalo, New York & Erie 
 
 R. R. Co., 217 
 Bradley v. Fisher, 'tJO, 771 
 Bradley's Fish Co. v. Dudley, 154, 159, 
 
 167 
 Bradley v. Norton, 1052 
 
 Bradley v. Rice, 349 
 
 Bradsher v. Lea, 261 
 
 Brady v. Ball, 326 
 
 Brady v. "Waldron, 317 
 
 Brady v. Weeks, 192 
 
 Brainard v. Head, 799, 803 
 
 Brasher v. Kennedy, 513 
 
 Brasher v. Mason, 1265, 1266 
 
 Branch v. Doane, 80 
 
 Bravei-s v. Tiimmer, 176 
 
 Bray iv. Wallingford, 1298 
 
 Breese v. United States Telegraph Co., 
 
 535 
 Brennan v. Whitaker, 293, 300 
 Brewer v. Crosby, 80 
 Brewster v. De Fremery, 211 
 Brewster v. Silliman, 566 
 Brice v. Randall, 97, 103 
 Birch V. Benton, 983 
 Brickner v. N. Y. Central R. R. Co., 
 
 490 
 Bridges v. Purcell, 98 
 Bridgman v. Hopkins, 995 
 Briggs V. Boston, etc., R. R. Co., 601 
 Briggs V. Briggs, 1062 
 Briggs V. Evans, 1095 
 Briggs V. Large, 648 
 Briggs V. New York Central R. R. Co., 
 
 403 
 Brigham v. Smith, 105 
 Brill V. Flagler, 199 
 Brinkley v. Brinkley, 1060 
 Brintnall v. Saratoga and Whitehall R, 
 
 R. Co., 596 
 Brittain v. Newland, 1319 
 Bi-itton V. Cummington, 1309 
 Britts V. Lee, 810 
 
 Briyendine v. Frankfort Bridge Co., 555 
 Broadwell v. Wilcox, 326 
 Brock V. Smith, 118 
 Brockway v. Crawford, 699, 700 
 Brodie V. Rutledge, 770 
 Brokaw New Jersey, etc., R. R. Co., 
 
 721 
 Brooker v. Coffin, 926, 955 
 Brooks V. Schwerin, 476 
 Brooks V. Clifton, 211 
 Brooks V. Curtis, 112, 153, 182 
 Brooks V . Jones, 743 
 Brother v. Cannon, 813 
 Broughton v. Broughton, 359 
 Brow v. Hathaway, 932 
 Brower v. Mayor, etc., of New York, 
 
 1298, 1315 
 Brown v. Brown, 974, 1066 
 Brown v. Brooks, 994 
 Brown v. Bowen, 77, 80, 174 
 Brown v. Carpenter, 281 
 Brown v. Cayuga and Susquehanna R. 
 
 R. Co., 242, 885 
 Brown v. Chadburne, 346 
 Brown v. Chadsey. 719, 749, 1193 
 Brown v. Connelly, 760 
 Brown v. Crego, 1265 
 
xlii 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Brown v. Gray, 1031, 1032 
 
 Brown v. Haynes, ,458 
 
 Brown v. Hoburger, 393 
 
 Brown V. Howard, 727 
 
 Brown v. Illius, 192, 445 
 
 Brown v. Jefferson County, 1311 
 
 Brown v. Maxwell, 490 
 
 Brown v. McCune, 1031 
 
 Brown v. McCloud, 371 
 
 Brown v. Milwaukie, etc., R. R. Co., 
 
 215 
 Brown v. Montgomeiy, 1031 
 Brown v. Murphee, 1021 
 Brown v. Nickerson, 954 
 Brown v. New York Central R. R. Co., 
 
 467, 474, 479 
 Brown v. Pei-kins, 208 
 Brown v. Pine, 974 
 Browne v. Providence, etc., R. R. Co., 
 
 215 
 Brown v. RandaU, 742, 763 
 Brown V. Remington, 928 • 
 Brown v. Sax, 460 
 Brown v. Simms, 648 
 Brown v, Stewart, 317 
 Brown v. Thomas, 373 
 Brown v. United States, 1266 
 Brown v. Watson, 241, 242 
 Brown v. Wood, 799 
 Brownell v. Manchester, 444 
 Brownell v. McEwen, 1096 
 Rrowning v. Springfield, 1308 
 Brozzart v. Corlett, 117 
 Bryan v. Cattell, 1262 
 Bryant v. Rich, 32, 33 
 Bruce v. Andrews, 544 
 Bruce v. N. T., etc., R. R. Co., 217 
 Bruning v. New Orleans Canal and 
 
 Banking Co., 241 
 Brush V. Carter, 
 Brushaben v. Hegeman, 697 
 Buck V. Ashley, 399, 402, 450, 455 
 Buck v.Lockport, 1260, 1264 
 Buckley v. Knapp, 733, 982, 992 
 Buckley v. Leonard, 230, 250 
 Buckman v. Buckman, 349 
 Buchannan v. Curtis, 265 
 Budd V. Hiler, 44 ' 
 
 Buddington v. Bradley, 144, 145 
 Buel V. New York Central R. R. Co., 
 
 495, 518 
 Buffington v. Alen,' 1164 
 Bulkley v. Dolbeare, 371 
 Bulkley v. New York, etc., R. R. Co., 
 
 216 
 Bullitt V. Clement, 772 
 Bullock V. Babcock, 2, 1126 
 Bullock V. Hayward, 1115 
 Bullock V. Wilson, 346 
 Bunkmeyer v. EvansviUe, 1302 
 Bundy v. Hart, 983 
 Burbank v. Hoi-n, 975 
 Burbank v. Crooker, 397 
 Burden v. Stein, 93, 320 
 
 Burdick v. Heivly, 1S8 
 
 Burdick v. Mui-ray, 538 
 
 Burditt V. Swenson, 194 
 
 Burhans v. Sanford, 765 
 
 Burk V. Baxter, 297 
 
 Burk V. HoUis, 299 
 
 Burk V. Savage, 443, 452 
 
 Burke V. Miller, 995, 996 
 
 Burke v. Munroe County, 1259, 1256 
 
 Burkart v. Jennings, 759 
 
 Burkett v. Lanata, 728, 764 
 
 Burlingame v. Burlingame, 966 
 
 Buraey v. The Proprietors, etc., in Hull, 
 149 
 
 Burnpy v. Pledger, 458 
 
 Burnett v. Burkhead, 11 
 
 Bui-nett V. Phalon, 1050 
 
 Buraap V. Albert, 742, 758 
 
 Bumham v. Butler, 475 
 
 Burnham v. Kempton, 257 
 
 Bumham v. Stevens, 771 
 
 Bumell V. New York Central R. R. Co., 
 599 
 
 Burns v. Erben, 699, 700, 719 
 
 Buraside v.' Twitchell, 300 
 
 Burr V. Van Buskirk, 639 
 
 Burroughs v.,HousatonicR. R. Co., 307 
 
 Burroughs v. Norwich and Worcester 
 R. R. Co., 596 
 
 Burrow v. Landry, 79 
 
 Burson v. Edwards, 988 
 
 Burt v. Dutcher, 452, 458, 460 
 
 Burthe v. Fortier, 268 
 
 Burtch V. Nickerson, 956 
 
 Burton v. Young, 1014 
 
 Bui'well V. Hobson, 93 
 
 Buys V. Gillespie, 926 
 
 Buyard v. Holmfes, 1038 
 
 Bush V. Brainerd, 305 
 
 Bush V. Geneva, 1317 
 
 Bush V. Peru Bridge Co., 16 
 
 Bush V. Prosser, 993 
 
 Bushnell v. Scott, 270 
 
 Bussey v. Mississippi Valley Transpor- 
 tation Co., 571 
 
 Butman v. Hussey, 90, 172 
 
 Button v. Hudson R. R. Co., 23, 27, 28, 
 495 
 
 Buttrick V. Lowell, 1302 
 
 Butterfield v. Buffum, 969 
 
 Buttei-field v. Western R. R. Co., 473 
 
 Butterworth v. Crawford, 102, 104 
 
 Butler V. Butler, 1064 
 
 Butler V. Page, 293, 300 
 
 Butler V. Peck, 73 
 
 Butler V. Newkirk, 413 
 
 Buzzell V. Laconia Co., 225, 226, 491 
 
 Byrket v. Monohon, 988 
 
 Cabot V. Christie, 1007, 1015, 1017 
 Cadwalder v. Tindall, 649 
 
TABLE OF AMERTGAN CASES CITED. 
 
 xliii 
 
 Cairns v. Bleeker, 399, 455 
 
 Calavaras County v. Brockway, 1259 
 
 Caldwell v. Abby, 6, 957, 974 
 
 Caldwell v. Copeland, 135, 141 
 
 Caldwell v. Eaton, 444 
 
 Caldwell v. Fulton, 120 
 
 Caldwell v. New Jersey Steamboat Co., 
 
 467 
 Calkins v. Long-, 1063 
 Calkins v. Sumner, 967 
 Call V. Butrick 243 
 Callahan v. Bean, 26 
 Callahan v. Burlington, etc., R. R. Co., 
 
 510 
 Callahan v. Caflfarata, 742, 743, 757, 
 
 1193 
 Callahan v. Warner, 494 
 Callan v. Gaylord, 980 
 Callahan v. Brown, 462 
 Cullender v. Marsh, 1307 
 Camden, etc., R. R. Co. v. Burk, 580 
 Camden Transportation Co. v. Belknap, 
 
 580 
 Camp V. The MarceUus, 481 
 Camp V. Martin, 958 
 Camp V. Matheson, 261 
 Camp V. Moseley, 799 
 Camp V. "Western Union Telegraph Co., 
 
 535 
 Campbell v. Brown, 30 
 Campbell v. Campbell, 406 
 Campbell v. Mesier, 171 
 Campbell v. Race, 379 
 Campbell v. Smith, 138 
 Campbell v. Stakes, 1126 
 Campbell f. Stokes, 395 
 Campbell v. Threlkeld, 742 
 Campbell v. Woodworth, 460 
 Canal Co. v. Graham, 1321 
 Canal Commissioners v. People, 349 
 Candee v. Pennsylvania R. R. Co., 597 
 Candee, Swan & Co. v. Deere & Co., 
 
 1050 
 Canefox v. Crenshaw, 329 
 Canning v. Williamstown, 1322 
 Cannon v. Janvier, 1275 
 Cape V. Ramsey, 771 
 Capen v. Peckham, 293, 294 
 Capner v. Flemington Mining Co., 317 
 Capers v. McKee, 379 
 Caperton v. Ballard, 1121 
 Caperton v. Bowyer, 1121 
 Caperton v. Martin, 1121 
 Caperton v. Nickel, 1121 
 Capuro V. Builders' Insurance Co., 1038 
 Carbrey v. Willis, 96 
 Carey v. Bright, 397, 401 
 Carew v. Rutherford, 12, 14 
 Cai-hart v. Auburn Gas Light Co., 81 
 Carl V. Ayers, 728, 757 
 Carle v. Delesdernier, 799 
 Carlisle v. Cooper, 154, 155 
 Carlisle v. Quattlebaum, 616 
 Carleton v. Lovejoy, 398, 414 
 
 Carlton v. Redington, 98 
 
 Carlock v. Spencer, 955 
 
 Carlyon v. Lannan, 458 
 
 Camahan v. Brown, 120 
 
 Carney v. Reed, 1195 
 
 Carpenter v. Gwynn, 268 
 
 Carpenter v. Stilwell, 418 
 
 Carpenter v. Taylor, 608 
 
 Carpenter v. Willett, 814 
 
 Carr v. Dodge, 1116 
 
 Carr v. Northern Liberties, 1313 
 
 Carroll v. Board of Police, 1277, 1300 
 
 Carroll v. Weiler, 329 
 
 Carckadon v. Johnson, 1121 
 
 Carson v. Blazer, 345, 346 
 
 Gartner v. Sliker, 1176 
 
 Carter v. Abbott, 11013 
 
 Carter v. Andrews, 957 
 
 Carter v. Beals, 374 
 
 Carter v. Bennett, 444 
 
 Carter v. Davis, 545 
 
 Cai'ter v. Dow, 828 
 
 Carter v. Dowell, 987 
 
 Carter v. Harrison, 37 
 
 Cai-ter v. Simpson, 418 
 
 Casbui'n V. Reid, 761. 
 
 Case Bank v. Keen, 1178 
 
 Case of a private road, 117 
 
 Case V. Fogg, 537 
 
 Case V. Marks, 992, 995 ,. 
 
 Case V. New York and New Haven R. 
 R. Co., 403 
 
 Casperson v. Sproiile, 742, 743 
 
 Cassin v. Marshall, 819 
 
 Cason V. Stone, 16 
 
 Cartle v. Durgee, 2, 466 
 
 Castleman v. Griffin, 1042 
 
 Castleman v. Griffin, 1004 
 
 Carswell v. Ware, 414 
 
 Caruthers v. Caruthers, 1061 
 
 Gates V. Kellogg, 964 
 
 Gates V. Wadlington, 346 
 
 Catlin V. Valentine, 1229 
 
 Catting: V. Cox, 374 
 
 Catterlin v. Douglas, 371 
 
 Cator V. Merrill, 543 
 
 Canfield v. Bullock, 37 
 
 Gazeaux v. Mali, 1006 
 
 Cecil V. Pacific R. R. Co., 214, 215 
 
 Ceghom v. New York Central and Hud- 
 son River R. R. Co., 489, 518 
 
 Centlivre v. Ryder, 612 
 
 Central R. R. Co. v. Hines, 572 
 
 Center v. Spring, 728, 764 
 
 Central R. R. Go. v. Moore, 493 
 
 Chadbum v. New Castle, 1306 
 
 Chadsey v. Greene, 1013 
 
 Ghadwick v. Lamb, 461 
 
 Ghapin v. State, 267 
 
 Chapman v. Dodd, 165, 746 
 
 Chapman v. Dyett, 720, 799, 800 
 
 Chapman v. Erie R. R. Co., 490, 491 
 
 Chapman v. Kimball, 345 
 
 Chapman v. Morgan, 359 
 
xliv 
 
 TABLE OF AMEJtIOAN CASES CFrED. 
 
 Chapman v. New Haven R. R. Co., 472, 
 
 499 
 Chapman v. O'Brien, 1178 
 Chambers v. Lewis, 395, 447 
 Chamberlain v. Cobb, 523 
 Chamberlain v. Sibley, 1262 
 Chamberlin v. Ward, 495 
 Chamberlain v. Western Transporiation 
 
 Co., 600 
 Chamblos v. Philadelphia, etc., R. R. 
 
 Co., 604, 631 
 Champion v. Vincent, 1193 
 Champlain and St. Lawrence R. R. Co. 
 
 V. Valentine, 349 
 Chandler v. Edson, 410 
 Chandler v. Holloway, 983 
 Chandler v. McPherson, 744 
 Chandler v. Walker, 371 
 Chapin v. Sullivan, 215 
 Charless v. Rankin, 12 
 Chase v. Blaisdell, 397 
 Chase v. Fish, 799 
 Chase v. Hazleton, 281 
 Chase v. Jefferson, 362 
 Chase v. New York Central R. R. Co., 
 
 603 
 Chase v. Whitlock, 6, 926, 954, 955 
 Chase v. Sutton Manufacturing' Co., 161 
 Chatfield V. Wilson, 6, 10, 79, 82. 90, 172 
 Chatham v . Bjjainard, 349 
 Chattanoog-a v. State, 1322 
 Cheadle v. Bue^l, 983 
 Cheatham v. Shearon, 262 
 Chelf V. Penn, 759 
 Cheery v. McCall, 733 
 Cheei-y v. Stein, 150 
 Cheesebrough v. Green, 112 
 Check v. Little Miami R. R. Co., 597 
 Chester v. Comstock, 1004, 1016, 1041 
 Chester v. Dickerson, 1006 
 Cheswell v Chapman, 368 
 Chicago V. Fowler, 1317 
 Chicago V. Gallagher, 1309 
 Chicago V. Johnson, 1313 
 Chicago V. Langlas, 1321, 1322 
 Chicago V. Railway Co., 225 
 Chicago V. Robins, 508 
 Chicago V. StaiT, 26 
 Chicago & Alton R. R. Co. v. Murphy, 
 
 490 
 Chicago, etc., R. R. Co. v. People, 1274 
 Chicago & Northwestern R. R. Co. v. 
 
 Simonson, 306 
 Chicago & Northwestern R. R, Co. v. 
 
 Jackson, 226, 491 
 Chicago & Alt. R. R. Co. v. Utley 215, 
 
 216 
 Chicago, etc., R. R. Co. v. Scott, 529 
 Chicago, etc., R. R. Co. v. Ried, 217 
 Chicago, etc., R. R. Co. v. Harris, 216 
 Chicago & Burlington & Quincy R. R. 
 
 Co 'V. Parks, 603 
 Chicago, etc , R. R. Go. v. Bame, 215, 
 
 216, 221 
 
 Chicago & Northwestern R. R. Co. v. 
 
 Swett, 226, 491 
 Chicago, etc, R. R. Co. v. Cauffman, 
 
 215 
 Chicago, etc., R. R. Co. v. Collins, .570 
 Chicago R. R. Co. v. Triplett, 27 
 Chicago, etc., R. R Co. v. Herring, 603 
 Chidsey v. Canton, 1322 
 Chisey v. Canton, 1299, 1309 
 Child V. Boston, 1314 
 Childress v. Wright, 295 
 Chiles v. Drake, 1184 
 Chipman v. Coofc 959 
 Chonteau v. Steamboat St. Anthony, 
 
 Chonteau v. Goddin, 1178 
 
 Chrisman v. Bruce, 37 
 
 Christian v. Dripps, 293 
 
 Christie v. Griggs, 468 
 
 Christenson v. American Express Co., 
 
 571, 587 
 Church V. Bridgeman, 964 
 Church V. Mansfield, 31 
 Church V. Meeker, 373 
 Churchill v. Churchill, 799 
 Cincinnati v. Stone, 508 
 Cincinnati Chronicle Co. v. White Line 
 
 Transit Co., 627 
 Cincinnati, etc., R. R. Co. v. Marcus, 
 
 579, 600 
 Cincinnati, Hamilton & Dayton, etc. v. 
 
 Pontius, 587 
 City of Atchison v. Chalis, 1315 
 City of Atchison v. King, 1322 
 City of Brooklyn v. Brooklyn City R. R. 
 
 Co., 1317 
 City of Buffalo v. HoUoway, 249 
 City of Chicago v. Mayor, 26 
 City Council v. Gilmer, 1313 
 City of Galena v. Amy, 1257 
 City of Henderson v. Sandeford, 1313 
 City of St. Paul v. Kirby, 26 
 City of Ripon v. Bittel, 1322 
 Chancy v. Byrne, 211, 1102 
 Clap V. Draper, 118 
 Clark V. Bales, 1195 
 Clark V. Barrington, 469 
 Clark V. City of Lockport, 1310, 1381 
 Clark V. Clark, 1070 
 Clark V. Faxton, 580, 587 
 Clark V. Fitch, 1091 
 Clarke v. Foot, 305 
 Clark V. Fraley, 634 
 Clark V. Fry, 508, 510 
 Clark V. Glidden, 443 
 Clark V. Harlan, 1088 
 Clark V. Holden, 281 
 Clark V. Lowell, etc., R. R. Co., 601 
 Clark V. Malory, 412 
 Clark V. May, 829 
 Clark V. Miller, 1264 
 Clark V. Reyburn, 300 
 Clark V. Spicer, 771 
 Clark V. Union Ferry Co., 1605 
 
TABLE OF AMERICAN CASES CITED. 
 
 xlv 
 
 Clark V. Vermont and Canada R. R. 
 
 Co., 510 
 Clark V. Way, 96 
 Clark V. Whytaker, 458 
 Clai-k V. Wilcox, 780 
 Clark V. Wilson, 519 
 Clark V. Wilmington, 1315 
 Classon v. Leopold, 612 
 Clayton v. Butterfield, 616, 617 
 Clayton v. Carey, 1274 
 Cleghora v. Central and Hudson River 
 
 R. R. Co., 490 
 Cleaveland v. Detweiler, 926, 960 
 Cleveland v. Grand Trunk R. R. Co., 
 
 306 
 Cleveland v. Jones, 374 
 Cleveland, Columbus & Cincinnati R. R. 
 
 Co. V. Elliott, 325, 328 
 Cleveland, Painsville and Ashtabula R. 
 
 R. Co. v. Curran, 470 
 Cleveland v. St. Paul, 1312 
 Clemence v. City of Auburn, 1312 
 Clemence v. Clemence, 281 
 Clemence v. Steere, 284 
 Clinton v. M'Kenzie, 98 
 Clinton v. Myers, 77, 92, 145 
 Cloon V. Gerry, 728, 743, 764 
 Clooson V. Staples, 743 
 Clossen v. Roberts, 752 
 Clute V. Wiggins, 609 
 Cobb V. Dows, 395 
 Cobb V. Portland, 1303 
 Coburn v. Hesswell, 540 
 Cochran v. Butterfield, 981 
 Cochran v. Miller, 1193 
 Cody v. Quinn, 799 
 Coffin V. Anderson, 444, 450 
 Coffin V. Nantucket, 1306 
 Cogbum V. Spence, 799, 800 
 Cohen V. Kyler, 293 
 Cohen v. Simmons, 371 
 Coker v. Birge, 192, 194 
 Cook V. City of Milwaukie, 131 
 Cook V. Champlain Transportation Co., 
 
 279, 300 
 Cook V. Cook, 975 
 Cook V. Ellis, 733 
 Cook V. Hull, 78 
 Cook V. Husted, 414 
 Cook V. Loomis, 458 
 Cook V. Stearns, 99 
 Cook V. Walker, 742 
 Colby V. Sampson, 797 
 Cole V. Cole, 1061 
 Cole V. Curtis, 747, 764 
 Cole V. Drew, 323, 332, 380 
 Cole V. Goodwin, 571, 579, 587 
 Cole V. Medina, 1304, 1305 
 Cole V. Muscatine, 49, 1308 
 Cole V. Sprowl, 241 
 Colgi'ove V. New York & New Haven 
 
 and New York & Harlem R. R. Co., 
 
 472, 479, 511 
 Coleman's Appeal, 159 
 
 Coleman v. Playsted, 955 
 
 Cooley v. Westbrook, 1313 
 
 Coolidge v. Brigham, 1190 
 
 Coolidge V. Williams, 132 
 
 Collard v. Gay, 744, 747 
 
 Collier v. Moulton, 732 
 
 Collins v. Benbury, 132, 346 
 
 Collins V. Council Bluffs, 1321 
 
 Collins V. Hayte, 747 
 
 Collins V. Marcy, 99 
 
 Collins V. Prentice, 103, 105, 106, 165 
 
 Collins V. Todd, 736 
 
 Collis V. Bowen, 443 
 
 Colton V. Cleveland & Pittsburg R. R. 
 
 Co., 587 
 Colter V. Lower, 722 
 Colten V. ElUs, 1262 
 Colton V. Beardsley, 1172 
 Columbus V. Jaqnes, 261, 1315 
 Columbus V. Woollen Co.. 1314 
 Col. & Ind. Central R. R. Co. v. Far- 
 
 rell, 471 
 Columbus, etc., R. R. Co. v. Watson, 
 
 1157 
 Colquitt V. Kirkman, 537 
 Colyar v. Taylor, 583 
 Combs V. New Bedford Cordage Co., 
 
 225, 226, 489 
 Combs V. Purrington, 476 
 Comeford v. Dupuy, 326, 328 
 Commissioners of Hamilton County v. 
 
 Mighels, 1299 
 Commercial Bank v. Jones, 458 
 Commonwealth v. Atlantic, etc., R. R. 
 
 Co., 1262 
 Commonwealth v. Baird, 1320 
 Commonwealth v. Boston, 1317 
 Commonwealth v. Clapp, 928 
 Commonwealth v.. Carey, 698 
 Commonwealth v. Chace, 413 
 Commonwealth v. C&mmissioners, 1280 
 Commonwealth v. Cole, 265 
 Commonwealth v. Commissioners Alle- 
 ghany, 1265 
 Commonwealth v. Farren, 263 
 Commonwealth v. Hunt, 14 
 Commonwealth v. Hopkinsville, 1322 
 Commonwealth v. Low, 263 
 Commonwealth v. Mohn, 264 
 Commonwealth v. McLaughlin, 698 
 Commonwealth v. Maylor, 121 
 Commonwealth v. MiUiman, 264 
 Commonwealth v. Nichols, 263 
 Commonwealth v. Odell, 952, 989 
 Commonwealth v. Perkins, 1296 
 Commonwealth v. Pittsburg, 1277 
 Commonwealth v. Roxbury, 132 
 Commonwealth v. Stacey, 941 
 Commonwealth v. Smith, 263 
 Commonwealth v. Supervisors of CoUey 
 
 Township, 1264 
 Commonwealth v. Upton, 196,. 252 
 Commonwealth v. Weathei-bee, 607 
 Commonwealth v. Wilmington, 1309 
 
xlvi 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Compton's Petition, 265 
 
 Comstock V. Van Deusen, 182 
 
 Conduit V. Dicken, 761 
 
 Coombs V. Rose, 938 
 
 Conger v. Chamberlain, 1014 
 
 Conger v. Chicago and Northwestern 
 
 R. R. Co., 578 . . 
 
 Congregational Society v. Baker, 373 
 Congress & Empire Springs Co. v. 
 
 High Rock Congress Spring Co., 1054, 
 
 1050 
 Congreve v. Morgan, 202, 249 
 Congreve v. Smith, 1312 
 Coughtry v. The Globe Woolen Co,, 
 
 1102 
 Conhocton Stone Co. v. Buffalo, etc., 
 
 R. R. Co., 243, 1160, 1163 
 Conkey v. Milwaukee, etc., R. R. Co., 
 
 596 
 Conlin v. Charleston, 23, 494, 495. 
 Connah v. Hale, 648 
 Connally v. Davidson, 492 
 ConoUy V. Poillon, 223, 226 
 Connolly v. Warren, 570 
 ConneU v. Kibbe, 172 
 Connotoy v. Dozier, 698 
 Continental National Bank v. National 
 
 Bank of the Commonwealth, 1178 
 Contra Costa, etc., R. R. Co. v. Moss, 
 
 571 
 Conroe v. Conroe, 995 
 Conway v. Jefferson, 265 
 Conway v. Starkweather, 638 
 Conway v. Taylor, 16 
 Cooper V. Cooper, 1066 
 Coon V. Syracuse and Utica R. R. Co., 
 
 490 
 Coon v. Utica and Syracuse R. R. Co., 
 
 492 
 Coats V. Cheever, 284 
 Cooper V. Berry, 44 
 Cooper V. Davis, 317 
 Cooper V. Greely, 975 
 Cooper V. Maupin, 105, 106 
 Cooper V. Marlow, 983 
 Cooper V. McJenkins, 727 
 Cooper V. Newman, 397, 418 
 Cooper V. Stone, 932 
 Cooper V. Turrentine, 761 
 Cooper V. Utterback, 728, 765 
 Coot V. Morea, 326 
 Cope V. Barber, 704 
 Coquillard v. French, 1155 
 Corbett v. Clutton, 898 
 Corliss V. McLagin, 300 
 Coming v. Loweri'e, 261 
 Coi-ning v. Troy Iron and Nail Works, 
 
 10, 92, 93 
 Corning v. Gould, 165 
 Corning v. Corning, 736 
 Corwin v. New York & Erie R. R. Co., 
 
 214, 215 
 Corwin v. Walton, 733 
 CornwaU v. SulUvan R. R. Co., 214, 469 
 
 Cornelius v. Van Slyck, 956 
 
 Cornish v. Cornish, 1064 
 
 Cory v. Little* 392 
 
 Cortelyou v. Van Brunt, 135 
 
 Cdrrigan v. Union Sugar Refinery, 208 
 
 Corwain v. Hames, 1321 
 
 Cosgrove v. Ogden, 477 
 
 Court v. Coroner, 1300 
 
 Courtney v. Baker, 1176 
 
 Courtney v. Carr, 1004 
 
 County V. Simmons, 1321 
 
 County Commissioners v. Duckett, 1 311 
 
 County Commissioners v. Gibson, 1311 
 
 Courser v. Powers, 834 
 
 Courter v. Wood, 760 ■ 
 
 Cowell V. Hill, 395 
 
 Cowell V. Thayer, 144 
 
 Cowden v. St. John, 298 
 
 Cowles V. Balzer, 327 
 
 Cowles V. Garrett, 406, 11J6 
 
 Cowles V. Kidder, 77 " 
 
 Cowles V. Pointer, 529 
 
 Cox V. Bunker, 960 
 
 Cox V. Keahey, 31 
 
 Cox V. SuUiVan, 497 
 
 Cox V. Vanderkleed, 733 
 
 Coxe V. Robbins, 325 
 
 Coy V. Lyons City, 1277 
 
 Craig V. Burnett, 771 
 
 Craig V. Pox, 165 
 
 Cragin v. New York Central R. R. Co., 
 
 537, 591, 592 
 Cram v. Thissell, 447 
 Cramer v. Mott, 655 
 Cramer v. Noonan, 928, 992, 1194 
 Crane v. State, 264, 281 
 Crane v. Bingham, 293, 295, 300 
 Crandall v. Amador, 1264, 1280 
 Craswell v. Weed, 975 
 Crawford v. Village of Delaware, 1307 
 Crawford v. Mellton, 955 
 Creiger v. Bunton, 985 
 Cressey v. Sawyer, 372 
 Cresson v. Stout, 292 
 Creed v. Hartmann, 511, 1131 
 Crittenden v. Field, 93 
 Crocker v. New London, Willimantic 
 
 & Palmer R. R. Co., 603 
 Crocker v. Mann, 633 
 Crocker v. Hutchinson, 498 
 Croft V. Alison, 515 
 Crommelin v. Cox, 176, 193, 196, 241, 
 
 242 
 Cromwell v. Stephens, 607 
 Crone v. Angel, 955 
 Crook V. Dowling, 761 
 Cropsey v. Murphy, 192 
 Cross V. Guthrey, 417 
 Crosby v. Fitch, 575 
 Crossett v. Jaynesville, 1300, 1301 
 Crothy v. Morrissey, 983 
 Crounse v. Wemple, 136, 164 
 Crowell V. Lambert, 1267 
 Crumb v. Oaks, 458 
 
TABLE OF AMERICAN CASES CITED. 
 
 xlvii 
 
 Cuff V. Newark and New York R. R. 
 Co., 246 
 
 CuUem V. Latimer, 1264 
 
 Cummevford v. McAvoy, 964 
 
 Cumings v. Clark, 1172 
 
 Cummings v. Thompson, 1038 • 
 
 Cunningham v. Dorsey, 151, 258 
 
 Cunningham v. Hall, 1021 
 
 Currie v. Worthy, 797 
 
 Currier v. Boston and Maine R. R. Co., 
 546 
 
 Currier v. Lowell, 1317 
 
 Curry v. Collins, 955 
 
 Curtis V. Ayrault, 147 
 
 Curtis V. Carson, .732 
 
 Curtis V. Fay, 815 
 
 Curtis V. Groat, 410 
 
 Curtis V. Hoyt, 85, 357 
 
 Cui'tis V. Keesler, 135 
 
 Curtis V. Nooman, 100 
 
 Cui-tis V. Ward, 462 
 
 Curtis V. Winslow, 260 
 
 Curtis V. Rochester and Syracuse R. R. 
 Co., 23, 468, 471, 472, 1192 
 
 Curran v. Warren Chemical Manufac- 
 turing Co., 494 
 
 Cushman v. Ryan, 736 
 
 Cusick V. Norwich, 1309, 1317 
 
 Cuthbert v. Lawton, 138, 154 
 
 Cutting V. Cox, 85 
 
 Cutting V. Grand Trunk R. R. Co., 628 
 
 Cutts V. Brainerd, 596 
 
 Cutler V. Adams, 1038 
 
 Cutler V. Cutler, 1061, 1064 
 
 D 
 
 Daily v. Gaines, 983 
 
 Daily v. Palmer, 55 
 
 Dailey v. Grimes, 635 
 
 Dailey v. Reynolds, 5, 960 
 
 Dain v. Wyckoff, 44, 1091, 1093 
 
 Dale V. Wood, 732 
 
 n^ley V. Norwich R. R. Co., 26, 494 
 
 ifalgleish v. Grandy, 633 
 
 Dalton V. Higgins, 955 
 
 Dame v. Kinney, 995 
 
 Damon v. Moore, 1096 
 
 Dana ,v. Valentine, 92, 155, 258, 260 
 
 Danforth v. Pratt, 550 
 
 Daniels v. People, 271 
 
 Daniels v. Pond, 293 
 
 Darby v. Callaghan, 1108 
 
 Dark V. Johnson, 98, 99, 116 
 
 Dart V. Walker, 1177 
 
 Darling v. Boston & Worcester R. R. 
 
 Co., 596 
 Darlington v. Mayor, etc., 1300 
 Dargan v. Mobile, 1303 
 Dargan v. Waddill, 194, 195, 199 
 Davis V. Bangor, 1322 
 David V. David, 1061 
 Davia v. Bradley, 543 
 
 Davis V. Burlington, etc., R. R. Co., 216, 
 
 217 
 Davis V. Brigham, 135 
 Davis V. Buffum, 299 
 Davis V. Clancy, 371 
 Davis V. Campbell, 393 
 Davis V. Detroit & Milwaukee R. R. 
 
 Co., 491 
 Davis V. Davis, 993, 957, 1061, 1063, 
 
 1064 
 Davis V. Farrington, 954 
 Davis V. Fuller, 77 
 Davis V. Gilliam, 284 
 Davis V. Gale, 138 
 Davis V. Johnson, 985 
 Davis V. Lambertson, 81, 257 
 Davis V. Lottioh, 1116 
 Davis V. Mayor, etc., of New York, 
 
 1315 
 Davis v. Michigan, etc., R. R. Co., 570 
 Davis V. Moss, 299 
 Davis V. Nash, 85 
 Davis V. New York Central & Hudson 
 
 R. R. Co., 473 
 Davis V. Ruff, 958 
 Davis V. Smith,. 1020 
 Davis V. Taylor, 455 
 Davis V. Webb, 398 
 Davenson v. Lamson, 379 
 Davidson v. Graham, 587 
 Davidson v. Nichols, 1103 
 Davidson v. Goodall, 1091, 1094 
 Davenport v. Lynch, 747 
 Davenport v. Ruckman, 1312 
 Day V. AUender, 265 
 Day V. Milford, 1311 
 Day V. Pool, 1013 
 Dayton and Dayton & Michigan R. R. 
 
 Co. V. Pontius, 596 
 Dayton v. Pease, 1298, 1304 
 Dean v. Gi-idley, 1172 
 Deal V. Harris, 770 
 Dearborn v. Dearborn, 498 
 De Armond v. Armstrong, 984 
 Dearth v. Baker, 30 
 De Benedetti v. Manchin, 1177 
 Decatur v. Paulding, 1266 
 Decatur v. Fisher, 1321 
 Decker v. Mathews, 403 
 Decker v. Gammon, 230 
 Deering v. Austin, 397, 418 
 Deitz v. Langfelt, 742 
 Delaware and Hudson Canal Co. v. 
 
 Torrey, 9, 90, 172 
 Delaware, etc., R. R. Co. v. Stump, 132, 
 
 261 
 Delaware & Hudson Canal Co. v. Clark, 
 
 1050, 1051 
 Delamatyr v. Railroad Co., 470 
 Delahoussaye v. Judise, 136, 138 
 Deming v. Foster, 1022 
 Deming v. Grand Trunk R. R. Co., 628 
 De Marentille v. OUiver, 690 
 Demarest v. Harring, 959, 969 
 
xlviii 
 
 TABLE OF AMERICAN OASES CITED. 
 
 Den V. Judges, 1273 
 
 Demiitt, petitioner, 1261 
 
 Dennett v. Cutts, 546 
 
 Dennehey v. Woodsum, 759 
 
 Dennis v. Eckardt, 199, 260 
 
 Dennis v. Ryan, 742, 750 
 
 Denery v. Fox. 396 
 
 Dent V. McGrath, 1008 
 
 Denton v. Jackson, 1300 
 
 De Puy V. Strong, 85, 1115 
 
 Deparnett v. Haynes, 373 
 
 Derby v. Gallup, 452 
 
 Derwent v. Loomer, 469 
 
 Dermont v. Detroit, 1305 
 
 Desmond v. Brown, 983 
 
 Detroit v. Blakely, 1308, 1311 
 
 Detroit v. Detroit, etc., R. R. Co., 265 
 
 Detroit v. Corey, 1300 
 
 Detroit Daily Post Co. v. McArthur, 989 
 
 992 
 Detroit and Milwaukee R. R. v. F. and 
 
 M. Bank, 596 
 Dewey V. Detroit, 1312 
 Dewey v. Osborn, 374 
 De Witt V. Perkins, 404 
 Devoe v. Brandt, 35, 1031 
 Devaugh v. Heath, 9, 322, 382 
 De Voss V. Richmond, 1300 
 Dexter v. Adams, 798 
 Dexter v. Paugh, 819 
 Dexter v. SuUivan, 374 
 Dexter v. Cole, 9 
 Dexter v. Spear, 978, 979 
 Dexter v. Syracuse, Binghamton and 
 
 New York Central R. R. Co., 570 
 Deyo V. Van Valkenburg, 720 
 Deyell v. Odell, 396 
 Dial V. Holler, 955 
 Dibble v. Brown, 570 • 
 Dickey v. Franklin Bank, 397 
 Dickey v. Maine Telegraph Co., 272 
 Dicken V. Shepard, 973, 990 
 Dickenson v. Winchester, 613 
 Dickinson v. Maynard, 742 
 ■ Dickson v. McCoy, 29, 250 
 Dickerson v. Rodgers, 607 
 Dickinson v. Jones, 281, 316 
 Dickenson v. Worcester, 72 
 Dimon v. People, 268 
 Dininny v. New York & New Haven R. 
 
 R. Co., 599 
 Disbrow v. Tenbroeck, 395 
 Dispatch Line of Packets v. Bellamy 
 
 Man. Co., 292 
 Dix V. Brown, 493 
 Dixon Crucible Co. v. Griggeuhiem, 
 
 1054 
 Doan V. Doan, 1061 
 Doane v. Badger, 104, 106, 171 
 Dodge V. McClintock, 136 
 Dodge V. Stacey, 265 
 Dole V. Erskine, 691, 693, 732 
 Dole V. Lyon, 964, 979 
 Dolan V. Fagan, 736 
 
 Dolloff V. Danforth, 372 
 
 Donahue v. New York, 1314, 1315 
 
 Donahoe v. Shed, 799 
 
 Donnelly v. Harris, 733 
 
 Doolittle V. McCullough, 462 
 
 Doolittle V. Supervisoi-s, 1315 
 
 Dorr V. New Jersey Steam Navigation 
 
 Co., 587, 591 
 Dorian v. Brooklyn, 1312 
 Dorman v. Ames, 80, 243, 256 
 Dorman v. City of Jacksonville, 49, 1315 
 Dorsey v. Manlove, 322, 1193 
 Dottarer v. Bushey, 956 
 Doughty v. BiiU, 272 
 Douglass V. State, 260, 264 
 Dou|lass V. Kraft, 460. 
 Douglass V. Tousey, 993 
 Douglas V. Wiggins, 280, 318 
 Doupe V. Genin, 211 
 Dowd V. Wadsworth, 401 
 Dows V. Greene, 422 
 Dows V. Morewood, 540 
 Downing v. Hen-iek, 770, 828 
 Downing v. Wilson, 5, 926, 961 
 Doyle V. Jessup, 1095, 1098 
 Doyle V. Kiser, 570 
 Drake v. Lowell, 1311 
 Drake v. Wells, 98, 118, 120, 377 
 Draper v. Noteware, 1265 
 Drew v. Sixth Avenue R. R. Co., 520, 
 
 1192 
 Drew V. Spaulding, 450 
 Drennon v. People, 699 
 Driggs V. Burton, 728, 759, 764, 765 
 Driscoll V. Newark and Rosendale Lime 
 
 and Cement Co., 205 
 Drown v. Smith, 281 
 Druse v. Wheeler, 100, 382 
 Dubois v. Allen, 1099 
 Dubois v. Beaver, 352, 356 
 Dubois V. Budlong, 192, 195 
 Dubuque v. Maloney, 349 
 Ducker v. Barnett, 529 
 Dudley v. Booles, 475 
 Dudley v. Tilton, 9, 172 
 Dudley v". Mayhew, 51 
 Duffy V. Thompson, 570 
 Duffy V. New York, etc., R. R. Co., 215 
 Dufalt V. German, 601 
 Duggins V. Watson, 31, 32 
 Du Laurans v. First Division of the St. 
 
 Paul and Pacific R. R. Co., 603 
 Dumont v Smith, 323 
 Dunlap V. International, etc., R. R. Co., 
 
 570 
 Dunlap V. Snyder, 231 
 Dunlap V. Thorn, 616 
 Dunn V. Branner, 523 
 Dunning v. Aui'ora, 257 
 Dunning v. Chicago, etc., R. R. Co., 216 
 Dung V. Parker, 18, 35, 1104 
 Dunham v. Powei-s, 968 
 Dunson v. New York Central R. R. Co., 
 
 576 
 
TABLE OF AMERICAN CASES CITED. 
 
 xlix 
 
 Duucan v. iSpear, 452, 455 
 Duncan v. Brown, 969, 994 
 Duncan v. Commonwealth, 692 
 Duncan v. Hayes, 257, 258 
 Durant v. Palmer, 197, 198, 244 
 Durel V. Boisblanc, 150 
 Durgin V. Lowell, 269 
 Dnrkin v. City of Troy, 1310 
 Durst V. Burton, 1027, 1036 
 Dutro V. Wilson, 256 
 Du Val V. Du Val, 168 
 Dwight V. Brewster, 571, 580 
 Dwight V. Benton, 399, 455 
 Dyer v. Depuy, 160 
 Dyer v. Smith, 829, 831 
 Dyer v. Sanford, 100, 161, 162 
 
 E 
 
 Eagau V. Gantt, 978 
 
 Eames v. Morgan, 1004 
 
 Eames v. Salem, etc., R. R. Co. 214, 
 
 215, 216 
 Eames v. State, 699 
 Earl V. Van Alstyne, 250 
 Earl V. Tupper, 1188 
 Earl V. De Hart, 72 
 Earl V. Hall, 176 
 Earle v. Van Buren, 398 
 Earley v. Moss, 983 
 Earing v. Lansing, 475 
 Earhart v. Younghlood, 8 
 East Tennesee, etc., R. R. Co. v. Nel- 
 son, 568, 574, 593, 596 
 Eastland v. CaldweU, 995, 998 
 Eastman v. Keason, 747 
 Easton v. European and Northern R. 
 
 R. Co., 245, 246, 508 
 Eason v. Petway, 740 
 Eaton V. Hill, 1126 
 Eaton V. R. R. Co., 308, 1307 
 Eaton V. Winnie, 30 
 Eden v. Legare, 954 
 Edelman v. Yeakel, 323 
 Edgerly v. Swain, 974 
 Edick V. Grinnell, 1020 
 Edwards v. Lord, 467, 169 
 Edsall V. Camden, etc., R. R. & Trans. 
 
 Co. 591, 625 
 Edson V. Munsell, 137,157 
 Edaon v. Weston, 523 
 Eccles V. Shannon, 955 
 Eighth National Bank of New York v. 
 
 Fitch, 801 
 Ege V. Ege, 635 
 Eggleston v. New York & Harlem R. R. 
 
 Co., 98 
 Ela V. American M. U. Express Co., 
 
 594 
 Elder v. Allison, 1005 
 Elder v. Bums, 346 
 Elford V. Clark, 648 
 Elkins V. Atheam, 1256, 1259 
 
 Ad. — D 
 
 Elkinton v. Deacon, 760 
 
 Ellis V. American Telegraph Co. 535 
 
 Ellis V. Carey, 346 
 
 EUis V. Duncan, 79, 82 
 
 Ellis V. Dempsey, 1177 
 
 Ellis V. Thilman, 760 
 
 Ellis V. Paige, 299 
 
 Ellis V. Woie, 450, 458, 46C 
 
 Ellis V. Zeilin, 1050, 1055 
 
 Ellison V. Commissioners, 257 
 
 Ellington v. ElUngton, 1096 
 
 Elliot V. Ailsbury, 926 
 
 Elliott V. Brown, 693 
 
 Elliott V. Concord, 1317 
 
 ElUot V. Fitchburg R. R. Co., 172 
 
 Elliott V. Jackson, 44 
 
 Elmore v. Naugatuck R. R. Co., 596 
 
 ElUott V. Rhett, 100 
 
 Ellsworth V. Thompson, 736 
 
 Elsworth V. Potter, 12, 1193 
 
 Elwood V. Western Union Telegraph 
 
 Co., 536 
 Elwell V. Bumside, 290, 1116 
 Elwell V. Chamberlain, 1036 
 Elwell V. Martin, 1127 
 Ely V. Supervisors of Niagara Co., 234, 
 
 355 
 Ely V. Thompson, 770 
 Emerson v. Badger, 1053 
 Emerson v. Brigham, 1030 
 Emery v. Prescott, 974 
 Emery v. Hapgood, 800 
 Emery v. Chesley, 697 
 Emery v. Lowell, 1305, 1314 
 Emmons v. Shelden, 1202 
 Enright v. San Francisco, etc., R. R. 
 
 Co., 216 
 Empree v. Empree, 1061 
 Empire Transportation Co. v. Wam- 
 
 sutta Oil Co., 580 
 Ernst V. Hudson River R. R. Co., 473, 
 
 493 
 Ernst V. Kunkle, 49 
 Estep V. Estep, 211 
 Esmay v. Fanning, 398 
 Etz V. Daily, 332 
 Eustis V. Parker, 1321 
 Ewell V. Greenwood, 261, 265 
 Evans v. Herring, 639 
 Evans v. Tibbins, 974 
 Evans v. Dana, 138 
 Evans v. Merriweather, 78 
 Evans v. Smith, 964, 983 
 Evansville, etc., R. R. Co. v. Baum, 
 
 32, 33 
 Evansville, etc., R. R. Co. y. Young, 
 
 587 
 Everett v. Coffin, 395, 408, 541 
 Everett v. Saltus, 408, 618 
 Everett v. Hydraulic, etc., Co., 83 
 Exchange Fire Insurance Co. v. Dela- 
 ware and Hudson Canal Co., 221 
 Eyre v. Higbee, 416 
 Ezell v. Franklin, 1037 
 
TABLE OF AMERICAN CASES CITED. 
 
 ¥ 
 
 Paber v. ¥aber, 1050, 1055 
 Fahn v. Reichart, 3 
 Fairbault v. Sater, 1014 
 Fairchild v. Bentley, 250, 329 
 Pairchild v. California Stage Co., 467, 
 
 468 
 Fairchild v. Case, 798 
 Fall V. Paine, 16 
 Fallenstein v. Boothe, 969 
 Fairish v. Reighle, 468 
 Farrar v. Cooper, 160 
 FaiTar v. Rollins, 445 
 Farrand v. Marshall, 12, 73 
 Farrington v. Payne, 398 
 Farmers and Mechanics' Bank v. Cham- 
 plain Transportation Co., 569, 596 
 Famham v. CamSen and Amboy R. R. 
 
 Co., .587 
 Farwell v. Boston and Worcester R. R. 
 
 Co. 490, 492 
 Fassett v. Smith, 420 
 Faulkner v. South Pacific R. R. Co., 
 
 573, 574 
 FaxJiner v. "Wright, 571 
 Fauvial v. New Orleans, 1306 
 Faust V. McDaniel, 760, 764 
 Fawcett v. Charles, 933 
 Feazle v. Simson, 761 
 Felton V. Memphis, 1272 
 Feltou V. Simpson, 138 
 Fenner v. Buffalo and State Line R. R. 
 
 Co.;^ 594, 595, 600 
 Fensler v. Meyer, 1094 
 Fera v. Fera, 1064 
 Ferren v. Knipe, 7 8 
 Ferguson v. Brent, 575, 576 
 Ferguson v. Da vol Mills, 1050 
 Ferguson v. Hamilton, 1037 
 Ferguson v. Miller, 413 
 Ferris v. Morris, 1256 
 Ferris v. Brown, 135 
 Fero V. Buffalo and State Line R. R. 
 
 Co., 305, 306, 307 
 Fero V. Rusco, 978 
 Fratt V. Clark, 44 
 Fidler v. Delavan, 97 
 Field V. Ireland, 697 
 Field V. N. Y. Central R. R. Co., 306, 
 
 307, 313 
 Fields V. Rouse, 1023 
 Fielder v. Maxwell, 401, 447 
 Fifty Associates v. Tudor, 183 
 Fightmaster v. Beasley, 452 
 Finney v. Watkins, 297 
 Fink V. Justh, 994 
 Finley v. Thayer, 261 
 Filber v. Dantermann, 954, 957 
 Filbert v. Hoff, 1117 
 Filer v. New York Central R. R. Co., 
 
 1108, 1192 
 Filley v. Fassett, 1050, 1052 
 Fillmore v. Horton, 399 
 
 Firemans Insurance Co. Ex parte, 1275 
 First National Bank of Greenfield v. 
 
 Marietta and Cincinnati R. R. Co., 624 
 Fish V. Dodge, 192, 199 
 Fish V. Ferris, 395, 1126 
 Fish V. Skut, 30, 231 
 Fisher v. Beard, 91 
 Fiske V. Bailey, 1124 
 Fisher v. Boston, 1303, 1306 
 Fisher v. Bridges, 693, 732 
 Fisher v. Clark, 5, 30 
 Pisher v. Farmers' Loan, etc., Co., 216 
 Fisher v. Geddes, 595 
 Fisher v. Glisbee, 606 
 Fislipr V. New York Central & Hudson 
 
 R. R. Co., 603 
 Fisher v. Rotterean, 956 
 Fisher v. Smith, 350 
 Fisher v. ThirkeU, 211 
 Fisk V. Newton, 594 
 Fisk V Tank, 1021 
 Fitch V. Diarmid, 1264, 1265 
 Fitts V. Hall, 1031, 1126 
 Fitzgerald v. Blake, 396 
 Fitzgerald v. Redfield, 958 
 Fitzsimmons v. Southern Express Co., 
 
 594 
 Flagg V. "Worcester, 1315 
 Flanagan v. Philadelphia, 345, 346- 
 Fleet V. Hollenkeep, 496, 511 
 Fleming, Ex parte, 1260 
 Fletcher v. Barroughs, 995 
 Flint V. Rawlings, 537 
 Flike V. Boston & Albany R. R. Co., 
 
 490, 491 
 Flower v. Pennsylvania R. R. Co., 493 
 Floyd V. State, 697 
 Flynn v. San Francisco & San Jose R. 
 
 R. Co., 306 
 Folger V. Robinson, 346 
 Foley V. "Wyette, 174 
 Fondren v. Durfree, 1044 
 Ford V. Cobb, 262, 291, 294, 297, 397 
 Ford V. Ford, 1061 
 Ford V. Foster, 1050 
 Ford V. Johnson, 6, 926, 954 
 Forrist v. Leavitt, 699 
 Forshee v. Abrams, 996 
 Forsyth *. Beveridge, 546 
 Forsyth v. Hooper, 227, 508, 509 
 Fort V. Groves, 261 
 Foi-t Plain Bridge Co. v. Smith, 43, 
 
 208 
 Fortner v. Flamagan, 799 
 Forward v. Adams, 960 
 Foreman v. Neilson, 442 
 Foss V. Hildreth, 991 
 Foshay v. Furguson, 728 
 Foster v. Browning, 98 
 Foster v. Essex Bank, 501, 523 
 Foster v. Kennedy's Adm'r, 1005 
 Foster v. Scoffield, 1097 
 Foster v. Tucker, 40, 417 
 Foot v. Brown, 959 
 
TABLE OF AMERICAN CASES CITED. 
 
 Foot V. New Haven & Northampton 
 Co., 98 
 
 Foote V. Nichols, 12, 1131 
 
 Foote V. Stoors, 531 
 
 Fowler v. Grilman, 461 
 
 Fowler v. Lock, 478 
 
 Fowler v. Pierce, 1266 
 
 Fowles V. iSowen, 926, 944, 957, 989 
 
 Fox V. Holt, 537 
 
 Fox V. Northern Liberties, 1302 
 
 Fox V. Stevens, 1096 
 
 Fox V. Webster, 1038 
 
 Fox. V. Vanderbeek, 983 
 
 Francis v. Schoellkopf, 241, 256 
 
 Francisco v. Manhattan Ins. Co., 1259 
 
 Frailey v. Waters, 104 
 
 Frankfort, etc.. Turnpike Co. v. Phila- 
 delphia, etc. R. E,. Co., 307 
 
 Fraser v. Freeman, 31, 32, 1061 
 
 Fraser v. Davil, 634 ' 
 
 Frazer v. Kimlar, 511 
 
 Frazer v. Pennsylvania R. R. Co., 225, 
 491 
 
 Frazier v. Brown, 78, 82 
 
 Freeholders v. Strader, 1311 
 
 Freeman v. Price, 5, 961 
 
 Freeman v. Tinsley, 994 
 
 Freemont v. Crippen, 1264 
 
 Frederick v. Devol, 300 
 
 Frederick v. Gilbert, 732 
 
 French v. Marstin, 182 
 
 French v. Morris, 104 
 
 Frenzell V. Miller, 1005, 1016 
 
 French v. Lawrence, 636 
 
 French v. Owen, 98 
 
 French v. White, 1121 
 
 Frink V. Coe, 468 
 
 Frink V. Potter, 469, 1193 
 
 Frisbie v. Fowler, 5. 961 
 
 Fi-izzle V. Patrick, 257 
 
 Frost V. Grand Trunk R. R. Co., 471 
 
 Fry V. Bennett, 950, 990, 1030, 1031 
 
 Fry V. Breckinridge, 639, 643 
 
 Fry V. Baxter, 462 
 
 Fry V. Jones, 634 
 
 Fryatt v. Sullivan Co., 397 
 
 Fuhr V. Dean, 99 
 
 Fund V. Baily, 773 
 
 Fuller V. Dean, 995 
 
 Fuller V. Hampton, 1331 
 
 Fuller V. Naug-atuck R. R. Co., 469, 571 
 
 FuUer v. Plainfield Academic School, 
 1282 
 
 Fuller V. Tabor, 395 
 
 Fuller V. Talbot, 469 
 
 Fullerton v. Warrick, 736 
 
 Fullam v. Steai-ns, 785, 300 
 
 FuUen wider v. Mc Williams, 742 
 
 Fulton V. Alexander, 523 
 
 Fulton Fire Ins. Co. v. Baldwin, 221 
 
 Fulton V. Fulton, 1065 
 
 Fulton V. Sellers, 1050 
 
 Fulton Village v. Mehrenfield, 265, 267 
 
 Funk V. Dillon, 458 
 
 Furr V. Moss, 832 
 Fui-man y. Van Sise, 44 
 
 G 
 
 Gaffield v. Hapgood, 297 
 
 Gage V. Epperson, 395 
 
 Gage v. Shelton, 956" 
 
 Gage V. Whittier, 447 
 
 Gailher v. Blowers, 732 
 
 Gallaher v. Thompson, 496 
 
 Gallagher v. Warring, 1023 
 
 Gale V. Ward, 292 
 
 Galesburg v. Higbie, 1317 
 
 Galena v. Amy, 1277 
 
 Galena & Chicago R. R. Co. v. Fay, 
 
 469, 601 
 Galena, etc., R. R. Co. v. Griffin, 216, 
 
 ,217 
 Gallimore v. Ammerman, 722 
 Gallin v. London & Northwestern R. R. 
 
 Co., 470 
 Galpiu V. Chicago, etc., R. R. Co., 215 
 Gambling v. Prince, 362 
 Gammon v. Chandler, 546 
 Gannon v. Hargadon, 79 
 Gandy v. Humphries, 992 
 Garr v. Selden, 934, 956 
 Gan-ett v. Dickerson, 989 
 Garrett v. Freeman, 308 
 Gan-ett v. Gilbert, 945 
 Garrigan v. Berry, ^76 
 Gardner v. Finley, 300 
 Gardner v. Heartt, 305 
 Garrison v. Rudd, 116, 117 
 Garfield v. Douglass, 828 
 Gay V. Winter, 494 
 Gaskill V. Dudley, 1322 
 Gates V. Blancoe, 235 
 Gates V. Bowker, 980 
 Gates V. Meredith, 994 
 Gandy v. Chicago & Northwestern R 
 
 R. Co., 307 
 Gaul V. Fleming, 955 
 Gayety v. Bethune, 104, 135, 136, 151, 
 
 159, 161, 165 
 Gear v. Barnum, 350 
 Genet v. Howland, 443 
 Genesee Chief v. Fitzhugh, 346 
 Gent V. Lynch, 85 
 Gentleman v. Soule, 265, 270 
 George v. Fisk, 357 
 George v. Van Horn, 1090 
 Gerald v. Boston, 1310 
 Gerber v. Grubell, 114, 150 
 Gerber v. Monie, 455 
 Gerrish v. Brown, 208, 241, 262 
 Gerrish v. Clough, 3, 210 
 Gerome v. Ross, 387 
 Getty V. Rountree, 1021 
 Gevanger v. Summers, 155 
 Gibson v. Culler, 594 
 Gibson v. Hatchett, 529 
 
lii 
 
 TABLE OF AMERICAN CASES CITED 
 
 Gibson v. Pacific R. R. Co., 226 
 
 Gidden v. Bennett, 293 
 
 Gifiord V. New Jersey R. R. Co., 1229 
 
 Gilbert v. Dickerson, 406 
 
 Gilbert v. Pelton, 375 
 
 Gilbert v. Kennedy, 357, 384 
 
 Gilbert v. People, 934 
 
 Gilbert v. Showerman, 258 
 
 Gilchrist v. McGee, 188 
 
 Gilchrist v. McLaUiffhUn, 361 
 
 Giles V. Elsworth, 643 
 
 Giles V. Fauatleroy, 613 
 
 Giles V, Simonds, 377 
 
 Giles V. State, 928, 980 
 
 Gillenwaier v. Madison and Indianapo- 
 
 Us R. R. Co., 492 
 Gillespie v. Dew, 371 
 Gillespie v. Palmer, 37 
 Gillespie v. Wood, 1260 
 Gillott V. Esterbrook, 1050 
 Gillet V. Mason, 413 
 Gillham v. Madison Co. R. R. Co., 73 
 Gillett V. Treganza, 310 
 Gillis V. Nelson, 104 
 Gilmartin v. Philadelphia, 1316 
 Gilman v. Bassett, 1270 
 Gillman Eastern R. R. Co., 491 
 Gilman v. Emery, 392 
 Gillman V. Hill, 397 
 Gillon V. Wilson, 730 
 Gilmore v. Newton, 397, 418 
 Gilshaunon v. Stoney Brook, 490 
 Given v. Webb, 760 
 Glascock V. Bridges, 747 
 Glasscock v. Commissioner of General 
 
 Land Office, 1260 
 Glassey v. Hestouville M. &. P. R. R. 
 
 Co., 26 
 Glasco V. New York, etc., R. R. Co., 570 
 Glaze V. McMillion, 398 
 Gleason v. Gleason, 1064 
 Gleason v. Gary, 243 
 Gleason v. Tuttle, 80 
 Glenn v. Garrison, 455 
 GUden v. Unity, 1321 
 Gloninger v. Franklin Coal Co., 120 
 Gooch V. Gregory, 780 
 Goodale v. Tuttle, 72, 79 
 Goodall V. Thurman. 1200 
 Goddard v. Grand Trunk R. R. Co., 12, 
 
 31, 33, 721, 733 
 Goodman v. Walker, 497 
 Goodrich v. Bux-bank, 116 
 Goodrich v. Chicago, 1316 
 Goodwin v. Baltimore, etc., R. R. Co., 
 
 575, 600 
 Goodwin v. Daniels, 976 
 Goodwin v. Glazier, 780, 1264 
 Goodwin v. Snyder, 44 
 Goetz V. Ambs, 382 
 Goflf V. Hutchinson, 1317 
 Goff V. Kilto, 413 
 Godfrey v. City of Alton, 346 
 Goggans v. Monroe, 766 
 
 Goings V. Mills, 1256 
 
 Goings V. White, 1042 
 
 Gonzales v. New York and Harlem R. 
 
 R. Co., 473, 494 
 Gore V. Norwich, etc., Transportation 
 
 Co., 570, 599 
 Gorham Manufacturing Co. v. Fargo, 
 
 579 
 Gorham Co. v. White, 57 
 Gorman v. Pacific R. R. Co., 326, 328 
 Gorman v. Sutton, 993 
 Gordon v. Hostetter, 40 
 Gorden v. Jenny, 411 
 Gorton v. De Angelis, 759 
 Gorton v. Erie R. R. Co., 473 
 Gorton v. Falkner, 651 
 Gorton v. Frizzle, 799 
 Gosling V. Morgan, 974 
 Goughtry v. Globe Woolen Co., 489 
 Gould V. Hudson River R. R. Co., 345 
 Grace v. Mitchell, 799, 803 
 Grady v. Wooisner, 243, 244 
 Graham v. Plate, 10, 1051 
 Graham v. Houston, 371 
 Graham & Co. v. Davidson, 587 
 Grangiac v. Arden, 414 
 Grant v. Brooklyn, 1311 
 Grant v. Chase, 4, 104, 165, 168, 169 
 '■ Grant v. Drew, 16 
 I Grant v. Erie, 1303 
 Grant v. Lyman, 172 
 Grant v. Moore, 728, 759 
 Grant v. Mosely, 495 
 Graver v. Sholl, 90, 172 ' 
 
 Graves v. Berdan, 112 
 Graves v. Otis, 1307 
 Gray v. Baldwin, 317 
 Gray v. Harris, 83 
 Gray v. Ottolengui, 18 
 Gray & Bell v. Scott and wife, 27 
 Gray v. Durland, 1091, 1092, 1094 
 Gray v. Pentland, 935 
 Grayson v. Wilkinson, 498 
 Great Western R. R. Co. v. Hawkins, 
 
 S92 
 Great Western R. R. Co. v. Moi-thland, 
 
 216 
 Great Western R. R. Co. v. McComar, 
 
 625 
 Green v. Bethea, 268, 271 
 Greene v. Bishop, 53 
 Green v. Wood, 1264 
 Green v. Oakes, 261, 265 
 Green v. Craig, 1193 
 Green v. Purnell, 1356 
 Green v. Southera Express Co., 579 
 Green v. Clark, 618, 619 
 Green v. Putnam, 122 
 Green v. Canaan, 265 
 Greenville, etc., R. R. Co. v. Partlow, 
 
 322 ' 
 
 Greenwood v. Greenwood, 1091 
 Greenfield Bank v. Leavitt, 458 
 Greenly v. Hall, 311 
 
TABLE OF AMERICAN CASES CITED. 
 
 lui 
 
 Greenleaf v. Francis, 74, 79, 82 
 
 Greenwade v. Mills, 742, 764 
 
 Grey v. Ohio and Pennsylvania R. R. 
 
 Co., 257 
 Gregory v. C. C. & C. R. R. Co., 773 
 Gi'egg V. Gregg, 325 
 Gregory v. Thomas, 766 
 Gregory v. Brown, 772 
 Grieff v. Cowgnill, 543 
 Grier v. "Ward, 392 
 Grier v. Cowan, 336, 634 
 Grier v. Sampson, 475 
 Griffin v. Foster, 138 
 Griffin v. Bixby, 352 
 Griffin v. Chubb, 743 
 Griffin v. Mayor, etc., of New York, 
 
 1313 
 Griffith V. McCuUum, 208 
 Griffiths V. Godson, 225 
 Grigsby v. Breckinridge, 13, 416 
 Grigsby v. Clear Lake Water Co., 241, 
 
 242 
 Grinnell v. Cook, 609, 616 
 Grippen v. New York Central R. R. Co., 
 
 473 
 Griswold v. Haven, 1027 
 Grover v. Dill, 1097 
 Grove v. Qty of Fort Wayne, 1316 
 Grove v. Hodges, 35 
 Grover v. Hodges, 120 
 Gross V. Kierski, 1020, 1064 
 Gross V. Gutteiy, 40 
 Gf osvenor v. New York Central R. R. 
 
 Co., 624 
 Grubbs v. Kyser, 972, 983 
 Grubb V. Bayard, 120 
 Grube v. Nichols, 265 
 Guard v. Risk, 926, 960, 1194 
 Guengerech v. Smith, 733 
 Guernsey v. Morse, 736 
 Guerin v. Hunt, 799, 803 
 Guillaume v. Hamburgh & American 
 
 Packet Co., 594 
 Guille v. Swan, 8, 199, 1132 
 Guilford v. Smith, 541 
 GuUadge v. Howard, 523 
 Gunther v. Attwell, 1024 
 Gunn V. Pulaski County, 1256 
 Gustard's Case, 1295 
 Guthrie v. New Haven, 265 
 
 Haas V. Chousard, 80, 138 
 Habersham v. Savannah, etc., Canal 
 
 Co., 222, 1274 
 Hadley v. Cross, 22, 475 
 Hadley v. Upshaw, 612 
 Hodson V. MiUward, 799 
 Haffick V. Stober, 299 
 Hafford v. New Bedford^ 1218, 1303, 
 
 1306 
 Hagan v. Hendy, 878 
 
 Haygood v. Justices, 1299 
 
 Hahn v. Thornberry, 92 
 
 Haight V. Keokuk, 345, 346 
 
 Haight V. Pj-ice, 80 
 
 Haight V. Turner, 1259 
 
 Haines v. Welling, 964 
 
 Hair v. Little, 1131 
 
 Hall V. Augsbury, 93, 144 
 
 Hall V. Choffer, 99 
 
 Hall V. Corcoran, 525 
 
 Hall V. Connecticut River Steamboat 
 
 Co., 469 
 Hall V. Hawkins, 743, 744 
 Hall V. Mayo, 359 
 Hall V. MeLeod, 104, 136, 269, 270 
 Hall V. Plasson, 1024 
 Hall V. Renfro. 605 
 Hall V. Robinson, 398 
 Hall V. Suydam, 743 
 Hall V. Supervisors of Oneida, 1256 
 Hale V. Burton, 634 
 Hale V. New Jersey Steam Navigation 
 
 Co., 571 
 Halett V. Lee, 812 
 Haley v. Earle, 27, 494, 495 
 Halford v. Tetherow, 1117 
 Halleck v. Miller, 975 
 Halleck v. Mixer, 44 
 Haldeman v. Bruckhart, 79 
 Haley v. Chicago R. R. Co., 23 
 Halty V. Markel, 532 
 Holtzcluw V. Duff, 531 
 Halsey v. Woodruff, 1195 
 Halligan v. Chicago and Rock Island 
 
 R. R. Co., 373 
 Hame v. Mayor, etc., 1302 
 Hamer v. Hathaway, 458 
 Hammon v. Fisher, 810 
 Hammond v. Hopping, 1173 
 Hammond v. Zehner, 181 
 Hamilton v. Fulton, 1195 
 Hamilton v. Loraax, 1094 
 Hamilton v. Third Avenue R. R. Co., 
 
 12, 1184, 1193 
 Hamilton v. Williams, 770 
 Hamilton v. Windolf, 657 
 Hamilton v. White, 164 
 Hamilton v. Whiteiidge, 261 
 Hampton v. Wilson, 964 
 Hanna v. Phelps, 540 
 Hancock v. Wentworth, 159, 161, 171 
 Hanger v. Keating, 1237 
 Hannibal R. R. Co. v. Swift, 573 
 Hannibal and St. Joseph's R. R. Co. v. 
 
 Kenney, 215 
 Haulon v. Ingram, 305 
 Hance v. Cayuga and Susauehanna R. 
 
 R. Co., 216 
 Hanson v. Millet 414 
 Hanson v. Taylor, 265 
 Hard v. Vermont Central R. R. Co., 491 
 Hardin v. Armstock, 934 
 Hardins v. Boi'ders, 761 
 Harding v. Brooks, 954 
 
liv 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Harding v. Harding, 1064 
 Harding v. Jasper, 267 
 Harding v. Krelsinger, 1173 
 Harding v. Town, '519 
 Harding v. Townshend, 1198 
 Hardenbergh vs Hardenbergh, 1064 
 Hardcastle v. Maryland, etc.; B,. R. Co., 
 
 1265 
 Hargone v. Stone, 1023, 1024 
 Harrington v. Snyder, 524 
 HaiTis V. Boggs, 648 
 Harris v. Easall, 759 
 HaiTis V. Harrington, 935 
 Harris v. Haynes, 300 
 Harris v. Northern Ind. R. R. Co., 592 
 Harris v. Northern Indiana R. R. Co., 
 
 569 
 Harris v. Whitcomb, 37 
 Harrison v. Guill, 635 
 Harrison v. Harrison, 732 
 Hai-rington v. People, 693 
 narrower v. Ritson, 272 
 Harrison v. Young, 138 
 Harker v. Dement, 455 
 Harper v. Erie R. R. Co., 23 
 Harper v. Milwaukee, 1315, 1323 
 Harpending v. Haight, 1262 
 Hart V. Dubois, 799 
 Hart V. Evans, 247 
 Hart V. Mayor of Albany, 235, 387 
 Hart V. Robinet, 1173 
 Hart V. Skinner, 395 
 Hart V. Trustees, etc., SeS' 
 Hart V. Ten Eyck, 411 
 Hart V. "Western R. R. Co., 304, 306 
 . Hartfield v. Roper, 26 
 Hartford Bank v. Hart, 1321 
 Hai-tshom v. Ellsworth, 1281 
 Hartshorn v. South Reading, 261 
 Hartsock v. Reddick, 934 
 Harvey v. Derwoody, 262 
 Harvey v. DuAlop, 3 
 Harvey v. Harvey, 283, 317 
 Harvey v. Rochester, 1301 
 Harvey v. Rose, 606 
 Harwood v. Lowell, 1322 
 Harwood v. Marshall, 1264, 1272 
 Harwood v. Tompkins, 4 
 Haskins v. Paul, 648 
 Haskin v. Woodward, 300 
 Haskin v. Record, 118 
 Hastings v. Halleck, 498 
 Hastings v. Lusk, 934, 946, 966 
 Hastings v. Livermore, 90, 172, 174 
 Hastings v. Palmei-, 963 
 Hatfield v. FuUerton, 636 
 Hathom v. Ely, 594 
 Hatch V. Dwight, 160 
 Hatch V. Lane, 945 
 Hatch V. Lewis, 517 
 Hatch V. Vermont Central R. R. Co., 
 
 241 
 Havens v. Erie R. R. Co., 473 
 Haverstick v. Sipe, 114, 150 
 
 Haveyreyer v. Mineral Point Supervis- 
 ors, 1282 
 
 Hawley v. Clowes, 290, 318 
 
 Hawesville v. Lander, 350 
 
 Hawk V. Ridgway, 322, 697, 1193 
 
 Hawks V. Patton, '986 
 
 Hawks V. Stanford, 928, 978, 991 
 
 Hawkins v. Great Western R. R. Co., 
 592 
 
 Hawkins v. Governor, 1261 
 
 Hawksworth v. Thompson, 193 
 
 Haycroft v. Lake Shore and Michigan 
 Southern R. R. Co., 26 
 
 Hayes, Ex parte, 1256 
 
 Hays V. Blizzard, 765 
 
 Haye's v. City of Oshkosh, 1303 
 
 Hays V. Doane, 295 
 
 Hays V. Riddle, 461 
 
 Hayes v. Waldron, 145 
 
 Hayes v. Western R. R. Co., 225, 490, 
 492 
 
 Hayden v. Shad, 799 
 
 Hayden v. Smithville, etc., Co., 223, 
 224, 225, 226, 489, 491 
 
 Hayden v. Tucker, 258 
 
 Haynes v. Ritchey, 926, 960, 961 
 
 Haywood v. Charlestown, 265 
 
 Hazman v. Hoboken Land & Improve- 
 ment Co., 605 
 
 Hazel V. Clark, 693 
 
 HazletOn v. Putnam, 98 
 
 Headam v. Rust 326, 328 
 
 Healey v. Mayor of New York, 28 
 
 Heam v. Kiehi, 1155 
 
 Heath v. Cottenbox, 326 
 
 Heath v. Ricker, 96, 146 
 
 Heatherly v. Hadley, 1157 
 
 Hedden v. Hedden, 1067 
 
 Hedges v. Madison Co., 1300 
 
 Heflfernan v. Benkard, 510 
 
 Hegan v. Eighth Avenue R. R. Co., 475 
 
 Hegeman v. Western R. R. Co., 468, 
 469, 475 
 
 Heil V. Glanding, 23 
 
 Heim v. M'Caughan, 1193 
 
 Helser v. Pott, 634 
 
 Hellman v. HoUaday, 578, 600 
 
 Heller v. Mayor, ^tc, Sedalia, 1303 
 
 Heine v. Anderson, 408 
 
 Heming v. Ball, 727 
 
 Hemmenway v. Woods, 764 
 
 "Henderson, Ex parte, 1259 
 
 Henderson v. Boyer, 642 
 
 Henson v. Veatch, 991 
 
 Hendrick v. Cook, 80, 90, 172 
 
 Hendnckson v. Kingsbury, 1184, 1193 
 
 Hepbm-n v. Sewell, 442 
 
 Herdic v. Young, 1193 
 
 Heermance v. Vernoy, 100 
 
 Herrick v. Chapman, 931 
 
 Herron v. Hughes, 740 
 
 Herndo,n~v. Bryant, 1044 
 
 Hesler v. Degant, 988 
 
 Hester v. Hagood, 759 
 
TABLE OF AMERICAN CASES CITED. 
 
 Iv 
 
 Hesseltine v, Stockwell, 411 
 
 Hetfield v. Central R. R. Co., 362 
 
 Hetfield v. Towsley, 770 
 
 Hewey v. Nourse, 306 
 
 Hewitt V. Prime, 1096 
 
 Hewett V. Swift, 507 
 
 Heydeiifeldt v. Towns, 773 
 
 Heyward v. Cuthbert, 749 
 
 Hibbard v. Stewart, 448 
 
 Hibbard v. New York & Erie R. R. 
 Co., 33 
 
 Hickey v. Huse, 1121 
 
 Hicks V. Dem, 799 
 
 Hieatt v. Morris, 150 
 
 Hig-ert V. Greencastle, 1317 
 
 Higby V. Williams, 1132 
 
 Higgins V. Dewey, 12, 304, 305 
 
 Higgins V. Watervliet Turnpike & R. 
 R. Co., 31, 32, 33 
 
 Higginson v. Nahant, 1309 
 
 Higginbotham v. State, 690 
 
 Hill V. Brinkley, 546 
 
 HiE V. Brennan, 443 
 
 Hill V. CoveU, 398 
 
 HiU V. Hill, 1060 
 
 Hill V. Lord, 96, 135, 141 
 
 Hill V. Morey, 360, 362 
 
 Hill V. North, 1013 
 
 Hill V. Palm, 764, 765 
 
 Hill V. Rogers, 727 
 
 Hill V. Sayles, 93 
 
 Hill V. Sewald, 291, 294, 295 
 
 HiU V. Sewall, 293 
 
 Hill V. Board of Supervisors of Living- 
 ston County, 1319 
 
 Hill V. Ward, 80 
 
 Hill V. Wentworth, 294 
 
 Hills V. Snell, 397 
 
 HiUhous V. Dunning, 928 
 
 Hillaird v. Richardson, 176 
 
 Hildreth v. Lowell, 1302 
 
 Hinley v. Wyatt, 648, 651 
 
 Hinchman v. Patterson Horse R. R. Co., 
 261 
 
 Hinchman v. Whetstone, 1200 
 
 Hinds v. Barton, 305 
 
 Hines v. Lockpox-t, 1312 
 
 Hines v. McKinney, 898 
 
 Hindsbrey v. Hinds, 271 
 
 Hirschson v. Hamburgh Packet Co., 
 570, 596 
 
 Hirsch v. Quaker City, 600 
 
 Hitchcock v. Baker, 798 
 
 Hixon V. Lowell, 1311 
 
 Hoadley v. Watson, 733, 1188 
 
 Hoag V. Hatch, 955 
 
 Hobbs V. Parker, 1016 
 
 Hobkins v. Westcott, 570 
 
 Hodgson V. Millward, 12 
 
 Hoe V. Sanborn, 1021 
 
 Hoffman v. Armstrong, 352 
 
 Hoffman v. Cason, 395, 417 
 
 Hoffman v. Kemerer, 1098 
 
 Hoffman v. Union Ferry, 484 
 
 Hofnagle v. New York Central and 
 
 Hudson River R. R. Co., 490 
 Hogan V. Wilmoth, 974 
 Hogg V. Wilson, 956 
 Hohannan v. Hammond, 575 
 Holbrook v. Utica and-Schenectady R. 
 
 R. Co., 23 
 Holbrook v. Wright, 408 
 Holcraft v. King, 267 
 Holdane v. Coldspring, 265 
 Holden's Case, 1295 
 Holden v. Shattuck, 29, 332, 349 
 Hollis v. Wells, 1094, 1095 
 HoUister v. Nowlen, 571, 575, 579, 587 
 
 598 
 Hollenbeck v. Rowley, 332, 350 362 
 Hollingsworth v. Shaw, 955 
 Holman v. Lord, 1038 
 Holmes v. Clark, 1004 
 Holmes v. Seeley, 97, 171, 105, 106, 165, 
 
 357, 379 
 Holmes v. Tremper, 297 
 Holsman v. Boiling Spring, etc., Co., 
 
 77, 80, 81, 93, 145, 146, 153, 257 
 Holt v. Parsons, 949 
 Holt v. Sargent, 182, 268 • 
 Holton V. Binns, 1116 
 Holton V. Muzzy, 978 
 Homan v. Stanley, 508 
 Home Ins. Co. v. PUnt, 1238 
 Homes v. Peck, 497 
 Homer v. Coffey, 1322 
 Homer v. Thwing, 395, 525, 1126 
 Honesburgher v. Second Avenue R. R. 
 
 Co., 26 
 Hood V. New York and New Haven R. 
 
 R. Co., 596 
 Hooker v. Cummings, 132 
 Hooper v. Holson, 107 
 Hooksett V. Concord R. R., 304, 306 
 Hooper v. Chicago and North Western 
 
 R. R. Co., 619 
 Hooper v. Wells, 575 
 Hooper v. Wilkinson, 73 
 Hootman v. Shriner, 820 
 Hopkins v. Atlantic and St. Lawrence 
 
 R. R. Co., 517, 1193 
 Hopkins v. Westcott, 580, 587, 590 
 Hopwood v. Patterson, 1156 
 Home V. Barney, 1259 
 Horn V. Boon, 743 
 Horn V. Cole, 1178 
 Horton v. Banner, 994 
 Horton v. Payne, 1124 
 Hornketh v. Barr, 1091 
 Hosley v. Brooks, 992 
 Hosmer v. Loveland, 935 
 Hostetter v. Vanwinkle, 1051, 1052 
 Houck V. Wachter, 241, 242 
 Houghton V. Cooper, 280, 281 
 House V. House, 291, 955 
 House V. Metcalf, 196, 252 
 Houser v. Tully, 613 
 Houston v. Levy Court, 1256 
 
Ivi 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Houston, etc, R. R. Co. v. Randolph, 
 
 1261, 1262, 1266 
 Houx V. Seat, 120 
 Hover v. Barkhoof, 21 
 Hovey v. Mayo, 49, 1307, 1308 
 Howe V. Newmarch, 32 
 Howard v. Babcoek, 524 
 Howard v. Crawford, 798 
 Howard v. Parr, 553 
 Howard v. Gould, 1004 
 Howard v. O'Neill, 136 
 Howard v. Sexton, 988 
 Howard v Thompson, 931, 935, 941 
 Howe V. Oswego, etc., R. R. Co., 575 
 Howe V. Perry, 994 
 Howell V. Buffalo, 1301, 1302 
 Howell V. HoweU, 994 
 Howell V. McCoy, 192 
 Howland v. Eldredge, 1259 
 Howland v. Gardner, 1115 
 Howland v. Vincent, 203 
 Howth V. Pranklin, 608 
 Hoyt V. Van Alstyne, 455 
 Hoyt V. City of Hudson. 72, 73 
 Hubbard v. Bell, 346, 348 
 Hubbard v. Brig-gs, 1004, 1006 
 Hubbard v. Concord, 1309 
 Hubbard v. Russell, 176, 242 
 Hubbard v. Stewart, 462 
 Hubbard v. Town, 4, 114, 150, 258 
 Hubbell V. Meigs, 1016, 1017, 1041 
 Hudson V. Garner, 985 
 Hudson V. Hoyt, 1315 
 Hudson River R. R. Co. v. Loeb, 257 
 Huff V. McAuley, 98, 106 
 Huff V. Bennett, 982 
 Huffv. McCauley, 96 
 Huffman v. Shumate, 983 
 Hughes V. Boyer, 525 
 Hughes V. Giles, 443 
 Hughes V. Hughes, 1061 
 Hulbert v. New York Central R. R. Co., 
 
 471, 472 
 Hulett V. Swift, 609 
 Hulme V. Shreve, 90, 99, 259 
 Hull V. City of Kansas, 1312 
 Hull V. Sacramento Valley R. R. Co., 
 
 307 
 Hull V. Low«U, 1310 
 Hume V. City of New York, 1311 
 Hume V. Mayor, etc., of New York, 
 
 1312, 1313 
 Humiston v. Smith, 44 
 Humphrey v. Douglass, 392 
 Humphrey v. Hathorn, 818 
 Humphries v. Parker, 750, 992 
 Humphreys v. County, 1321 
 Hunt V. Bennett, 12, 935, 952, 1194 
 Hunt V. Brooklyn, 1313 
 Hunt v. Darling, 406 
 Hunt v. Hall, 310 
 Hunt V. Kane, 401 
 Hunt v. Mayor of Albany, 1315 
 Hunt v. Pennsylvania R. R. Co., 227, 510 
 
 Hunt V. Rich, 371 
 
 Hunter v. Hunter, 414 
 
 Hunter v. Hudson River I. & M. Co., 
 
 395 
 Hunter v. Winsor, 1304 
 Hunting v. Russell, 372 
 Huntington v. Gilmore, 414 
 Huntington v. Hall, 1020 
 Hunnewell v. Hobart, 323 
 Hurd V. Hubbell, 458 
 Hurd V. Shaw, 761 
 Hurd V. West, 372 
 Hurlbui-t V. Hurlburt, 1064 
 Hurlburt v. Litchfield, 1304 
 Huson V. Dale, 991, 994 
 Huss#- V. Hamilton, 1267 
 Hutchins v. City of Boston, 1310 
 Hutchins v. Hutchins, 740 
 Hutching v. King, 453 
 Hutchins v. Olcutt, 540 
 Hutchings v. Western R. R. Co., 600 
 Hutchings v. Western, etc., R, R. Co.,' 
 
 570 
 Hutchinson v. Bank of Wheeling, 417 
 Hutchinson v. Bobo, 395 
 Hutchinson v. Commissioners of Canal 
 
 Fund, 1256 
 Hutchinson v. Peck, 11 
 Hutchinson v. Sangster, 702 
 Hutchinson v. Wheeler, 99^ 
 Hutson V. Mayor, etc., of N. T., 1312 
 Hutts V. TindaU, 267 
 Hutton V. Wetherald, 44 
 Hyatt V. Taylor, 614 
 Hyde v. Cooksoon, 410 
 Hyde v. Jamaica, 104 
 Hyde v. Stone, 406 
 Hyland v. Sherman, 1031 
 
 Idol V. Jones, 6, 926, 954 
 
 Ihl V. Porty-second Street and Grand 
 
 Street Ferry R. R. Co., 520 
 Illinois, etc., R. R. Co. v. Baches, 474 
 Illinois Central R. R. Co. v. Copeland, 
 
 596 
 Illinois, etc., R. R. Co. v. Dickerson, 216, 
 
 221 
 Illinois Central R. R. Co. v. Franken- 
 
 burg, 596, 597 
 IlUnois Central R. R. Co. v. Frazier, 306 
 Illinois Central R. R. Co. v. McClellan, 
 
 26, 628 
 Ilhnois, etc., R. R. Co. v. McKee, 221 
 Illinois Central R R. Co. v. Mills, 306, 
 
 307 
 Illinois, etc., R. R. Co. v. Middlesworth, 
 
 23 
 Illinois -Central R. R. Co. v. Jewell, 
 Illinois Central R. R. Co. v. Johnson, 596 
 Illinois Central R. R. Co. v. Nunn, 306 
 lUiniois, etc., R. R. Co. v. Phelps, 216 
 
TABLE OF AMERICAN CASES CITED. 
 
 Ivii 
 
 lUinois Central R. R. Co. v. Phillips, 467, 
 
 469 
 Illinois Central R. R. Co. v. Slatton, 471 
 Illinois, etc., R. R. Co. v. Swaringen, 
 
 216, 221 
 Illinois, etc., R. R. Co. v. Simmons, 1185, 
 
 1199 
 Illinois Central R. R. Co. v. 'Welch, 224, 
 
 226 
 Illinois Central R. R. Co. v. "Waters, 572 
 Imler v. City of Springfield, 1315 
 Indianapolis, etc., R. R. Co. v. Allen, 
 
 587 
 Indianapolis, Peru & Chicago R. R. Co. 
 
 V. Anthony, 32 
 Indianapolis, etc., R. R. Co. v. Caldwell, 
 
 495 
 Indianapolis & Cincinnati R. R. Co. v. 
 
 Love, 491 
 Indianapolis, etc., R. R. Co. v. Cauld- 
 
 well, 27 
 IndianapoKSj etc., R. R. Co. v. Guard, 
 
 215 
 Indianapolis v. Huffner, 1313, 1314 
 Indianapolis, etc., R. R. Co. v. Irish, 216 
 Indianapolis, etc., R. R. Co. v. McKin- 
 
 ney, 215 
 Indianapolis, etc., R. R. Co. v. McClure, 
 
 216 
 Indianapolis, etc., R. R. Co. v. Meek, 
 
 215 
 Indianapolis v. Miller, 235 
 Indianapolis, etc., R. R. Co. v. Oestel, 
 
 216, 217 
 Indianapolis, etc., R. R. Co. v. Parker, 
 
 217 
 Indianapolis, etc., R. R. Co. v. State, 
 
 1274 
 Indianapolig, etc., R. R. Co. v. Town- 
 send, 215 
 IngaUs V. Bills, 469, 475 
 Ingalls V. Buckley, 402 
 IngaUs V. Lord, 462 
 Ingallsbee v. Wood, 615 
 Ingersol v. Buchanan, 1240 
 Ingersoll v. Jones, 1091 
 Ingersol v. N. Y. Central and Hudson 
 
 River R. R. Co., 474 
 Ingersoll v. Stockbridge and Pittsfield 
 
 R. R. Co., 304, 306 
 Ingerson v. Miller, 1199 
 Ingraham v. Dunnell, 92 
 Ingraham v. Hutchinson, 144, 145, 150 
 Ingraham v. Hough, 136, 154 
 Ingraham v. Treadgill, 345, 346 
 Inhabitants of China v. Southwick, 83 
 Inman v. Poster, 964 
 Inman v. Fowler, 988 
 Inskeep v. Shields, 371, 372 
 Ireland v. Elliott, 736 
 Ireland v. McGarvish, 957 
 Irons V. Field, 957 
 Irwin V. Covode, 284 
 Irwin V. Davidson, 368 
 
 Irwin V. Sprigg, 205 
 
 Irvin V. Wood, 242, 246 
 
 Isaacs V. Third Avenue R. R. Co., 31, 
 
 32, 33, 34, 721 
 Isbell V. New York, etc., R. R. Co., 216 
 
 495 ' 
 
 Israel v. Brooks, 728, 742, 764, 765 
 Ives V. Owens, 414 
 
 Jacaway v. Dula, 736 
 
 Jabine v. Midgett, 605 
 
 Jacks v. Smith, 634, 636 
 
 Jacks V. Stimson, 744 
 
 Jackson v. Anderson, 350 
 
 Jacljson v. Brownson, 28C 
 
 Jackson v. Chicago and Northwestern 
 
 R. R. Co., 307 
 Jackson v. Hathway, 332 
 Jackson v. Rutland and Burlington R. 
 
 R. Co., 214, 215' 
 Jackson v. Sacramento, etc., R. R. Co., 
 
 529 
 Jackson v. Stetson, 993 
 Jackson v. Second Avenue R. R. Co., 32 
 Jackson v. Tibbitts, 280 
 Jarvis v. Barnard, 1304 
 Jarnigan v. Fleming, 687, 969, 988, 991, 
 
 994 
 Jacobs V. Andrews, 304 
 Jacobs V. AUard, 81 , 
 
 Jacobs V. Fyler, 955 
 Jacobs V. Measurers, 784 
 Jacobs V. Shorey, 1177 
 James v. Caldwell, 393 
 James v. Leroy, 1088 
 Jamisson v. Milleman, 376 
 Jansen v. Acker, 813 
 Jansen v. Davison, 1258 
 Janes v. Buzzard, 44 
 Janes v. Jenkins, 102, 114 
 Jasigi V. Brown, 1008 
 Jagnith v. Richardson, 475 
 Jean v. Sandifoi'd, 359 
 Jefcoat V. Knotts, 322 
 Jeifries v. Ankeny, 37 
 Jefferson v. Adams, 733 
 Jeffersonville R. R. Co. v. Applegate, 
 
 215 
 Jeffersonville, etc!, R. R. Co. v. Dunlap, 
 
 215 
 Jeffersonville R. R. Co. v. Dougherty, 
 
 215 
 Jeffersonville R. R. Co. v. Hendricks, 
 
 471 
 Jeffersonville v. Louisville, etc.. Ferry 
 
 Co., 223 
 Jeffersonville R. R. Co. v. Rogers, 603 
 Jeffersonville R.-R. Co. v. Swift, 471 
 Jellison v. Goodwin, 931 
 Jenne v. Joslyn, 1177 
 Jenner v. Jolliffe, 399 
 
Iviii 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Jennings, Sx parte, 1278 
 
 Jennings v. Inhabitants of Tisbury, 265 
 
 Jennings v. Jennings, 1065 
 
 Jennings v. Paine, 966 
 
 Jenkins v. Stearika, 411 
 
 Jenkins v. Waldi-on, 37 
 
 Jersey City v. Morris Canal, etc,, Co. 
 
 269 
 Jervis v. JoIUffe, 399, 455 
 Jessup V. Loucks, 137, 154 
 Jessop V. Miller, 398 
 Jewell V. Mahood, 323 
 Jewett V. Foster, 375 
 Jewett V. Goodall, 722 
 Jewett V. Jewett, 160 
 Jewett V. New Haven, 1303 
 Jewett V. Partridge, 398 
 Job V. Harlou, 30, 231 
 Johns V. Stevens, 90 
 Johns V. Witherspoon, 328 
 Johnson v. Couillard, 399 
 Johnson v. Carter, 362 ^ 
 
 Johnson v. Dicken, 956 
 Johnson v. Lewis, 145 
 Johnson v. Johnson, 284, 1061 
 Johnson v. Jordan, 103 
 Johnson v. Lucas, 1260 
 Johnson v. Reynolds, 523, 616, 1266 
 Johnson v. Robertson, 955, 958 
 Johnson v. Stayton, 265 
 Johnson v. Shields, 955 
 Johnson v. Stebbins, 928 
 Johnson v. Small, 475 
 Johnson v. Sumner, 458 
 Johnson v. Winona, etc., R. R. Co., 467 
 Johnson v. Wiseman, 292 
 Johnston v. Martin, 765 
 Johnstown Co. v. Cambria Co., 120 
 Jones V. Boston, 1295, 1311 
 Jones V. Chapman, 964 
 Jones V. Chantry, 208 
 Jones V. Cook, 798 
 Jones V. Crow, 145 
 Jones V. Diver, 958 
 Jones V. Dugan, 398 
 Jones V. Gundrim, 634 
 Jones V. Gregg, 44 
 Jones V. Hungerford, 955 
 Jones V. Jones, 697, 1061 
 Jones V. Marrs, 955 
 Jones V. New Haven, 1299, 1800 
 Jones V. Nellis, 423 
 Jones V. Percival, 96, 97, 122, 106 
 Jones V. Pitcher, 575 
 Jones V. Rivers, 984, 985 
 Jones V. Sinclair, 452 
 Jones V. Soulard, 210 
 Jones V. Voorhees, 570, 571, 580 
 Jones V. Wagner, 75 
 Joannes v. Bennett, 939 
 Jordan v. Foster, 1013 
 Jordan v. Hanson, 770 
 Jordan .V. Woodward, 92 
 Joselyn v. McAllister, 733 ■ 
 
 Judge V. Meriden, 1304 
 
 Judson v. New York, etc., R. R. Co., 219 
 
 Judson V. Western R. R. Co., 593, 596 
 
 K 
 
 Kahu V. Lovez, 211 
 
 Kallman v. United States Express Co., 
 
 587 
 Kangler v. Hummell, 984 
 Kansas Pacific R. R. Co. v. Nichols, 592 
 Karney v. Paisley, 992 
 Katterman v. Stitzer, 764 
 Kaufman v. Griesmer, 73 
 Kay V. Pennsylvania R. R. Co., 494 
 Keaggy v. Hites, 462 
 Keating v. New York'Central R. R. Co., 
 
 472 
 Keegan v. Western R. R. Co., 224, 225 
 Keener v. Kauifman, 361 
 Keeney v. Grand Trunk R. R. Co., 573 
 Keeler v. Eastman, 316 
 Kegan v. Western R. R. Co., 489 
 Keiffer v. ImhoflF, 159 
 Keisel v. Earnest, 1116 
 Keith V. Easton, 1309, 1311 
 Kellinger v. Forty-Second Street, etc., 
 
 R. R. Co., 883 
 Kelsey v. Barney, 475 
 Kelsey v. Griswold, 399 
 Kelsey v. Durkee, 297 
 Keller v. Weber, 640 
 Keller v. Sedalia, 1303 
 Kellogg V. Chicago & Nox-thwestem R. 
 
 R. Co., 304, 306 
 Kellogg V. Noi'thampton, 1309 
 Kellogg V. Payne, 508 
 Kellogg V. The T. D. Hine, 494 
 Kelly's Case, 265 
 Kelley v. Donnelly, 1094 
 Kelley v. Owens, 44 
 Kelly v. Pickett, 764 
 Kelly v. Tilton, 229, 323 
 Kelton V. Bevins, 742 
 Kelsack v. Nicholson, 561 
 Kendall v. Stone, 969, 971 
 Kendall v. Stockton,' 1266 
 Kendall v. United States, 1262 
 Keniston v. Little, 800 
 Kennayde v. Pacific R. R. Co., 474 
 Kennedy v. Ashcroft, 524, 525 
 Kennedy v. Barnett, 828 
 Kennedy v. Gifford, 988 
 Kenned v. Lowry, 972, 983 
 Kenny v. McLaughlin, 964 
 Kenney v. Neil, 468 
 Kennedy v. North Missouri R. R. Co- 
 
 1185,1199 
 Kennedy v. Strong, 455, 456 
 Kennedy v. Whitwell, 458 
 Kentgen v. Parks, 404 
 Kentucky v. Dennison, 1256 
 Keough V. Daniell, 298, 299 
 
^ABLE OF AMERICAN CASES CITED. 
 
 lix 
 
 Kerby v. Quinn, 443 
 Kerlin v. Heacock, 799 
 Eersohbangher v. Slusser, 973 
 Kerwbaoker v. Cleveland, Columbus & 
 
 Cincinnati R. R. Co., 27, 215, 216, 325, 
 
 328 
 KeiT V. Foi'gue, 26 
 Kerr v. Mount, 799, 800, 810 
 Kesee v. Chicago & Northweatevn R. R. 
 
 Co., 306 
 Kessler v. McConachy, 651 
 Kessler v. N. Y. Central R. R. Co., 597 
 Kesler v. Smith, 503 
 Ketchum v. American, etc.. Express 
 
 Co., 587, 589 
 Ketchum v. Wells, 1021 
 Keuren v. Johnson, 1300 
 Keys V. Tait, 265 
 Kidd. V. Dennison, 281 
 Kidder V. Barker, 798 
 Kidder v. Kidder, 414 
 Kidder v. Parkhurst, 728, 764, 934 
 Kiggins V. Watervliet Turnpike Co., 32 
 KUburn v. Adams, 136 
 Kilborn V. Rewee, 372 
 Kimball v. Bath, 1311 
 Kimball v. Boston, 1302 
 Kimball v. Cocheco R. R., 103, 105 
 Kimball v. Cushman, 34 
 Kimball v. Harman, 740 
 Kimball v. Lamphrey, 1267 
 Kimmis v. Stiles, 955 
 Kincaid's Appeal, 344 
 King V. Baker, 374 
 King V. Boston and Worcester R. R. Co., 
 
 490 
 King V. Dunn, 359 
 
 King V. Indian Orchard Canal Co., 550 
 King V. Morris, 259 
 King V. Morris & Essex R. R. Co., 243, 
 
 260 
 King V. Kline, 393 
 King V. St. Landry, 1299 
 Kinsey v. Wallace, 758 
 King V. Wood, 954 
 Kinney v. Central R. R. Co., of New 
 
 Jersey, 470, 533 
 Kinney v. Hosea, 992 
 Kinney v. Nash, 957, 960, 974 
 Kingsberry v. Kingsberry, 1062 
 Kip, Ex parte, 1321 
 Kirby v. Clai-k, 443 
 Kirkman v. Handy, 192, 194 
 Kiston V. Hildebrand, 609 
 Kissecker v. Monn, 323 
 Kitredge v. Milwaukee, 1309 
 Kitson V. Forest, 742 
 Klauber v. American Express Co., 575, 
 
 577 
 Klauder v. McGrath, 511 
 Klein v. Gehrung, 150 
 Klihck V. Colby, 931, 932, 933, 941, 945, 
 
 946 
 Kline v. Shuler, 762 
 
 Klumph V. Dunn, 992 
 
 Kolb V. Bankhea'd, 32S 
 
 KoUock V. Jakson, 544 
 
 Kountz V. Brown, 1193 
 
 Knapp V. Curtis, 529 
 
 Knight V. Foster, 1194 
 
 Knight V. Goodyear's India Rubber 
 
 Glove Manufacturing Co., 204 
 Knight V. Knight, 1061 
 Knight V. New Orleans, etc., R. R. Co., 
 
 216 
 Knight V. Portland, Sac. and Portland 
 
 R. R. Co., 218 
 Knight V. Wilcox, 1095 
 Knowles v. Atlantic and St. L. R. R. 
 
 Co., 529 
 Knowles v. Dow, 359 
 Knowing v. Manley, 448, 1124, 1125 
 Knox v. Chaloner, 346 
 Knox County v. Aspinwall, 1277 
 Kresler v. Smith, 504, 516, 520 
 Krohn v. Sweeny, 607 
 Kroy v. Chicago, etc., R. R. Co. 225 
 Kruneer v. Southern Express Co., 594, 
 
 •600 
 Krulder v. EUison, 619 
 Kuler V. Beaman, 182 
 Kutter V. Michigan Central R. R. Co., 
 
 573 
 K/le V. Laurens R. R. Co., 596 
 
 Lacey v. Arnett, 99 
 
 Lacey v. Giloney, 293 
 
 Lackey v. Stondert 1020 
 
 Lacon v. Page, 1309 
 
 Lacour v. Mayor, etc., of N. Y., 1304 
 
 Ladue v. Griffith, 593 
 
 Laflin v. Griffiths, 293, 300 
 
 Lafayette, etc., R. R. Co. v. Huffman, 
 
 26 
 Lagrange v. State Treasurer, 1264 
 Laing v. Colden, 467, 468, 472 
 Lake Shore, etc., R. R. Co. v. Perkins, 
 
 569, 592 
 Lalor V. Chicago, Burlington and Quincy 
 
 R. R. Co., 223, 489 
 Lakeman v. Burnham, 132 
 Lamar v. Marshall, 1256 
 Lamb v. Ci'ossland, 157 
 Lambard v. Pike, 2 
 Lambeth v. North Carolina R. R. Co.. 
 
 471 
 Lamphier v. Worcester and Nashua R. 
 
 R. Co., 178 
 Lampman v. Milks, 4, 102, 114, 258 
 Lamos v. Snell, 995, 996 
 Lane v. Dudley, 1037 
 Lane v. Miller, 99 
 Lane v. Old Colony, etc., R. R. Co., 601, 
 
 603 
 Lanahan v. Gahan, 1229 
 
Ix 
 
 TABLS OF AMEBIC AN CASES CITED. 
 
 Lander v. Miles, 728 
 
 Lanett v Hilts, 720 
 
 Laney v. Clifford, 345 
 
 Langhoflf V. Milwaukee, etc., R. R. Co.. 
 
 474 
 Langworthy v. New York and Harlem 
 
 R. R. Co., 601 
 Lannen v. Albany Gas-light Co., 24 
 Lanning ,v. New York Central R. R. Co., 
 
 489, 490, 491 
 Lansing v. Carpenter, 926, 952 
 Lansing v. County Treasurer, 1276 
 Lansing v. Wiswall, 117, 241 
 Lapham v. Curtis, 83 
 Larkin v. Saganaw County, 1298, 1308 
 Larue v. Russell, 371, 882 
 Larkin v. Taylor, 326 
 Lasala v. Holbrook, 70, 73, 102 
 Lathrop v. Blake, 444 
 Laughlin v. Chicago, etc., R. R. Co., 597 
 Laumier v. Francis, 73 
 Laver v. Glacklin, 834 
 Law V. Franks,. 759 
 Laws V. North Carolina R. R. Co., 215 
 Lawson v. Hicks, 966 
 Lawlor v. Androscoggin R. R. Co., 491 
 Lawrence v. Combs, 324, 327 
 Lawrence v. Kemp, 297 
 Lawrence v. Lanning, 744 
 Lawrence v. Maxwell, 395, 408, 526 • 
 Lawrence v. Sherman, 1172 
 Lawrence v. Wiona and St. Peters R. R. 
 
 Co., 596 
 Lawton v. Rivers, 105, 165 
 Lay V. King, 132 
 Lea V. Henderson, 1097 
 Lea V. Lea, 1065 
 Lea V. "White, 934 
 Leadbetter v. Fitzgerald, 371 
 Leaird v. Davis, 747 
 Leahey v. Michigan Central R. R. Co., 
 
 490 
 Leavitt v. Leavitt, 1065 
 Leavenworth v. Casey, 1314 
 Ledyard v. Jones, 818 
 Ledyard v. Ten Eyck, 349 
 Lee V. Hodges, 1090, 1091, 1095 
 Lee v. Hefley, 1097 
 Lee V. Kane, 972 
 Lee V. Lamprey, 1177 
 Lee V. Robertson, 993 
 Lee V. Sandy Hill, 1301 
 Lee V. Walker, 496, 498 
 Lee V. "Woolsey, 736 
 Leggett V. Blount, 764 
 Legrand v. Page, 760 
 Lemmon v. Chicago, etc., R. R. Co., 221, 
 
 216 
 Lemon v. Hayden, 265 
 Lenox v. "Winisimmet Co., 5, 484, 495 
 Leonard v. Fowler, 1024 
 Leonard v. House, 1280 
 Leonard v. Hendiickson, 571 
 Leonard v. Leonard, 104, 105 
 
 Leonard v. Snellbaker, 1164 
 
 Leonard v. Winslow, 601 
 
 Lespard v. Van Kirk, 1021 
 
 Letton V. Young, 1185 
 
 Levi V. Brannan, 743 
 
 Levy V. Brush, 1104 
 
 Levy V. Mayor, etc., of N. Y., 355 
 
 Levy V. Mayor, 130i5 
 
 Lewenthall v. New York, 1314 
 
 Lewis V. Carstairs, 117 
 
 Lewis V. Chapman, 941, 945 
 
 Lewis V. Henley, 1280 
 
 Lewis V. Hawley, 958 
 
 Lewis & Herrick v. Chapman, 941 
 
 Lewis^v. Johns, 1123 
 
 Lewis V. McAfee, 525 
 
 Lewis V. London, etc., R. R. Co., 470 
 
 Lewis V. Ludwick, 575 
 
 Lewis V. Stein, 81, 93, 192, 196, 198 
 
 Lewiston v. Proctor, 265 
 
 Lexington v. McConnell, 1320 
 
 Leyman v. Abeel, 129 
 
 Likehart v. Byrely, 974 
 
 Like V. McKinstiy, 970 
 
 Lillord V. Whitaker, 458 
 
 Lummis v. Kasson, 801 
 
 Linville v. Earleywine, 974 
 
 Linard v. Crossland, 371 
 
 Lincoln v. Hapgood, 37 
 
 Linden v. Graham, 969 
 
 Linden v. Hepburn, 317 
 
 Lindsay v. Auditor, 1262, 1266 
 
 Lindsey v. Luckett, 1272 
 
 Linney v. Maton, 926, 961 
 
 Linney v. Meaton, 5 
 
 Life V. Eisenlerd, 1091, 1094, 1096 
 
 Lipford V. M'Collum, 764 
 
 Little V. Bai-low, 956 
 
 Little V. Denn, 265 
 
 Little V. Lathrop, 324 
 
 Little Miami R. R. Co. v. Wetmore, 32, 
 
 721 
 Little V. Moore, 770 
 Little Rock, Hx parte, 1237 
 Little Rock v. Willis, 1297 
 Livingston v. McDonald, 73 
 Livingstone v. Reynolds, 316 
 Livingston v. Arlington, 1013 
 Livingston v. Ketehum, 128 
 Livingston v. Livingston, 388 
 Livingston v. Reynolds, 282 
 Lloyd V. Hulbert, 266 
 Lloyd" V. Mayor, etc., of New York, 
 
 1297 
 Lobdell V. StoweU, 407 
 Lockwood V. Bull, 448, 450 
 Lockwood V. New York, etc., R. R. Co., 
 
 345 
 Lobenstein v. Pritchett, 533 
 Lockwood V. Railroad, 470 
 Logan V. Austin, 691 
 Logansport v. Dunn, 269 
 Logan v. Gedney, 326, 328 
 Logan V. Murray, 109Q 
 
TABLE OF AMERICAN CASES CITED. 
 
 Ixi 
 
 Logan V. Steele, 956 
 
 Londeg-an v. Hammer, 770 
 
 Long V. Buchanan, 377 
 
 Long V. Cross, 320 
 
 Long V. Hickingbottom, 1020 
 
 Long V. Rodgers, 743 
 
 London v. Wai-field, 319 
 
 Loan V. Boston, 1309 
 
 Looker v. Brookline, 1310 
 
 Loomis V. Swick, 983 
 
 Loomis V. Wilbur, 280, 284 
 
 Loomis V. Terry, 229, 230 
 
 Loop V. Litchfield, 18, 1103 
 
 Loosey v. Orser, 820 
 
 Loring v. Bacon, 112 
 
 Lorman v. Benson, 248, 346 
 
 Losee v. Clute, 18, 19 
 
 Loughran v. Ross, 299 
 
 Lorillard v. Monroe, 1304, 1305 
 
 Louisville, etc., R. R. Co. v. Ballard, 
 
 216 
 Louis County Court v. Sparks, 1272 
 Louisville, etc., R. R Co. v. Covington, 
 
 160 
 Louisville, etc., R. R. Co. v. Hodge, 885 
 Louisville, etc., R. R. Co. v. Mahan, 599 
 Louisville, etc., R. R. Co. v. State, 264, 
 
 1264 
 Lovejoy v. Darlon, 475 
 Lovering v. Lovering, 1064 
 Low V. Mumford, 1131 
 Low V. Staples, 189 
 Low V. Towns, 1261 
 Lowder v. Hinson, 1193 
 Lowell v. Spaulding, 1309 
 LoweU Wire Fence Co. v. Sargent, 571 
 Lowell V. Wyman, 1B05, 1306 
 Lowremore v. Berry, 404 
 Lownsdale v. Portland, 266, 270 
 Lowiy V. Barney, 797 
 Lucas V. New Bedford and Taunton R. 
 
 R. Co., 471 
 Lucas V. Trumbull, 395 
 Lucas V. Wasson, 406 
 Luddingtou v. Peck, 799 
 Lukehart v. Byrely, 969 
 Luther v. City of Worcester, 1310 
 Luther v. Winnisimmet Co., 78 ' 
 Lyfora v. Toothaker, 357 
 Lyle v. Clason, 981 
 Lyman v. Amherst, 1321 
 Lyman v. Edgerton, 1304 
 Lynch, ExpaHe, 1264 
 Lynch v. Lynch, 1062, 1064 
 Lynch v. Smith, 26 
 Lynn's Appeal, 282, 284 
 Lyon V. Hancock, 36, 766 
 Lyon V. Smith, 608 
 
 M 
 
 Mabie v. Matteson, 116 
 
 Macon, etc., R. R. Co. v. Baber, 215 
 
 Macon, etc., R. R. Co. v. Johnson, 493 
 Macon, etc., R. R. Co. v. Lester, 215 
 Macdougall v. Maguire, 1176 
 Mac Kay v. New York Central R. R. 
 
 Co., 474 
 Mad River, etc., R. R. Co. v. Barber, 
 
 ?25, 491 
 Maddox v. McGainuis, 760 
 Maddox v. Graham, 1277 
 M. E. Church of Cincinnati v. 'W^ood, 
 
 1321 
 Major V. PuUiam, 382 
 Magee v. Stark, 955 
 Magee v. Scott, 398 
 Magill V. Magill, 1064 
 Maghee v. Camden & Amboy R.'R. Co., 
 
 576 
 Maignan v. New Orleans, etc., R. R. 
 
 Co., 595 
 Magrath v. Magrath, 1064, 1065 
 Magruder v. Swann, 1262 
 Magruder and Brother v. Gage, 619 
 Maguinay v. Sandek, 1094 
 Mahan v. Green, 794 
 Mahone, Ex parte, 1259 
 Main v. Schwarzwallder, 294 
 Maine v. North Eastern R. R. Co., 359 
 Mahwin v. Harding, 1038 
 Mali V. Lord, 477 
 Mahone, Ex parte, 1259 
 Malone v. Murphy, 728, 742, 743 
 MalOne v. Stewart, 5, 954 
 Manchester v. Hartford, 1309 
 Mandigo v. Mandigo, 1064 
 Mangam v. Brooklyn R. R. Co., 26 
 Mangold v. Thorpe, 799, 828 
 Mangam v. Brooklyn R. R. Co., 494 
 Manier v. Myers, 138 
 Mann v. Marsh, 1108 
 Manning v. M'Donnell, 359 
 Manning v. HoUenbeck, .o37, 616 
 Mansfield v. Borland, 546 
 Mansfield v. Fuller,' 1264 
 Manufacturers Bank v. Hazard, 1178 
 Mapes V. Weeks, 964, 996 
 Marbury v. Madison, 1262 
 Marcle v. Haskins, 1037 
 Marcy v. Taylor, 265 
 Mariner v. Shulte, 346 
 Mai-tinetti v. Maguire, 53, 55 
 Markliam v. Russell, 988 
 Markham v. Jaudon, 458, 460 
 Marsh v. Burt, 350 
 Marsh v. Ellsworth, 934, 967 
 Marsh v. Falker, 35, 1005, 1007, 1016, 
 
 1017, 1041, 1042 
 Marsh v. Marsh, 1070 
 Marsh v. Marshall, 404 
 Marsh v. Jones, 230. 293 
 Marsh v. Smith, 733 
 Marsh v. Webber, 35, 1031 
 Marshall v. Cohen, 197 
 Marshall v. Drawhom, 1013 
 Marshall v. Giles, 634, 636 
 
Ixii 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Marshall v. Meech, 545 
 Marshall v. Trumbull, 103 
 Market v. St. Louis, 1317 
 Marston v. Deyo, 764 
 • Masterton v. Mount Vemon, 1314 
 Marye v. Dyche, 633 
 Martin v. Hardesty, 767 
 Martin v. Houghton, 376 
 Marfi; V. Hooker, 995 
 Mari/i V. Martin, 417 
 Martin v. Nance, 345, 34S 
 Martin v. Payne, 1091 
 Mai-tin v. Riddle, 73 
 Martin v. Waddell, 345 
 Martin v. Western Union R. R. Co., 306, 
 
 307 
 Mason County v. Mintum, 1256, 1259 
 Mason v. Fenn, 299 
 Mason v. Thompson, 609 
 Matson v. Buck, 996 
 Matthews v. Beach, 947 
 Matthews v. Coe, 458 
 ' . Matthews v. Harsell, 412 
 Matthews v. Menedger, 543, 550 
 Matthews v. Teri-y, 727, 736 
 Mauran v. Smith, 1261 
 Maverick v. Eighth Avenue R. R. Co., 
 
 467 
 Maxwell v. McAtee. 183 
 Maximilian v. Mayor, etc., of N. Y., 
 
 1.302 
 May V. Brown, 996 
 May V. Hanson, 605 
 May V. May, 1061 
 May V. Slade, 1115 
 Mayer v. Schleichter, 926, 961 
 Mayer v. Walter, 755 
 MaybeiTy v. Concord R. R. Co., 214 
 Maynard v. Esher, 114 
 Mayor, etc., of Albany v. Cunliff, 1301, 
 
 1819 
 Mayor of Georgetown v. Alexandria 
 
 Canal Co., 261 
 Mayor, etc., of Baltimore v. Marriott, 
 
 241 
 % Mayor of New York v. Baumberger, 
 
 257 
 Mayor of Columbus v. Howard, 524, 525 
 Mayor v. Lord, 1282 
 Mayor, etc., of New York v. Lord, 1306 
 Mayor, etc., of New York v. Furzer, 
 
 1257 
 Mayor, etc., of New York v. Stone, 519 
 Mayor of New York v. Bailey, 83, 1298, 
 
 1302 
 Mayor, etc. v. Rainwater, 1256 
 Mayor of Savannah v. Waldher, 1318 
 Mayson v. Sheppard, 1199 
 Mayor v. Sheffield, 1313 * 
 Mayo V. Sample, 966 
 McAdams v. Gates, 1031 
 McAndrew v. Whitlock, 595, 600 
 McAunnch v. Mississippi, etc., R. R. 
 
 Co., 23, 494 
 
 McAulay v. Birkhead,.1098 
 
 McBean v. Richie, 742, 765 
 
 McBrayer v. Hill, 926, 961 
 
 McBride v. Ellis, 928 
 
 McCabe v. Platter, 995 
 
 McCabe v. Raney, 1178 
 
 McCaleb v. Smith, 956, 957 
 
 McCall V. Chamberlain, 215 
 
 McCall V. McDowell, 1121, 1193 
 
 McCahil v. Kipp, 8 
 
 McCaUum v. Germantown Water Co., 
 
 77, 145, 146, 153, 198, 251 
 McCampljell v. Thomburgh, 991 
 McCaskill v. Elliott, 230 
 McCai^ V. Bauer, 1304 
 McCai-ly v. Barrett, 954, 957 
 McCarty v. Wolfe, 532 
 McCarthy v. City of Syracuse, 1812, 
 
 1313, 1314 
 McCartney v. Gamhart, 1052 , 
 McCaskill v. Elliot, 393 
 McCauley v. Brooks, 1262, 1266 
 McClintock v. Bryden, 75 
 McClintock v. Cidck, 983, 994 
 MoClure v. McDearmon, 537 
 McClure v. Supervisors of Niagara Co., 
 
 355 
 McCombs V. Akron, 1307 
 McConnel v. Kibbe, 10, 112 
 McConeghy v. McCaw, 396 
 McCormick v. Sisson, 742 
 McCormick v. Hudson River R. R. Co., 
 
 570 
 McCov V. Artcher, 1020 
 McCoy V. California R. R. Co., 215 
 McCoy V. Curtice, 1172 
 McCoy V. Danley, 80 
 McCoy V. McKown, 31 
 McCoy V. Wait, 280, 316 
 McCracken v. Hall, 297, 299 
 McCready v. South Carolina R. R. Co., 
 
 307 
 McCready v. R. R. Co., 307 
 McCreery v. Claffin, 648 
 McCuUough v. Irvine, 284, 311 
 McCuUough V. Mayor of Brooklyn, 1264 
 McCurrey v. Hooper, 562 
 McDaniels v. Edwards, 1091 
 McDaniels v . Robinson, 615 
 McDonald v. Chicago & Northwestern 
 
 R. R. Co., 218 
 McDiarmid v. Fitch, 1267 
 McDonald v. Edgerton, 616 
 McDonald v. Gilman, 176 
 McDonald v. Lindall, 104, 161 
 McDonald v. Snelling, 1103 
 McDonald v. Todd, 1036 
 McDonald v. Walter, 1202 
 McDonald v. Wilkie, 799, 803 
 McDonald v. Woodruff, 979 
 McDonough v. Virginia City, 1317 
 McDonough v. Gilman, 242 
 McDowell V. Bowles, 955 
 McDowell V. Rissel, 1177 
 
TABLE OF AMERICAN CASES CITED. 
 
 Ixiii 
 
 McDuffle V. Rail Road, 572 
 
 McEntee v. New Jersey Steamboat Co., 
 594 
 
 McElroy v. Dice, 657 
 
 McElroy v. Goble, 10 
 
 McElroy and Wife v. Nashua & Lowell 
 R. R. Co., 469 
 
 McEwen v. Taylor, 16 
 
 McFarland v. Wheeler, 550 
 
 McGartrick v. Wason, 226 
 
 MoGary v. Lafayette, 1302, 1321 
 
 McGill V. Ash, 357 
 
 McGlynn v. Brodie, 224, 225 
 
 McGreary v. Osborne, 292, 293 
 
 McGregor v. Brown, 280, 281 
 
 McGregor v. Boyle, 1.S05, 1314 
 
 McGregor v. Comstock, 545 
 
 McGrew v. Cato, 40 
 
 McGrew v. Stone, 29 
 
 M'Gowen v. Manifee, 969 
 
 M'Gran v. Bookman, 371 
 
 McGuire v. Grant, 12 
 
 McGune v. Palmer, 887 
 
 McGuire v. Shelby, 562, 563 
 
 McHugh V. Pundt, 799 
 
 McUvoy V. Cockram, 693 
 
 Mcintosh V. Matherly, 7, 981 
 
 Mclntyre v. New York Central R. R. 
 Co., 504, 516, 520 
 
 JVIcKay v. Hamblin, 523 
 
 M'Kenzie v. Nevins, 544 
 
 M'Kee v. Ingalls, 956, 994 
 
 McKeon v. See, 192, 194 
 
 McKim V. Mason, 294, 300 
 
 McKinley v. Rob, 978 
 
 McKinney v. Neil, 468 
 
 McKinney v. Reynolds, 1266 
 
 McKown V. Hunter, 742, 744, 766 
 
 McLaren v. Birdsong, 766 
 
 McLaughUn v. Russell, 986 
 
 McLaughUn v. City of Corry, 1310 
 
 McLaughlin v. Charlotte & South Caro- 
 lina R. R. Co., 241 
 
 McLaughlin v. Waite, 412 
 
 McLean v. Burtant, 467 
 
 McLean v. Cook, 799 
 
 McLellan v. Jenness, 1115 
 
 McLeod V. Jones, 377, 381 
 
 McMahan v. Green, 701 
 
 McMahon v. Mayor, etc., of New Tork, 
 26 
 
 McMannis v. Butler, 270 
 
 McManus v. Carmichael, 346 
 
 McManus v. Finan, 2 
 
 McManus v. Lee, 1123 
 
 McMeeehen, Ex parte, 1237 
 
 McMillan v. Bircli^ 954, 959 
 
 McMillan v. Michigan Southern and 
 Northern Indiana R. R. Co., 596 
 
 McMillen v. Smith, 1256, 1259 
 
 McNamara v. Shannon, 955, 956 
 
 McNeal v. Emerson, 377 
 
 McNear v. Atwood, 404 
 
 McNeely v. Driskell, 749 
 
 McNeeley v. Hunton, 809, 1123 
 
 McNeills V. Brooks, 525 
 
 McNerse v. Herring, 742 
 
 McNutt V. Young, 995 
 
 McPadden v. New York Central R. R. 
 
 .Co., 467, 468, 469 
 McRobex'ts v. Washburne, 16 
 McTavish v. Carroll, 103 
 McQueen v. Fulgham, 5, 926 
 McQueen v. Middletown Manufacturing 
 
 Co., 1319 
 Meagher v. Driscoll, 344 . 
 Mealing v. City Council, 1242 
 Mears v. Wilmington, 1307 
 Mebane v. Sellars, 955 
 Mebane v. Patj-ick, 157 
 Mechanicsburgh v. Meredith, 1308 
 Mechanics' Bank v. New York & New 
 
 Haven R. R. Co., 1027 
 Medford v. Pratt, 136 
 Meeds v. Carver, 722 
 Meeker v. Van Rensselaer, 235, 262 
 Meigs' Appeal, '294, 295 
 Meier v. Pennsylvania R. R. Co., 468, 
 
 469, 472 
 Melvin v. Whiting, 132, 137 
 Memphis & Charleston R. R. Co. v. 
 
 Whitfield, 470 
 Mendez v. Dugart, 349 
 Mercer v. Jackson, 227 
 Mercy Docks v. Gibbs, 1297 
 Mercy Docks v. Penhollow, 1297 
 Merch v. Concord R. R. Co., 494 
 Memfield v. Lombard, 81, 93 
 Merrifield v. Worcester, 1318 
 MeiTick y. Van Santvoorl, 1117 
 Merriam v. Mitchell, 743, '44 
 Mei-riam v. Willis, ^72 
 MeiTiam v. Vaughn, 1031 
 Merrill v. Grinnell, 570 
 Merritt r. Brinkerhoff, 145 
 Meri-itt v. Judd, 299 
 Mersereau v. Norton, 406 
 Merritt v. Earle, 575 
 Merrit v. St. Paul, 799 
 Metcalf v. Baker, 479 
 Metcalf v. Stryker, 820 
 Meyer v. Amidon, 1016, 1017, 1041 
 Meyer v. Pacific R. R. Co., 23, 494 
 Meyer v. People's R. R. Co., 495 
 Meyer v. North. Missouri R. R. Co., 216 
 Michigan Southern R. R. Co. v. Hale, 
 
 587 
 Michigan, etc., R. R. Co. v. Heaton, 587 
 Michigan, etc., R. R. Co. v. Leahey, 23, 
 
 494 
 Michigan Southern, etc., R. R. Co. v 
 
 McDonough, 592, 569, 624 
 Mickle V. Miles, 640 
 Michaels v. New York Central R. R 
 
 Co., 575 
 Michigan, etc., R. R. Co. v. Oebxr, f70 
 Michigan, etc., R. R. Co. v. Shuttz, 593 
 Middleton v. Franklin, 257 
 
Ixiv 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Middleton v. Low, 1262 
 
 Milam v. Bumsides. 935 
 
 Milhan v. Sharp, 261 
 
 Milburn v. Gilman, 799 
 
 Miles V. HaningioD, 994 
 
 "Tiles V. Vanhom, 961 
 
 Iford V. Holbrook, 511 
 ^:j.iller V. Auburn & Syracuse R. R., 120 
 
 Miller v. A(iams, 720 
 
 Miller V. Bristol, 106, 379 
 
 Miller V. Miller, 78, 956, 983 
 
 Miller v. Resigne, 452 
 
 Miller v. Thompson, 1090 
 
 Miles V. Vanhom, 926 
 
 Millikin v. Armstrong-, 300 
 
 Millison v. Holmes. 361 
 
 Millon V. Sawlsbury, 524 
 
 Miltonberger v. St. Louis County Court, 
 1259 
 
 Mills V. City of Brooklyn, 1312, 1314 
 
 Mills V. Michigan Central R. R. Co., 596 
 
 Mills V. Richardson, 356 
 
 MiUs V. St. Clair Co., 16 
 
 Miller V. Burch, 234 
 
 Miller v. Brown, 751 
 
 Miller v. Butler, 928 
 
 Miller v. Decker, 375 
 
 Miller v. Fenton, 1196 
 
 Miller v. Foley, 701 
 
 Miller v. Garlock, 138, 164 
 
 Miller v. Garther, 1022 
 
 Miller v. Ken-, 964 
 
 Miller v. Lanback, 72, 79 
 
 Miller v. Lapham, 159, 165, 168 
 
 Miller v. Manice, 442, 451 
 
 Miller v. McElroy, 1230 
 
 Minnis v. Johnson, 1195 
 
 Minot V. Curtis, 1319 
 
 Misner v. Lighthall, 326 
 
 Mississippi Central R. R. Co. v. Ken- 
 nedy, 600 
 
 Missouri Valley R. R. Co. v. Caldwell, 
 587, 588, 589 
 
 MitcheU v. Billingsley, 9, 322 
 
 Mitchell V. Mattingly, 759 
 
 Mitchell V. New York Central and Hud- 
 son R. R. Co., 473 
 
 Mitchell V. Parks, 188 
 
 Mitchell V. Rockland, 1321 
 
 Mitchell V. Zimmerman, 1015 
 
 Mitchinson v. Cross, 743 
 
 Mix V. Clute, 700 
 
 Mobile, etc., R. R. Co. v. Hopkins, 587, 
 599 
 
 Moberly v. Preston, 5, 964 
 
 Moffett V. Brewer, 235 
 
 Mohawk Bridge Co. v. TJtica & Schen- 
 ectady R. R. Co., 258 
 
 Mouongahela Bridge Co. v. Kirk, 846 
 
 Montgomery v. Erwin, 451 
 
 Montgomery v. Gilmer, 193 
 
 Montfort v. Hughes, 507 
 
 Monument National Bank v. Globe 
 Works, 721 
 
 Monumoi v. Rogers, 360 
 
 Moody V. Baker, 11, 960 
 
 Moody V. Fleming, 1256 
 
 Moody V. McClelland, 12 
 
 Mooney v. Hudson River R. R. uc, 479 
 
 Mooney v. Kennett, 1198 
 
 Moran v. Dawes, 1095 
 
 Moore, Matter of, 775 
 
 Moore v. Abbott, 1321 
 
 Moor V. Ames, 770 
 
 Moore v. Appleton, 1195 
 
 Moore v. Bennett, 975 
 
 Moore V. Bond, 983 
 
 Moore v. Butler, 981, 982 
 
 Moor V. Campbell, 371 
 
 Moore'v. Goedel, 88 
 
 Moore v. Levert, 324, 326 
 
 Moore v. Masseni, 316 
 
 Moore v. Minneapolis, 1312 
 
 Moore v. Noble, 1088 
 
 Moore v. Sanbome, 346 
 
 Moore v. Smith, 297 
 
 Moores v. Moores, 1065 
 
 Morehouse v. Cotheal, 281 
 
 Morey v. Newfane, 1299, 1300 
 
 Morford v. Woodworth, 256 
 
 Morgan v. Bliss, 6 
 
 Morgan v. Dudley, 772, 828 
 
 Morgan v. King, 348 
 
 Morgan v. Gongton, 538 
 
 Morgan v. Liv-inston, 988 
 
 Morgan v. Monmouth Plansroad Co., 
 
 1264 
 Morgan v. Reading, 346 
 Morgan v. Rhodes, 40 
 Morgan v. Skidmore, 1009 
 Morrill V. Aden, 1127 
 Mon-ill V. Graham, 499 
 Morris V. Brower, 192, 194 
 Morris V. Berkley, 442 
 Morris V. Thomson, 450 
 Morris V. Mon-is, 1061 
 Morris v. Piatt, 3 
 Morris Canal & Banking Co. v. Ryer- 
 
 son, 176 
 Moi-rison V. Chapin, 138 
 Morrison v. Lawrence, 1302 
 Moriison v. Marquardt, 114, 150, 26P, 
 
 267 
 Momsou V. Morrison, 1065 
 Morrison v. Ponder, 545 
 Morrissey v. Wiggins Ferry Co., 27, 495 
 Morse v. Boston, 1310,- 1316 
 Morse v. Brainerd, 596 
 Morse v. Copeland, 100, 161 
 Morse v. Marahall, 141 
 Morse V. Rutland & Burlington R. R. 
 
 Co., 214 
 Morse v. Ranno, 267 
 Morton V. Scull, 1086, 1185 
 Moses V. Boston & Maine R. R. Co., 587 
 Moses V. Mead, 1024 
 Moses V. Walker, 898 
 Mosier v. CaldweD, 79, 82 
 
TABLE OF AMERICAN- CASES CITED. 
 
 Ixv 
 
 Mott V. Comstock, 958 
 
 Mottei- V. Primrose, 1280 
 
 Moultou V. Libbey, 132 
 
 Mousler v. Harding, 994 
 
 Mouse's Case, 1306 
 
 Mower v. Leicester, 1298 
 
 Mowry v. Miller, 758 
 
 Mowry v. Walsh, 420 
 
 Moyer v. Moyer, 995 
 
 Mueller v. St. Louis, etc., R. R. Co., 383 
 
 MulUu V. Stricken, 114, 150 
 
 Mulligan v. Elias, 192, 195, 258 
 
 Mulvehall v. Millward, 1091. 
 
 Mumford v. Wardwell, 845 
 
 Mumford v. Whitney, 96, 98, 99 
 
 Murdock v. Gifford, 291, 292, 294 
 
 Murdock v. Warwick, 1321 
 
 Murray v. Burling, 395 
 
 Murray v. South Carolina R. R. Co., 
 
 328, 490 
 Mui-ray v. Murray, 961 
 Murray v. Long, 742, 743 
 Mui-ray v. New York Central R. R. Co., 
 
 214, 216, 221 
 Murphy and wife v. Deane, 28, 493, 494, 
 
 495, 516 
 Murphy v. Gloucester, 1309 
 Mui'phy V. Redler, 742 
 Murphy v. Stout, 993 
 Murphy v. Troutman, 820 
 Munch V. New York Central R. R. Co., 
 
 215 
 Hunger v. Hess, 398 
 Munns v. Dupont, 728 
 Munro v. Dupont, 764 
 Munro v. Gairdner, 1016 
 Munroe v. Stickney, 90 
 Munson v. Hungerford, 135 
 Mui-taugh V. St. Louis, 1303 
 Muse V. Vidal, 828 ^ 
 Mussey v. Perkins, 444 
 Myers v. Gemmel, 150 
 My6rs v. Mayfield, 634, 639 
 Myere v. Myers, 1069 
 Myers v. Walker, 529 
 Myrick V. Downer, 1132 
 Mizell V. Sims, 1038 
 
 N 
 
 Nadenbousch v. Sharer, 1121 
 Nagle V. Mullison, 322, 382, 1193 
 Naugatuck R. R. Co. v. Waterbury 
 
 Button Co., 596 
 Napier v. Bulwinkle, 150 
 Nash V. Orr, 764 
 Nashua Lock Co. v. Worcester & Nashua 
 
 R. R. Co., 596 
 Nashville & Chattanoog?, R. R. Co. v. 
 
 Peacock, 215 
 Nashville, etc., R. R. Co. v. Elliott, 226 
 Neal V. GKUett, 8, 26 ' 
 
 Neal V. Salye, 96 
 
 Ad. — ^E 
 
 Neal V. Weare Bank, 404 
 
 Neel V. Neel, 284 
 
 Nebraska City v. Campbell, 1309 
 
 Neff V. Clute, 462 
 
 Neil V. AUenhofen, 926 
 
 Nelson v. Musgrave, 928 
 
 Nelson v. Borchenius, 926, 957 
 
 Nellis V. New York Central R. R. Co.,. 
 603 
 
 Neth V. Crofut, 799 
 
 Nettleton v. Sikes, 377 
 
 Nevins v. Bay State, etc., Co., 570. 
 
 Nevairv. Roup, 539 
 
 New Albany, etc., R. R. Co. v. Astbn, 
 215 
 
 New Albany, etc., R. R. Co. v. Bishop, 
 215 
 
 New Albany etc., R. R. Co. v. Peter- 
 son, 82 
 
 Newberry v. New York, 1305, 1306 
 
 Newell V. Downs, 743 
 
 Newbit V. Statuck, 955 
 
 Newbraugh v. Curry, 928 
 
 New Boston Coal, etc., Co. v. Pottsville 
 Water Co., 261 
 
 New Brunswick Co. v. Tiers, 675, 576 
 
 New Ena:land Express Co! v. Maine Cen- 
 tral R. R. Co., 572, 631 
 
 Newhall v. Ireson, 10, 172, 350 
 
 New Ipswich Factory v. Batchelder, 102 
 
 New Jersey R. R. Co. v. Kennard, 969 
 
 Newkirk v. Dalton, 397, 417 
 
 Newkirk v. Sabler, 100 
 
 New Orleans, etc., R. R. Co. v. Hani- 
 son, 493 
 
 New Orleans, etc., R. R. Co. v. Stat- 
 ham, 1193 
 
 Newman, £x parte, 1258 
 
 Newman v. Alvord, 1050, 1051 
 
 Newman v. Tiernan, 834 
 
 New York & Erie R. R. Co. v. Skinner, 
 215, 216 
 
 Newson v. New York Central R. R. Co., 
 219 
 
 New York Life Ins. & Trust Co. v. Mil- 
 ler, 105, 165 
 
 New York & Washington Printing Tele- 
 graph Co. V. Dryburgh, 535, .536 
 
 Newport v. Tayloi-, 16 
 
 Newsum v. Newsum, 398 
 
 Nichols V. Aylor, 136, 154 
 
 Nichols V. Guy, 957 
 
 Nichols V. HoUiday, 587, 616 
 
 Nichols V. Luce, 106, 165 
 
 Nichols V. Michael, 1081 
 
 Nichols V. Packard, 974 
 
 Nichols V. Pinner, 395 
 
 Nichols V. Valentine, 2 
 
 Nims V. Mayor, etc., of Troy, 1314 
 
 Nitingale v. Scannell, 821 
 
 Noble V. Bosworth, 293 
 
 Noble V. Smith, 414 
 
 Nogees v. Nogees, 1061, 1063 
 
 Nolen V. Colt, 407 
 
Ixvi 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Nolton V. Western R. R. Co., 470 
 
 Norris V. Elliott, 988 
 
 Norris v. Farmers' & Teamsters' Co., 16 
 
 Norristown v. Moyer, 1312 
 
 North Lebanon v. Ai-uold, 1322 
 
 North Pennsylvania R. R. Co. v. Ma- 
 honey, 26, 494, 511, 1158 
 
 _Noi-th Penn. R. R. Co. v. Robinson, 506 
 
 'North Penh. R. R. Co. v. Rehman, 215 
 
 Northern, etc., R. R. Co. v. State, 494, 
 495 
 
 Northrop v. Hill, 1164 
 
 Norton v. Hooten, 1028 
 
 Norton V. Gordon, 983 
 
 Northern Indiana R. R. Co. v. Martin, 
 216 
 
 Norton v. Sewell, 496, 1103 
 
 Norton v. Volentine, 80 
 
 Norwich v. Breed, 201, 205 
 
 Noyes v. Colby, 324, 327, 359 
 
 Noyes v. Rutland and B. R. R. Co., 596 
 
 Noyes v. Smith, 225, 491 
 
 Noyes v. Stillman, 174, 178, 244, 249 
 
 Noyes v. "Ward, 733 
 
 Nutting V. Connecticut R. R. Co., 596 
 
 Nye V. Merriam, 35, 972, 1004, 1042, 
 1193 
 
 Nye V. Otis, 956, 972 
 
 
 
 Oakley v. Farrington, 9.54, 960 
 
 Oakley v. Harrington, 926 
 
 O'Bar V. Alexander, 499 
 
 Oberlander v. Spiess, 1007, 1016, 1017, 
 
 1041 
 Obier v. Neal, 727 
 O'Biien v. St. Paul, 1314 
 Cecum Co. V. Sprague, etc., Co., 6 
 Ochus V. Sheldon, 773 
 Odell V. Stephens, 1097 
 Odiorne v. Bacon, 954 
 Odiome v. Keyser, 954 
 O'Donaghue v. McGovern, 935 
 Odour V. Odour, 1061 
 Oertel v. Wood, 13 
 O'Fallon v. Daggett, 346 
 O'Fai-rill v. Nance, 639 
 Ogden V. Grove, 114 
 Ogden V. Riley, 957, 969 
 Ogg V. City of Lansing, 1303 
 O'Hanlon v. Myres, 954 
 Ohio & Mississippi R. R. Co. v. Shaue- 
 
 felt, 306 
 Okeson v. Patterson, 138 
 Oldfield New York and Harlem R. R. 
 
 Co., 519, 520 
 Oldham v. Sparks, 498 
 Oliver v. Chapman, 1193 
 Oliver v. Worcester, 1299, 1300, 1309, 
 
 1316 
 Olmsted v. Brown, 7, 964 
 Olmstead v. Miller, 961, 983 
 
 Olmstead v. Partridge, 747 
 
 O'Maley v. Dorn, 475 
 
 Omara v. Hudson River R. R. Co., 471 
 
 O'Marer v. Hudson River R. R. Co., 
 
 520 
 Ombony v. Jones, 295, 298, 299 
 Oneida Manufacturing Co. v. Lawrence, 
 
 1023 
 O'Neil v. Sears, 495 
 Onimit v. Henshaw, 570 
 Onstott V. Murray, 265 
 Oraam v. Franklin, 952 
 Orange Bank v. Brown, 571 
 Oregon Iron Co. v. TrulUnger, 114, 183 
 Orleaijs Navigation Co. v. Mayor of 
 
 New Orleans, 117 
 Ormsby v. Douglass, 941 
 Orr V. Bank of the United States, 721 
 Orr V. City of Brooklyn, 355 
 Orr V. Orr, 1064 
 Orr V. Skofield, 957 
 
 Ottawa Gas Light Co. v. Thompson, 81 
 Osboi-n V. Union Ferry Co., 605 
 Osgood V. Manhattan Co., 1321 
 Osincup V. Nichols, 30, 231 
 Osterhout v. Roberts, 442 
 Oswald V. Grenet, 268, 271 
 Othema Lodge v. Lewis, 112 
 Ousiy V. Hardin, 1193 
 Overend & Co. v. Gibbs, 502 
 Overton V. Phelan, 1021 
 Overton v. Williston, 397, 443 
 Overseers of Crown Point v. Warner, 
 
 607 
 Overseers of Washington v. Overseers 
 
 of Beaver, 831 
 Owings V. Jones, 176, 196, 197, 198, 244 
 Owen V. Boyle, 648 
 Owen V. Field, 116 
 
 Owen V. Hudson River R. R. Co., 494 
 Owens V. Connes, 634 
 Owings V. Emery, 282 
 Owsley V. Montgomery, etc., R. R. Co., 
 
 759, 1118 
 Oxford V. Peter, 32 
 
 Pacific R. R. Co. v. Governor, 1262 
 Packard v. Northcraft, 609, 612 
 Paddock v. Fletcher, 1009, 1010 
 Paddock v. Salisbury, 995 
 Paddock v. Strobridge, 1032 
 Padelford v. Padelford, 284, 308 
 Page V. HoUingsworth, 326 
 Page V. Olcott, 329 
 Paige V. O'Neal, 398, 813 
 Page V. Parkei-, 117'7 
 Paine, ^a; parte, 1271 
 Pallet V. Sargent, 993, 995 
 Palmer v. Andover, 1309 
 Palmer v. Avery, 751 
 Palmer v. Concord, 932, 950 
 
TABLE OP AMERICAN CASES CITED. 
 
 Ixvii 
 
 Palmer v. De Witt, 13, 51, 55 
 
 Palmer v. Harris, 1055 
 
 Palmer v. Haskins, 992 
 
 Palmer v. Palmer, 1064 
 
 Palmer v. Portsmouth, 1309 
 
 Palmer v. Silverthorn, 176 
 
 Palmer v. Skillenger, 730 
 
 Palmer v. Tuttle, 359 
 
 Pangburn v. Bull, 742, 752 
 
 Painter v. Baker, 393 
 
 Paris V. People, 1323 
 
 Paris V. Waddell, 764 
 
 Parrish v. Stephens, 261, 269 
 
 Park V. Baker, 293 
 
 Park V. McDaniels, 403 
 
 Parks V. City of Newburyport, 72 
 
 Parker v. Boston & Maine R. R., 79 
 
 Parker v. Chambliss, 308 
 
 Parker v. Cutler Mill Dam Co., 132 
 
 Parker v. Farley, 765 
 
 Parker v. Farmingham, 158 
 
 Parker v. Foote, 90, 138, 150, 172, 974 
 
 Parker v. Griswold; 9, 90, 172 
 
 Parker v. Hotchkiss, 78, 144 
 
 Parker v. Maeon, 1316 
 
 Parker v. Meader, 955 
 
 Parker v. People, 272 
 
 Parker V. Winnipiseogee Lake, etc., Co., 
 
 257, 258 
 Parkhurst v. Ketchum, 995 
 Parmer v. Anderson, 957 
 Parrott v. Barney, 308 
 Parrott v. Dubignore, 443 
 Partridge v. Gilbert, 111, 171 
 Parsons v. Brown, 694 
 Parsons v. Winchell, 507 
 Parsons v. Hopper, 760 
 Passinger v. Thoi'nburn, 1187 
 Passenger R. R. Co. v. Young, 32, 33 
 Patch V. Covington, 1303 
 Pattee v. Gilmore, 448 
 Pattoa V. Freeman, 417 
 Patten v. Gumey, 740 
 Patten v. Halstead, 798 
 Patterson v. North Carolina R. R. Co., 
 
 555 
 Patterson v. Railroad Co., 491 
 Patterson v. Thompson, 1091 
 Patterson v. Wilkinson, 926, 974 
 Paull V. Halferty, 11 
 Pawlet V. Rutland & Washington R. R. 
 
 Co., 246 
 Pawley v Holly, 510, 566 
 Pa-yne v. Lowell, 1310 
 Peak V. Hayden, 189 
 Peak V. Oldham, 956 
 Pearce v. Atwood, 795 y 
 PearsoU v. Cha.pin, 44 
 Pearsall v. Post, 135 
 Peck V. Batchelder, 292 
 Peek V. Ellis, 1195 
 Peek V- Freeholders of Essex, 
 Peckham v. Tomlinson, 719 
 P^eek V. Austin, 1305 
 
 Peck V. Elder, 1229 
 
 Peek V. Smith, 349 
 
 Peeler v. Guilkey, 414 
 
 Peet V. Chicago, etc., R. R. Co., 574 
 
 Pegram v. Cleveland County, 1276 
 
 Pegram v. Styron, 957 
 
 Pegram v. Stoltz, 983 
 
 Peirce v. Benjamin, 448 
 
 Pelluz V. Bulierdelck, 296 
 
 Pemberton v. Smith, 449 
 
 Pemberton v. Van Rensselar, 639 
 
 Pendleton v. Davis, 733 
 
 Penn v. Buffalo and Erie R. R. Co., 674 
 
 Penn v. Ward, 732 
 
 Pennington v. Meeks, 983, 988 
 
 Pennoyer v. Saganaw, 244 
 
 Pennewill v. CuUen, 576 
 
 Penrose v. Curren, 1126 
 
 Pennsylvania R. R. Co. v. Brooks, 1177 
 
 Pennsylvania R. R. Co. v. Butler, 587 
 
 Pennsylvania and Ohio Canal Co. v. 
 
 Graham, 222 
 Pennsylvania R. R. Co. v. Henderson, 
 
 470 
 Pennsylvania R. R. Co. v. Heller, 504 
 Pennsylvania R. R. v. Kerr, 29, 304, 306- 
 People V. St. Louis, 346 
 People v. Albany, 1315 
 People V. Canal Appraisers, 345 
 Peoria Bridge Association v. Loomis, 33 
 People v. Bacon, 1262 
 People V. Bennett, 1276 
 People V. Bissell, 1261, 1262 
 People V. Board of Police, 1272 
 People V. Booth, 1256 
 People V. Brooks, 1281 
 People y. Carey, 263 
 People V. Canal Appraisers, 346 
 People V. Chicago, 1265 
 People V. Circuit Court of Branch 
 
 County, 1259 
 People V. Clerk of Mai-ine Court, 1261 
 People V. Clute, 1240 
 People V. Collins, 1275 
 People V. Common Council of Brooklyn, 
 
 1257 
 People V. Common Council of New 
 
 York, 1282 
 People V. Cunningham, 199 
 People V. Corporatian of New York, 
 
 1272 
 People V. Curyea, 1278 
 People V. Detroit, 1272 
 People V. Dowling, 1256 
 People V. Edmonds, 1265 
 People V. Erwin, 263 
 People V. Fauerbuck 263 
 People V. Hatch, 1256, 1264, 1265 
 People V. Hawkins, 1264, 1265 
 People V. Head, 1264, 1266, 1272 
 People V. Hubbard, 1256, 1259 
 People V. Jackson, 269 
 People V. Jones, 265, 267, 607, 608 
 People V. Judges of Dutches, 1258 
 
Ixviii 
 
 TABLE OF AMERICAN CASES CITED. 
 
 People V. Judges of Dutchess, 12R9 
 
 People V. Justices of Chenango, 1259 
 
 People V. Justices of Delaware, 1259 
 
 People V. Kilduff, 1266 
 
 People V. Kingman, 269 
 
 People V. Loucks, 1261 
 
 People V. Mayor of New York, 1264 
 
 People V. Mead, 1264 
 
 People V. Mai-ine Court, 1240, 1242 
 
 Peoria, etc., R. R. Co. v. Mclntyre, 
 
 555 
 People V. Medical Society, 1271 
 People V. Norton, 1264 ' 
 
 People V. Olds, 1264 
 People V. Pacheeo, 1265 
 People V. Regents of the University, 
 
 1275 
 People V. Romero, 1280 
 People V. Solomon, 1277 
 People V. Sands, 262 
 People V. Scrugham, 1272 
 People V. Secretary of State, 1266 
 People V. Sexton, 1259 
 People V. Steele, 1270, 1273 
 People V. Stevens, 1264, 1272 
 People V. Supervisors of Chenango, 1265 
 People V. Supervisoi-s of Dutchess, 125G 
 People V. Supervisors of New York, 1319 
 People V. Supervisora of Otsego County, 
 
 1257 
 People V. Supervisors of Westchester, 
 
 1256 
 People V. Tibbetts, 345, 347 
 People V. Thompson, 1264, 1266 
 People V. Throop, 1274 
 People V. Van Alstyne, 269 
 Pestei-field v. Vickei-s, 1302, 1303 
 People V. Walker, 1274 
 People V. Warren, 799, 803 
 People V. Wayne, 1240 
 People V. Weston, 1259 
 People V. Williams, 1277 
 People V. Winnehammer, 1306 
 People V. Yates, 1262 
 Percy v. Claiy, 1195 
 Perdue v. Burnett, 955 
 Perdu V. Conuerly, 758 
 Perkins v. Dow, 78 
 Perkins v. Dunham, 160 
 Perkins v. Mitchell, 929, 935 
 Perkins v. New York Central R. R. Co., 
 
 533 
 Perkins v. Portland, Saco & Portsmouth 
 
 R. R. Co., 596 
 Perkins v. Towle, 9, 322, 382 
 Perkins v. Wright, 599 
 Perley v. Eastern R. R. Co., 304, 306 
 Perley v. Chandler, 332, 349 
 Perley v. Georgetown, 1302 
 Perley v. Langley, 116, 135 
 Perrin v. Garfield, 137, 156 
 Perriu v. New York Cential R. R. Co., 
 
 350 
 PeiTin V. Oliver, 16 
 
 Perrin v. Blanchaj-d, 1194 
 
 Perrine v. Sei-rel, 1014 
 
 Pei'sou V. Warren R. R. Co., 1274 
 
 Perrott v. Sheai-e, 519 
 
 Pen-y v. Mai-sh, 223 
 
 Perry v. Phipps, 231 , 
 
 Perry v. Ricketts, 225 
 
 Peter v. Bloeker, 1088 
 
 Petei-s V. New Otrleans, etc., R. R. Co., 
 
 592 
 Peterson v. Gi-esham, 1184, 1199 
 Pettigrew V. Chellis, 1038 
 Pettigrew v. Village of Evansville, 72 
 Pettingill v. Poi-ter, 103 
 Pettjjjgill V. Rideout, 40, 417 
 Pfau V. Reynolds, 1315 
 Phealing v. Kenderdine, 1096, 1097 
 Phelps V. Sill, 770 
 Phelps V. Wait 507 
 Phifer v. Cox, 380 
 Philadelphia, Wilmington & Baltimore 
 
 R. R. Co. V. Quigley, .933, 972, 1193 
 Philadelphia & Reading R. R. Co. v. 
 
 Derby, 31, 32, 469. 477 
 Philadelphia, etc., R. R. Co. v. State, 
 
 196 
 Philadelphia, etc, R. R. Co. v. Spearen, 
 
 26 
 Philbrick v. Poster, 693, 732 
 Phillips V. AUen, 285 
 Phillips V. Bonham, 747 
 Phillips V. Bowei-s, 350 
 Phillips V. Bridge, 498 
 Phillips V. Brigham, 376 
 Phillips V. Commonwealth, 1323 
 Phillips V. Condon, 523 
 Phillips V. Earle, 579 
 Phillips V. Hoeffer, 958 
 Phillips V. Oyst«r, 326 
 Phiffips V. Phillips, 375, 1063, 1070, 1202 
 Phillips V. Rhodes, 141 
 Phillips V. Ronald, 818 
 Phillips V. Veazie, 1317 
 Phincle v. Vaughn, 955, 974 
 Phinizy v. City Council of Augusta, 1315 
 Phoenix v. Clark, 317 
 Phoenix Water Co. v. Fletcher, 146 
 Pickens v. Diecker, 34 
 Pickard v. Collins, 176, 196, 244 
 Pickett V. Crook, 1193 
 Picquet v, McKay, 452, 540 
 Pierce v. McCloud, 136 
 Pierce v. Dart, 241, 242 
 Piei-ce V. Pernald, 137, 138, 150, 158 
 Pierce v. Hall, 9 
 Pierce v. Pieree, 1064 
 Pierce v. Selleck, 105 
 Pieree v. Scott, 649 
 Pierson v. Post, 413 
 Pike V. Bright, 44 
 Pike V. Dilling, 1193 
 Pike V. Elliott, 359 
 Pike V. Hanson, 697 
 PiUiu V. Love, 297 
 
TABLE OF AMERICAN CASES CITED. 
 
 Ixix 
 
 PillsTjury v. Mooi-e, 160, 176, 196, 243, 
 
 1116, 1160, 1163 
 Pilsbury v. Webb, 398 
 Pinuey v. Andrus, 1013 
 Plnkerton v. Woodward 606 
 Piper V. Manny, '613 
 Piper V. Pearson, 829 
 Plscataqua Bank v. Toi-nley, 417 
 Pitts V. Pace, 987 
 Pitts V. Pitts, 1070 
 Pittsburg- City v. Grier, 223 
 Pittsburgh, etc., R. R. Co. v. Gilleland, 
 
 219 
 Pittsburg, etc., R. R. Co. v. Vining, 26 
 Pittock V. O'Niell, 996 
 Pixley V. Clark, 79, 80, 83 
 Pledger v. Hathcoek, 961 
 Plynipton v. Converse, 155, 159 
 Plummer v. Harbut, 20 
 Plummer v. Green, 744 
 Plumleisrh v. Dawson, 90, 172 
 Poe V. Grever, 956 
 Poer V. Peebles, 634 
 Polk V. Allen, 398 
 Pollard V. Barnes, 136, 154, 155 
 Pollard V. Hagan, 345 
 Pollard v.'Woburn, 1321 
 Pollett V. Long, 7 
 Polly V. McCall, 136, 138 
 Pool V. Devers, 993 
 Poor V. Oakinan, 295 
 Poor V. Poor, 1061 
 Pope V. Tucker, 443 
 Pope V. Welsh, 996 
 Pophan V. Wilcox, 1052 
 Porch V. Frees, 285, 318 
 Porcher v. North Eastern R. R. Co., 
 
 568, 575 
 Port V. WilUams, 1023 
 Porter v. Botkin's, 994 
 Porter v. Nekervis, 1319 
 Porter v. New York Central R. R. Co., 
 
 603 
 Porter v. Seller, 1193 
 Porter v. Sullivan, 359 
 Post V. Pearsall, 116, 126 
 Potiers, Exr. v. Burden, 93 
 Potter V. Cromwell, 293, 294 
 Potter V. Luther, 1172 
 Potter V. Mayo, 546 
 Potter V. Seale, 743 
 Potter V. Thompson, 983 
 Potts V. Imlay, 752 
 Pottstown Gas Co. v. Murphy, 198 
 Pound V. Plumstead Board of Works, 
 
 332 
 Pow V. Beokner, 700, 703, 709 
 Powell V. Bagg, 136, 154 
 Powell V. McAshan, 297 
 Powell V. Monsen Co., 292 
 Powell V. Mills, 571, 575, 606 
 Powell -^ Myers, 575, 580, 587, 598 
 Powell V. Pennsylvania R. R. Co., 592 
 Powers V. Presgraves, 994 
 
 Powers V. Sawyer, 448 
 
 Pratt V. Gardner, 770 
 
 Pratt V. Hill, 834 
 
 Pratt V. Ogdensburgh, etc., R. R. Co., 
 
 592 
 Pray v. Jersey City, 1308, 1311 
 Preble v. Brown, 132 
 Prell V. McDonald, 36 
 Prentiss v. Shaw, 733 
 Prescott V. Gonaer, 1260, 1264, 1268 
 Prescott V. Norris, 1126, 1127 
 Presscott v. Wright, 448 
 Presscott v. White, 104, 106 
 Prescott V. Williams,' 104, 106 
 President, etc., of •Odell v. Shroeder, 
 
 1301 
 Preston v. Briggs, 292 
 Preston v. Cooper, 742 
 Preston v. Navasotee, 268 • 
 Price V. Hartshorn, 575 
 Price V. New Jersey R. R. Co., 215 
 Price V. Oswego & Syracuse R. R. Co. 
 
 594 
 Price V. Powell, 618 
 Price V. Whitely, 992 , 
 
 Proffit V. Henderson, 278 
 Proctor V. Lewiston, 271 
 Propeller M|onticello v. Gilbert MoUison, 
 
 519 
 Prosser v. Wapello Co., 16 
 Providence Gas Co. v. Thurber, 294, 297 
 Providence v. Clapp, 1309, 1310 
 Pruitt V. Cox, 1096 
 Puckett V. White, 1260 
 Pue V. Pue, 136, 138, 161, 162 
 Pugh V. McCarty, 993, 996 
 Pulver V. H8,rris, 545 
 Purcell V. Archer, 983 
 Purcell V. Southern Express Co., 587 
 Purcell V. Thomas, 634 
 Purdy V. People, 1300 
 Purfel V. Sands, 643 
 Purple V. Horton, 983 
 Purvis V. Coleman, 609, 614 
 Putney v. Day, 118 
 Putnam v. Payne, 231 
 Pynchon v. Stearns, 280, 281 
 Pyle V, Pennock, 294 
 
 Q 
 
 Quimbo Appo v. People, 1237 
 Quincy Canal Co. v. Newcomb, 241 
 Quinn v. O'Gara, 955, 957 
 Quimit v. Henshaw, 599 
 
 R 
 
 Raddle v. Ruckgaber, 760 
 
 Radcliff 's Executors v. Mayor, etc., of 
 
 Brooklyn, 73, 74, 80, 150, 882, 1307, 
 
 1308 
 
Ixx 
 
 TABLE OF AMERICAN CASES CITED 
 
 Eadway v. ongga, 223 
 
 Rail V. Potts, 37 
 
 Railroad v. Bloeher, 33 
 
 Railroad Co. v. Barrows, 597 
 
 Railroad v. Finney, 33 
 
 Railroad v. Hurst, 1193 
 
 Railroad v. Harris, 597 
 
 Railroad v. Vandiver, 33 
 
 Railroad Co. v. Aspell, 467, 469 
 
 Railroad Co. v. Gladman, 1321 
 
 Railroad Co. v. Manufacturing Co., 587, 
 
 625 ■ 
 Railroad Co. v. Rogers, 32 
 Railroad Co. v. Reeves, 575 
 Rainey v.- Dunning, 798 
 Rainy v. Bravo, 983, 984 
 Raisler v. Springer, 1 177 
 Ranger v. Goodiich, 5, 961, 994 
 Ramsden v. Boston and Albany R. R. 
 
 Co., 32, 721 
 Ramaley v. Leland, 609, 614 
 Randall, petitioner, 1259 
 Randall v. McLaughlin, 103 
 Randall v. Railroad Co., 1311 
 Rank v. Rank, 462, 448 
 Rapho V. Moore, 1311, 1312 
 Rathbun v. Rathbun, 1067 
 Rawson v. Pennsylvania R. R. Co., 599 
 Ray V. Lynes, 194 
 Ray V. Sellers, 176, 196, 242 
 Raymond v. Lowell, 1309 
 Raymond v. Williams, 1185, 1203 
 Rayne v. Taylor, 991 
 Raynes v. McNarry, 406 
 Rea V. Tucker, 1096 
 Reed v. Spaulding, 576 
 Reading v. Commonwealth, 1264 
 Reaves v. Waterman, 577 
 ije Bahia and San JFrancisco Railroad 
 
 Co., 1295 
 Redington v. Chase, 407 
 Redlou v. Barker, 392- 
 Redmond v. Livei-pool, New York and 
 
 Philadelphia Steamship Co., 595 
 Redway v. Gray, 955 
 Reed v. Belfast, 1309, 1322 
 Reed v. Leeds^ 349 
 Reed v. Northfield, 1313 
 Reed v. Reed, 284, 1061 
 Reed v. Pacilic Ins. Co., 544 
 Reed v. Spaulding, 414 
 Reed v. Purdv, 733, 1193 
 Reeside v. Walker, 1266 
 Reed v. Williams, 1098 
 Reeves v. M'Kenzie, 634 
 Regnier v. Cabott, 995 
 Rehauser v. Schwerger, 973 
 Reid V. Giflford, 92 
 Reid V. Reid, 1064 
 Reign olds v. Edwards, 379 
 Reilly v. Cavanaugh, 497 
 Reimer v. Stuber, 137, 157 
 Reimold v. Moore, 107 
 Reinhard v. New York, 1312 
 
 Relfv. Rapp, 24 
 
 Renck V. McGregor, 700, 1199 
 
 Reno V. Wilson, 768 
 
 Rennoyer v. Saginaw, 1298 
 
 Requa v. City of Rochester, 1312, 1313 
 
 Rerick V. Kern, 99 
 
 Rerel v. Camsi, 55 
 
 Respublica v. Caldwell, 264 
 
 Respublica v. Davis, 982 
 
 Respublica v. De Longchamps, 682 
 
 Respublica V. Oswald, 775 
 
 Respublica v. Passmore, 775 
 
 Respublica v. Sparhawk, 1306 
 
 Reston v. Morris, 406 
 
 Reubgns v. Joel, 319 
 
 Revell V. Blake, 454 
 
 Revill V. Pettitt, 771, 829 
 
 Revek v. Newark, 1308 
 
 Rex V. Horn, 974 
 
 Rey V. Toney, 532 
 
 Reynolds v. Hindman, 226 
 
 Reynolds v. Shreveport, 1307 
 
 Reynolds v. Shuler, 299 
 
 Reynolds v. Taylor, 1266 
 
 Rhea v. White, 1195 
 
 Rhodes v. Cincinnati, 1307 
 
 Rhodes v. Dunbar, 258 
 
 Rhodes v. McCornick, 112 
 
 Rhodes V. Otis, 346 
 
 Rhodes v. Whitehead, 154, 160 
 
 Ricard v. Williams, 138 
 
 Rice V. Hathaway, 359 
 
 Rice V. Hollenbeck, 460 
 
 Rice V. Ruddiman, 349 
 
 Rice V. Worcester, 349 
 
 Richards v. Enfield, 1309 
 
 Richards v. Fugua, 605 
 
 Richards v. Rich, 601 
 
 Richards v. Richards, 1061 
 
 Richards v. State, 690 
 
 Richards v. Torbet, 281 
 
 Richards v. Westcott, 24 
 
 Richardson v. Bigelow, 174 
 
 Richardson v. Borden, 291, 292, 293, 294 
 
 Richardson v. Fonts, 1097 
 
 Richardson v. Milburn, 325 
 
 Richardson v. New York Central R. R. 
 
 Co., 474' 
 Richardson v. Palmer, 373 
 Richardson v. Pond, 150, 153, 181, 182 
 Richardson v. Roberts, 5, 926, 993 
 Richmond v. Long, 20 
 Richmond v. Long's Adm'rs, 1297, 1303 
 Richmond v. Sacramento, etc., R. R. 
 
 Co., 27, 495 
 Richmond, etc., Co. v. Rof'ors, 16 
 Ricker v. Freeman, 510 
 Ripley v. Davis, 406, 458 
 Ridgely v. Bond, 373 
 Riddle v. Driver, 410 
 Riddle v. Welden, 648 
 Riggs V. Denniston, 959 
 Riggs V. State, 39 
 Riley v. Whittiker, 797 
 
TABLE OF AMERICAN CASES CITED. 
 
 Ixxl 
 
 Riley v. Nugent, 993 
 
 Ring- V. "Wheeler, 934, 966 
 
 Ringle v. Weston, 1157 
 
 Riopelle v. Gillmour, 138 
 
 Rittenhouse v. Independent Line of 
 
 Telegraph, 536 
 Ritehey v. Davis, 742, 743 
 Ritger v. Parker, 151, 159, 167 
 Roath V. Di-iscoU, 74, 79, 82 
 Roberts v. Bei-dell, 1164 
 Roberts v. Bye, 112 
 Roberts v. Chicago, 1307 
 Roberts v. Connelly, 1090 
 Roberts v. Dillon, 418 
 Roberts v. Dauphin Deposit Bank, 300 
 Roberts v. Mason, 1193 
 Roberts v. Muir, 1203 
 Roberts v. Roberts, 94 
 Roberts v. Smith, 225 
 Roberts v. Tennell, 634, 636 
 Robertson v. Crane, 402 
 Robertson v. Spring, 742 
 Robertson v. Wellsville, 265, 266, 267 
 Robeson v. Pittenger, 150 
 Robbins v. Fletcher, 972, 988 
 Robbins v. Rcbbins, 1068 
 Robbins v. Treadway, 928, .952 
 Robinson v. BaiTOws, 458 
 Robinson v. Chamberlain, 21, 221 
 Robinson v. Calp, 40, 417 
 Robinson v. Cone, 26 
 Robinson v. Drummond, 993 
 Robinson v. Douchy, 420 
 Robinson v. Hartridge, 399, 450, 455, 
 
 458 
 Robinson v. Holt, 411 
 Robinson v. Hawkins, 693 
 Robinson v. Pioche, 28 
 Robinson v. Renwick, 317 
 Robinson v. "Wheeler, 310 
 Robson V. Northeastern R. R. Co., 470 
 Robinett v. Ruby, 965 
 Rockwell V. Brown, 767, 1159 
 Rochester v. Anderson, 736 
 Rochester "White Lead Co. v. City of 
 
 Rochester, 20, 772, 1298, 1304 
 Rodelbaugh v. Hollingsworth, 985 
 Rodgers v. Lacey, 5, 961 
 Roehlen v. Aid Society, 1273 
 Rogan V. Perry, 371, 372 
 Rogers v. Brown, 653 
 Rogers v. Gelinger, 294 
 Rogers v. Lamb, 767 
 Rogei's Locomotive, etc., "Works v. Erie 
 
 R. R. Co., 572, 631 
 Rogers v. Rogers, 1065 
 Rogers v. Stewart, 246, 260 
 Rogers V. Taintor, 1054 
 Rogers v. "Weir, 399, 402, 403 
 Rogers v. Wheeler, 593 
 Roll V. Augusta, 1307 
 Rollins V. Clay, 358 
 Rome V. Omberg, 1307 
 Rome R. R. Co. v. Sullivan, 596 
 
 Romeo v. Chapman, 1319 
 Romaine v. "V"an Allen, 458, 460 
 Rooney v. Second Avenue R. R. Co., 
 
 546 
 Rood V. N. Y. and Erie R. R. Co., 307 
 Root V. Bonnema, 411 
 Root V. French, 395, 420 
 Root V. Great Western R. R. Co., 596 
 Root V. King, 993 
 Rowand v. Bellinger, 247 
 Rowe V. Addison, 1304 
 Rowe V. Smith, 327, 1036, 1124 
 Rowe V. Granite Biidge Co., 261, 262 
 Rowell V. Lowell, 1309 
 Rowley v. Houghton, 1052 
 Rase V. Burn, 101 
 Rose V. Hurley, 1012 
 Rosenstein v. Brown, 751 
 Ross V. Innis, 728, 747, 1185, 1199 
 Ross V. Butler, 192, 257 
 Ross V. Madison, 1298 
 Ross V. Mather, 1012, 1038 
 Ross V. Randolph, 261 
 Rossiter v. Hall, 58 
 Rotan V. Fletcher, 455 
 Rotch V. Hawes, 395 525, 
 Roth V. Buffalo and State Line R. R. Co., 
 
 575, 598, 599 
 Roth V. Wells, 411 
 Rounds V. Mansfield, 1319 
 Roundtree v. Brantley, 90 
 Royce v. Guggenheim, 115, 150 
 Ruckman v. Cutwater, 293 
 RufiFner v. Williams, 700, 1121 
 Runkle v. Meyer, 979 
 Runkle v. Winerailler, 1270 
 Runyon v. Bordine, 1316 
 Runyon v. Central R. R. Co., 493 
 Rusch V. Davenport, 1321 
 Rush v. Cavenaugh, .954, 959 
 Russell & Annis v. Livingston & Wells, 
 
 594 
 Russell V. Elliott', 1259 
 Russell V. Hadduck, 545 
 Russell V. Hudson River R. R. Co., 490, 
 
 492 
 Russell V. Kearney, 461 
 Russell Manufacturing Co. v. New Ha- 
 ven Steamboat Co., 595 
 Russell V. Mayor, etc., of New York, 
 
 1306 
 Russell V. Turner, 820 
 Russell V. Richards, 397 
 Rust V. Dow, 96 
 Rust V. Low, 149 
 Rutledge v. Rutledge, 1065 
 Ryan v. Capes, 1315 
 Ryan v. Cumberland "V^alley R. R. Co., 
 
 492 
 Ryan v. Fowler, 224, 225 
 Ryan v. New York Central R. R. Co., 
 
 29, 304, 306 
 Ryan v. Lawrence, 293 
 Ryburn v. Pryor, 458 
 
jiJCXU 
 
 TABLE OF AMEEICAN CASES CITED. 
 
 Ryland v. Peters, 571 
 Ryder v. Hathaway, 410 
 
 S 
 
 Sackett v. Saokett, 308 
 
 Safford v. Basto, 871 
 
 Sanford v. Bennett, 934 
 
 Sanford v. Eighth Avenue R. R. Co., 33 
 
 Sanford v. Gaddis, 955, 978, 983 
 
 Sagei- V. Hai-pending', 695 
 
 Salisbury y. Herchenroder, 202 
 
 Salomon v. Clagett, 317 
 
 Salt Springs National Bank v. Wheeler, 
 
 399, 450, 452, 455 
 Salter v. Howard, 1088 
 Saltonstall v. Stocton, 568 
 Saltus V. Everett, 395, 418 
 Sampson v. Bnmside, 99 
 Sampson v. Smith, 727 
 Sanborn v. Hamilton, 395 
 Sands v. Joerris, 979 
 Sands v. Pfeiffer, 300 
 Sands v. Robison, 988 
 Sands v. Taylor, 1024 
 Sanders v. Egerton, 442 
 Sanders v. Johnson, 996 
 Sanders v. RoUinson, 966 
 Sanders v. Vance, 458 
 Sanders v. Young, 605 
 Sanderson v. Caldwell, 974, 989, 990, 
 
 992 
 Sanderson v. Haverstick, 453 
 Sanderson v. Hubbard, 974 
 Sargent v. Ballard, 138 
 Sarles v. New York, 
 Sarles v. Sarles, 280, 281, 319 
 Sarocco v. Geary, 1306 
 Sasseen v. Clark, 609, 613 
 Savage v. Bangor, 1310 
 Savage v. Holmes, 1260 
 Saverin v. Eddy, 1320 
 Sawin v. Guild, 65 
 Sawyer v. Corse, 20 
 Sawyer v. Eifert, 995, 996 
 Sawyer v. Hammott, 118 
 Sawyer v. Jackson, 231 
 Sayles v. Briggs, 764 
 Sayre v. Sayre, 995 
 Scammon v. Chicago, 176, 1316 
 Scarborough v. Reynolds, 1013 
 Schopman v. Boston & Worcester R. R. 
 
 Co., 597 
 Schenley v. Commonwealth, etc., 137, 
 
 157 
 Schemmer v. North, 295 
 Schemerhom v. L'Espinasse, 320 
 Scheley v. Lyon, 460 
 Schenck v. Strong, 525, 1126 
 Schuneman v. Palmer, 11 
 Schlencker v. Risley, 1175 
 Schermerhorn v. Van Yolkenburg, 455, 
 
 1305 
 
 Schiellein v. Supervisors of Kings, 1305 
 Sehiellina v. Supervisors of Kings Co., 
 
 355 
 School District v. Boston, etc., R. R. Co., 
 
 587 
 School District v. Lynch, 136 
 Schofield v. Whitelegge, 557 
 Schrimpev v. Heilman, 988 
 Schroder v. Ehlers, 773 
 Schurmeier v. St. Paul & Pacific R. R. 
 
 Co., 346 
 Schuyler v. Russ, 1013 
 Schuchai-dt v. Mayor, etc., of New York. 
 
 397 
 Scudder v. Trenton, 388 
 Schwartz v. Gilmore, 508 
 Scranton v. Baxter, 523 
 Scribner v. Beach, 693, 732 
 Scribner v. Kelley, 250, 230 
 Sci-iven v. Gregorie, 165 
 Scofield V. Ferrers, 745 
 Scott V. Bay, 324 
 
 Scott V. Boston, etc.. Steamship Co., 628 
 Scott V. Fletcher, 767 
 Scott V. FuUer, 236, 634 
 Scott V. Hunter, 7 
 Scott V. Jester, 540 
 Scott V. Mayor, etc., of Manchester, 
 
 1304 
 Scott V. McKinnish, 983, 994, 995, 996 
 Scott V. Rogers, 458 
 Sears v. Dennis, 1309 
 Seabrook v. King, 104 
 Seaman v. New York, 223, 1316 
 Secor V. Harris, 955, 958 
 Seeley v. Blair, 952 
 Seeley v. Bishop, 105, 165 
 Seely v. Peters, 326 
 Selden v. Delaware and Hudson Canal 
 
 Co., 98 
 Seldon v. Hickock, 496 
 Self V. Dunn, 605, 571 
 Selma, etc., R. R. Co., Ex parte, 1283 
 Selman v. Wolfe, 208, 251, 238 
 Sellars v. Kinder, 1154 
 Seller v. Pacific, 587 _ 
 Sellers v. Western Union Telegraph 0«., 
 
 536 
 Severance v. Hilton, 995 
 Sexton V. Pike, 546 
 Sexton V. Todd, 964 
 Seymour v. Ely, 1259 
 Seymour v. Cook, 613 
 Shafer v. Loucks, 728, 742 
 Shea V. Lowell, 1310 
 Shank v. Case, 993 
 Sharpe v. O'Brien, 1202 
 Shartle v. Minneapolis, 1321 
 Shattuck V. Myers, 1098 
 Shattuck V. Green, 1020 
 Shaul V. Brown, 728, 744, 767 
 Shaw V. Beebe, 1178 
 Shaw V. Berry, 609 
 Shaw V. Coffin,- 44, 1127 
 
TABLE OF AMERICAN OASES CITED. 
 
 Ixxiii 
 
 Shaw V. Davis, 799 
 
 Shaw V. Howell, 1266 
 
 Shaw V. Shaw, 1061 
 
 Sheahan v. Collins, 995 
 
 Shearman v. Shearman, 1064 
 
 Sheckells v. Johnson, 950 
 
 Sheffield v. Sheffield, 1062 
 
 SheffiU V. Van Deusen, 994 
 
 Sheldon v. Kalamazoo, 1301 
 
 Shelfer v. Gooding-, 966 
 
 Shepai-d v. Buffalo, New York & E. R. 
 
 R. Co., 214, 215 
 Shepard v. Spaulding-, 299 
 Shepherd v. Hees, 327 
 Shepherd v. McQuilkin, 1123 
 Sheldon v. Carpenter, 767, 1158 
 Sheldon v. Hudson River R. R. Co., 307 
 Sheldon v. Rockwell, 320 
 Shenley v. Commonwealth, 267, 268 
 Sherboui-ne v. Yuba, 1300 
 Sherman v. Dutch, 642, 643 
 Sherman v. Fall River, etc., 198 
 Sherman v. McKeon, 349 
 Sherman v. Rochester & Syracuse R. R. 
 
 Co., 490, 492 
 Sherfey v. Bartley, 229 
 Sherley v. Billings, 32, 33 
 Sheiidan v. Brooklyn City & Newtown 
 
 R. R. Co., 471 
 Sherred v. Cisco, 171 
 Sherwood v. Buit, 138 
 Sherwood v. Phillips, 635 
 Sherry v. Picken, 398 
 Shields v. Cunningham, 5 
 Shipler V. Isenhower, 359 
 Shipley v. Fifty Associates, 202 
 Shipmau's Case, 1295 
 Shipman v. Baxter, 371 
 Shinloub v. Ammerman, 955 
 Shine v. Wilcox, 316 
 Shinmer v. Merry, 605 
 Shoecraft v. Bailey, 616 
 Shoffv. Wells, 1202 
 Short V. Barker, 417 
 Shorter v. Smith, 16 
 Shoulty V. Miller, 993 
 Shroder v. Benneman, 379 
 Sibley v. Aldrich, 609 
 Sidgreaves v. Myatt, 5, 961 
 Sikes V. Johnson, 1126 
 Silsbury v. McCoon, 410, 460 
 Silliman v. Lewis, 495 
 Silver v. Cummings, 1319 
 Sivei-thorne v. Warren R. R. Co., 1265 
 Simar v. Canaday, 1018 
 Simpson v. Justice, 93 
 Simpson v. Keokuk, 1315 
 Simpson v. Seavey, 144, 145 
 Simpson v. Simpson, 1065 
 Simpson v. Wiley, 980 
 Simmons v. Cloonan, 102, 114 
 Simmons v. Holster, 982, 988, 1032 
 Simmons v. Sines, 103 
 Sims v. Chance, 524 
 
 Singleton v. Commissioners, 1272 
 
 Sisk V. Hui-st, 747, 749 
 
 Skinner v. Hall, 596 
 
 Skinner v. Powers, 978 
 
 Skinner v. Skinner, 1061 
 
 Slatten v. Des Moines Valley R. R. Co., 
 
 882 
 Sleeper v. Parrish, 653 
 Sleight v. Leavenworth, 720 
 Sloan V. Petrie, 993 
 Slocum V. Clark, 634 
 Slomer v. People, 799 
 Small V. Clewley, 974 
 Small V. Danville, 1300 
 SmaUey v. Anderson, 5, 954 
 Smallwood v. Norton, 498 
 Smart V. Blanchard, 984, 986 
 Smathers v. Hanks, 496 
 Smith, Ex ■parte, 1237, 1240 
 Smith V. Bensen, 397 
 Smith V. Boston, etc., R. R. Co., 570, 
 
 600 
 Smith V. 'Carroll, 293, 294 
 Smith V. Causey, 30, 230 
 Smith V. Colson, 634 
 Smith V. Commonwealth, 263 
 Smith V. McConathy, 195 
 Smith V. Downing, 462 
 Smith V. Dygert, 475 
 Smith V. Felt, 1123 
 Smith V. Fitzgerald, 258 
 Smith V. Floyd, 121, 123, 127 
 Smith V. Fyler, 634, 636 
 Smith V. Gaffard, 987 
 Smith V. Gardner, 475 
 Smith V. Hannibal & St. Joseph R. R. 
 
 go., 307, 313 
 Smith V. HoUister, 983 
 Smith V. Howard, 967 
 Smith V. James, 443 
 Smith V. Kerr, 966 
 Smith V. Kinard, 105, 134 
 Smith V. Knapp, 820 
 Smith V. Lexdnus, 345 
 Smith V. Lovelace, 988 
 Smith V. Mayor of New York, 1314, 1318 
 Smith V. Miiburn, 1097 
 Smith V. McConathy, 192 
 Smith V. Miles, 984, 985 
 Smith V. Miller, 136, 154 
 Smith V. Minor,. 961 
 Smith V. Montgomery, 230 
 Smith V. Moore, 300, 1260 
 Smith V. North Carolina R. R. Co., 580 , 
 Smith V. New York Central R. R. Co., 
 
 533 
 iSmith V. New Haven, etc., R. R. Co., 
 
 492, 592 
 Smith V. O'Connor, 26 
 Smith V. Pettingill, 387 
 Staith V. Silence, 5, 926, 960, 961 
 Smith V. Shaw, 799 
 Smith V. Sharpe, 310 
 Smith V. Smith, 44, 606, 994, 995 
 
Ixxiv 
 
 TABLE OF AMERICA If CASES CITED, 
 
 Smith V. State, 265, 297 
 
 Smith V. Tracy, 1027, 1036, 1037 
 
 Smith V. Washington, 1307 
 
 Smith V. Wendell, 1809 
 
 Smyth V. Harvie, 499 
 
 Smyles v. Hastings, 103, 160, 164, 186 
 
 Smyth V. Tankei-sley, 406 
 
 Smoot V. Hook, 455 
 
 Snediker v. Poorbaugh, 926, 961 
 
 Snedeker v. Warrington, 293, 294 
 
 Snider v. Myers, 360, 371 
 
 Sneddy v. Foster, 818 
 
 Snow V. Judson, 15 
 
 Snow V. Parsons, 81 
 
 Snow V. Wichter, 5, 978 
 
 Snowden v. Wilas, 99 
 
 Suydam v. Moore, 507 
 
 Snyder v. Andrews, 981 
 
 Snyder v._Pulton, 950, 992, 1194 
 
 Snyder v.'Kunkleman, 643 , 
 
 Snyder v. Rockport, 1307 
 
 Snyder v. Vaux, 410 
 
 Society for Establishing Useful Manu- 
 factures V. Morris Canal, 319 
 
 Sodowsky v. M'Farland, 523 
 
 Soper V. Henry County, 1300, 1311 
 
 South, etc., R. R. Co., Sx parte, 1256 
 
 South Carolina R. R. Co. v. Moore, 203 
 
 South V. Denniston, 1090 
 
 Southern Express Co. v. Caperton, 618, 
 619 
 
 Southern Express Co. v. Crook, 593, 
 587, 590 
 
 Southern Express Co. v. McVaugh, 571 
 
 Southern Express Co. v. Moon, 575, 587 
 
 Southern Express Co. v. Newby 571, 
 575, 587, 593 
 
 Southern Express Co. v. Shea, 587, 589 
 
 Southern Express Co. v. Womack, 575 
 
 Soulard v. St Louis, 1302 
 
 Southard v. Morris Canal, 259 
 
 Southwick V. Estes, 31, 32 
 
 Southwick V. Southwick, 1064 
 
 Southwick V. Stevens, 929 
 
 Southwood V. Myers, 608 
 
 S. W. and W. R. R. Co. v. Baddely, 
 471 
 
 Soulter V. Madison, 1277 
 
 Spafford v. Goodell, 778 
 
 Sparhawk v. Salem, 1309 
 
 Sparhawk V. Union, etc.,R. R. Co., 194, 
 261 
 
 Sparks v. State Bank, 300 
 .Sparks v. Purdy, 394, 462 
 
 Sparks v. Messick, 1042 
 
 Spaulding v. Adams, 550 
 
 Spaulding v. Brewster, 418 
 
 Spence v. Chicago, etc., R. R. Co., 215 
 
 Spencer v. McMasters, 5, 993 
 
 Spencer v. McGowen, 651 
 
 Spencer v. McMillan, 560 
 
 Spence v. Perry, 829 
 
 Spooner v. Keeler, 575, 955, 993 
 
 Spooner v. Mattoon, 523 
 
 Sprague v. Birchard, 803 
 
 Sprague v. Smith, 597 
 
 Sprague v. Steere, 259 
 
 Springfield v. Le Claire, 1312 
 
 Staokley v. Pierce, 555 
 
 St. John V. Mayor, etc., of New York, 
 
 1315, 1316 
 St. John V. Standring, 406 
 St. John V. O'Connell, 398 
 St. Louis, Alton & Chicago R. R. Co. v. 
 
 Dalby, 721 
 St. Louis V. Gumo, 1307 
 St. Louis, etc., R. R. Co. v. Linder, 218 
 St. Luke's Church v. Slack, 1267 
 St. Paul V. Kerby, 1185 
 St. Paifl V. Kuby, 1200 
 St. Peter's Church v. Beach, 382, 1193 
 Stadhecker v. Combs, 571 
 State V. Axiditor, 1266, 1272 
 State V. Atkinson, 263 
 State V. Bailey, 263 
 State V. Baker, 292 
 State V. Baldwin, 264 
 State V. Barker, 1262 
 State V. Bertheol, 199, 263 
 State V. Bridgman, 1264 
 State V. Buckley, 263 
 State V. Burbank, 1257 
 State V. Burlington, 1309, 1323 
 State V. Burnham, 979 
 State V. Canal, etc., R. R. Co., 1276 
 State V. CampbeU, 772 
 State V. Capp, 770 
 State V. Carroll, 834 
 State V. Chambers of Commerce, 1273 
 State V. Chase, 1262 
 State V. Church, 690 
 State V. Clark County Court, 1238 
 State V. Coffin, 350 
 State V. County Judge, 1260 
 State V. Crow, 265 
 State V. Davenport, 1277 
 State V. Davis, 692 
 State V. Donaldson, 14 
 State V. Dougherty, 1264 
 State V. Elliott, 299 
 State V. Ely, 1260 
 Staat V. Evans, 44 
 State V. Franklin Falls Co., 289 
 State V. Fletcher, 1262 
 State V. Preeport, 262 
 State V. Freyburg, 1313 
 State V. Gamble, 1266 
 State y. Gibson, 693 
 State V. Glasgow, 1328 
 State V. Glen, 132 
 State V. Gorhani, 1322 
 State V. Governor, 1261, 1280 
 State v. Graham, 264 
 State V. Graves, 1256 
 State V. Haines, 199, 263 
 State V. Halford, 798 
 State V. Hart, 264 
 State V. Hartford, etc., R. R. Co., 1274 
 
TABLM OF AMERICAN CASES CITED. 
 
 Ixsv 
 
 State V. Henderson, 928 . 
 
 State V. Hudson Comity, 1322- 
 
 State V. Hull, 1280 
 
 State V. Hunter, 265 
 
 State V. Jacobus, 1265 
 
 State V. Jeandell, 982, 988 
 
 State V. Jersey City, 345 
 
 State V. Johnson, 832 
 
 State V. Judge' of Sixth District Court 
 
 of New Orleans, 1264 
 State V. Judge of Second Distidct Court, 
 
 1259, 1260 
 State V. Justices, etc., 1323 
 State V. Keokuk, 1278 
 State V. Kirke, 1259 
 State V. Kirkley, 1301 
 State v.. Knight, 1259 
 State V. La Crosse, 1240 
 State V. Layfarth County Court, 1259 
 State V. Lehere, 1257, 1280 
 State V. Maffit, 1262 
 State V. Malcolm, 690 
 State V. Manchester and Lawrence R. 
 
 R., 27, 28 
 State V. Marble, 269 
 State V. Mayor, 1322 
 State V. Mayor of Mobile, 261 
 State V. McArthur 1259 
 State V. McAuliffe, 1264 
 State V. McCuUough, 1272 
 State V. McAuliffe, 1264 ' 
 State V. McCullough, 1272 
 State V. Mclver, 1275 
 State V. McNaUy, 799 
 State V. Meiley, 1264 
 State V. Merritt, 780 
 State V. Milwaukee, 1277 
 State V. Miskimmons, 263 
 State V. Moore, 200 
 State V. Nathan, 1242 
 State V. Nicholson Pavement Co., 1264, 
 
 1265 
 State V. Northeastern E,. R. Co., 1274 
 State V. Northumberland, 379 
 State V. Otherton, 265 
 State V. Patten, 398 
 State V. Pei-rine, 1260 
 State V. Phipps, 263 
 State V. Porter, 828 
 State V. Purse, 262, 264 
 State V. Riggs, 988 
 State V. Robinson, 1256 
 State V. Shean, 1098 
 State V. Sims, 690 
 State V. Smith, 263, 690 
 State V. Southern Minnesota R. R. Co., 
 
 1257, 1274 
 State V. Stockwell, 1264 
 State V. Sutherland, 1098 
 State V. Taylor, 192, 1258 
 State V. Thibean, 1177 
 State V. Third District Court, 1247 
 State V. Thomas, 267 
 State V. Trask, 269 
 
 State V. Vannoy, 690 
 
 State V. Vermont Central R. R. Co, 264 
 
 State V. Waterman, 1257 
 
 State V. AVarmouth, 1261, 1262, 1256 
 
 State V. Warren, 1265 
 
 State V. Wetherall, 195, 262 
 
 State V. Whittingham, 1322 
 
 State V. Wilson, 265, 1256, 1259 
 
 State V. Woods, 798 
 
 State V. Wright, 1259 
 
 State V. Wrotnowski, 1262 
 
 State V. Yarrell, 263 
 
 State V. Zanesville, etc.. Co., 1265 
 
 Stackpole v. Healy, 332 
 
 Stambaugh v. Hollabaugh. 362 
 
 Stamps V. Gilman, 651 
 
 Stanley v. Webb, 947 
 
 Stansbm-y v. Fogle, 728, 758 
 
 Stanton v. Springfield, 1308, 1310 
 
 Starkey v. Starkey, 1064 
 
 Steam v. Anderson, 371 
 
 Steamboat New World v. King, 469 
 
 Stearns v. Janes, 96 
 
 Stearns & Wife v. Sampson, 695 
 
 Stetlar v. Nellis, 736 
 
 Steele v. Brannon, 94T 
 
 Steele v. Burkhardt, 494, 495 
 
 Steele, Matter of, 283 
 
 Steel V. Thompson, 634, 636 
 
 Steele v. Townsend, 587 
 
 Steel V. Williams, 759 
 
 Steever v. Beehler, 994 
 
 Steffy V. Carpenter, 181 
 
 Stein V. Ashby, 86 
 
 Stein V. Burden, 90, 172 
 
 Steiber v. Wensel, 5 
 
 Steinman v. McWilliams, 995 
 
 Stern v. Burden, 10, 78 
 
 Stephens v. Benson, 99 
 
 Stephens v. Wilkins, 799, 803 
 
 Stevens v. Beekman, 387 
 
 Stevens v. Boston, etc., R. R. Co., 601 
 
 Stevens v. Bennett, 1178 
 
 Stevens v. Fassett, 747 
 
 Stevens v. Hartwell, 963, 989 
 
 Stevenson v. Hayden, 926 
 
 Stevens v. Nashua, 265 
 
 Stevens v. Patersou & Newark R. R 
 
 Co., 345 
 Stevens v. Oswego & Syracuse R. R 
 
 Co., 473 
 Stevens v. Smith, 558 
 Stevens v. Somerindyke, 9 
 Stevens v. Walker, 497, 498 
 Stephenson v. Little, 411, 452 
 Stevenson v. Belknap, 1193, L2W 
 Steere v. Field, 797 
 Sterling v. Garritee, 452 
 Sterling v. Thomas, 1308 
 Stetson V. Croskey, 1185 
 Stetson V. Day, 283, 308 
 Stetson V. Faxon, 241 
 Stetson V. Goldsmith, 800 
 Stewart v. Bremer, 573 
 
Ixxvi 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Stewart v. Flowers, 546 
 
 Stewart V. L. & N.-Weat R. R., 580 
 
 Stewart v. New Orleans, 1303 
 
 Stewax't V. Parsons, 614 
 
 Stewart v. Stewart, 1065 
 
 Stieber v, Wensel, 974 
 
 Strickler v. Todd, 135 
 
 Stickney, £Jx parte^ 1256 
 
 Stiles V. Davis, 899 . 
 
 Stille V. Jenkins, 1195 
 
 Stilwell V. Barter, 979 
 
 Stimson v. Connecticut, etc., R. R. Go. 
 
 600 
 Stimson v. Gardiner, 1309 
 Stimson v. New York Central R. R. Co., 
 
 533 
 Stinson v. New York Central R. R. Co., 
 
 219 
 Stitzell V. Reynolds, 987, 988 
 Stockbridge Iron Co. v. Hudson Iron 
 
 Co., 144 
 Stockwell V. White Lake, 773 
 Stokes V. Appomatox Co., 138 
 Stokes V. Saltonstall, 468 
 Stone V. Augnista, 772 
 Stone V. Brooks, 2&9 
 Stone V. Clough, 404 
 Stone V. Crocker, 764 
 Stone V. Gi-aves, 772 
 Stone V. Hubbardston, 1310 
 Stone V. Knapp, 323 
 Stone V. Matthews, 648 
 Stone V. Proctor, 293 
 Stone V. Stevens, 742 
 Stone V. Varney, 995 
 Stonebraker v. Stonebraker, 1051 
 Stoneman v. Ene Railway Co., 571 
 Stonor V. Shugart, 326,. 32a 
 Storer v. Gowen, 533 
 Storer v. Hunter, 299 
 Storm V. Majm, 319 
 Storrs V. Utica, 1311 
 Story V. Hammond, 417 
 Story V. Odin, 4, 114, 115, 258 
 Stout V. Woody, 1088 
 Stout V. Wren, 691 
 Stowell V. Lincoln, 10 
 Strauss v. Meyer, 934 
 Strauss v. Young, 743, 747 
 Street v. Gallatin County Comm'rs, 1275 
 Street v. Holyoke, 1321 
 Streety v. Wood, 933 
 Streight v. Bell, 767 
 Strickland v. Barrett, 397 
 Strong V. Colter, 406 
 Strout V. Berry, 360 
 Stuart V. Clark, 345, 346 
 Stuart V. Hawley, 305 
 Stucke V. Milwaukee, etc., R. R. Co., 27 
 Studwell V. Shapter, 44, 1031 
 Stumps V. Kelly, 230, 392 
 Sfcurgennegger, v. Taylor, 926 
 Sturgess v. Bissell, 627 
 Sturoc, Matter of, 775 
 
 Sturtevant v. Merrill, 324 
 Sudbury v. Stearns, 1267 % 
 
 Sullivan v. Philadelphia and Reading 
 
 R. R. Co., 467, 468, 472 
 Sullivan v. SulUvan, 1063 
 Summers v. Vaughn, 1014 
 Sunderlin v. Bradstreet, 941, 943 
 Supervisors of Galway v. Stimson, 1320 
 Supervisors v. United States, 1257 
 Sutton v. Board, 1308 
 Sutton V. Board of Police, 1303 
 Sutton V. Huffman, 1095 
 Swan V. Buck, 1266 
 Swails V. Butcher, 993 
 Swartjfout v. Evans, 406 
 Swan V. Gray, 1256 
 Swan V. Rary, 978 
 Swan V. Saddlemire, 740 
 Sweet V. Barney, 571, 594, 618 
 Sweet V. Cutts, 73, 74, 78, 79, 82, 96 
 Sweetland v. Illinois and Mississippi 
 
 Telegraph Co., 535, 536 
 Swift V. Dickerman, 994, 995 
 Swift V. Thompson, 292, 294 
 Swigert v. Graham, 524 
 SwindeU v. Warden, 1172 
 Sykes v. Manhattan, etc.. Drying Co., 
 
 1230 
 Symonds v. Carter, 961, 1194 
 Syinonds V. Harris, 293 
 Snyder v. Warford, 105 
 
 Tabor v. Bradley, 102 
 
 Taber v. Huston, 733 
 
 Tabor v. Missouri Valley R. R. Co., 
 
 474 
 Taft V. Howard, 974 
 Talbot V. Whipple, 299 
 Tallman v. Syracuse, Binghamton and 
 
 New York R. R. Co., 214, 216 
 Tappan v. Burnham, 372 
 Tappan v. Powers, 740 
 Tappen v. Wilson, 929 
 Tarpley v. Blahey, 996 
 Tarver v. State, 690 
 Tarwater v. Hannibal, etc., R. R. Co., 
 
 215 
 Tash V. Adams, 320 
 Taylor v. Armstrong, 349 
 Taylor v, Atlantic Mut. Ins. Co., 249 
 Taylor v. Church, 941, 971 
 Taylor v. Doremus, 772 
 Taylor v. Elexandei-, 799 
 Taylor v. Godfrey. 764 
 Taylor v. Grand Tnink R. R. Co., 12, 
 
 467, 469, 473, 475, 517 
 Taylor v. Henry, 1267 
 Taylor v. Kneeland, 988 
 Taylor v. Moran, 972, 983, 987 
 Taylor v. Peckham, 1310, 1311 
 Taylor v. Plymouth, 1306 
 
TABLE OF AMERICAN CASES CITED. 
 
 Ixxvii 
 
 Taylor v. Robinson, 994 
 
 Taylor v. St. Louis, 1307 
 
 Taylor v. Townsend, 296 
 
 Taylor v. Williams, 773 
 
 Taylor v. Wilmington & Manchester R. 
 
 R. Co., 16 
 Teaff V. Hewitt, 292, 294 
 Teall V. Barton, 304 
 Teall V. Felton, 22, 401 
 Teal V. Sears, 596 • 
 
 Tefft V. Ashbough, 803 
 Telfer v. Noi'tliern R. R. Co., 473 
 Terhune v. Dever, 1005 
 Tei-penning- v. Gallup, 371 
 Ten-ell v. Bennett, 1038 
 Terry v. Bright, 5, 960 
 Terry v. Fellows, 948, 967 
 Tei-ry v. New York, 1316 
 Terry v. Robbing, 267 
 Terwilliger v. Wands. 961, 963, 989 
 Thames Steamboat Co. v. Housatonic 
 
 R. R. Co., 32 
 Thayer v. Arnold, 96, 194, 324, 325 
 Thayer v. Boston, 241, 1298, 1301, 1302, 
 
 1304, 1315 
 Thayer v. Brooks, 256 
 Thayer v. Lewis, 1319 
 Thayer v. Payne, 102, 103 
 Thayer v. St. Louis, Alton & Terre 
 
 Haute R. R. Co., 491 
 Thebaut v. Canova, 257, 258 
 The Daniel Ball, 346 
 The Governor v. Justices, 1295 
 The Pacific, 587 
 Thickston v. Howard, 609 
 Thomas v. Beebe, 1038 
 Thomas v. Bertram, 103 
 Thomas v. Boston R. R. Co., 594 
 Thomas v. Brackney, 78, 90 
 Thomas v. Marshfield; 135 
 Thomas v. Rouse, 752 
 Thomas v. Russell, 766, 767 
 Thomas v. Sternheimer, 1177 
 Thomas v. Thomas, 1062 
 Thomas v. Winchester, 18, 496, 511, 
 
 1103 
 Thompson v. Bertrand, 1014, 1044 
 Thompson v. Ford, 443 
 Thompson v. Fargo, 618, 619 
 Thompson v. Harlow, 525 
 Thompson v. Miner, 102 
 Thorn v. Blanchard, 985 
 Thorn v. Moser, 955 
 Thorpe v. Balliett, 765 
 Thorp V. Burling, 443, 448 
 Thornton v. Smith, 176, 242 
 Thurst V. West, 442 
 Thurston v. City of St. Joseph, 1316 
 Thurston v. Hancock, 73, 1308 
 Thurston v. Mink, 115 
 Tibbets v. Moore, 300 
 Tift V. Tift, 250, 1126 
 Tifft V. Horton, 397 
 Tilden v. Sacramento County, 1256 
 
 Tilley v. Hudson River R. R. Co., 504, 
 
 516, 520 
 Tilson V. Clark, 979 
 Tillotson V. Smith, 10, 90 
 Tinicum Fishing Co. v. Carter, 116 
 Tinsman v. Belvidere R. R. Co., 174, 
 
 175, 178 
 Tinsman v Railroad Co., 244 
 Titsworth v. Winnegar, 529 
 Titus V. Sumner, 988 
 Tobias v. Cohn, 85, 91, 357 
 Tobias v. Harland, 975 
 Tobin V. Portland, Saco and Portland 
 
 R. R. Co., 218 
 Todd V. Birdsall, 1300 
 Todd V. Jackson, 360 
 Tc>ledo, etc., R. R. Co. v. Daniels, 216, 
 
 221 * 
 
 Toledo, etc., R. R. Co. v. Fowler, 216, 
 
 221 
 Toledo, etc., R. R. Co. v. Goddard, 23, 
 
 494 
 Toledo, etc., R. R. Co. v. Thomas, 216 
 Toledo, Peoria and Warsaw R. R. Co. 
 
 V. Pindar, 304, 306 
 Toledo, Wabash and Western R. R. Co. 
 
 V. Hamond, 570 
 Toledo R. R. Co. v. Wickery, 215 
 Tobin V. Addison, 799 
 Toll Co. V. Betsworth, 1321 
 Tomlin v. Dubuqe, etc., R. R. Co., 345, 
 
 346 
 Tompkins v. Haile, 398 
 Tofnlinson v. Darnall, 1172 
 Torrance v. Hurst, 928 
 Torrey v. Field, 978 
 Totten V. Cole, 393 
 Towle v.,Lovet, 443 
 Town V. Stetson, 1050 
 Towne v. Wiley, 1126 
 Town of Duanesburgh v. Jenkins, 1319 
 Town of Galen y. Clyde Plank Road 
 
 Co., 1300 
 Town of Waltham v. Kemper, 1308 
 Townsend v. McDonald, 160 
 Towson V. Havre de Grace Bank, 609 
 Trabue v. Mayes, 957, 964, 993 
 Tracy v. Atherton, 138, 154, 157 
 Tracy. V. Swartwout, 20 
 Ti-acy V. Troy & Boston R. R. Co., 317 
 Trail v. Smiley, 979 
 
 Traloflf V. New York, etc., R. R. Co., 570 
 Trammell v. Little. 230 
 Trammell v. Trammell, 98 
 Trask v. Patterson, 104 
 Traum v. Heiffer, 558 
 Travis v. Barger, 1094, 1095, 1097 
 Travis v. Smith, 764 
 Travis v. Thompson, 601 
 Treadwell v. Commissioners, 1298 
 Treadway v. Sharon, 291, 295 
 Treat v. Barber, 411 
 Treat v. Browning, 983, 996 
 Treat v. Lord, 107, 346 
 
Ixxviii 
 
 TABLE OF AMERICAN CASES CITED. 
 
 Tribble v. Frame, 361 
 
 Trieber v. Knabe, 648 
 
 Tripp V. Lyman, 1310 
 
 Trow V. Vermont Central R. R. Co., 27, 
 28 
 
 Trowbridge v. Carlin, 1061 
 
 Trowbridge v. Chapin, 624 
 
 True V. Melvin, 1279 
 
 True v: Plumley, 992, 1192 
 
 Trull V. Howland. 795 
 
 Truman v. Taylor, 5, 926, 960, 969 
 
 True V. International Telegraph Co., 
 535, 536 
 
 Ti'ustees of the Village of Delhi v. Tou- 
 mans, 72 
 
 Trustees of Jordan v. Otis, 269 
 
 Tnistees v. State, 1264 
 
 Trustees v. Patnam, 1300 
 
 Trastees, etc. v. Walsh, 344, 1230 
 
 Tryon v. Whitmarsh, 1016 
 
 Tucker v. Pacific R. R. Co., 574 
 
 Tuckerman v. Stephens, etc.. Trans- 
 portation Co., 596 
 
 Tuley V. Tucker, 444 
 
 Turner v. Turner, 1061, 1066 
 
 Turner v. Walker, 172, 742, 746, 760, 764 
 
 Turpin v. Remy, 761 
 
 Turrill v. Dolloway, 984, 985 
 
 Tuttle V. Robinson, 294 
 
 Tuttle V. Turner, 1177 
 
 Tuttle V. Wilson, 798 
 
 Twitchell v. Shaw, 799 
 
 Tyler v. Alford, 770 
 
 Tyler v. Hammond, 159, 167 
 
 Tyler v. Wilkinson, 10 
 
 Tyson v. Shuery, 371 
 
 U 
 
 Uliman v. Barnard, 461 
 
 TJmlauf V. Bassett, 532 
 
 tJndei-hill v. Manchester, 1306 
 
 Underhill v. Welton, 5, 92, 961 
 
 Underwood v. White, 1272 
 
 Updegi'ove v. Zimmerman, 994 
 
 Usher v. Severance, 984, 985 
 
 Union Bank v. Campbell, 1036 
 
 Uqion Bank v. Emerson, 300 
 
 Union Church v. Sanders, 1273 
 
 Union Mill v. Ferris, 138 
 
 United States v. Appleton, 114 
 
 United States Express Co. v. Rush, 596 
 
 United States v. Guthrie, 1266 
 
 United States v. Hart, 264 
 
 United States v. Muscatine County, 1276 
 
 United States v. Ortega, 692 
 
 United States v. Seaman, 1266 
 
 Vale V. BUss, 201, 205, 229 
 Valentine v. Jackson, 634 
 
 Van Aiken v. Caler, 956 
 
 Van Bergen v. Van Bergen, 92, 93 
 
 Van Brunt v Sohenck, 323 
 
 Vance v. Beatty, 372, 373 
 
 Vance v. Erie R. R. Co., 759 
 
 Vance v. Throckmorton, 612 
 
 Vaudenburgh v. Truax, 8 
 
 Vanderbilt v. Mathis, 743 
 
 Vanderbilt v. Richmond Turnpike Co., 
 
 4T7 
 Vanderheyden v. Young, 770 
 Vanderpoel v. Van Allen, 292 
 Vandewalker v. Osmer, l014 
 Vanderveer v. Sutphin, 978, 979, 994, 
 
 996*998 
 Vandevere v. Mullocks, 702 
 Vanderzee v. McGregor, 931, 935 
 Van Deusen v. Young, 280, 357 
 Vanduyzer, v. Linderman, 752 
 Van Epps v. Commissioners, 1298 
 Vanhorn v. Freeman, 1093 
 Vanleer v. Earle, 1013 
 Van Leuven v. Lyke, 30, 250 
 Vanness v. Pacard, 297 
 Van Rensselaer v. Brice, 128 
 Van Rensselaer v. Radcliif, 128 
 Van Rensselaer v. Sheriff of Albany, 
 
 1256 
 Van Tassel v. Capron, 952, 954, 957, 960 
 Vansee v. Lee, 934 
 Van Santfoord v. St. John, 596 
 Van Vechten v. Hopkins, 974 
 Van Vroklin v. Fonda, 1030 
 Vanderwinkle v. Curtis, 261 
 Van Wormer v. Mayor of Albany, 235 
 Van Wvck v. Aspinwall, 931, 933 
 Vason V. South Carolina R. R. Co., 882- 
 Vaughn v. Haldeman, 292 
 Vaughn v. Webster, 524 
 Veazie v. Dwinel, 346 
 Veazie v. Mayo, 219 
 Veghte V. Raritan Water Power Co., 
 
 99,100, 186 
 Verrier v. Sweitzyer, 571 
 Viall V. Carpenter, 104, 165 
 Vicksburg and Jackson R. R. Co. v- 
 
 Patton, 215, 1193 
 Vicksburg, etc., R. R. Co. v. Ragsdale, 
 
 627, 629 
 Village of Delhi v. Youmans, 79, 82, 83, 
 
 93 
 Villepigue v. Shular, 1091 
 Vincent v. Cook, 211 
 Vincent v. Cornell, 397 
 Vincent v. Stinehour, 466 
 Vining v. Baker, 452 
 Vinal V. Dorchester, 1317 
 Virginia, etc. v. Sanger, 571 
 Vinton v. Weaver, 700, 710 
 Von Kettler v. Johnson, 760 
 Von Latham v. Libby, 719, 743, 749 
 Voorhees v. Freeman, 294 
 Voorhees v. McGinnis, 291, 292, 293, 
 
 294, 300 
 
TABLE OF AMERICAN' CASES CITED. 
 
 Ixxix 
 
 Voseel V. Cole, 1094, 1095 
 Vrooman v. King, 184 
 Vroomau v. Lawyer, 250 
 
 w 
 
 Wachter v. Queenzer, 979, 985, 994 
 
 Wade V. Hamilton, 544 
 
 Wade V. Walden, 728, 742, 764, 765, 766 
 
 Wade V. Wheeler, 593 
 
 Wadley v. Jauvein, 293, 294 
 
 Wadswortli v. Smith, 346 
 
 Wadsworth v. Tilletson, 78 
 
 Waffle V. N. T. Central R. R. Co., 72, 79 
 
 Wagenblast v. McKean, 408 
 
 Wagner v. Bissell, 326, 328 
 
 Wagner v. Hanna, 116, 117 
 
 Wagner v. Long Island R. R. Co., 72 
 
 Wakeman v. Dalley, 1007, 1010, 1011, 
 
 1014, 1016, 1017 
 Walcott V. Swampscott, 1302, 1304 
 Walker v. Board of Public Works, 346 
 Walker v. Boiling, 32, 491 
 Walker v. Cronin, 1088 
 Walker v. Herron, 23 
 Walker v. Johnson, 648 
 Walker v. Newhouse, 379 
 Walker v. Pierce, 171 
 Walker V. Shepardson, 261, 346 
 Walker v. Watrous, 326, 327, 328 
 Walker v. Westfield, 28, 495 
 Walkley v. Muscatine, 1277 
 Wall V. Gordon, 13 
 Wall V. Hinds, 297 
 Wall V. Lee, 704 
 Wallace v. Douglas, 231 , 
 
 Wallace v. Fletcher, 157, 158 
 Wallace v. Miller, 1123 
 Wallace v. New York, 1312 
 Walling V. Shreveport, 1301, 1302 
 Walling V. Potter, 607, 615 
 Walter v. Wicomico County, 243 
 Walton V. Cody, 1021 
 Walton V. Middlesex R. R. Co., 32 
 Wann v. Western Union Telegraph Co., 
 
 535 
 Ward, Ex parte, 1295 
 Ward V. Bartlett, 360 
 Ward V. Colghan, 974 
 Ward V. Neal, 150 
 Ward V. New York Central R. R. Co., 
 
 628 
 Ward V. Schenectady & Saratoga R. R. 
 
 Co., 596 
 Warfield v. Campbell, 545, 758 
 Waring v. Mason, 1024 
 Wai-ner v. Reddiford, 697 
 Warner v. Burlington, etc., R. R. Co., 
 
 599 
 Warner v. N. Y. Central R. R. Co., 23 
 Warner v. Erie R. R. Co., 219, 225, 489, 
 
 490, 492 
 Warren v. Leland, 118 
 
 Warner v. Paine, 934 
 
 Warner v. Shedd, 799 
 
 Warner v. Western Transportation Co., 
 
 579 
 Warren v. Chambers, 349 
 Warren v. Cochran, 371 
 Warren v. P. R. R. Co., 470 
 Warren v. Noi'man, 954 
 Warren v. State, 690 
 Washburne v. Cooke, 941, 943 
 Washburn v. Sproat, 296 
 Washburn v. Tracy, 475 
 Washburn v. Washburn, 1064 
 Wasson v. Canfield, 728 
 Watkins v. Hall, 975 
 Watkins v. Peck, 137, 157 
 Wateer v. Brown, 615 
 Water Lot Co. v. Bucks, 320 
 Waters v. Grace, 546 
 Water Commissioners v. Hudson, 261 
 Waterbury v. Lockwood, 799 
 Waterman v. Johnson, 349 
 Watt V. Potter, 458 
 Watts V. Coffin, 126, 127 
 Watts V. Greenleaf, 974 
 Watson V. Bioren, 117 
 Watson V. Cross, 616 
 Watson V. McCarthy, 957 
 Watson V. Music, 972 
 Watson V. Muirhead, 499 
 Way V. Davidson, 444 
 Weaver v. Hendrick, 975 
 Webb V. Cecil, 972 
 Webb V. Portland Manuf. Co., 10 
 Webb V. Rome, Watertown & Ogdens- 
 
 burgh R. R. Co., 12, 29, 304, 306, 307, 
 
 885 
 Webb V. Sturtevant, 371 
 Webb V. Thompson, 1185, 1203 
 Webber v. Chapman, 138 
 Webber v. Davis, 397 
 Webber v. Shearman, 635 
 Weber v. Zimmerman, 1256 
 Webster v. Hodgkins, 1014 
 Webster v. Hudson R. R. Co., 472 
 Weed v. Barney, 594, 600 
 Weed V. Bibbins, 974 
 Weed V. Case, 1005, 1006, 1017 
 Weed V. Panama R. R. Co., 476 
 Weeden v. Town Council, 1258 
 Weeks v. Milwaukee, 1315 
 Weger v. Pennsylvania R. R. Co., 492 
 Weil V. Schmidt, 954 
 Weir V. Hoss, 980 
 Weise v. Smith, 346 
 Weisenberg v. Appleton, 1313, 1322 
 Weisenger v. Taylor, 612 
 Weitsyler v. Marr, 373 
 Welch V. Durand, 2, 1193 
 Weld V. Bartlet, 818 
 Welsh V. Eakle, 985 
 Welsh V. Pittsburg, etc., R. R. Co., 592 
 Weld V. Chapman, 16 
 Weld V. Oliver, 406, 458 
 
TABLE OF AMERICAN CASES CITED. 
 
 ■Wells V. Hatch, 546 
 
 Wells V. Homish, 634, 636 
 
 WeUs V. New York Central R. R. Co., 
 533 
 
 Wells V. Parsons, 761 
 
 Wells V. Steam Navigation Co., 509, 571 
 
 Wells V. Wilmington, etc., R. R. Co., 
 624 
 
 Wellington v. Downer Kerosene OH Co., 
 1103 
 
 Welton V. Martin, 90, 172 
 
 Weinberger v. Shelly, 764 
 
 Wendell v. Troy, 1314 
 
 Wentworth v. McDuffie, 1126 
 
 Wentworth v. Poor, 144 
 
 Wesling v. Noonan, 544 
 
 Wessler v. Hershey, 105 
 
 Wesson v. Seaboard, etc., R. R. Co., 31 
 
 Wesson v. Washburn Iron Co., 43 
 
 West V. Brockport, 1312 
 
 West V. Martin, 495 
 
 West V. Louisville R. R. Co., 242, 885 
 
 West Point Iron Co. v. Reymert, 316, 
 388, 389 
 
 West. Sav. Fund Soc. v. Philadelphia, 
 1300 , 
 
 Western College v. Cleveland, 1305, 
 1306 
 
 Western Transportation Co. v. Newhall, 
 596 
 
 Western, etc., R. R. Co. v. Newhall, 587 
 
 Western Union Telegraph Co. v. Bu- 
 chanan, 536 
 
 Western Union Telegraph Co. v. Caren, 
 535 
 
 Western Union Telegraph Co. v. Gra- 
 ham, 536 
 
 Weston V. Alden, 78 
 
 Weston V. Dane, 1265 
 
 Weston V. Lumley, 994 
 
 Weston V. Sampson, 132 
 
 Wetherbee v. Marsh, 996 
 
 Wetherbee v. Green, 410, 411 
 
 Weymouth v. Chicago, etc., R. R. Co., 
 455 
 
 Whalen v. Gloucester, 211 
 
 Whalen v. Keith, 192 
 
 Wheatley v. Abbott, 414 
 
 Wheatley v. Baugh, 74, 79, 82 
 
 Wheatley v. Chrisman, 81 
 
 Wheaton v. North Beach, etc., R. R. 
 
 ■ Co., 467, 1184, 1185, 1199 
 
 Wheeler v. Cincinnati, 1303 
 
 Wheeler v. Nesbitt, 728, 761 
 
 Wheeler v. Rowell, 359 
 
 Wheeler v. Spinola, 348, 349 
 
 Wheeler v. Westport, 1309, 1321 
 
 Wheelock v. Wheelwright, 395, 525 
 
 Wheeler v. Wheeler, 406 
 
 Whitacre v. Culver, 1178 
 
 Whitaker v. Brown, 101 
 
 Whittaker v. Burhans, 133 
 
 Whitaker v. Eighth Avenue R. Co., 34 
 
 Whitaker v. Freeman, 972 
 
 Whitbeck v. Dubuqe, etc., R. Co., 215 
 
 Whitbeck v. Holland, 594 
 
 White V. CampbeU, 1097 
 
 White v.. Cannada, 1185 
 
 White V. Carroll, 958, 968, 998 
 
 White V. Chapin, 96 
 
 White V. County of Bond, 1308 
 
 White V. Brooks, 1115, 1116 
 
 White V. Demary, 447 
 
 White V. Port, 417 
 
 White V.V Merritt, 1006 
 
 White V. Nellis, 1090, 1091 
 
 White V. Nichols, 928, 931, 932, 941 
 
 White V. Osbom, 406 
 
 White V. Tucker, 766 
 
 White Water Canal Co. v. Comegys, 319 
 
 White V. Winisimmet Co , 606 
 
 White V. Yazoo City. 1304 
 
 Whitir^g V. Smith, 972, 983 
 
 Whitfield V. Westbrook, 764 
 
 Whiting V. Brastow, 296 
 
 Whitmore v. Allen, 1121 
 
 Whitmore v. Bowman, 605 
 
 Whitmore v. Steamboat Caroline, 570 
 
 Whitney v. Elmer, 1097 
 
 Whitney v. Peckham, 751 
 
 Whitney v. Slauson, 399 
 
 Whitney v. Union R. R. Co., 320 
 
 Whipley v. Dewey, 299 
 
 Whipple V. Cumberland Manuf. Co., 10, 
 
 172 
 Whipple V. Fuller, 752 
 Whipple V. Walpole, 517, 1193 
 Whittier v. Cocheco Manufacturing Co., 
 
 114 
 Whirley v. Whiteman, 223 
 Whirley v. Whittemore, 26 
 Whittle'v. Newman, 545 
 Wicks v. Hunt, 1232 
 Wickersham v. Orr, 99 
 Wierbach v. Trone, 926 
 Wiggin V, Coffin, 2, 7, 43, 74, 498 
 Wiggins V. McOlary, 160 
 Wightman v. Providence, 1185, 1199 
 Wilcox v. Rome, Watertown & Ogdens- 
 
 burg R. R. Co., 473, 498 
 Wilbert v. New York & Erie R. R. Co., 
 
 573 
 Wilbur v. Brown, 86 
 Wilburn v. Odell, 983 
 Wilde V. New Orleans, 1298, 1302 
 Wilder v. St. Paul, 160 
 Wilder v. Wilder, 325, 329 
 Wilds v. Hudson River R. R. Co., 23 
 Wiley V. Campbell, 955 
 Wiley V. Keokuk, 733 
 Wiley V. Manatowah, 733 
 Wilgus V. Gettings, 295 
 Withers v. State, 1259 
 Wilhort V. Hancock, 1164 
 Wilkes V. Slaughter, 797 
 Wilkins v. Earle, 609, 610, 611 
 Wilkinson v. Parrott, 230, 255 
 Willard v. Newbury, 1317 
 
TABLE OF AMERICAN CASES CITED. 
 
 Ixxxi 
 
 Willard v. RJce, 411 
 
 Willes V. Noyes, 744 
 
 Willey V. Enre,.820 
 
 Willetts Adm'r v. BuflFalo & Rochester 
 
 R. R. Co., 606 
 Williams v. Carnes, 926, 928 
 Williamson v. Canaday, 1037 
 Williams v. Clough, 225 
 Williams v. Cummiugton, 265 
 Williams v. Dunkirk, 1302 
 Williamson v. Fischer, 1123 
 Williamson v. Foreman, 1157 
 Williams v. Grant, 575 
 WiUiama v. Haig-, 995 
 Williams v. Harrison, 983 
 Williams v. Hill, 961 
 WiUiams v. Holdredge, 957 
 Williams v. Ingram, 1013 
 Williams v. Judge of Cooper County 
 
 Court of Common Pleas, 1264 
 Williams v. Merle, 395, 418 
 Williams v. Michigan Central R. R. Co., 
 
 326 
 Williams v. Miner, 983 
 WilUams v. Nelson, 138, 160, 406 
 Williams v. New Albany, etc. R. R. Co., 
 
 215 
 Williams v. New Orleans, 1306 
 WiUiams v. Reil, 1193 
 WilHams v. Safford, 103, 173, 379 
 Wilhams v. Saunders, 1261 
 Wilhams v. Terboss, 639 
 Williams v. Woodhouse, 764 
 Wilmot V. Hurd, 1014 
 Wilson V. City of New Bedford, 1316 
 Wilson V. City of Watertown, 1312, 1317 
 Wilson V. Chesapeake, etc., R. R. Co., 
 
 599 
 Wilson V. Beighler, 926, 960 
 Wilson V. Bushnell, 371 
 Wilson V. Edmonds, 283 
 Wilson V. Fitch, 932, 950 
 Wilson V. Forbes, 345, 346 
 Wilson V. Grand Trunk R. R. Co., 537, 
 
 651 
 Wilson V. Hamilton, 606, 974 
 Wilson V. Mayor of New York, 20, 772, 
 
 1304, 1315 
 Wilson V. Moore, 1264 
 Wilson V. Nations, 993 
 Wilson V. Oliphant, 955 
 Wilson V. Reed, 406 
 Wilson V. Russ, 497 
 Wilson V Tatum, 956 
 Winbigler v. Los Angelos, 1308 
 Windsor v. Oliver, 958 
 Wing Chung v. Los Angelos, 1305 
 Wingate v. Smith, 410, 411 
 Wintz V. Morrison, 1031 
 Winne v. Hammond, 543 
 Winnebiddle v. Porterfield, 744 
 Winner v. Penniman, 407 
 Wininger v. Banning, 443 
 Winpenny v. Philadelphia, 1316 
 
 Ad. — V 
 
 Winship v. Pitts, 280 
 
 Winslow V. Merchants' Ins. Co.. 294, 300 
 
 Winslow V. Vermont and Massachusetts 
 
 R. R. Co., 594 
 Winsor v. Lombard, 1030 
 Winston v. Moseley, 1266 
 Wilton Manufacturing Co. v. Butler, 799 
 Wilton V. Middlesex R. R. Co., 470 
 Witcher v. Richmond, 987 
 Wintringham v. Lafoy, 9 
 Wintz V. Morrison, 35 
 Wissler v. Hershey, 178 
 Witty V. Matthews, 211 
 Wobui-n V. Henshaw, 222 
 Wolcott V. Melick, 257, 258 
 Wolf V. Chakler, 231, 329 
 Wolf V. Rodifer, 983 
 Wonder v. Baltiiiore & Ohio R. R. Co., 
 
 225, 491, 492 
 Wood V. Abbott, 58 
 Wood V. Cavin, 1020 
 Wood V. Cobb, 509 
 Wood V. Colvin, 418 
 Woods V. Davis, 799 
 Wood V. Griffin, 278, 300 
 Wood V. Kelley, 155 , 
 
 Wood V. La Rue, 393 
 Wood V. Laycock, 759 
 Wood V. Manley, 377 
 Wood V. McClure, 523 
 Wood V. Scott, 974 
 Wood V. Williamsburgh, 85, 91, 357 
 Wood V. Wier, 743, 744 
 Wood V. Wood, 1064 
 Woodbridge v. Conner, 1123 
 Woodburn v. Miller, 982 
 Woodbury v. Long, 398 
 Woodman v. Hubbard, 395 
 Woodman v. Somerset, 1256 
 Woodman v. Tufts, 90, 172 
 Woodruff v. Cook, 414 
 Woodruff V. Woodruff, 690 
 Woodward v. Aborn, 192 
 Woodward v. Gates, 281, 282 
 Woodward v. Suly, 98 
 Woolen Manufacturing Co. v. Huntley, 
 
 540 
 Wooley v. Edson, 1178 
 Woolf V. Chakler, 30 
 Woolsey v. Judd, 13, 416, 1231 
 Woolson V. Northern R. R., 215 
 Wormouth v. Cramer, 973 
 Worcester v. Green, 122 
 Worter v. Sherwood, 418, 
 Worth V. Butler, 961 
 Wootten V. Callahan, 1038 
 Wright V. Barrett, 118 
 Wright V. Donnell, 382 
 Wright V. Hart, 1024 
 Wright V. Lindsay, 957 
 Wright V. Madden, etc., R. R. Co., 26 
 Wright V. Moore, 93, 138, 153, 182 
 Wright V. New.York Central R. R. Co., 
 
 224, 225, 226, 489. 490, 491 
 
Izxxii 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Wright V. Paige, 955, '987 
 
 Wright V. Schroder, 995 
 
 Wright V. Wilcox, 507- 
 
 Wright V. Wilson, 477 
 
 Wright V. Wright, 149, 325 
 
 WyckoflF V. Queens County Perry Co., 
 
 606 
 Wylie V. Smitherman, 9 
 Wyman v. State, 265, 277 
 Wynkoop v. Burger, 106, 171 
 
 Tale V. Saunders, 450 
 Yates V. Lansing, 770 
 Yates V. Squires, 32 
 Yeager v. Wallace, 398 
 
 Yerger v. Warren, 31, 32 
 
 Young V. Bennett, 996 
 
 Young V. Edwards, 317 
 
 Young V. Mason, 396 
 
 Young V. Miller, 955 
 
 Young V. Wise, 799, 803 
 
 Young V. Yarmouth, 1317 
 
 Youngblood v. Lowery, 651 
 
 Yole Coiinty v. Sacramento, 43, 241 
 
 Zabriskie v. Jersey, etc., R. R. Co., 
 
 S61 
 Zeig V. Ort, 972 
 Zinc Co. V. Franklinite, 120 
 Zinn V. New Jersey Steamboat Co., 600 
 
TABLE OF ENGLISH CASES CITED 
 
 Aaron v. Alexander, 804, 1132 
 
 Abbott V. Weekly, 122 
 
 Abbott V. Godoy, 1083 
 
 Abbott V. Macfie, 26, 464 
 
 Abei-aman Iron Works v.Wickens, 1014, 
 
 1019 
 Aberdeen Arc. Co. v. Sutter, 414 
 Abemethy v. Hutchinson, 13, 1211 
 Aberystwith Pier Ro. v. Cooper,. 1138 
 Abington v. LipscomV, 399 
 Abley v. Dale, 810, 1211 
 Abraham v. Reynolds, 492 
 Abrahams v. London (Lord Mayor, etc., 
 
 of), 1230 
 Absor V. French, 266, 366 
 Ackland v. Paynter, 788 
 Ackroyd v. Smith, 116 
 Acton V. Blundell, 74, 82 
 Adam v. Bristol, 1110 
 Adams v. Adams, 1087 
 Adams v. Andrews, 377 
 Adams v. Bafeald, 1088 
 Adams v. Broughton, 442 
 Adams v. Cheverel, 1110 
 Adams v. Crane, 648 
 Adams v. Gt. West. Rail. Co., 1138 
 Adams v. Lane, and Yorka. Rail., 493, 
 
 518 
 Adamson v. Jarvis, 1015, 1020, 1028, 
 
 1040 
 Addison v. Overend, 446 
 Adlam v. Colthurst, 344 
 Aga Kurboolie Mahomed, 785 
 Agra Bank, Ex parte, ije Worcester, 433 
 Agra, The, and The Elizabeth Jenkins, 
 
 484 
 Ainsworth v. Walmsley, 1052 
 Aitkenhead v. Blades, 323 
 Albert (Prince) v. Strange, 13, 1231 
 Alderson v. Davenport, 783 
 
 Aldred's case, 4, 192 
 
 Aidred v. Constable, 396 
 
 Aldridge v. Gt. West. Rail. Co., 305, 
 
 312, 588, 595, 597 
 Aldworth v. Stewart, 728 ' 
 Alexander v. Alexander, 1060 
 Alexander v. Gibson, 1037 
 Alexander v. Jones, 1138 
 Alexander v. N. E. Rail. Co., 972, 991 
 Alexander v. Southey, 401 
 Alford V. Vickery, 635 
 Alfred v. Parlow, 955, 998 
 Allan V. Gomme, 379 
 AUardice v. Robertson, 968 
 AUday v. Gt. West. Rail. Co., 590 
 Allen, Ex parte, 410 
 Allen V. AUen, 1070 
 Alien V. Bonnett, 427 
 Allen V. Clark, 500 
 Allen V. Darcy, 1070 
 Allen V. Flicker, 663 
 Allen V. Hayward, 246, 890, 917 
 Allen V. L. & S. W.,Rail., 721 
 Allen V. Smith, 537, 617 
 Allen V. Walker, 331, 364, 693 
 Allen V. Wright, 700 
 Alleston v. Moor, 959 
 Allison, In re, 852, 863 
 AUsop V. Allsop, 1174 
 Allwood V. Heywood, 415 
 Alsager v. Close, 403, 457 
 Alston V. Grant, 193 
 Alston V. Scales; 357, 385 
 Alton V. Mid. Rail. Co., 1089 
 Amalia, The, 483 
 Amann v. Damm, 940, 966 
 Ambergate, etc., Rail. Co. v. Mid. Rail. 
 
 Co., 669 
 Amies v. Stevens, 605 
 Amory v. Brown, 66 
 Amys V. Creed, 233 
 Ancaster v. Milling, 377, 381 
 
Ixxxiv 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Anderson, Bx parte, 1232 
 
 Anderson v. Buokton, 4, 384 
 
 Anderson v. Mid. Rail, Co., 634, 637 
 
 Anderson v. Passman, 565 
 
 Anderson v. Smith, 559 
 
 Andrew, Re, 556 
 
 Andrew v. Bougliey, 1153 ' 
 
 Andrews v. Askey, 1096 
 
 Andrews v. Buckton, 29 
 
 Andrews v. Chapman, 497 
 
 Andrews v. Dixon, 811, 817 
 
 Andrews v. Elliott, 1145 
 
 Andrews v. Moriis, 777, 779, 813 
 
 Anglo-Danubian Co. v. Rogerson, 1128 
 
 Anichini v. Anichini; 190 
 
 Annapolis, The, 481 
 
 Anne and Mary, The, 504 
 
 Ann Elliott, In the goods of, 1058 
 
 Anon., 3 Atk. 771 
 
 Anon., 2 Chitt. 1267 
 
 Anon., 2 Chitt., 1260 
 
 Anon., Cro. Eliz., 302 
 
 Anon., 2 Dick., 546 
 
 Anon., Dyer, pi., 30 
 
 Anon., cited 16 East., 1168 
 
 Anon., Keilw. 98, pi. 112 
 
 Anon., Loflft, 785, 1013 
 
 Anon., 6 Mod., 705, 751 
 
 Anon., 7 Mod., 730, 785 
 
 Anon., 11 Mod., Ill • 
 
 Anon., 12 Mod., 1242 
 
 Anon., Poph., 411 ' 
 
 Anon., 2 Rolle's Rep., 352 
 
 Anon., 1 Salk., 831 
 
 Anon., 2 Sim., N. S., 1074 
 
 Anon., Skin., 42 
 
 Anon., 2Str., 1273 
 
 Anon., 2 Swanst., 999 
 
 Anon., cited 4 Taunt., 1031 
 
 Anon., 3 Wils., 329 
 
 Anon. V. Moor, 995 
 
 Anon. V. Sabine, 39 
 
 Anqnez v. Anquez, 1060 
 
 Ansett V. Marshall, 1023 
 
 Anthony v. Brecon Markets Co., 194 
 
 Anthony v. Haney, 381 
 
 Arbouin v. Anderson, 405 
 
 Arcedeckne v. Kelk, 187, 189 
 
 Archer v. Bennett, 103 
 
 Archer v. James, 1220 
 
 Archer v. Williams, 565, 566 
 
 Arden v. Groodacre, 820 
 
 Argentina, The, 422 
 
 Aris V. Orchard, 1138 
 
 Arkwright v. Gell, 142, 147 
 
 Arlett V. Ellis, 125 
 
 Armistead v. "White or "Wilde, 611, 614 
 
 Armory v. Delamirie, 458, 562 
 
 Arnsworth v. S. E. Rail Co., 519 
 
 Armytage v. Haley, 1202 
 
 Arnison, Ex parte, 652, 664 
 
 Arnold v. Hamel, 874 
 
 Arnold v. Blaker, 206 
 
 Arthingtonv. Pawkes, 190 
 
 Arthy v. Coleman, 890 
 
 Arundell v. Tregono, 759 
 
 Arundell v. "White, 761 
 
 Ash V. Dawnay, 787 
 
 Ashbury, Ex parte, 300 
 
 Ashby V. Harris, 9, 811 
 
 Ashby V. "White, 9, 37, 43, 172, 479, 
 1147 
 
 Ashley v. Harrison, 6, 989 
 
 Ashley's case, 1011 
 
 Ashmore v. Hardy, 455 
 
 Ashton, In re, 435 
 
 Ashton V. Blackshaw, 434 
 
 Ashworth v Heyworth, 17 
 
 Aslfworth V. Stanwix, 223, 489, 493 
 
 Aslin V. Parker, 386 
 
 Assop V. Yates, 489 
 
 Astley V. Younge, 934 
 
 Aston V. Aston, 286 
 
 Aston V. Heaven, 475, 513 
 
 Aston V. Perkes, 1153 
 
 Atkins V. Kilby, 867, 879 
 
 Atkins V. Owen, 403 
 
 Atkinson v. Marshall, 403 
 
 Atkinson v. Matteson, 1168 
 
 Atkinson v. Newcastle and Gateshead 
 Waterworks, 51 
 
 Atkinson v. Raleigh, 760 
 
 Atkinson v. Warne, 732 
 
 Attack V. Bramwell, 323, 393, 655, 656, 
 665, 687, 688 
 
 Attersoll v. Stevens, 301, 384 
 
 Att.-Gen. v. Birmingham (Borough of) 
 
 , 257, 260. 893, 920 
 
 Att.-Gen. v. Bradford Canal, 258 
 
 Att.-Gen. v. Cambiidge Gas Co., 262 
 
 Att.-Gen. v. Chambers, 136, 348 
 
 Att.-Gen. v. Cleaver, 196, 258 
 
 Att.-Gen. v. Colney Hatch Asylum, 259 
 
 Att.-Gen. v. Dakin, 789 
 
 Att.-Gen. v. Doughty, 4 
 
 Att.-Gen. v. Ely, etc.. Rail Co., 721 
 
 Att.-Gen. v. Forbes, 261 
 
 Att.-Gen. v. Gee, 259 
 
 Att.-Gen. v. Hallett, 387 
 
 Att.-Gen. v. Hatton, 1199 
 
 Att.-Gen. v. Jones, 136, 347 
 
 Att.-Gen. v. Leeds (Corporation of), 893 
 
 Att.-Gen. v. Lonsdale (Earl of), 348 
 
 Att.-Gen. v. Luton Local Board, 892 
 
 Att.-Gen. v. Mathias, 113, 122, 135 
 
 Att.-Gen. v. Metrop. Board, &c., 920 
 
 Att.-Gen. v. Mid Kent Rail Co., 922 
 
 Att.-Gen. v. Nichol, 92 
 
 Att.-Gen. v. Norwich (Mayor of), 891 
 
 Att.-Gen. v. Rees, 349 
 
 Att.-Gen. v. Richmond, 258 
 
 Att.-Gen. v. Sheffield Gas Co., 261 
 
 Att.-Gen. v. Southampton Corp., 261 
 
 Att.-Gen. v. Thames Conservators, 1229 
 
 Att.-Gen. v. United Kingdon Tel. Co., 
 92, 262, 1234 
 
 Att.-Gen. v. West Hartlepool Commis- 
 sioners, 922 
 
TABLE OF ENGLISB CASES CITED. 
 
 Ixxxv 
 
 Att.-Gen. of New South Wales v. Mae- 
 
 pherson, 775 
 Attwood V. Ernest, 555 
 Attwood V. Moug-er, 753 
 Aubrey v. Fisher, 284 
 Aug-ustein v. Challis, 816, 817, 1170 
 Austin V. DowUng, 1139 
 Austin V. Great Western Rail. Co., 470, 
 
 1103 
 Austin V. Mills, 1158 
 Austria (Emperor of) v. Day, 105 
 Avanzo v. Mudie, 52 
 Avery v. Cheslyn, 297 
 Avila V. Avila, 1066 
 Ayles V. S. East. Rail. Co., 472 
 Ayiing v. Whicher, 1107 
 Ayre v. Craven, 953, 959, 973 
 
 B 
 
 Barboneau v. Parrell, 985 
 
 Bach V. Meats, 654 
 
 Back V. Stacey, 183, 187 
 
 Backhouse v. Bonomi, 75, 91, 179 
 
 Backhouse v. Harrison, 405 
 
 Bacon v. Bacon, 1073 
 
 Bacon v. Jones, 1230, 1233 
 
 Bacon v. Smith, 310, 1108 
 
 Baddeley v. Denton, 1248 
 
 Badger v. Ford, 166 
 
 Badger v. South York. Rail. Co., 352 
 
 Badkin y. PoweU, 671 
 
 Bagge V. Mawby, 636, 658 
 
 Bagg's Case, 1269 
 
 Baglehole v. Walters, 1034 
 
 Bagnall v. London and N. W. Rail. Co., 
 
 Ill, 883, 884, 906, 909, 1192 
 Bagot V. Bagot, 284, 285 
 Bagot (Lord) v. Williams, 1159 
 Bagshaw v. Seymour, 
 Bagueley v. Hawley, 1020 
 Bahia and San Francisco Rail. Co., Me, 
 
 1179, 12<)5 
 Bail V. Mellor, 657, 676 
 Bailey's Case, 846, 862 
 Bailey, SJx parte, 1075, 1079 
 Bailey v. Appleyard, 155 
 Bailey v. Bidwell, 404, 405, 423 
 Bailey v. Birtles, 1128 
 Bailey v. Hobson, 290, 318 ' 
 Bailey v. Merrell, 35 
 Bailey v. Stephens, 116, 127, 141, 365 
 Bailey v. Sweeting, 583 
 Baily v. Merrell, 1013, 1016 
 Bain v; Fothergil!, 19 
 Baird v. Fortune, 168 
 Baird v. Neilson, 66 
 Baird v. Williamson, 83 
 
 Baker v. , 1106 ' 
 
 Baker v. Brown, 1199 
 
 Baker v. Lond. & S. W. Rail Co., 1154 
 
 Baker v. Morfue, 959 
 
 Baker v. Pierce, 954 
 
 Baker v. Wait, 1143 
 
 Baker v. Webberly, 30 
 
 Balch V. Symes, 546 
 
 Baldwin v. Cole, 395, 398 
 
 Baldwin v. Elphinston, 975 
 
 Baldwyn v. Girries, 1199 
 
 Ball v. Ball, 1077 
 
 Ball V. Herbert, 107 
 
 Ballard v. Dyson, 182 
 
 Ballinger v. Ferris, 713 
 
 Balls V. Metrop. Board of Works, 1222 
 
 Bamfield v. Massey, 1098 
 
 Bamford v. Turnley, 194, 195 
 
 Bancroft v. Mitchell, 
 
 Bank of Bengal v. Macleod, 424 
 
 Bank of Bengal v. Fagan, 424 
 
 Bank of Ireland v. Trustees of Evans's 
 
 Charity, 27, 29 
 Bank of Hindustan, Re, 546, 1294 
 Bank of Upper Canada v. Bradshaw, 501 
 Bankart v. Houghton, 260 
 Bankart v. Tennent, 186 
 Banks v. Allen, 959 
 Banks v. Bebbeck, 1143 
 Bannister v. Hyde, 660 
 Bank de Credit Commercial v. de Gas, 
 
 1246 
 Bai'ber v. Lesiter, 44, 741 
 Barber v. Nottingham and Grantham 
 
 Rail. Co., 883, 908 
 Barber v. RoHinson, 724, 876 
 Barber v. Walduck, 61 
 Barber v. Whiteley, 96, 328 
 Barclay, JEx parte, 431 
 Barker v. Braham, 720, 810 
 Barker v. Richardson, 158 
 Barley v. Walford, 1005, 1039 
 Barlow, In re, 1264, 1271, 1272 
 Barlow v. Rhodes, 168 
 Barnabas v. Taunter, 962 
 Bai-nardiston v. Chapman, 406, 446 
 Barnes v. Barnes, 1067, 1072, 1074 
 Barnes v. Holloway, 984 
 Barnes v. Hunt, 362, 378 
 Barnes v. Marshall, 1244 
 Barnes v. Prudlin, 957 
 Barnes v. Ward, 203, 205, 228 
 Barnett v. Allen, 6, 955, 987 
 Barnett v. Brandao, 545 
 Barnett v. Crystal Palace Co., 399 
 Barnett v. Guildford (Earl), 356, 374, 
 
 387 
 Barnewell v. Williams, 560 
 Barraclough v. Johnson, 266, 267 
 Barratt v. Collins, 718, 971, 1115 
 Barrett v. Long, 975, 979 
 Barringtou v. Turaer, 393,' 452, 457 
 Bai rington's Case, 118 
 Barrow v. Arnaud, 565, 566 
 Barrow v. Bell, 440 
 Barry v. Arnaud, 20 
 Barry v. Bebbington, 1175 
 Barry v. Croskey, 1010, 1027, 1037, 1104, 
 
 1106 
 
Ixxxvi 
 
 TABLE OF EN&LISS CASES CITED. 
 
 Bartholomew v. Stevens, 1123, 1173 
 
 Bartlett v. Baker, 209, 509 
 
 Bartlett v. Wells, 1031 
 
 Barton v. Bi-icknell, 870 
 
 Barton v. Brown, 451 
 
 Barton v. Gainer, 561 
 
 Barton v. Gill, 801 
 
 Barton Hill Coal Co. v. Reid, 489, 492 
 
 Bartram v. Payne, 437 
 
 Barwell v. Adkins, 988 
 
 Barwell v. Winterstoke, 356 
 
 Barwick v. Eng-. Joint St. Bank, 1027 
 
 Baseba v. Matthews, 760 
 
 Basham v. Lumley, 1157 
 
 Basset v. Maynard, 1118 
 
 Bassett, JSx parte, 1265 
 
 Basaett v. Mitchell, 378 
 
 Basten v. Carew, 836. 852 
 
 Bastow & Co., Me, 789 
 
 Batchelor v. Vyse, 794 
 
 Bate V. Hill, 1098 
 
 Bateman, Me, 1047, 1237 
 
 Bateman v. Bluck, 229, 237, 268 
 
 Bateniau v. Farnsworth, 791 
 
 Bateman v. Hotchkin, 284 
 
 Baten's Case, 192 
 
 Bates V. Pilling, 810, 1124 
 
 Bates V. Wing-field, 794 
 
 Bateson v. Green, 131 
 
 Bather v. Day, 615 
 
 Batson V. Donovan, 24, 578, 1033 
 
 Batten v. Butter, 495 
 
 Batterbury v. Vyse, 1040 
 
 Battishill v. Reed, 156, 159, 166, 174, 
 
 186, 256 
 Batty V. Hill, 1050 
 Bawden v. Bawden, 1067 
 Bax V. Jones, 716 
 Baxendale, In re, 630 
 Baxendale v. Gt. East. Rail. Co., 582, 
 
 583, 687 
 Baxendale v. Gt. West. Rail. Co., 574, 
 
 604, 630 
 Baxendale v. Hart, 583 
 Baxendale v. Lond. & S. W., 603, 1221 
 Baxendale v. McMurray, 146 
 Baxendale v. North Devon. Rail. Co., 
 
 630 
 Baxter v. Taylor, 144, 358, 360 
 Bay ley v. Wolverhampton 'V?ater Works 
 
 Co., 888, 917 
 Baylis v. BayUs, 1069 
 Baylis v. Lawi-ence, 997 
 Baylis v. Le Gros, 1236 
 Baylis v. Usher, 657, 685 
 Bayliss v. Fisher, 457 
 Baynes v. Brewster, 703 
 Bazeley v. Forder, 1078 
 Beachey v. Sides, 713, 913 
 Beadel v. Perry, 188 
 Beadell v. East Co. Rail, Co., 630 
 Beal, Ex parte, 58 
 Beal v. South Devon Rail. Co., 590 
 Bealey v. Shaw, 145, 198 
 
 Beard v. Hine, 1244 
 
 Beard v. Knight, 804 
 
 Beardmore v. Treadwell, 92, 195, 1229 
 
 Beasley v. Clarke, 368 
 
 Beaston v. Skene, 967 
 
 Beaty v. Gibbons, 443 
 
 Beauchamp v. Croft, 752, 947 
 
 Beauchamp (Ld.) v. Gt. West. Rail. Co., 
 910 
 
 Beauchamp v. Powley, 534 
 
 Beaufort (D. of) v. Bates, 644 
 
 Beaufort (D. of) v. Crawsha,y, 1182 
 
 Beaufort (D. of) v. Mayor, etc., of Swan- 
 sea, 347 
 
 Beaufort (D. of) v. Patrick, 99 
 
 Beaulieu v. Finglam, 303 
 
 Beavan v. Beavan, 1069 
 
 Beavan v. Delahay, 635, 640 
 
 Beaver v. Mayor of Manchester, 364, 
 918 
 
 Becher v. Gt. East. Rail., 1102 
 
 Beck V. Denbigh, 656 
 
 Beck V. Dyson, 255 
 
 Beck V. Rebow, 297 
 
 Beckervaise v. Gt. West. Rail,, 472 
 
 Beckett v. Mid. Rail. Co., 901, 908 
 
 Beckford v. Hood, 45, 50, 51 
 
 Beckford v. Montague, 816 
 
 Beckwith v. Cdrrall, 405 
 
 Beckwith v. Philby, 699, 700, 729 
 
 Beckwith v. Shordike, 329 
 
 Bedford v. Bagshaw, 1006, 1010, 1041 
 
 Bedford v. Hunt, 68 
 
 Bedford v. McKowl, 1096 
 
 Bedingfield v. Onslow, 85, 358, 385 
 
 Beechey v. Sides, 913 
 
 Beestbn v. Weate, 145 
 
 Behn v. Kemble, 1004 
 
 Behrens v. Gt. North. Rail. Co., 583, 
 585 
 
 Belcher v. Bellamy, 431, 435 
 
 Belcher v. Capper, 435 
 
 Belfast and Ballymena Rail'. Co. v. Keys, 
 600 
 
 Bell V. Byrne, 984 
 
 Bell V. Chaplain, 619 
 
 Bell V. Mid. Rail. Co., 14, 1193 
 
 Bell V. Oakley, 866 - 
 
 Bell V. Parke, 940 
 
 BeU V. Stone, 928 
 
 Bell V. Twfentyman, 193, 243 
 
 Bell V. Walker, 1231 
 
 Bell V. Warden, 122, 379 
 
 Bell V. Wilson, 108 
 
 Bellamy v. Burch, 959 
 
 Bellew V. Langdon, 131 
 
 Bellingay v. Bellingay, 1087 
 
 Bellingham v. Clark, 1133 
 
 Benest v. Pipon, 137 
 
 Benfield v. Solomons, 1112 
 
 Bengal, The, 1144 
 
 Bengal (Bank of) v. Macleod, 423 
 
 Bengal (Bank of) v. Fagan, 423 
 
 Bennet's Case, 793 
 
TABLE OF ENGLISH CASES CITED. 
 
 Ixxxvii 
 
 Bennett v. Allcott, 1096 
 
 Bennett v. Bayes, 643, 1123 
 
 Bennett v. Bennett, 996 
 
 Bennett v. Deacon, 940 
 
 Benneit v. Lond. and N. W. Rail. Co., 
 
 1205 
 Bennett v. Man., Sheflf. and Line. Rail. 
 
 Co., 631 
 Bennett v. Mellor, 611 
 Bennett v. Reeve, 126 
 Bennett v. Robins, 641 
 Bennett v. Thompson, 1014 
 Bennison v. Cartwiight, 154 
 Benson v. Chester, 129 
 Benson v. Frederick, 1194 
 Benson v. Paul, 1290 
 Bent V. Bent, 1073, 1087 
 Berkeley v. Earl of Pembroke, 1185 
 Bermondsey Vestry v. Brown, 270, 272 
 Bermondsey Vestry v. Ramsey, 49 
 Bernstein v. Baxendale, 584 
 Berresford v. Geddes, 1181 
 Berridge v. Ward, 350 
 Berrie v. Howitt, 547 
 Berriman v. Peacock, 352 
 Berry v. Heard, 444 
 Berrymau v. Wise, 990 
 Berthon v. Cartwright, 1188 
 Bertie v. Beaumont, 174, 335, 446 
 Barton v. Lawrence, 812 
 Bessant v. Gt. West. Rail. Co., 214 
 Bessell v. Wilson, 869 
 Bessey v. Wyndham, 817 
 Best V. Drake, 388 
 Best V. Hayes, 557 
 Beta, The 483 
 Betts V. De Vitre, 34, 1228 
 Betts V. Gallais, 1228 
 Betts V. Neilson, 61, 64, 67 
 Betts V. Thompson, 125, 190 
 Betts V. Willmott, 66, 1231 
 Bevan v. Waters, 538 
 Bewick v. Whitfield, 285, 411 
 Bibbey v. Carter, 87, 88, 179 
 Bickett V. Morris, 80, 349 
 Bickford v. Darcy, 497 
 Bickford v. Skewes, 64 
 Biddle v. Bond, 402, 559, 562 
 Biddulph V. St. George's Vestry, 919 
 Biederman v. Stone, 19 
 Biggins V. Goode, 688 
 Biggs V. Mitchell, 262 
 Biglin V. Wylie, 276 
 Bignell v. Buzzard, 630 
 Bignell v. Clark, 670 
 Bignold V. Watei-house, 624 
 Bilbao, The, 1143 
 Bilbee v. Lond. and Bright. Rail. Co., 
 
 473 
 Billiter v. Young, 396 
 Bills V. Smith, 426 
 Binckes v. Pash, 164 
 Binks V. S Yorkshire and River Dun 
 
 Co., 201, 205, 222 
 
 Binns v. Pigot, 616 
 
 Birch, In re, 1238 
 
 Birch V. Wright, 386 
 
 Birchley's Case, 959 
 
 Birch-Wolfe v. Bii-ch, 317 
 
 Bird, Ex parte, 1259 
 
 Bird V. Elwes, 223 
 
 Bird V. Gt. Eastern Rail. Co., 899 
 
 Bird V. Gt. Northern Rail. Co., 472 
 
 Bird V. HoUrook, 200 
 
 Bird V. Jones, 698 
 
 Bird V. Peagrum, 1107 
 
 Bird V. Randall, 1158 
 
 Bird V. Relph, 1129 
 
 Birket v. Whitehaven Junction Rail. Co , 
 218, 506, 622 
 
 Birket v. Willan, 595 
 
 Birks V. Silverwood, 1143 
 
 Birley v. Salford, 355 
 
 Birmingham Canal Co. v. Lloyd, 1232 
 
 Birmingham Curchwardens v. Shaw, 
 856, 871 
 
 Birmingham Gas Co., JExparte, 425, 635 
 
 Birt V. Barlow, 1084 
 
 Bishop V. Bryant, 663, 678 
 
 Bishop V. Trustees of Bedford Charity, 
 197, 201, 205, 211, 245, 248, 253 
 
 Bissil V. Williamson, 1156 
 
 Black V. Baxendale, 593, 627 
 
 Blackborn v. Greaves, 676 
 
 Blackborne v. Blackborne, 1080 
 
 Blackburn, JUx parte, 427 
 
 Blackbui'n (Mayor, etc., of) v. Parkin- 
 son, 899 
 
 Blackett v. Bradley, 124. ' 
 
 Blackham v. Pugh, 941 
 
 Blackman v. Simmons, 230 
 
 Blackmore, Bx parte, 1264 
 
 Blades v. Arundel, 649, 789 
 
 Blades v. Higgs, 9, 381, 413, 442 
 
 Blagg V. Stuart, 945, 936 
 
 Blagrave v. Bristol Waterworks Co., 
 885, 910, 1151 
 
 Blake v. Barnard, 691 
 
 Blake v. Done, 1181, 1134 
 
 Blake v. Gt. Western Rail. Co., 597 
 
 Blake v. Layton, 1088 
 
 Blake v. Midland Rail. Co., 520 
 
 Blake v. Nicholson, 538, 543 
 
 Blake v. Peters, 286 
 
 Blake v. Thirst, 246, 510 
 
 Blakemore v. Br. and Ex. Rail. Co., 18, 
 22, 524, 1035; 1102 
 
 Blanchard v. Bridges, 115, 153 
 
 Blanchard v. Hill, 1054 
 
 Blanchenay v. Burton, 800 
 
 Bland v. Bland, 1059 
 
 Bland v. Lipscombe, 123 
 
 Blank v. Newcomb, 1241 
 
 Blaymire v. Haley, 1091 
 
 Bleaden v. Hancock, 539 
 
 Blenkiron v. Gt. Central Gas Co., 309 
 
 Blewett V. Jenkins, 124 
 
 Blewettv. Hill, 8, 35. 
 
Ixxxviji 
 
 TABLE OP BNGLISB CASES CITED. 
 
 Blewitt V. Treg-oning, 98, 124 
 
 Blisa V. Hall. 194, 196 
 
 Blisset's Case, 1075 
 
 Blofield V. Payne, 10, 1039 
 
 Blood V. Keller, 161 • 
 
 Bloodworth v. Gray, 957 
 
 Bloxam v. Elsee, 61, 65 
 
 Bloxam v. Hubbard, 506 
 
 Bloxam v. Metropolitan Rail. Co., 1230 
 
 Bloxom V. Sanders, 419 
 
 Blunden v. Catterall, 134 
 
 Blunden v. Desert, 543 
 
 Blunt Beaumont, 732 
 
 Blyth V. Birm. Water Co., 515 
 
 Blythe V. Topham. 20S, 205 
 
 Blything Union v. "Warton, 234 
 
 Boardman v. Boardmau, 1063, 1081 
 
 Boardman v. Sill, 540 
 
 Bock V. Gorrissen, 542, 544 
 
 Bode (Baron de). In re, 1266 
 
 Bodley v. Reynolds, 463 
 
 Bogg- V. Midland Rail. Co., 899, 901 
 
 Bogg- V. Pearse, 1270 
 
 Bog-gett V. Frier, 1109 
 
 Bogue V. Houlaton, 58 
 
 Bohn V. Bogue, 52 
 
 Bolcli V. Smith, 203, 224 
 
 Bolland, Ex parte, 428 
 
 Bolton (Ld.) V. Tomlin, 686 
 
 Bolton V. Lane, and York. Rail., 537 
 
 Bond V. Downton, 682 ' 
 
 Bonomi v. Backhoijse, 12, 70, 75, 76, 91, 
 
 179, 735, 912, 1163 
 Bonsey v. Wordsworth, 1139 
 Boorman v. Brown, 1102 
 Boosey v. Davidson, 1171 
 Boosey v. Wood, 1156 
 Booth V. Olive, 713, 714, 805 
 Booth V. Taylor, 1235 , 
 Boreham v. Boreham, 1067 
 Borries v. Hutchinson, 629 
 Borrodale v. Brunton, 1046 
 Borrows v. Ellison, 340 
 Bos v. Helsham, 1018 
 Boss V. Litton, 476 
 Bostock V. Boptock, 1063 
 Bostock V. Floyer, 1027 
 Bostock V. N. Staff. Rail. Co., 920, 1229 
 Boulding v. Tyler, 1213 
 Boulter v. Peplow. 686 
 Boulton's Case, 267, 329 
 Boulton, Ex parte, 433 
 Boulton V. Bull, 62 
 Boulton V. Crowther, 582, 886, 1120 
 Boulton V. Reynolds, 661 
 Boulton V. Watt, 62 
 Bourke Vi Warren, 984 
 Boarne v. Alcock, 1219 
 Bourne v. Fosbrooke, 456, 562 
 Bourne v. Gatliffe, 595 
 Bourne v. Liverpool (Mayor of ), 905 
 Bovill V. Crate, 1233, 
 Bovill V. Finch, 60 
 BoviU v. Goodier, 1230 
 
 Bovill V. Hitchcock, 1233 
 
 Bowditch V. Balchin, 698 
 
 Bowditch V. Wakefield Local Board, 276 
 
 Bowen v. Evans. 1252 
 
 Bower v. Hill, 10, 172, 182, 185 
 
 Bowes V. Foster, 420, 456 
 
 Bowler v. Nicholson, 682 
 
 Bowles's Case, 311 
 
 Bowman v. Taylor, 66 
 
 Bowyer v. Cook, 333, 1217 
 
 Box V. Green, 1251 , 
 
 Boyce, In re, 778 
 
 Boyce v. Bayliife, 1187 
 
 Boyce v. Hig-g-iris, 809 
 
 Boyd V. Croydon Rail. Co., 1009 
 
 Boyd V. Shorrbck. 300 
 
 Boydell v. . M'Michael, 431 
 
 Boyfield v. Porter, 888 
 
 Boyle V. Brandon, 1095 
 
 Boyle V. Tamlyn, 96, 136, 149, 167, 184, 
 
 328 
 Boyle V. Wiseman, 1173 
 Boys V. Pink, 584 
 Boyson v. Coles, 422 
 Braeegirdle v. Peacock, 1167 
 Bracegirdle v. Orford, 1187 
 Bracey v. Carter, 498 
 Bradbee v. Christ's Hospital, 213 
 Bradbury v. Grinsell, 158 
 Bradby v. Southampton Local Board, 
 
 888 
 Bradley v. A.rthur, 1121 
 Bradley v. Copley, 444, 454 
 Bradley v. Gill, 192, 199 
 Bradley v. Waterhouse, 24, 586, 1182 
 Bradshaw v. Eyre, 169 
 Bradshaw v. Vaughton, 725 
 Bradworth v. Poshaw, 1181 
 Brady v. Todd, 1137 
 Braham v. Bustard, 1054 
 Braithwaite v. Cooksey, 640 
 Braithwaite v. Skinner, 49 
 Bramley v. Chesterton, 385, 1189 
 Bramwell v. Eglinton, 642 
 Bramwell v. Halcomb, 1031 
 Brancker v. Molyneux, 453 
 Brand v. Hammersmith Rail. Co., 902, 
 
 906, 909 
 Brandao v. Bamett, 545 
 Bradling v. Barrington, 794 
 Brandon v. Brandon, 642, 897 
 Bi-andon v. Scott, 553, 555 
 Brandt v. Craddock, 731 
 Branly v. S. Eastern Rail. Co., 604 
 Brass v. Maitland, 22, 1033 
 Brassington v. Llewellyn, 334, 542 
 Bray v. Mayne, 526 
 Bray v. Tracy, 310 
 Brayne v. Cooper, 956 
 Brazier v. The Polytechnic Institution, 
 
 249 • 
 Brecon (Mayor, &c., of) v. Edwards, 16 
 Bree v. Holbech, 1219 
 Breedon v. Capp, 1247 
 
TABLE OF ENGLISH CASES CITED. 
 
 Ixxxlx 
 
 Breedon v. Gill, 1241 
 
 Breese v. Jerdein, 716 
 
 Bremner, Hx parte, 545, 1061 
 
 Bremner v. Hull, 1133 
 
 Brent v. Haddon, 1160 
 
 Brest V. Lever, 375 
 
 Brewer v. Drew, 463, 1114 
 
 Brewer v. Sparrow, 44 
 
 Brewin v. Short, 426, 430 
 
 Brewster v. Sewell, 1172 
 
 Briddon v. Gt. Northern Rail. Co., 574 
 
 Bridge v. Grand Junction Rail Co., 513 
 
 Bridge v. Wain, 1122 
 
 Bridges V. Blanohard, 113, 377 
 
 Bridges v. Hawkesworth, 412 
 
 Bridges V. North Lond. Rail., 471 
 
 Bridgett v. Coyney, 834 
 
 Bridgewater's (Duke of) Trustees v. 
 
 Bootlecuip-Linacre, 345 
 Bridgland v. Shapter, 16 
 Brisdon v. Benecke, 1233 
 Brierly v. Kendall, 461 
 Briggs, Jlx parte, 1013, 1256, 1275 
 Briggs V. Evelyn, 837 
 Briggs V. Mercht. Trad., etc., 537 
 Briggs V. Oliver, 23 
 Briggs V. Sowry, 635 
 Bright V. W-alker, 142, 143, 156, 367 
 Brind V. Dale, 535, 571 
 Brind v. Hampshire, 421 
 Brine v. Bazalgette, 945 
 Brine v. Gt. West. Rail. Co., 364, 885, 
 
 919 
 Brink V. Winguard, 1040 
 Brinsmead v. Harrison, 442, 1158, 1161 
 Briscoe V. Drought, 79 
 Bristol and Exeter R. Co. v. Collins, 596 
 Bristow V. Eastman, 1127 
 British Columbia SawmiU Co. v. Nettle- 
 ship, 628, 629 
 British Empire Shipping Co. v. Somes, 
 
 539 
 British Museum (Trustees of) v. Finnis, 
 
 267 
 Britten V. S. Western Rail. Co., 1185, 
 
 1199 
 Brittridge's Case, 957, 599 
 Broad v. Ham, 744, 766 
 Broadbent v. Imperial Gas Co., 92, 240, 
 
 885, 906 
 Broadbent v. Ledward, 555, 556 
 Broadbent v. Ramsbotham, 78 
 Broadbent v. Wilks, 124 
 Broadwater v. Blot, 531 
 Broadwood v. Granara, 607, 616 
 Brock V. Copeland, 229 
 Brocklehurst v. Lawe, 651 
 Bromage v. Prosser, 931 
 Bromley v. Holden, 654 
 Bromley v. Wallace, 1085 
 Brook V. Montague, 967 
 Brook v. Rawl, 970 
 Brooke V. Clarke, 1185 
 Brooke v. Ewers, 1259 
 
 Brooke v. Pickwick, 578 
 
 Brookes v. Brookes, 1059 
 
 Brookes v. Titchborne, 980 
 
 Brookman v. Wenham, 1251 
 
 Brooks V. Blanshard, 983 
 
 Brooks v. Hodgkinson, 800, 810 
 
 Brooks V. Warwick, 745 
 
 Broom v. Davis, 494 
 
 Broome v. Gosden, 984 
 
 Broomhead, In re, 537 
 
 Brqugh v. Homfray, 490. 
 
 Broughton's Case, 1185 
 
 Broughton v. Jackson, 728 
 
 Brown's Case, 129 
 
 Brown's (Lady) Case, 169 
 
 Brown v. Accrington Cotton Co., 224 
 
 Brown v. Allen, 1197 
 
 Brown v. Annandale, 61, 65 
 
 Brown v. Arundel, 648 
 
 Brown v. Bateman, 415 
 
 Brown v. Best, 78, 86 
 
 Brown v. Brown, 1060, 1063 
 
 Brown v. Bussell, 198, 293 
 
 Brown v. Chapman, 719, 724, 755, 876 
 
 Brown v. Cocking, 1140 
 
 Brown v. Croome, 945 
 
 Brown v. Edgington, 1021, 1022 
 
 Brown v. Elkington, 1044 
 
 Brown v. Gibbons, 1207 
 
 Brown v. Giles, 329 
 
 Brown v. Gienn, 643 
 
 Brown v. Heathcote, 435 
 
 Brown v. Holyhead Local Board, 45, 860 
 
 Brown v. Jarvis, 780, 816 
 
 Brown v. Lond. and N. W. Rail. Co., 
 
 1138 
 Brown v. Mallett, 273, 1147 
 Brown v. Met. Co., etc., 120, 652 
 Brown v. Nichols, 103 
 Brown v. Notley, 373 
 Brown v. Robins, 75 
 Brown v. Russell, 233 
 Brown v. Shevill, 648 
 Brown v. Smith, 957 
 Brown v. Wilkinson, 518 
 Brown v. Winsdor, 148 
 Brown v. Wootton, 1158 
 Browne v. Dawson, 331, 695 
 Browne v. Redmond, 1225 
 Browning v. Newman, 1148 
 Brownlow v. Met. Board of Works, 246, 
 
 882 
 Bruce v. Helliwell, 101 
 Brucker v. Promont, 515 
 Brunswick (Duke of) v. Hanover (King 
 
 of), 40 
 Brunswick (Duke of) v. Harmer, 982 
 Brunswick (Duke of) v. Slowman, 821 
 Brunt V. Mid. Rail. Co., 580, 583 
 Bi-unton v. Hall, 182, 378 
 Brunton v. Hawkes, 67 
 Bryant v. Foot, 121 
 Bryant v. Wardell, 445 
 Brydges v. Kilburn, 320 
 
xc 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Brydges v. Stephens, 316 
 
 Brydon v. Stewart, 226 
 
 Brysou v. Wylie, 432 
 
 Bubb V. Yelverton, 286 
 
 Buccleuch (Duke of) v. Met.> Board of 
 
 Works, 896, 902, 905 
 Buchannan v. Piudlay, 340 
 Buchannan v. Rucker, 1268 
 3uckby v. Coles, 366 
 Buckland v. Butterfield, 296 
 Buckland v. Jo+inson, 442, 1158 
 Buckland v. Papillon, 424 
 Buckle V. Bewes, 821, 1199 
 Buckley v. Gross, 412, 699 
 Buckley v. Hann, 1244 
 Buckley v. Wood, 935 
 Buckman v. Levi, 624 
 Buckmaster v. Buckmaster, 1066 
 Budenberg- v. Roberts, 1220 
 Buggin V. Bennett, 1240, 1253 
 BuUard v. Harrison, 366, 379 
 Buller, ^x parte, 1258 
 Buller V. Michel, 1175 
 Bullock V. Bullock, 1071 
 Bunbury v. Matthews, 814 
 Bunch V. Kennington, 668 
 Burbridge, JEx parte, 440 
 Burder v. Veley, 1240, 1242 
 Burges v. Lamb, 285, 286 
 Burgess v. Clements, 612, 614 
 Burgess v. Preelove, 730 
 Burgess V. Gray, 176, 208 
 Burgess v. Great Western Rail. Co., 218 
 Bui-ke V. Bryant, 446 
 Burland v. Kingstou-upon-Hull Local 
 
 Board, 1277, 1292 
 Burley v. Bethune, 869, 877 
 BurUng v. Harley, 806 
 Burling v. Read, 361 
 Burn V. Brown, 540 
 Burn V. Morris, 404, 423 
 Burnard v. Higgis, 1126 
 Burnby v. Ballett, 1030 
 Burne v. Richardson, 387, 635 
 Burnes v. Pennell, 1038 
 Burnett v. Lynch, 19 
 Buron v. Denman, 89, 723 
 BuiTidge V. Nicholfetts, 362, 381 
 Burroughes v. Bayne, 395 
 Burrows v. March Qas Co., 24 
 Burry v. Perry, 1207, 1208 
 Burton, In re, 1261, 1273 
 Burton v. Hughes, 436, 443 
 Burton v. Legros, 716, 802, 806 
 Bury V. Bedford, 1054 
 Bush V. Beavan, 1290, 1292, 1293 
 Bush V. Green, 491 
 Bush V. Martin, 888, 890, 1277, 1291 
 Bush V. Parker, 726 
 Bush V. Steinman, 246 
 Bushel V. Miller, 394 
 Busst V. Gibbons, 743, 764 
 Buszard v. Capel, 644 
 Butcher v. Butcher, 375, 695 
 
 Butcher v. Henderson, 1211 
 
 Butcher v. L. and S. W. Rail. Co., 595, 
 
 599 
 Butler V. Basing, 624 
 Butler V. Hunter, 508, 510 
 Butler V. Knight, 498 
 Butler V. Woolcott, 602 
 Butt V. G. W. Rail. Co., 586 
 Butt V. Imperial Gas Co., 4, 921 
 Butterfield v. Forrester, 494 
 Buttei-worth v. Brownlow, 23, 578 
 Button V. Heyward, 953, 968 
 Buxton V. Baughan, 402, 541 
 Buxton V. N. E. Rail. Co., 214, 597 
 Bwlfch-y-plwm Mining Co. V. Baynea 
 
 1010 
 Byerley v. Prevost, 410 
 Byles, In re, 897, 904 
 Byne v. Moore, 767 
 Byrne v. Boadle, 202, 208, 212, 514 
 Bywater v. Richardson, 201 • 
 
 c 
 
 Cachar Co., Re, 1011 
 
 Caddy v. Barlow, 759, 764 
 
 Cahill V. L. and N. W. Rail. Co., 600 
 
 Cailiff'v. Dauvers, 531 
 
 Caillaud's Pat. Tan. Co. v. Caillaud, 1226 
 
 Cairns v. Robins, 529, 593 
 
 Calabars The, 481 
 
 Calcraft v. Harborough (Earl), 1086 
 
 Calder and Hibble Navig. Co. v. Pilling, 
 
 45 47 48 
 Calder v. Halkett, 774, 829 
 Caldwell, Ex parte, 433 
 Caledonian Rail. Co. v. Cannichael, 1225 
 Caledonian Rail. Co. v. Sprot, 108, 112 
 Caledonian Rail. Co. v. Ogilvy, 882, 907 
 Calmady v. Rowe, 347 
 Calne's (Borough of) Case, 1273 
 Calvert v. Jolifte, 820 
 Calye's Case, 610 
 Camac v. Wariner, 1021 
 Cambrin Railways Co.'s Scheme, 790 
 Cameron v. Charing-cross Rail. Co., S03 
 Cameron v. Wynch, 461 
 Campbell v. AUgood, 287 
 Campbell v. Mayor, etc., of Liverpool, 
 
 344 I 
 Campbell v. Scott, 52, 1231 
 Campbell v. Spottiswoode, 950 
 Campion v. Benyon, 63 
 Canadian Prisoners' Case, 863 
 Cane v. Chapman, 1121 
 Canham v. Barry, 1004, 1014, 1019, 1043 
 Canham v. Fjsk, 103, 114 
 Canham v. Jones, 59 
 Cann v. Clipperton, 714 
 Cannee v. Spanton, 408 
 Canningtou v. Nuttall, 63 
 Canot V. Hughes, 400, 404 
 Canterbury (Lord) v. The Queen, 304 
 
TABLE OF ENGLISH CASES CITED. 
 
 XCl 
 
 Canterbury ("Viscount) v. Att.-Gen., 304 
 
 Capel V. Jones, 985 
 
 Capel V. Powell 1125 ' 
 
 Capella, The, 485, 519 
 
 Card V. Card, 1149 
 
 Card V. Case, 30, 251 
 
 Cardig-an (Earl of) v. Armitage, 101, 
 118, 120 
 
 Cargill V. Cargill, 1059, 1065, 1068 
 
 Caring-ton v. Wycombe Rail. Co., 921 
 
 Carlisle (Mayor of) v. Graham, 184, 348 
 
 Carlyon v. Lovering, 86, 145, 251 
 
 Carnavan (Earl of) v. Villebois, 1174 
 
 Carne v. Brice, 1107 
 
 Carnes v. Nisbitt, 317 
 
 Carpenter v. Collins, 337 
 
 Carpenter v. Mason, 847 
 
 Carpenter v. Pearce, 792 
 
 Carpenter v. Smith, 67 
 
 Carpenter v. Wall, 1098 
 
 Carque v. L. and B. Rail. Co., 472, 914 
 
 Carr v. Benson, 120, 121 
 
 Carr v. Foster, 155 
 
 Carr v. Hood, 950 
 
 CaiT V. Lambert, 126 
 
 Carr v. R. Exchange Ass. Co., 1149 
 
 Carratt v. Morley, 876 
 
 Carrill v. Pack, 131 
 
 Carrington v. Roots, 1104 
 
 Carrington v. Taylor, 13, 192 
 
 Carruthers- V. Payne, 437, 438 
 
 Carslake v. Mapledoram, 957 
 
 Carstairs v. Taylor, 83 
 
 Carter v. Crick, 1024 
 
 Carter v. James, 1159 
 
 Carter v. Johnson, 455 
 
 Carter v. Jones, 1168 
 
 Cartier v. Carlisle, 1051 
 
 Cartledge v. Cartledge, 1074 
 
 Cartwiight v. Amatt, 65 
 
 Cartwright v. Earner, 60 
 
 Cartwright v. Wright, 983 
 
 Gary v. Longman, 52, 55 
 
 Casanovia v. The Queen, 447 
 
 Casburn v. Reid, 761 
 
 CashiU V. Wright, 615 
 
 Cast Plate, Governor, etc., of v. Mere- 
 dith, 887 ' 
 
 Castellian v. Thompson, 540 
 
 Castle, Ex parte, 432 
 
 Castleman v. Hicks, 659 
 
 Castrique v. Behrens, 740 
 
 Castriqiie. v. Imrie, 1156 
 
 Caswell V. Cook, 15 
 
 Caswell V.' Worth, 490 
 
 Catchmade's Case, 1244 
 
 Catchpole v. Ambergate, etc., Rail. Co., 
 19, 1119 
 
 Cater v. Chignell, 808 . 
 
 Caterham Rail. Co., Re, 631 
 
 Catherwood v. Caslon, 1082 
 
 Cator V. Lewisham Board of Works, 
 893, 920 
 
 Catterall v. Kenyon, 448, 1124 
 
 Catteris v. Cowper, 372 
 
 Caudle v. Seymour, 836 
 
 Caudwell, v. Hanson, 236 
 
 Cave V. Coleman, 1015 
 
 Cave V. Mountain, 826, 838 
 
 Cavey v. Lidbitter, 194, 196 
 
 Cawkwell v. Russell, 166, 193, 237 
 
 Chabot, In re, 1238 
 
 Chadwick v, Marsden, 101, 103 
 
 Chadwick v. Trower, 213 
 
 Chalk v.. Wyatt, 388 
 
 Chamberlain v. Goodwin, 972 
 
 Chamberlain v. King, 713, 714 
 
 Chamberlain v. West End, etc., Rail. 
 
 Co., 901, 902, 903 
 Chamberlaine v. Chester Birk. Rail. 
 
 Co., 1169 
 Chamberlayne v. Dummer, 286 ' 
 
 Chambers v. Bemasconi, 1176 
 Chambers v. Caulfield, 1085 
 Chambers v. Robinson, 764 
 Champemown v. Scott, 547 
 Champneys v. Arrowsmith, 344 
 Chandeler v. Doulton, 656, 688 
 Chandeler v. Thompson, 153 
 Chandelor v. Lopus, 1015 
 Chancy v. Payne, 848 
 Channon v. Patch, 452 
 Chanter v. Hopkins, 1021 
 Chantler v. Lindsey, 1108 
 Chapman y. Allen, 540 
 Chapman v. Chapman, 499 
 Chapman v. Cripps, 267 
 Chapman v. Jones, 344 
 Chapman v. Monm. Rail. Co., 796 
 Chapman v. Pickersgill, 49 
 Chapman v. Rothwell, 1148 
 Chapman v. Speller, 418^ 794, 1020 
 Chapman v. Vantoll, 516 
 Chappell V. Davidson, 1151 
 Chappie V. Watt, 1225 
 Charles v. Charles, 1071 
 Charlwood v. Greig, 230 
 Chase v. Westmore, 538 
 Chasemore v. Richards, 72, 77, 82, 86 
 Chauntler v. Robinson, 211, 213, 247 
 Chauvin v. Alexandre, 796 
 Cheasley v. Barnes, 730 
 Cheese v. Scales, 229 
 Cheesman v. Exall, 542, 554, 563, 623, 
 
 626 
 Cheesman v. Hardham, 127 
 Cheetham v. Hampton, 176, 539 
 Chelsea "Vestry v. King-, 193 
 Cheltenham, etc.. Carriage and Wagon 
 
 Co., Re, 776 
 Cherry v. Colonial Bank of Australasia, 
 
 1026 
 Chester v. Holyhead Rail. Co., 219 
 Chetham v. Hoare, 341 
 Chetham v. Williamson, 120, 135 
 Chetwynd v. Chetwynd, 1072 
 Cheveley v. Morris, 1203 
 Chew V Holroyd, 1141, 1245 
 
xcu 
 
 TABLE OF ENGLISH CASES CITED, 
 
 Chichester v. Lethbridge, 241, 271 
 Child V. Affleck, 944 
 Child V. Chamberlain, 664 
 Child V. Hudson's Bay Co., 48 
 Child V. Mann, 792 
 Childers v. Wooler, 1005, 1018, 1041 
 Chilton V. CaiTing-ton, 552, 564 
 Chilton V. Lond. & Croy. Rail. Co., 48, 
 ■ 708 
 
 Chinn v. Morris, 1175 
 Chinnery Viall, 395, 1188 
 Chinnock v. Sainsbury, 1228 
 Chivers v. Savage, 731, 1243 
 ChoUet V. Hoffman, 63 
 Christie v. Cowell, 957 
 Christie v. Grrigg-s, 474 
 Christie v. Unwin, 850 
 Christopherson v. Bare, 691, 723 
 Church V. Bamet, 1147 
 Church V. Inclos. Comm., 1238 
 Churchill v. Siggers, 742, 754 
 Churchward v. Coleman, 779, 1260 
 Churchward v. Study, 413 
 Churton v. Frewen, 344 
 Cibber v. Sloper. 1085 
 Clapham v. Shillito, 1016, 1042 
 Clare v. Maynard, 1180 
 Clark V. Armstrong, 230 
 •Clark V. Blything, 315, 1198 
 Clark V. Calvert, 1114 
 Clark V. Chamberlain, 400 
 Cliirk V. Freeman, 929 
 Clark V. Gaskarth, 646 
 Clark V. Newsam, 735, 1197 
 Clark V. Nicholson, 819 
 Clark V. Webster, 231 
 Clark V. Woods, 866 
 Clark's Patent,- 60 
 Clarke v. Clark, 188 
 Clarke v. Cogge, 106 
 Clarke v. Dixon, 1010 
 Clarke v. Earnshaw, 529, 531 
 Clarke v. Hutching, 583 
 Clarke v. Leicester, etc.. Canal Co., 286 
 Clarke v. Postan, 450, 763 
 Clarke v. Sarum (Bishop of), 1264, 1273 
 Clarke v. Spence, 435 
 Clarke v. Tinker, 127 
 Clarke v. Watson, 500 
 Clay V. Oxford, 1134 
 Clay V. Roberts, 929 
 Clay V. Willan, 24 
 Clayards v. Dethick, 495 
 Clayton v. Corby, 98, 135, 158, 364, 368 
 Clayton v. Renton, 1143 
 Cleave v. Mahany, 196, 258 
 Clegg V. Dearden, 1161 
 Cleland, Ex parte, 545 
 Clement v. Chivis, 924 
 Clement v. Milner, 667 
 Clements v. Flight, 262 
 Clements v. Lambert, 166 
 Clements v. Ohrly, 765 
 Clerk v. Gilbert, 551 
 
 Cliff V. Mid. Rail., 473 
 
 Clifton V. Hooper, 818 
 
 Climie v. Wood, 300 
 
 CUnton V. Clinton, 1066 
 
 Clossman v. White, 557, 562 
 
 Clothier v. Chapman, 1174 
 
 Clothier v. Webster, 886, 889 
 
 Clough V. L. and N. W. Rail., 420 
 
 Clout V. Clout, 1073 
 
 Clowes V. Beck, 1233 
 
 Clowes V. Hughes, 434 
 
 Coats V. Chaplin, 619 
 
 Coats V. Clarence Rail. Co., 894 
 
 Cobb v. Mid. Wales Rail. Co., 1222 
 
 CoFban v. Downe, 531 
 
 Cobbett v. Clutton, 398 
 
 Cobbett v. Grey, 690 
 
 Cobbett V. Wheeler, 1204 
 
 Cock V. Gent, 913 
 
 Cockayne v. Hodgkinson, 943 
 
 Cockcroftv. Smith, 643, 696, 732 
 
 Cocker v. Cowper, 99, 180 
 
 Cocker v. Cardwell, 223 
 
 Cocker v. Crompton, 359, 376 , 
 
 Cocker v. Musgrove, 793 
 
 Cockle V. L. and S. E. Rail., 471 
 
 Cocks V. CbaniUer, 1053 
 
 Codrington v. Lloyd, 810, 813 
 
 Coe V. Wise, 888 
 
 Coffin V. Coffin, 319 
 
 Cogg-s V. Bernard, 522, 523, 524, 527, 
 
 533, 557, 574, 1112 
 Cohen, Ex parte, 426, 440 
 Cohen v. Huskisson, 704 
 Cohen v. Morgan, 749, 876 
 Colchester (Mayor of) v. Brooke, 28, 209, 
 
 237, 349 
 Cole V. Forth, 280, 281 
 Cole V. Foxman, 126 
 Cole V. Goodwin, 579 
 Cole V. Green, 10, 280 
 Cole V. Maundy, 381, 382, 451 
 Cole V. Turner, 691 
 Colgrove'v. Dios Santos, 396 
 Coleman v. Coleman, 1067 
 Coleman v. Foster, 120 
 Coleman v. Riches, 1121 
 Colemere, Re, 427 
 CoUard v. Allison, 64 
 Collard v. S. E. Rail. Co., 1186 
 CoUen V. Wright, 1026, 1046, 1048, 1189 
 Collett V. Curling, 638 
 CoUett V. Foster, 720, 810 
 Collett V. Lond. and N. W. Rail. Co., 
 
 470, 620, 1103 
 Collins V. Bristol and Exeter Rail Co., 
 
 596 
 Collins V. Cave, 35, 1006 
 Collins V. Evans^ 1005, 1017 
 Collins v. Forbes, 437 
 Collins V. Martin, 545 
 Collins V. Renison, 696 
 Coffins V. Ross, 872 
 ColUns' Co. V. Brown, 1051 
 
TABLE OF ENGLISH CASES CITED. 
 
 XCIU 
 
 Collins' Co. V. Reeves, 1054 
 
 Collis V. Selden, 19, 227, 249, 489 
 
 Colnag-hi v. Ward, 57 
 
 Colwell V. Reeves, 1105 
 
 Colyer v. Speer, 743 
 
 Compton V. Richards, 114 
 
 Concor(fia,, The, and the Spring, 484 
 
 Connell v. Watson, 1234 
 
 Conradi v. Conradi, 1087 
 
 Constable v. Nicholson, 122 
 
 Conybeare v. Parries, 1220 
 
 Cook, Ex parte, 1259 
 
 Cook V. Batchellor, 971 
 
 Cook V. Bath (Mayor of), 160, 162 
 
 Cook V. Be'al, 695 
 
 Cook V. Cox, 973 
 
 Cook V. Field, 979, 991 
 
 Cook V. Ipswich Local Board, 276 
 
 Cook V. Leonard, 715 
 
 Cook V. Palmer, 782 
 
 Cook V. Ward, 828 
 
 Cooke V. Cooke, 1063 
 
 Cooke V. Forbes, 259 
 
 Cooke V. Hemming-, 430 
 
 Cooke V. Hughes, 987 
 
 Cooke V. Jaclison, 860 
 
 Cooke V. Waring, 29 
 
 Cooke V. Wilds, 936, 998 
 
 Coomber v. Howard, 639 
 
 Coombs V. Beaumont, 431 
 
 Coombs V. Coombs, 1060 
 
 Coombs V. Bristol and Exeter Rail. Co., 
 
 619 
 Coombs V. Noad, 560 
 Cooper V. Barber, 80 
 Cooper V. Bill, 587 
 Cooper V. Blandy, 685 
 Cooper V. Booth, 751 
 Cooper V. Gordon, 1270 
 Cooper V. Harding, 720 
 Cooper V. Hubbuck, 140, 152, 156, 188, 
 
 252, 259, 364 
 Cooper V. Lond. & S. W. Rail. Co., 631 
 Cooper V. MarshaU, 131, 236, 329 
 Cooper V. Shepherd, 1161 
 Cooper-v. Slade, 1221 
 Cooper V. Stephenson, 499 
 Cooper V. Wandsworth Board, etc., 364, 
 
 840, 1268 
 Cooper V. Willomat, 554 
 Cooper V. Woolley, 194 
 Copeland v. N. East. Rail. Co,, 1290 
 Copeland v. Stephens, 424 
 Copley V. Burton, 606 
 Coppinger v. Gubbins, 816 
 Corbet's (Sir Miles) Case, 127 
 Corbett v. Brown, 783, 1008, 1039 
 Corbett v. Gen. St. Nav. Co., 1138 
 Corbett v. Ludham, 1237 
 Corby v. Hill, 173, 178, 203 
 Comer v. Champneys, 457 
 Cornfoot v. Fowke, 1036 
 Cornill v. Hudson, 1163 
 Cornish V. Keene, 61, 66 
 
 Cornish v. Stubbs, 100 
 
 Cornman v. E. C. Rail. Co., 218 
 
 Cornwall V. Metrop. Com. of Sewers, 206 
 
 Cornwall v. 'Richardson, 767 
 
 Cornwell v. Sanders, 842 
 
 Corrance v. Corrance, 1072 
 
 Corrigal v. Lond. & Bl, Rail. Co., 908 
 
 Cosens v. Bognor Rail. Co., 922 
 
 Coshay v. Tute, 583 
 
 Cossey v. Lond. & Brighton Rail., 1154 
 
 Costar V. Hetherington, 726 
 
 Costard v. Wingfield, 128 
 
 Costello V. Corlett, 1224 
 
 Costworth V. Betison, 659 
 
 Cotching V. Bassett, 187, 259, 1132 
 
 Cotes V. Michill, 799, 813 
 
 Cotesworth v. Spokes, 666 
 
 Cotterell v. Griffiths, 163 
 
 Cotterell v. Jones, 753 
 
 Cotterill v. Hobby, 175 
 
 Cotterill v. Starkey, 723 
 
 Cotton V. Browne, 760 
 
 Cotton V. Bull, 655 
 
 Cotton V. James, 755 
 
 Cotton V. Wood, 23, 476 
 
 Counch V. Steel, 45, 50, 51 
 
 Coulson V. White, 387 
 
 Coulthart C. Coulthart, 1067 
 
 Coupland v, Hardingham, 205 
 
 Courtald v. Legh, 183 
 
 Cousens v. Hall, 182 
 
 Coutts V. Gorham, 115 
 
 Coventry v. Gladstone, 422 
 
 Coventry v. Lond., Brighton and S. C. 
 
 Rail. Co., 910, 911 
 Coward v. Baddeley, 691, 692 
 Coward v. Gregory, 1130 
 Cowell V. Amman Coll. Co., 1213, 1215 
 CoweU V. Simpson, 540 
 Cowing V. Cowing, 1086 
 Cowlam V. Slack, 126 
 Cowles V. Potts, '931 
 Cowley V. Mayor, etc., of Sunderland, 
 
 223, 490, 524, 1118 
 Cowling V. Higginson, 181 
 Cowper (Earl) v. Baker, 316, 388 
 Cox V. Bent, 637 
 Cox V. Burbidge, 29, 30, 324 
 Cox V. Cox, 1232 
 Cox V. Feeney, 949 
 Cox V. Glue, 75, 330, 370 
 Cox V. Gt. East. Rail. Co., 569, 602 
 Cox V. Land and Water Journal, 53 
 Cox V. Lee, 929, 985 
 Cox V. Leech, 499 
 
 Cox V. London (Mayor of), 1239, 1246 
 Cox V. Matthews, 115 
 Cox V. Mitchell, 1155 
 Cox V. Mousley, 330 
 Cox V. Reid, 713 . 
 
 Coxe V. Smith, 38 
 Coxen V. Gt. West. Rail. Co., 596 
 Coxhead v. Richards, 940, 988 
 Crabb v. Crabb, 1065 
 
XCIV 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Cracknel! v. Mayor of Thetford, 210, 
 
 1120 
 Craft V. Boite. 1208 
 Crafter v. Metrop. Rail. Co., 218 
 Craig V. Hasell, 754 
 Cramer v. Mott, 654, 655 
 Cranch v. 'WMte, 403 
 Cranden v. Walden, 959 
 Crane v. London Dock Co., 416 
 Crane v. Price, 62, 64 
 Cranwell v. London (Mayor of), 922 
 Craven, Ex parte, 427 
 Craven v. Smith, 1212, 1214 
 Craven v. Stubbins, 862 " 
 Crawford's Case, 775 
 Crawford v. Middleton, 956, 964 
 Crawford v. Satchwell, 795 
 Crawshay v. Homfrey, 540 
 Crawshay v. Thompson, 1028, 1039, 1045 
 Crease v. Barrett, 1175 
 Creppsv. Durden, 836, 841 
 Crenze v. Hunter, 1076 
 Crewe v. Crewe, 1069 
 Cristie v. Cowell, 956 
 Crocker v. Molyneux, 415 . 
 Croft v. Alison, 478, 515, 516 
 Croft v. Day, 1053 
 Croft V. Lond. and N. W. Rail. Co., 906, 
 
 909 
 Croft V. Stevens, 931 
 Crofts v. Brown, 953 
 Crofts V. Haldane, 183 
 Crofts V. "Waterhouse, 468 
 Crompton v. Ibbotson, 60 
 Cronshaw v, Chapman, 806, 809, 1018 
 Crook V. Dowling, 761 
 Crosby v. Leng, 41 
 Crosby v. "Wadsworth, 372 
 Cross, Ex parte, 863 
 Cross V. Andrews, 607, 613 
 Cross V. Androes, 607 
 Cross V. Lewis, 137, 152 
 Crosse v. Gardner, 1020 
 Crossfield v. Such, 563, 565 
 Crossley v. Beverley, 63 
 Crossley v. Lightowler, 81, 84, 92, 115, 
 
 162, 166, 260, 348 
 Crouch v. Great Northern Rail. Co., 604 
 Crouch V. Great West. Rail. Co., 507 
 Crouch v. Lond. and N. W. Rail. Co., 
 
 568, 583 
 Crowder v. Long, 782 
 Crowder v. Tinkler, 261 
 Crowley v. Page, 1171 
 Crozer v. Pilling, 756 
 Crozier v. Cundey, 866, 868 
 Crump V. Day, 792 
 Crump V. Lambert, 258 
 Cubitt V. Porter, 354, 1116 
 Cubley v. Cublfty, 1073 
 Cudlipp V. Cudlipp, 1065 
 CuUen V. Morris, 37 
 Cullen V. Thompson, 1010 
 CuUen V. Trimble, 5 
 
 Culling V. Tuffney, 298 
 
 Cullwick V. Swindell, 300 
 
 Cumberland v. Copeland, 54 
 
 Cunipston v. Haight, 539, 560 
 
 Cuuningtou v. Cunnington, 1067, 1068 
 
 Curlewis v. Broad, 19 
 
 Curlewis v. Carter, 1234 
 
 Curlewis v. Laurie, 363 
 
 Curlewis V. Mordington, 1165 
 
 Curry v. Walter, 946 
 
 Curtis, Re, 1077 
 
 Curtis V. Curtis, 1062 
 
 Curtis V. Drinkwater, 513 
 
 Curtis V. Mills, 229 
 
 Curtis V. Piatt, 1283 
 
 Curtis V. Wheeler, 638 
 
 Cuthbertson v. Parsons, 508 
 
 Cutler V. Dixon, 934 
 
 Czech V. Gen. St. Nav. Co., 23, 589 
 
 D 
 
 Da Costa v. The Russia Co., 1273 
 
 Daines v. Hartley, 986 
 
 Daintiy v. Brocklehurst, 833 
 
 Dale V. Birch, 806 
 
 Dale V. Hall, 576, 622 
 
 Dale V. Wood, 732 
 
 Dalton V. Mid. Co. Rail. Co., 1107 
 
 Dalton V. S. E. Rail. Co., 520 
 
 Dalton V. Whitten, 644 . 
 
 Dalyell v. Tyrer, 31, 507 
 
 Damerell v. Protheroe, 1179 , 
 
 Danby v. Lamb, 1209, 1211 
 
 Dand v. KingscotCj 105 
 
 Daniel v. Anderson, 104, 143, 168 
 
 Daniel V. Gracie, 637 
 
 Daniel v. Metrpp. Rail. Co., 472 
 
 Daniel v. North, 137, 184 
 
 Daniel v. Wilson, 914 
 
 Daniels v. Fielding, 625, 757 
 
 Daniels v. Potter, 202, 206, 1177 
 
 Danu V. Spurrier, 187 
 
 Dansey v. Richardson, 528, 530, 618 
 
 Danvers v. Morgan, 715 
 
 Darby v. Harris, 644 
 
 Darby v. Ouseley, 988, 1168, 1170 
 
 Darby v. Waterlow, 789 
 
 Darcy v. Allin, 60 
 
 D'Arey (Lord) v. Askwith, 283 
 
 Dare v. Heathcote, 182 
 
 Dare v. Hopkins, 411 
 
 Dare Valley Rail. Co., Re, 905 
 
 Daaley v. The Queen, 1272 
 
 Darling v Clue, 155 
 
 Daunt V. Crocker, 345 
 
 Davenport v. Rylauds, 1228, 1230 
 
 Davey v. Chamberlain, 476 
 
 Davey y. Mason, 584 
 
 Davey v. Warne, 918 
 
 Davidson v. Tullooh, 1120, 1185 
 
 Davies v. England, 223 
 
 Davies v. Jenkins, 6, 701, 794 
 
TABLE OF ENGLISH CASES CITED. 
 
 XCV 
 
 Davies v. Lond. and Blackw. Rail., 212 
 
 Davies v. McHenry, 1248 
 
 Davies v. Mann, 28, 237 
 
 Davies v. Marshall, 152, 186, 260, 377, 
 
 1166 
 Davies v. Nicholas, 399 
 Davies v. Price, 1146 
 Davies v. Sear, 106 
 Davies v. Solomon, 961 
 Davies v. Stacey, 680 
 Davies v. Stear, 106 
 Davies v. Stephens, 187, 181, 270, 378 
 Davies v. Vemon, 398, 1123 
 Davies v. WilUams, 235, 1092, 1095 
 Davis V. Bowsher, 545 
 Davis v. Curling, 913, 916 
 Davis V. Danks, 444 
 Davis V. Gardiner, 960 
 Davis V. Gyde, 642 
 Davis V. James, 620 
 Davis V. Jones, 296 
 Davis V. Living-, 433 
 Davis V. Lond. and N. W. Rail. Co., 565 
 Davis V. Nest,' 560 
 Davis V. Noake, 749 
 Davis V. North "West. Rail. Co., 626, 1186 
 Davis V. Oswell, 463 
 Davis V. Russell, 699, 700, 728 
 Davis V. Swansea (Mayor of), 913 
 Davis V. Symonds, 1043 
 Davis V. Thomas, 1224 
 Davison v. Duncan, 949 
 Davison v. Gill, 349 
 Davison v. Wilson, 381, 363 
 Daw V. Eley, 775, 1231 
 Dawes v. Hawkins, 266, 268, 271 
 Dawes v. Peck, 619 
 Dawkes v. Coveneigh, 41 
 Dawkins v. Paulet (Lord), 730, 936 
 Dawkins v. Rokeby (Lord), 730, 751 
 Dawson v. Chamney, 613 
 Dawson v. Cropp, 636, 658, 675 
 Dawson v. Manch. etc.. Rail. Co., 472 
 Dawson v. Van Sandau, 765 
 ■ Dawson v. Willoughby-with-Sloothby, 
 
 274, 275 
 Dawson v. "Wood, 787 
 Dawtry v. Higgins, 824, 327 
 Day V. BuUer, 959 
 Day V. Carr, 791 
 Day V. Day, 337 " 
 Day V. King, 850 
 Dayrell v. Hoare, 363 
 Dean v. Branthwaite, 478 
 Dean v. Hogg, 733 
 Dean v. Peel, 1091 
 Dean v. Taylor, 732 
 Deane v. Clayton, 200 
 Dean v. Keate, 525 
 Dearden v. Townsend, 605 
 Death, Ex paHe, 1238 
 Death v. Harrison, 809 
 De Beauvoir v. Owen, 680 
 De Crespigny v. "Wellesley, 927 
 
 Deeble v. Lineham, 137, 142 
 Deere v. Guest, 389 
 Deering v. Moor, 858 
 Degg V. Midland Rail. Co., 493 
 De Gondouin v. Lewis, 1195 
 De Haber v. Portugal (Queen of), 1289 
 Delacroix v. Thevenot, 981 
 Delamere (Lord) v. The Queen, 1281 
 De la Rue v. Fortescue, 1236 
 Delegal v. Highley, 760, 766 
 Delany v. Metrop. Board of "Works, 909 
 Delfe V. Delamotte, 52 
 Delisser v. Towne, 751 
 Dempster v. Dempster, 1070, 1072 
 Dendy v. Simpson, 350, 351 
 Dengate v. Gardiner, 1108 
 De NichoUs v. Saunders, 688, 641 
 Dennett v. Grover, 877 
 . Dennis v. Pawling, 1195 
 Denston v. Ashton, 1225 
 Dgnt v. Auction Mart Co., 92 
 Dent v. Dent, 1087 
 Dent V. Turpin, 1052 
 Denton v. Gt. North. Rail Co., 572, 
 
 1024, 1039 
 Denton v. Macneil, 1011 
 Denton v. Marshall, 1240, 1245 
 Derljy (Earl of) v. Bury Improvement 
 
 Commissioners, 233 
 Derecourt v. Corbishley, 703 
 Dering v. Dering,- 1067 
 Derosne v. Fairie, 63 
 De Rothschild v. R. M. St. P. Co., 580, 
 
 535 
 De Rouflgny v. Peale, 498 
 Devaux v. Steinkeller, 1009, 1039 
 Devonshire (Duke of) v. Elgin, 99, 186, 
 
 1233 
 Dewell V. Sanders, 329 
 Dews V. Riley, 779 
 Dexter v. Hayes, 1172 
 D'Eyncourt v. Gregory, 292 
 Dibble v. Bowater, 653 
 Dibdin v. Swan, 950 
 Dickenson v. "Watson, 466 
 Dickinson v. Coward, 1113 
 Dickinson v. Pollett, 1044 
 Dickinson v. North-East Rail. Co., 503 
 Digby V. Thompson, 928 
 Dignam v. Baily, 1224 
 Dimes v. Grand Jun. Can. Co., 773, 858 
 Dimes v. Petley, 208, 237 
 Dimmock v. Hallett. 1018 
 Dimmock v. North Staff. Rail. Co., 885 
 Dinsdale v. Lond., Brighton and S. Coast 
 
 Rail. Co., 1214, 1215 
 Dingle v. Hare, 1191 
 Dirks V. Richards, 408 
 Ditchan v. Bond, 376 
 Dixon V. Bell, 466, 512, 1108, 1191 
 Dixon V. Enoch, 982 . 
 Dixon V. Pawcus, 8, 1052 
 Dixon V. Holden, 929 
 Dixon V. Smith, 1194 
 
XCVl 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Dixon V. Stansfield, 544 
 
 Dobell V. Stephens, 1019, 1043 
 
 Dobree v. Napier, 40 
 
 Dobson V. Blackman, 357 
 
 Dobson V. Blackmore, 175 
 
 Dockwray v. Dickenson, 446, 465 
 
 DocJ V. Monger, 659 i 
 
 Dodd V. Burchall, 104, 168 
 
 Dodd V. Holme, 213 
 
 Podd V. Norris, 1096, 1098 
 
 Dodd V. Robinson, 959 
 
 Dods V. Evans, 1234 
 
 Dodwell y. Burford, 692 
 
 Doe V. Arkwright, 1179 
 
 Doe V. Beckett, 338 
 
 Doe V. Benham, 338 
 
 Doe V. Billett, 338 
 
 Doe V. Bridges, 49 
 
 Doe V. Challis, 386 
 
 Doe V. Coombes, 342 
 
 Doe V. CouItVed, 1179 
 
 Doe V. Davidson, 100 
 
 Doe V. Filliter, 1194, 1222 
 
 Doe V. Gartham, 1268 
 
 -Doe V. Gower, 338 
 
 Doe V. Hampaon, 351 
 
 Doe V. Harlow, 386, 387 
 
 Doe V. Hinde, 338 
 
 Doe V. Johnson, 338 
 
 Doe V. Jones, 1270 
 
 Doe V. Kemp, 351 
 
 Ppe V. Laming, 608 ' 
 
 Dfie V. Leeds and Bradford Rail. Co., 
 
 895 
 Doe V. Massey, 343 
 Doe V. McKaeg, 1270 
 Doe V. Moore, 337 
 Doe V. Morris, 685 
 Doe V. Murless, 813 
 Doe V. Pearsey, 350 
 Doe V. Penfold, 333 
 Doe V. Phillips, 337 
 Doe V. Pulman, 1179 
 Doe V. Reed, 136 
 Doe V. Rock, 337 , 
 Doe V. Somerton, 1173 
 Doe V. Stacey, 1175, 1180 
 Doe V. Stanton, 335 
 Doe V. Thorn, 800 
 Doe V. Trye, 783 
 Doe V. Turford, 1173 
 Doe V. Wood, 120, 135 
 Donald v. Suckling, 408, 526, 551 
 -Donaldson v. Beckett, 51 
 Donaldson v. Gillott, 27 
 Donford v. EUys, 387 
 Doorman v. Jenkins, 533, 533, 527, 557 
 Doi'chester (Mayor of) v. Ensor, 16 
 Dorrington y. Carter, 451 
 Doswell V. Impey, 771, 776 
 Douglas V. Corbett, 765 
 Douglas V. Yallop, 780 , 
 Doulton v. Met. Board of Works, 1221 
 Doust V. Slater, 915 
 
 Dovaston v. Payne, 328, 329 
 Dover, Ex parte, 434 
 Dover v. Mills, 529 
 Dover v. Raviflings, 678 
 Dowding v. Gt. West Rail. Co., 1253 
 Dowell V. Gen. Steam Nav. Co., 483 
 Dowglass v. Kendall, 117 
 DowUng v. Betjemann, 564, 1234 
 Down V. Hailing, 423 
 Downes v. Price, 1011 
 Downey's Case, 864 
 Dbwriing v. Butcher, 767 
 Downing v. Capel, 715 
 Downshire (Marquis of) v. Lady San- 
 dys, 287 
 Downton Overseers, Ex parte, 1263 
 Dowes, The, 1144 
 
 Doyle V. Falconer, 775 . 
 
 Dracachi v. Anglo-Egyptian Nav. Co., 
 
 422 
 Drake v. Beckham, 1113 
 Drake v. Sykes, 782, 815 
 Dra,per v. Pulkes, 1124 
 Draper v. Sperring, 233 
 Dresser v. Bosanquet, 549 
 Drewell v. Towler, 96 
 Drummond v. Sant, 337 
 Drury v. Molins, 316 
 Duberley v. Gunning, 1085, 1200, 1201 
 Dubois V. Keats, 746, 748 
 Dubost V. Bgresford, 1196 
 Du Boulay v. Du Boulay, 1050, 1054 
 Duckworth v. Johnson, 503, 516 
 Duddell V. Simpson. 1018 
 Dudden v. Guardians of Clutton Union, 
 
 78 
 Dudley v. Smith, 467 
 Dudley Can. Nav. Co. v. Grazebrook, 
 
 109 
 Dudley and West Bromw. Bank Co. v. 
 
 Spittle, 41 
 Duffv.Budd, 594, 619 
 Dugdale v. Robertson, 76 
 Duignan, Ex parte , 425, 427, 428 
 Duke V. Barnett, 1019 
 Dumas, Ex parte, 439 
 Dumergue v. Rumsey, 298 
 Dun. Nav. Co. v. North Mid. Rail. Co., 
 
 922 
 Duncan v. Blundell, 496 
 Duncan v. Pindlater, 882, 887, 891, 1292 
 Duncan v. Louch, 165, 181 
 Duncomb v. Reeve, 659 
 Dundalk Western Rail. Co. v. Tapster, 
 
 49 
 Dundonald (Earl of) v. Masterm'an, 497 
 Dunlop V. Lambert, 620 
 Dunn V. Large, 386 
 DunnicliflF v. Mallet, 66 
 Dunraven (Lord) v. LleWellyn, 1174 
 Dunston v. Paterson, 701, 794, 801, 
 
 1211 
 Duppa v. Mayo, 643 
 Dui-eU v. Pritchard, 186, 1228, 1234 
 
TA.BLE OF ENGLISH CASES CITED. 
 
 Durham and Sund. Kail. Co. v. Wawm, 
 
 318 
 Du Terraux v. Du Terraux, 1067 
 Dutlon V. Powles, 1147 
 Duvergier v. Fellows, 65 
 Dwyer v. Comnd, 1172 
 Dyce V. Hay, 97, 122 
 Dyer v. Hargrave, 1013 
 Dyer's Co. v. King, 164 
 Dyke v. Duke, 781 
 Dynen v. Leach, 225, 489 
 Dyson v. CoUick, 372, 373 
 Dyster v. Battye, 1034 
 
 E 
 
 Eager v. Dyott, 758, 762 
 
 Eager v. Grimwood, 1093, 1095, 1097 
 
 Eagle V. Charing Cross Rail. Co., 902 
 
 Eagleton v. Gutteridge, 681 
 
 Earle v. Holderness, 448 
 
 Earle v. Picken, 686 
 
 Earle's Case, 1269 
 
 Easley v. Crockford, 405 
 
 East India Co. v. PuUen, 624 
 
 East India Co. v. Vincent, 186, 320 
 
 East and West I. D. Co. v. Gattke, 901 
 
 Eastern Co. Rail. Co. v. Broom, 722, 
 
 1118 
 Eastern Co. Rail. Co. v. Dorling, 105, 
 
 238 
 Easton v. London, 415 
 Easton v. Richmond Highway Board, 
 
 273 
 Eastwood V. Bain, 1011, 1042 
 Eaton V. Johns, 929 
 Eaton V. Swansea Water Co., 80, 154 
 Eaves v. Dixon, 1044 
 Eccleston v. Clipsham, 1115 
 EcUpse, The, 484 
 Edelsten v. Edelsten, 1051, 1053 
 Edge V. Parker, 805 
 Edgeberry v. Stephens, 66 
 Edgell V. Francis, 733 
 Edmonson v. Machell, 1094 
 Edmonson v. Nutall, 442, 457, 459, 463, 
 
 688, 1196 
 Edsall V. Russell, 955, 991 
 Edwards v. Bi-idges, 787 
 Edwards v. Crock, 1086 
 Edwards v. Farebrother, 788 
 Edwards v. Ferris, 834 
 Edwards v. Gt. West. Rail. Co., 918 
 Edwards v. Halinder, 211 
 Edwards v. Hodges, 1181 
 Edwards v. Hooper, 407, 426 
 Edwards v. L. & N. W. Rwy., 721 
 Edwards v. Martin, 432 
 Edwards v. Sheratt, 624 
 Eggiilgton's Case, 795, 863 
 Eggington v. Mayor of Litchfield, 1118 
 Egremont (Lord) v. Pulman, 170, 193 
 Egyptian (The), 480 
 
 Ad. — a 
 
 Eioholz V. Bannister, 1020l 
 
 Ekins V. Tresham, 1013, 1018 
 
 Eliot V. Allen, 714, 1197, 1201 
 
 Elliott's Case, 264 
 
 ElUotson V. Feetham, 192, 196, 199 
 
 Elliott V. Bishop, 295, 297, 298 
 
 Elliott V. Nicklin, 1096 
 
 EUiott V. North-East. Rail. Co., 110 
 
 Ellis V. Abrahams, 751 
 
 Ellis V. Bridgnorth (Mayor of), 17, 115, 
 
 116, 134 
 Elhs V. Cowne, 1175 
 Ellis V. KeUy, 862 
 Ellis V. Lond. & S. W. Rail. Co., 221, 
 
 228 
 Ellis V. Sheffield Gas Co., 208, 246 
 Ellis V. Taylor, 661 
 ElUson V. Isles, 1151, 1167 
 EUwood V. Christy. 58 
 Elmhirst v. Spencer, 92 
 Elmslie v. Boursier, 65 
 Elsani y Faucett, 1086 
 Elsee V. Smith, 748, 828 
 Elstob V. Wright, 716, 722 
 Elston V. Rose, 1140 
 Elwell V. Crowther, 93 
 Elwes V. Maw, 291, 295, 298 
 Elworthy v. Saudford, 416, 447 
 Ely (Dean, etc., of) v. Warren, 127 
 Emblem v. Myers, 517, 1193 
 Embrey v. Owen, 10, 77, 78, 80 
 Emerson v. Emerson. 1111 
 Emery, In re, 1140, 1142 
 Emery v. Barnett, 775 
 Emmerton v. Matthews, 1030 
 Enderby, Ex 'parte, 431 
 Energy, The, 481 
 England v. Bourke, 991 
 England v. Purser, 730 
 Ennor v. Barwell, 78, 79, 93 
 Esdaile v. Oxenham, 547 
 Esk, The, 484 
 Europ. & Austr. R. M. Co. v. R. M. 
 
 Steam. P. Co., 401, 623 
 Evans, Ex parte, 1241, 1247 
 Evans v. Botterill, 839 
 Evans V. Edmonds, 1007 
 Evans v. Evans, 1062 
 Evans v. Hallam, 428 
 Evans v. Harlow, 930, 959 
 Evans v. Harries, 976, 1194 
 Evans v.- Matthias, 685 
 Evans v. Nichol, 419 
 Evans v. Rees, 1179, 1208 
 Evans v. Roberts, 372 
 Evans v. Walton, 1089, 1090 
 Evans v. Wright, 396, 652 
 Evelyn v. Raddish, 91, 311, 315 
 Everard v. Kendall, 1144 
 Everett v. Grapes, 46, 241 
 Eversfield v. Newman, 842, 1141 
 Everton (Overseers of). Ex parte, 1246 
 Every v. Smith, 332, 372 
 Ewart V. Cochrane, 103 
 
XCVIU 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Ewart V. Graham, 101 
 
 Ewbank v. Nutting, 448, 457 
 
 Excelsior (The), 484 
 
 Exeter Carriers' Case, 601 
 
 Exeter (Corporation of) v. Devon (Earl 
 
 of), 210, 259 
 Exley V. Inglis, 435 
 Explorer, The, 483 
 
 F 
 
 Fabrigas v. Mostyn, 1184 
 Pairman v. Ives, 936, 939 
 Faithful, Re, 547 
 Faldo V. Ridge, 363 
 Falke V. ^Fletcher, 394 
 PaUon, JEx parte, 716 
 Farebrother v. Ansley, 1197 
 Farina v. Silverlock, 1053 
 Farley v. Danks, 755 
 Farmer v. Darling, 743 
 Farmer v. Hunt, 392 
 Farmer v. Joseph, 1096 
 FaiTQSworth v. Garrard, 496 
 Farnworth v. Packwood, 612 
 Farr v. Newman, 788 
 
 Pavrant v. , 418 
 
 Fan-ant V. Barnes, 22, 466, 489, 522, 553, 
 
 578, 1004, 1033, 1035 
 Farrant v. Lovel, 317 
 Fan-ant v. Thompson, 445, 453 
 Farrow v. Hague, 1242 
 Farshaw v. Be Wette, 1213 
 Farwell v. Boston, etc., Rail. Co., 227 
 Fauconberg v. Piers, 190 
 Fawcet V. Beavres, 1088 
 Fawcett v. Fearne, 425, 430 
 Fawcett v. York and N. Mid. Rail. Co., 
 
 220 
 Fay V. Prentice, 192 
 Fearon v. Mitchell, 17 
 Feather v. The Queen, 60, 61 
 Felkin v. Herbert (Lord), 1229 
 FeU v. Knight, 607 
 Fell V. Whittaker, 676 
 Feltham v. England, 227 
 Fenham (The), 483 
 Fenn v. Bittleston, 445 
 Fenn v. Dixe, 975 
 Fenn v. Griffith, 1170 
 Fenn v. Harrison, 1037 
 Fenner v. Duplock, 685 
 Fennings v. Grenville (Lord), 407 
 Fentiman v. Smith, 99 
 Fenton v. Logan, 651 
 Fenwick v. Laycock, 788, 791 
 Ferguson, JEx parte, 485 
 Ferguson v- Carrington, 395 
 Ferguson v. Kinnoul (Earl), 19, 21, 36 
 Ferguson v. Wilson, 1012, 1228 
 Fernandez, Bx parte, 776 
 Fernie v. Young, 1231, 1234 
 Femley v. Worthington, 878 
 
 Ferrand v. Bradford (Corpon. of), 895 
 Ferrers (Earl of) v. Staff. & Uttox. Rwy., 
 
 099 
 
 Fetter v. Beale, 735, 1160, 1191 
 
 Feversham v. Emerson, 361 
 
 Field v. Adames, 668 
 
 Field v. Brown, 285 
 
 Field V. Carnarvon & Llanberris Rail, 
 
 Co 922 
 Field 'v. Mitchell, 657 
 Figlia Maggiore, The, 487 
 Filliter v. Phippard, 12, 304, 305, 312 
 Finch v. Blount, 457 
 Findon v. M'Laren, 650 
 FSilay V. Finlay, 1084 
 Finnerty v. Tipper, 993, 996 
 Finucane v. Small, 530 
 Firth V. Purvis, 659 
 Fisher v. Algar, 657, 676 
 Fisher v. Bnstow, 759 
 Fisher v. Clement, 989 
 Fisher v. Fisher, 1071 
 Fisher v. Magnay, 795, 800 
 Fisher v. Prowse, 205, 206 
 Fitch V. Rawlings, 96, 122 
 Fitzgerald v. Fitzgerald, 1066 
 Fitzgerald v. Northcote, 727 
 Fitzjohn v. Mackihder, 38, 747, 748 
 Pleeming v. Oi-r, 231, 255 
 Fletcher v. Bowsher, 1034 
 Fletcher v. Braddick, 485 
 Fletcher v. Calthorp, 848 
 Fletcher v. Fletcher, 709, 1066 
 Fletcher v. Green well, 913 
 Fletcher v. Rylands, 83, 213 
 Flewster v. Royle, 718 
 Fhght V. Leman, 753 
 Flight V. Thomas, iSl, 153, 252 
 Flinn v. Perkins, 1135 
 Flower v. Adam, 25 
 Flower v. Gardner, 1223 
 Flower v. London, Brighton & S. 0. 
 
 Rail. Co., 921 
 Floyd V. Barker, 751 
 Flyn V. Matthews, 435 
 Foiston V. Crachroode, 123 
 Foley V. "Wilson, 284 
 Ford V. Leche, 783 
 Ford V. Tynte, 285 
 Forde v. Skinner, 690, 692 
 Pordham v. Akers, 674 
 Pordham v. Brighton Rail. Co., 472 
 Foreman v. Canterbui-y (Mayor of), 889 
 Pores V Wilson, 1096 
 Forest Queen, The, 1144 
 Porman v. Dawes, 452, 512 
 Forsdyke v. Stone, 993, 1211 
 Porster v. Porster, 1085 
 Forsyth's Case, 62, 63 
 Foi-th V. Simpson, 540 
 Forward v. Pittard, 576, 593 
 Foster v. Bates, 1112 
 Foster v. Charles, 1008 
 Foster v. Cookson, 793 
 
TABLE OF ENGLISH CASES CITED. 
 
 ZCIX 
 
 Foster v. Crabb, 552, 561 
 
 Foster v. Denny, 1078 
 
 Foster v. Dod, 234, 344 
 
 Foster v. Foster, 1238 
 
 Foster v. Hilton, 793, 820 
 
 Foster v. Pointer, 1208, 1216 
 
 Foster V. Pritchard, 792, 808 
 
 Foster v. Stewart, 1089 
 
 Fotherby V. Metrop. Rail. Co., 904, 1288, 
 
 1289 
 Fouldes V. Willoughby, 894 
 Foulger v. Newcomb, 958 
 Foulger v. Taylor, 804 
 Fountain v. Boodle, 944 
 Fowkes V. Joyce, 651 
 Fowler v. Down, 458 
 Fowles V. Great West. Rail. Co., 597 
 Fox, Ex parte, 65 
 Fox V. Fisher, 440 
 Fox V. Gaunt, 701 
 Foxall V. Barnett, 736, 768 
 Foxcraft v. Wood, 543 
 Foxham Tithing Case, 831 
 Foxley, Ex parte, 427 
 Foy V. London, Brighton, etc.. Rail. Co., 
 
 471 
 France v. Gaudet, 463 
 Frances v. Ley, 9 
 Francis v. Cockrell, 475 
 Francis v. Wyatt, 650 
 Frankland v. Cole, 498 
 Franklin v. Hosier, 538 
 Franklin v. Neate, 554 
 Franklin v. S. E. Rail. Co., 520 
 Franks v. Franks, 1066 
 Franks v. Weaver, 1051 
 Frankum v. Falmouth (Earl of), 86, 88 
 Eraser v. Berkeley, 1195 
 Fraser v. Swansea Navig. Co., 481 
 Pray v. Fray, 928 
 Fray v. Voules, 498 
 Frean v. Sargent, 1207 
 Freedom, The, 487 
 Freeman v. Appleyard, 544 
 Freeman v. Arkell, 763, 767 
 Freeman v. Birch, 555, 620 
 Freeman v. Cooke, 1178 
 Freeman v. Edwards, 652 
 Freeman v. Read, 274, 1146, 1249 
 Freeman v. Rosher, 676 
 Preemantle v. Gt. North. Rail. Co., 885 
 Freer v. Marshall, 751 
 Freestone v. Caswell, 237 
 Fremantle v. Lond. & N. W. Rail. Co., 
 
 251, 807, 312 
 French v. PhilUps, 657, 683 
 Freshney v. Canick, 482 
 Frewen v. Hastings Local Board, 1250 
 Frewen v. Phillips, 152 
 Friswell v. King, 546 
 Frith V. Cartland, 441 
 Frith V. Forbes, .548 
 Fryer v. Kinnersley, 944 
 Fulber, Ex parte, 779 
 
 Fuller V. Mackay, 1138 
 Fuller V. Wilson, 1036 
 Purber, Ex parte, 1260 
 Fumis V. Leicester, 1020 
 Furnis v. Midland Rail. Co., 911 
 Pursdon v. Clogg, 339 
 Futcher v. Hinder, 796 
 Pynn, In re, 1074 
 
 G 
 
 Gabriel v. Dresser, 1151, 1155 
 
 Gaby v. Wilts. Canal Co., 913 
 
 Gage V. Collins, 1220 
 
 Gage V. Smith, 284 
 
 Gahan v. Laffitte, 771 
 
 Gale V. Dalrymple, 726 
 
 Gallagher v. Humphrey, 203 
 
 Gallagher v. Piper, 226 
 
 Galliard v. Laxton, 698, 866 
 
 Galloway v. Bird, 672 
 
 Galloway v. Bleaden, 67 
 
 Galloway v. London (Corp. of), 921 
 
 Gallwey v. Marshall, 975, 960 
 
 Gambart v. Ball, 58 
 
 Gambart v. Sumner, 58 
 
 Gambrell v. Falmouth, 1223 
 
 Gandy v. Jubber, 176, 196, 244 
 
 Gann v. Whitstable Free Fishers, 347, 
 
 848 
 Gardiner v. Gray, 1022 
 Gardiner v. Williamson, 636 
 Gardner v. Broadbent, 1239 
 Gardner v. Slade, 944 
 Gamett v. Backhouse, 239 
 Garnett v. Ferrand, 770 
 Gamett v. Willan, 596 
 Garside v. Trent Navig. Co., 593 
 Garrard v. Guibelei, 1134 
 Garrard v. Tuck, 337 
 Gai-ret v. Taylor, 14 
 Garrett v. Messenger, 263 
 Garritt v. Sharp, 163 
 Garth v. Howard, 1177 
 Garton v. Bristol & Exeter Rail. Co., 
 
 574, 590, 603, 604 
 Garton v. Gt. West. Rail. Co., 630, 914, 
 
 918, 1220, 1253 
 Gaskell v. Marshall, 788 
 Gatehouse v. Gatehouse, 1064 
 Gateward's Case, 123 
 Gathercole v. Miall, 951 
 Gaudret v. Egerton, 203 
 Gauntlett v. King, 676 
 Gaved v. Martyn, 145, 146 
 Gawler v. Chaplin, 780 
 Gay V. Matthews, 865, 868 
 Gayford v. Moffatt, 105, 168 
 Gee V. Lane, and York. Rail. Co., 627, 
 
 1220 
 Gelley v. Clerk, 615 
 General Exchange Bank, Re, 545 
 General Exchange Bank v. Homer, 502 
 
TABLE OF ENGLISB CASES CITED. 
 
 Gen. St. Navig. Co. v. Br. and Col. St. 
 
 Navig. Co., 481 
 Gen. St. Navig. Co. v. Guillou, 1117 
 Gen. St. Navig. Co. v. Hedley, 483 
 Genges v. Genges, 546 
 Gent v. Harrison, 285, 311 
 George v. Beaumont, 66 
 George v. Chambers, 868 
 George and Richard, The, 483, 488 
 George v. Skivington, 35, 496, 1036 
 Gerard v. Lewis, 753 
 Gerhard v. Bates, 6, 35, 1009, 1039 
 Gerrard v. Cooke, 106 
 Gibbins v. Phillips, 815 
 Gibbon v. Paynton, 24, 1033 
 Gibbons v. Alison, 757 
 Gibbon9.v. Pepper, 8, 467, 510, 514, 723 
 Gibbs v. Cole, 63 
 Gibbs v. Ralph, 1207 
 Gibbs v. Trus. of Liv. Dock, 203, 221, 
 
 222, 249, 887 
 Giblin V. McMullen, 501, 527 
 Gibson v. Bray, 435 
 Gibson v. Hammersmith Rail. Co., 895, 
 
 922 
 Gibson v. Humphrey, 448 
 Gibson v. Ireson, 648 
 Gibson v. Preston (Mayor of), 888 
 Gibson v. Smith, 316, 1229 
 Gibson v. Wells, 283 
 Gilbert v. Burtenshaw, 993, 1199 
 Gilbertson v. Richardson, 1186 
 Gilding v. Eyre, 754 
 Giles V. Lond. & Chat. Rail. Co., 895 
 Giles V. Spencer, 638, 642, 647 
 Giles V. Taff Vale Rail. Co., 1119 
 Gill V. Cubitt, 423 
 GiUard v. Brittan, 1196 
 Gillett V. Wilby, 64 
 Gillon V. Boddington, 913, 1109, 1163 
 Gilmau v. Elton, 648 
 Gilpin V. Cohen, 796 
 Gilpin V. Fowler, 938, 962 
 Gimbert v. Coyney, 867 
 Gimson v. Woodfall, 418 
 Gipps V. Gipps, 1069, 1071 
 Girlington v. Pitfield, 762 
 Gisbourn v. Hurst, 647 
 Gittins V. Symes, 1236 
 Gladman v, Johnson, 255 
 Gladstone v. Padwick, 788 
 Gladwell v. Steggall, 516, 1103, 1106 
 Glaholm v. Barker, 482 
 Glasgow (City of) Union Rwy. v. Hunter, 
 
 896, 902 
 Glasgow Nat. Ex. Co. v. Drew, 1038 
 Glasspoole v. Young, 460. 788 
 Glave V. Harding, 103, 114 
 Glennie v. Glennie, 1069 
 Glover v. Dixon, 1166 
 Glover v. Lond. &' N. W. Rail. Co., 407 
 Glover v. Lond. & S. W. Rail. Co., 734 
 Glover v. North Staff. Rail. Co., 909 
 Glyn V. Aberdare Rail Co., 904 
 
 Glynn v. Houston, 731, 1186 
 
 Glynn v. Thomas, 657, 661, 665, 670, 675, 
 683 
 
 Goddardv. Harris, 795 
 
 Goddart v. Haselfoot, 958 
 
 Godefroy v. Dalton, 499 
 
 Godefroy v. Jay, 498 
 
 Godfrey v. Furzo, 439 ' 
 
 Godson V. Hoi-ne, 945 
 
 Godts V. Rose, 422 
 
 Godwin v. Francis, 1048 
 
 Goff V. Gt. North. Rail. Co,, 708, 720, 
 722, 1118, 1221 
 
 Gflggerly v. Cuthbert, 404 
 
 Gold V. Strode, 814 
 
 Golden v. Manning, 594 
 
 Golding v. Stocking, 237 
 
 Goldsmid v. Tunbridge Wells Commrs., 
 256, 258, 260 
 
 Goldstein v. Foss, 998 
 
 Gompertz v. Kensit, 1084 
 
 Good V. Lond. Steam Shipowners' Asso- 
 ciation, 487 
 
 Goodall V. Ensell, 1208 
 
 Goode V. Job, 339 
 
 Goodheim v. Goodheim, 1066 
 
 Goodman v. Boycott, 529, 555, 558, 562, 
 563 
 
 Goodman v. Harvey, 405 
 
 Goodtitle v. Alker, 332 
 
 Goodtitle V. Tombs, 387 
 
 Goodwin v. Noble, 1130 
 
 Goodwyn v. Cheveley, 322, 328, 667, 682 
 
 Gordon v. East India Co., 432 
 
 Gordon v. Harper, 444 
 
 Gordon v. Woodford, 286 
 
 Gore V. Grey, 709 
 
 Gore V. English Fishery Commissioners, 
 239 
 
 Gorton v. Falkner, 651 
 
 Goslin V. Corry, 993, 1192 
 
 Gosset V. Howard, 847 
 
 Gott V. Gandy, 212 
 
 Gough V. Everard, 441 
 
 Gould V. Capper, 1240 
 
 Govei-nor, etc., of Cast Plate v. Mere- 
 dith, 945 
 
 Govett V. Radnidge, 1135 
 
 Gowens v. Moore, 1212 
 
 Grace v. Morgan, 1190 
 
 Graham v. Furber, 429, 430 
 
 Graham v. Graham, 1072 
 
 Grainger v. Hill, 395, 755, 757 
 
 Grand Junction Canal Co. v. Shugar, 83 
 
 Granger v. George, 1164 
 
 Grant v. Astle, 1185 
 
 Grant v. Moser, 703, 729 
 
 Grant v. Norway, 1036 
 
 Grant v. Vaughan, 404, 422 
 
 Grantham v. Hawley, 119 
 
 Graves v. Ashfoi'd, 57 
 
 Graves' Case, 59 
 
 Gray v. Bond, 137 
 
 Gray v. Carr, 537. 
 
TABLE OF ENGLISH CASES CITED. 
 
 CI 
 
 Gray v. PuUen, 207, 246, 510 
 
 Gray v. "West, 1212 
 
 Grayburn v. Clarkson, 1130 
 
 Gi'easly v. Codling, 43- 
 
 Greatrex v. Hayward, 147 
 
 Gt. North. Co. v. Shepherd, 570, 600 
 
 Gt. Ship Co., Re, 789 
 
 Gt. West. Rl. Co. of Canada V. Braid, 890 
 
 Gt. West. Rl. Co. of Canada v. Fawcett, 
 
 219, 473 
 Great West. Rail. Co. v. Bennett, 109 
 Great West. Rail. Co. v. Crouch, 600 
 Great West. Rail. Co. v. Goodman, 500 
 Great West. Rail. Co. v. Redmayne, 628 
 Great West. Rail. Co. v. Rimell, 586 
 Great West. Rail. Co. v. The Queen, 1257 
 Great West. Rail. Co. v. Sutton, 604 
 Great Yarmouth (Mayor of) v. Groom, 
 
 16 
 Greathead v. Morley, 101 
 Green v. Bartram, 729 
 Green v. Button, 11, 36, 37, 1006, 1039 
 Green \'. Dunn, 400 
 Green v. Elgie, 810 
 Gi-een v. Farmer, 548 
 Green v. Goddard, 694 
 Green v. Greenbank, 1127 
 Green v. Ingham, 432 
 Green v. Lon. Gen. Cm. Co., 207, 241, 
 
 1118 
 Green v. New River Co., 35 
 Green v. Pope, 1287 
 Green v. St. Cath. Dock Co., 655 
 Greene v. Jones, 1167 
 Greenhow v. Ilsley, 173 
 Greening v. Wilkinson, 460 
 Greenland v. Chaphn, 27, 29, 480, 484, 
 
 1187 
 Greenslade v. Darby, 344 
 Greenslade v. Halliday, 237 
 Qreenway v. Fisher, 1130 
 Greenway v. Hurd, 712, 914 
 Greenwich Board of Works v. Maudslay, 
 
 268 
 ■Gregg V. Wells, 456 
 Gregory's Case, 1061 
 Gregory v. Brunswick (Duke of), 740 
 Gregory v. Cotterell, 781, 782, 821 
 Gregory v. Hill, 696 
 Gregoi-y v Piper, 247, 358 
 Gregory v. West Mid. Rail. Co., 592 
 Gregory v. Williams, 1192 
 Gregson v. Theaker, 1085 
 Gresham v. Postan, 1013 
 Greville v. Chapman, 930, 985 
 Griffin V. Coleman, 691, 698, 700, 719, 
 
 804, 867 
 Griffin V. Dighton, 343 
 Griffith V. Matthews, 135 
 Griffiths V. Gidlow, 226, 489 
 Griffiths V. Kynaston, 1223 
 Griffiths V. Lewis, 943, 957, 975, 998 
 Griffiths V. Longdon & Ellersfield Drain- 
 age Board, 73 
 
 Griffiths V. Teetgen, 1091 
 
 Grill V. Gen. Iron Screw Collier Co., 22, 
 
 483, 487 
 Grimbly v. Ackroyd, 1244 
 Grimstead v. Marlow, 123 
 Grimston v. Innkeeper, 616 
 Grindley v. Booth, 1235 
 Grinham v. Willey, 719, 731 
 Grinnell v. Wells, 44, 1089, 1091, 1095 
 Grocers' Co. v. Dunne, 884, 886 
 Groenvelt v. Burwell, 777, 858 
 Grose V. West, 351 
 Grote V. Ches. & Holyh. Rail. Co., 473, 
 
 474 
 Grove v. Nevill, 1031 
 Groves v. Groves, 1067 
 Grubb V. Burlington (Earl of), fi91 ' 
 Grymes v. Boweren, 296 
 Grymes v. Peacock, 166 
 Guest V. Poole & Bournemouth Rail., 900 
 Guest V. Warren, 737, 1159, 1244 
 Guille V. Swan, 199 
 Guldfajce, The, 483, 503 
 Gulliver v. Cosens, 669, 675 
 Gunmakers' Co., v. Fell, 48 
 Guntor v. Astor, 1099 
 Gurr V. Cuthbert, 409 
 Gustard's Case, 1295 
 Gutsole V. Mathers, 932,' 969, 1038 
 Gwinnett v. Phillips, 684 
 Gwynn v. Poole, 774 
 
 H 
 
 Haddrich v. Heslop, 744, 760 
 
 Hadesden v. Gryssel, 131, 413 
 
 Hadley v. Baxendale, 627, 1047, 1187 
 
 Hadley v. Taylor, 201, 229 
 
 Hague V. Dandeson, 537 
 
 Haigh V. Haigh, 1066 
 
 Haigh V. Jaggar, 319 
 
 Haigh V. Lond. & N. West. Rail. Co., 
 
 221, 227 
 Hailes v. Marks, 728, 744 
 Haines v. East India Co., 818, 1178 
 Haines v. Roberts, 108 
 Haines v. Taylor, 258 
 Haines v. Welsh, 638 
 Haire v. Wilson, 928, 989, 997 
 Hakewill, In re, 1075 
 Hale V. Oldroyd, 166 
 Hall's Case, 260 
 Hall's Estate, Re, 1084 
 Hall V. Ball, 415 
 Hall V. Barrows, 1050, 1054 
 Hall V. Booth, 700 
 Hall V. Bristol (Mayor of), 897 
 Hall V. Fearnley, 514, 722 
 Hall V. Harding, 172 
 Hall V. HoUander, 1105 
 Hall V. Johnson, 490 
 Hall V. Lund, 103 
 Hall V. Pickard, 445, 478 
 
cu 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Hall V. Smith, 1120 
 Hall V. Swift, 77 
 HaU V. Taylor, 1292 
 Halley, The, 483 
 
 ■ Halliday, In re, 1079 
 Halliday v. Holgate, 408 
 Hallows V. Femie, 1012 
 Hamar v. Alexander, 1008 
 Hambleton v. Veere, 1185, 1202 
 Hambly v. Trott, 1128 
 Hamerv. Knowles, 75 
 Hamilton v. BeU, 434, 438 
 Hamilton (Duke of) v. Graham, 380 
 Hamilton v. Vere, 1088 
 Hammack v. White, 23, 467 
 Hammond v. Barclay, 543 
 HamonS v. Howell, 770, 775 
 Hams, In re, 482 
 
 Hancke v. Hooper, 496 
 
 Hancock v. Cafi^n, 1114 
 
 Hancock v. Peaty, 1068 
 
 Hancock v. Somes, 725 
 
 Hancock v. Southall, 515 
 
 Hand, In re, 1266 
 
 Handcock v. Baker, 364 
 
 Handford v. Palmer, 525 
 
 Hando v. Lond., Chat. & Dover Rail. 
 
 Co., 492 
 Hankinson v. Bilby, 969 
 Hanna (The), 481 
 Hannaford v. Hunn, 730 
 Hannam v. Mockett, 12, 13, 329 
 Harbridge v. Warwick, 151, 152 
 Harcourt v. Fox, 824, 1269 
 Harcourt v. White, 320 
 
 ■ Harcourt v. Wyman, 1106 
 Hardeastle v. S. York., etc., Rail. Co., 
 
 201, 208, 205, 229 
 Harding v. Carter, 1178 
 Harding v. Greening, 981 
 Harding v. King, 725 
 Harding v. Metrop. Rail. Co., 900 
 Harding v. PoUock, 1269 
 Hardwick v. Moss, 916 
 Hardy v. Kyle, 872, 1164 
 Hardy v. Veasey, 501 
 Hardy v. Walker, 1289, 1245 
 Hare v. Celey, 1115 
 Hare v. Horton, 857 
 Hargrave v. Le Breton, 970 
 Harland v. Mayor of Newcastle-on- 
 
 Tyne, 1212 
 Harman v. Cornelius, 496 
 Hai-man v. Delaney, 980, 953, 957 
 Harmer v. Bell, 1156 
 Harnett v. Maitland, 278, 283 
 Harold v. Smith, 1223 
 Harper v. Charlesworth, 270, 372 
 Harper v. Godsell, 555 
 Harper v. Luflfkin, 1093 
 Harper v. Pole, 1143 
 Harries v. Thomas, 1207 
 Harrington (Earl) v. Ramsay, 1142 
 Han-is v. Baker, 1120 
 
 Harris v. Butler, 1091 
 
 Harris v. Cockermouth Rail., 631 
 
 Harris v. Costar, 468, 513 
 
 Harris v. Dignum, 719, 731, 1177 
 
 Harris v. Ryding, 108 
 
 Harris v. Shipway, 643 
 
 Harris v. Thompson, 945 
 
 Harrison, Sx parte, 433 
 
 Harrison v. Bamby, 642 , 
 
 Han-ison v. Blackburn, 373 
 
 Harrison v. Bush, 985, 946 
 
 Harrison v. Dixon, 451 
 
 Harrison v. Good, 199 
 
 Harrison v. Gt. North. Rail. Co., 23, 72. 
 885 
 
 Harrison v. Parker, 373 
 
 Harrison v. Pearce, 993 
 
 Harrison v. Taylor, 57 
 
 Harrison v. Thornborough, 953 
 
 HaiTison v. Wright, 1145 
 
 HaiTop V. Hirst, 80, 90 
 
 Harrow School v. Alderton,'314, 320 
 
 Hart's Case, 1294 
 
 Hart V. Aldi-idge, 1089 
 
 Hart V. Baxendale, 623 
 
 Hart V. Crowley, 518 
 
 Hart V. Frame, 497 
 
 Hart V. Frontino and Bolivia Gold Min- 
 ing Co., 1179 
 
 Hart V. Leach, 677 
 
 Hartley, In re, 864 
 
 Hartley v. Halhwell, 254 
 
 Hartley v. Hai-riman, 250 
 
 Hartley v. Hindmarsh, 725, 732 
 
 Hartley v. Moxham, 655 
 
 Hartnall v. Ryde Improv. Commrs., 
 178, 888 
 
 Hartop V. Hoare, 541 
 
 Hartz V. Schrader, 319 
 
 Harvey v. Brydges, 331, 376 
 
 Harvey v. French, 985 
 
 Harvey v. MitcheU, 1172 
 
 Hai-vey v. Pocock, 645, 688 
 
 Harwood v. Gi-eat North. Rail. Co., 67 
 
 Haseler v. Lemoyne, 676 
 
 Haselinton v. Gill, 439 
 
 HassaU v. Wright, 65, 66 
 
 Haswell v. Haswell, 1067 
 
 Hatch V. Hale, 661 
 
 Hatch V. Lewis, 517, 1214 
 
 Hatton V. Kean, 54 
 
 Haviland v. Haviland, 1064, 1068 
 
 Hawkes v. Dunn, 400, 421 
 
 Hawkes v. Smith, 577 
 
 Hawkins v. Carbines, 182 
 
 Hawkins v. Harwood, 498 
 
 Hawkins v. Plomer, 797 
 
 Haworth v. Hardeastle, 68 
 
 Hawthorn v Hammond, 606 
 
 Hay V. Weakley, 755 
 
 Haycraft v. Creasy, 1007, 1009, 1017 
 
 Hayes v. S. W. Rail. Co., 596 
 
 Hayley v. Racket, 802 
 
 Hayling v. Okey, 368 
 
TABLE OF ENGLISH CASES CITED. 
 
 cm 
 
 Baylock v. Spai-ke, 826, 872, 873, 877 
 
 Hayward, In re, 847, 1263 
 
 Hayward v. Met. Rail. Co., 1222 
 
 Hayward v. Seaward, 399 
 
 Hazeldine v. Grove, 872 
 
 Head v. Briscoe, 1125 
 
 Headlam v. Hedley, 351 
 
 Heal V. Heal, 1087 
 
 Heaid v. Carey, 396 
 
 Heap V. Barton, 299 
 
 Hearu v- Lond. and S. W. Rail. Co., 585 
 
 Hearne v. Stowell, 951, 998 
 
 Heath v. Bucknall, 152 
 
 Heath v. Milward, 455 
 
 Heaton Steel and Iron Co., Se, 1294 
 
 Hebbert v. Thomas, 371 
 
 Hebblethwaite v. Hebblethwaite, 1080 
 
 Heden v. Atlantic Mail etc., Co., 1211 
 
 Hedges v. Tagrg-, 1092, 1095 
 
 Heeley v. Thames Valley Rail. Co., 903 
 
 Heemanv. Evans, 801 
 
 Hegan v. Johnson, 637 
 
 Hegingbotham v. East, and Cont. St. P. 
 
 Co., 194, 264 
 Heilbut V. Nevill, 426 
 Heinrich v. Sutton, 547 
 Hellawell v. Eastwood 644 
 Hellivrell v Hobson, 1147 
 Helsham v. Blackwood, 979, 991 
 Heming v. Power, 955 
 Hemming v. Hale, 1185 
 Hemmings v. Gasson, 974, 984, 988 
 Henderson v. Broomhead, 934 
 Henderson v. Lacon, 1010 
 Henderson v. Lond. and N. W. Rail. 585 
 Henderson v. Squire, 386 
 Henkel v. Pape, 18 
 
 Henley v. Mayor of Lyme, etc., 21, 132 
 Henman v. Lester, 1171 
 Henning v. Bui'nett, 379 
 Hepbui'n v. Lordan, 261 
 Hei-iot V. Stuart, 950 
 Heriot's Hospital Feoffees v. Ross, 891 
 Herlakenden's Case, 282 
 Hermann v. Seneschall, 713 
 Hem v. Nichols, 1036 
 Hemaman v. Bowker, 713 
 Heme v. Benbow, 283 
 Herr v. Union Bank, 1229 
 Herring v. Finch, 37 
 Herring v. Metrop. Bd. of Works, 886, 
 
 899 
 Hervey v. Smith, 187 
 Herz v. Union Bank, 258 
 Heslop V. Baker, 430, 451 
 Heslop V. Chapman, 746 
 Hesse v. Stevenson, 65 
 Heugh V. Lond. and N. "W. Rail., 594, 
 
 600 
 Heurteloup's Case, 61 
 Hfewison V. Guthrie, 540 
 Hewitt V. Cory, 1144 
 Hewitt V. Isham, 362 
 Hewitt V. Macqtiire, 813 
 
 Hewlett V. Cruchley, 746, 1199 
 
 Hewlins v. Shippam, 99, 178, 180 
 
 Hewston v. Phillips, 1244 
 
 Hey V. Moorjiouse, 375 
 
 Heydon and Smith's Case, 123, 461 
 
 Heymann v. Eur. Central Rail. Co., 1011 
 
 Heywood v. CoUinge, 755 
 
 Heywood v. Potter, 56 
 
 Hibbs V. Ross, 515 
 
 Hickinbotham v. Leech, 979 
 
 Hide V. Thornborough, 148 
 
 Hider V. Dorrell, 717 
 
 Higgins V. Bretherton, 602 
 
 Higgins V. Thomas, 450 
 
 Higgon V. Mortimer, 282, 811, 449 
 
 Higgons V. Burton, 420 
 
 Higham v. Rabett, 366 
 
 Highmore v. Harrington (Earl of), 993 
 
 Hilbery v. Hatton, 398 
 
 Hill, In re, 1244 
 
 Hill V. Balls, 4, 1032 
 
 Hill V. Goodchild, 1197 
 
 Hill V. Gray, 1032 
 
 Hill V. Lane, 1010 
 
 Hill V. Reg., 1272 
 
 HiU V. Sheriff of Middlesex, 816 
 
 Hill V. Thompson, 62, 64, 68 
 
 Hill V. Tupper, 84, 116, 121 
 
 Hill V. Warren, 494 
 
 Hills V. Evans, 1230 
 
 Hilton V. Earl Granville, 124 
 
 Hilton V. Woods, 383 
 
 Hilton (Overseers of) v. Bowes (Over- 
 seers of), 116 
 
 Hinchliffe v. Kinnoule (Earl), 103 
 
 Hinde v. Sheppard, 1212, 1214 
 
 Hindley v. Emery, 319 
 
 Hindustan (Bank of), He, 546 
 
 Hinsley v. Wilkinson, 829 
 
 Hinton v. Dibbin, 584 
 
 Hinton v. Heather, 745 
 
 Hipkins v. Birm., etc.. Gas Co., 240 
 
 Hirst V. Halifax Local Board, 274 
 
 Hirst V. Molesbury, 705 
 
 Hiscocks V. Jones, 798 
 
 Hiscox V. Greenwood, 410, 541 
 
 Hitchings v. Thompson, 685 
 
 Hitchman v. Walton, 298 
 
 Hoare v. Dickinson, 193, 248 
 
 Hoare v. Silverlock, 929, 946, 977, 985 
 
 Hobson V. Thelluson, 789, 818 
 
 Hobson V. Todd, 173 
 
 Hoddesdon v. Gresil, 131 
 
 Hodges V. Paterson, 812 
 
 Hodges V. Windham, 1085 
 
 Hodgkinson v. Ennor, 192, 198, 248 
 
 Hodgkinson v. Fernie, 39, 486 
 
 Hodgman v. West Midi. Rail. Co., 203, 
 588 
 
 Hodgson V. Duce, 388 
 
 Hodgson V. FuUarton, 530 
 
 Hodgson V. Gascoigne, 793 
 
 Hodgson V. Scarlett, 967 
 
 Hodgson V. Sidney, 1113, 1114 
 
CIV 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Hodgson V. Towning, 786 ' 
 
 Hodsoll V. Stallebrass, 1105, 1191 
 
 Hodson V. Walker, 1142 
 
 Hoe's Case, 800 
 
 Hoey V. Felton, 6 
 
 Hoffman v. Postill, 1230 
 
 Hogarth v. Jackson, 414 
 
 Hogg V. Ward, 699 
 
 Holborrow v. Jones, 1212 
 
 Holcome v. Rawlins, 374 
 
 Holden v. Holden, 1062 
 
 Holden v. Liv. Gas Co., 250, 309, 513 
 
 Holden v. Weeks, 288, 318 
 
 Holden's Case, 1295 
 
 Holder v. Coates, 352 
 
 Holder v. Soulby, 618 
 
 Holderness v. Collinson, 543 
 
 Holdemess v. Rankin, 435 
 
 Holdringshaw v. Rag, 376 
 
 Hole V. Barlow, 194, 196 
 
 Hole V. Sittingbourne, etc., Rail. Co., 
 
 207, 246, 892 
 Hole V. Thomas, 318 
 Holford V. George, 239 
 Holford v^ Hankinson, 178, 364 
 Holland's Case, 824 
 Holland (Lady) v. Kensington Vestry, 
 
 276 
 HoUiday v. Camsell, 406 
 Hollier v. Laurie, 791, 809 
 Hollis V. Claridge, 547 
 HoUis V. Goldfinch, 352, 374 
 Hollis V. Marshall, 809 
 Hollis V. Smith, 1110 
 Hollister v. Nowlen, 579 
 Holloway v. Abel, 1095 
 HoUoway v. Holloway, 1051 
 Holloway v. Turner, 1190 
 Holmes v. Bellingham, 350 
 Holmes v. Clarke, 226, 490 
 Holmes v. Goring, 165 
 Holmes v. Hodgson, 449 
 Holmes v. London & N. W. Rail. Co., 
 
 65 
 Holmes v. North-East Rail., 218, 227 
 Holmes v. Onion, 506 
 Holmes V. Pemberton, 1225 
 Holmes v. Simmons, 1083 
 Holmes v. Sixsmith, 1043 
 Holmes v. Sparkes, 812 
 Holmes v. Wilson, 332, 374, 1160 
 Holme's Case, 263 
 Holroyd v. Breare, 776 
 Holroyd v. Marshall, 118 
 Holtv. Daw, 366 
 Holt V. Frost, 792 
 
 Holt V. Rochdale (Corp. of), 210, 919 
 Holyday v. Morgan, 1014, 1044 
 Homan, Ex "parte, 434 
 Home V. Camden, 1240 
 Home V. Grimble, 713 
 Homer v. Taunton, 984 
 Honess v. Stubbs, 1151 
 Hood V. N. E. Rail., 920 
 
 Hoole V. Gt. West. Rail. Co., 1230 
 
 Hooman, Ex parte, 441 
 
 Hooper, In re, 1234 
 
 Hooper v. Bristol Port Rail. Co., 901, 
 
 908 
 Hooper v. Hooper, 1066 
 Hooper v. Lane, 786, 788, 796, 799 
 Hopcroft V. Keys, 635 
 Hope V. Hope, 1060, 1077, 1078 , 
 Hopgood V. !Parkin, 500 
 Hopkins, Ex parte, 848 
 Hopkins v. Crowe, 714, 719 
 Hopkins v. Hitchcock, 1052 
 Hepkins v. Tanqueray, 1015 
 Hopkinson v. Burghley (Lord), 123] 
 Hopper, In re, 771, 773, 1243, 1244 
 Hopper V. Reeve, 691 
 Hopwood V. Schofield, 175, 186 
 Hopwood V. Thorn, 942, 954 
 Horn V. Baker, 431, 436 
 Horn V. Swinford, 706 
 Horn V. Thornborough, 713 
 Hornblower v. Boulton, 62 
 HornblOwer v. Proud, 430 
 Horncastle v. PaiTan, 540 
 Home V. Home, 1067, 1071 
 Horn V. Widlake, 379 
 Hornidge v. Cooper, 422 
 Hornsby v. Miller, 429, 436 
 Horrocks v. Metropolitan Railway Of 
 
 904 
 Horsefall v. Davy, 654 
 Horsefall v. Mather, 301 
 Horsfall v. Holland, 355 
 Horsfall v. Thomas, 35 
 Horsford v. Webster, 642, 647 
 Horwood V. Smith, 418 
 Hosking v. PhiUips, 315, 357, 385 
 Hoskins v. Knight, 817 
 Hoskins v. Robins, 130, 667 
 Hossack V. Gray, 481 
 Hotten V. Aj-thur, 52 
 Houghton V. Butler, 394 
 Houghton V. Matthews, 544 
 Houghton's Patent, 60 
 Houlden v. Smith, 774 
 HounseU v. Smyth, 201, 205 
 Housin V. Barrow, 781 
 How V. Hall, 1173 
 Howard v. Crowther, 1113 
 Howard v. Jemmett, 440 
 Howard v. Lovegrove, 1190 
 Howard v. Newton, 1132 
 Howard v. Shepherd, 18 
 Howard v. Sheward, 1037 
 Howard v. Smith, 686 
 Howarthv. Brown, 1205 
 Howarth v. Tollemache, 451 
 Howden v. Standish, 781, 812 
 Howe V. Hunt, 1228 
 Howe V. Scarrott, 634 " ' 
 
 Howell V. Jackson, 626, 694, 704 
 Howell V. Rodbard, 1204 
 HoweU V. Young, 499, 913, 1164 
 
^ABLE OF ENGLISB CASES CITED. 
 
 CV 
 
 Howes V. Ball, 652 
 
 Howes V. Barber, 1223 
 
 Howlett V. Haswell, 1127 
 
 Hewlett V. Tarte, 1157, 1159 
 
 Howton V. Prearson, 105, 366 
 
 Hoye V. Bush, 867 
 
 Hubbard v. Bagshaw, 431 
 
 Hubbard v. Lees, 1084 
 
 Huckle V. Money, 233, 1184, 1193 
 
 Hudoai't V. Grimshaw, 62 
 
 Huddart v. Rigby, 1166, 1167 
 
 Hudson V. Baxendale, 600 
 
 Hudson V. Granger, 543 
 
 Hudson V. McRae, 132, 842 
 
 Hudson V. Roberts, 232 
 
 Hudston V. Midi. Rail. 570 
 
 Huffer V. Allen, 754 
 
 Hughes V. Buckland, 713, 913, 916 
 
 Hughes V. Grame, 1047, 1188 
 
 Hughes V. Hughes, 1067 
 
 Hughes V. Quentin, 517 
 
 Hull V. Pickei-sgill, 1122 
 
 Humberstone v. Dubois, 679 
 
 Hume V. Oldacre, 385, 735, 1196 
 
 Hume V. Pocpck, 1019 
 
 Humfrey v. Gery, 649 
 
 Humfrey v. Lond. and N. W. Rail. Co., 
 
 359 
 Humfreys v. Mears, 887 
 Humphrey v. Mitchell, 796 
 Humphries v. Brogden, 73, 75, 112, 
 
 148 
 Hunt V. Colson, 335 
 Hunt V. Dowman, 301, 316 
 Hunt V. Harris, 354 
 Hunt V. Hooper, 782 
 Hunt V. Maniere, 403, 1052 
 Hunt V. North Staff., etc.. Rail. Co., 
 
 1139, 1243 
 Hunt V. Peake, 73, 75, 94, 148 
 Hunter v. Caldwell, 500, 517 
 Hunter v. French, 764 
 Hunter v. Westbrook, 444 
 Huntley v. Herring, 976 
 Htmtley v. Russell. 238 
 Huntley v. Simson, 745, 750 ' 
 Hurst V. Gt. "West. Rail. Co., 572 
 Hussey v. Christie, 548 
 Hutchins v. Scott, 683 
 Hutchinson v. Copestake, 163 
 Hutchinson v. Guion, 1033 
 Hutchinson v. Lowndes, 834 
 Hutchinson v. Morley, 1043 
 Hutchinson v. York, Newc, etc., Rail. 
 
 Co., 476, 479, 490 - 
 Hutchison v. Birch, 785 
 Button V. Cruttwell, 427 
 Huxley V. Berg, 1187 
 Huzzy Field, 31 
 Hyams v. Webster, 209, 509 
 Hyde v. Graham, 98, 363, 376, 1166 
 Hyde v. Hyde, 1067 
 Hyde v. Trent. Nav. Co., 576, 593, 
 
 621 
 
 Ibbett V. De La Salle, 666 
 
 Ibbotson V. Peat, 13, 192 
 
 He's Case, 1273 
 
 Illidge V. Goodwin, 8, 511 
 
 Ilott V. "Wilkes, 200 
 
 Imperial Gas Co. v. Broadbent, 258 
 
 Imray v. Magnay, 782 
 
 Inchbald v. Barrington, 257 
 
 Inchbald v. Robinson, 257 
 
 Incledon v. Berry, 762 
 
 Indermaur v. Dames, 202, 203, 227 
 
 Industrie (The), 484 
 
 Ingate v. Christie, 571 
 
 Ingle V. Bell, 704 
 
 Inglis V. Spence, 1118 
 
 Ingram v. Lawsoii, 929, 1192 
 
 Ings V. Lond. and S. W. Rail. Co., 12H 
 
 Inman v. Reck, 484 
 
 Insole, Re, 1066 
 
 lona (The), 481 
 
 Ipswich (Tailors of), 45 
 
 Ireland (Bank of) v. Trustees of Evans's 
 
 Charities, 27, 29 
 Ireland v. Johnson, 684 
 Ireland v. Livingston, 1027 
 Ireson v. Pearman. 499 
 Irons V. Smallpiece, 415 
 Irving V. Wilson, 866, 915 
 Irwin V. Brandwood, 958 
 Irwin V. Dearman, 1094, 1096 
 Irwin V. Grey, 21 
 Isaac V. Belcher, 451 
 Isaac V. Wyld, 1244 
 Isack V. Clark, 393, 400 
 Isle of Wight Ferry Co. v. Ryde Com., 
 
 etc., 1206 > 
 
 Israel v. Clark, 475 
 Iveson V. Moore, 241 
 Ivimey v. Stocker, 131, 146, 166 
 
 Jacklin v. Fytche, 874 
 
 Jackson v. Beaumont, 1239, 1240, 1242, 
 
 1245, 1251, 1252 
 Jackson v. Calesworth, 1204 
 Jackson v. Cator, 186, 320 
 Jackson v. Courtenay, 693 
 Jackson v. Cummins, 539 
 Jackson v. Everett, 1219 
 Jackson v. Pesked, 84, 360 
 Jackson v. Smithson, 230 
 Jackson v. ToUett, 467 
 Jackson v. Turquand, 502 
 Jacobs V. Humphrey, 794, 816 
 Jacobs V. Latour, 538, 550 
 Jacobs V. Seward, 290, 1107, 1117, 1182 
 Jacobsohn v Blake, 895 
 Jacomb v. Dodgson, 871 
 Jaoomb v. Knight, 115 
 James (The), 483 
 
CVl 
 
 TABLE OF ENGLISR CASES CITED. 
 
 James v. Biddington, 1080 
 
 James v. Boston, 933, 942 
 
 James v. Brook, 973 
 
 James v. Campbell, 690, 734 
 
 James v. Great Western Railway Co., 
 
 474 
 James v. Hayward, 183, 207, 271 
 James v. James, 1056 
 James v. Lond. & S. W. Rail., 1238 
 James v. Phelps, 764 
 James v. Plant, 168 
 James v. Rutlech, 957 
 James v. Swift, 717 
 Janson v. Brown, 393, 457 
 Janson v. Stuart, 926, 979 
 Jardine v. Smith, 1260 
 Jarmain v. Hooper, 727, 809, 810 
 Jarman v. ^Woolloton, 439 
 Jarrett v. Kennedy, 1007 
 Jarrold v. Houlstou, 52 
 Jarvis v. Dean, 203, 205, 252, 269 
 Jaxon V. Tanner, 1185 
 Jayne v. Price, 333, 374 
 Jeans v. Wheedon, 763 
 Jetr Davis (The), 545, 547 
 Jefferson v. Durham (Bishop of), 309 
 Jefferson v. Jefferson, 558 
 Jefferys v. Boosey, 51 
 Jeffreys v. Jeffreys, 1068 
 Jeffries v. Gt. West. Rail. Co., 456 
 Jeffries v. Williams, 87, 182 
 Jeffrye's Case, 1241 
 Jegon V. Vivian, 383 
 Jenings v. Florence, 754 
 Jenkins v. Betham, 501 
 Jenkins v. Gething, 296 
 Jenkins v. Hutchinson, 1007, 1025 
 Jenkins v. Turner, 30, 230, 250 
 Jenner v. A'Beckett, 929 
 Jenner v. Clegg, 635 
 Jennings v. Great North. Railway Co., 
 
 605 
 Jennings v. Rundall, 1126 
 Jessel v. Chaplin, 1235 
 Jesser v. Gifford, 85, 175, 185 
 Jessop's Case, 63 
 Jessop V. Crawley, 808 
 Joel V. Moi'ison, 477 
 John V. Bacon, 237, 597 
 Johns V. Jenkins, 653 
 Johnson v. Emerson, 755 
 Johnson v. Faulkner, 652 
 Johnson v. Hill, 616 
 Johnson v. Hudson, 984 
 Johnson v. Johnson, 1010, 1071 
 Johnson v. Leigh, 783 
 Johnson V. Lord, 919 
 Johnson Midland Rail. Co., 569 
 Johnson v. Ossenton, 410 
 Johnson v. Pye, 1031, 1153 
 Johnson v. Ronton, 1295 
 Johnson v. Royal Mail. S. P. Co., 399, 
 
 410 
 Johnson v, Stear, 395, 461, 553, 1188 
 
 Johnson v. Upham, 661 
 
 Johnson v. Windle, 423 
 
 Johnston v. Ronton, 27 
 
 Johnstone v. Sutton, 39, 43, 751, 764 
 
 Jolly V. Arbuthnot, 634 
 
 Jolly V. Wimbledon, etc., Railway Co., 
 
 901 
 Jombart v. WooHett, 437 
 Jones V. Bewicke, 991 
 Jones V. Bird, 213, 716, 874, 886 
 Jones V. Bowden, 1032 
 Jones V. Boyce, 578 
 Jones V. Bright, 1013, 1021 
 Jones V. Brown, 407> 1096 
 Jcines V. Carmarthen (Mayor of), 68 
 Jones v. Carter, 386 
 Jones V. Chapman, 360, 375 
 Jones V. Davies, 450 
 Jones V. Dowle, 557, 563 
 Jones V. East. Co. Rail. Co., 631 
 Jones V. Festiniog Rail. Co., 307 
 Jones V, Gooday, 383, 918 
 Jones V. Harber, 425, 426, 427 
 Jones V. Hart, 447 
 Jones V. Howell, 713 
 Jones V. Johnson, 868 
 Jones V. Jones, 234, 235, 831, 1051, 
 
 1245 
 Jones V. Lewis, 1191 
 Jones V. Mackie, 1209 
 Jones V. Morris, 680 
 Jones V. NichoUs, 716 
 Jones V. Owen, 836, 1239 
 Jones V. Pierce, 59 
 Jones V. Pearle, 551, 61"7 
 Jones V. Perry, 231 * 
 
 Jones V. Pope, 811,, 814 
 Jones V. Powell, 192, 194 
 Jones V. Price, 364, 366 
 Jones V. Pritchard, 971 
 Jonps V. Sawkins, 667 
 Jones V. Smith, 1154 
 Jones V. Sparrow, 1201 
 Jones V. Stevens, 995 
 Jones v. Tapling, 153, 163, 188 
 Jones v. Tarleton, 1173 
 Jones V. Thurloe, 617 
 Jones V. Tyler, 613, 622 
 Jones V. Vaughan, 866 
 Jones V. Williams, 235, 800, 813, 1211, 
 
 1212 
 Jones V. Wood, 815 
 Jordan v. Moore, 67 
 Jordin v. Crump, 200 
 Jory V. Orchard, 878 
 Joseph v. Henry, 1239 
 Joule V. Jackson, 648, 650 
 Joule v. Taylor, 913 
 Joyce V. Fonkes, 647 
 Jubb V. Hull Dock Co., 896, 903 
 Judge V. Cox, 255 
 Judson V. Etheridge, 539 
 Jupe v. Pratt, 64 
 Jiistice V. Gosling, 706 
 
TABLE OF ENGLISH CASES CITED. 
 
 evil 
 
 Kavanagh v. Gudge, 362, 376 
 
 Kay V. Grover, 867 
 
 Kay V. Marshall, 67 
 
 Kay V. "Wheeler, 529 
 
 Keane, Re, 547 
 
 Kearney v. Lond. & Brighton Rail., 23, 
 
 514 
 Kearns v. Cordwainer's Co., 210 
 Keats V. Keats, 1070 
 Keeble v. Hickeringill, 13, 15, 192 
 Keech v. Keech, 1066 
 Keen v. Priest, 644, 688 
 Keene v. Dilk, 464 
 Keighley v. Bell, 730, 755, 934 
 Keightley v. Birch, 817 
 Kelcey t. Stupples, 1215 
 Kelk V. Pearson, 183, 188 
 Kelly V. Button, 53 
 Kelly V. KeUy, 1062 
 Kelly V. Lawrence, 794 
 Kelly V. Moray, 1113 
 KeUy V. Morris, 52, 53 
 KeUy V. Partington, 986 
 KeUy V. Sherlock, 993 
 KeUy V. Tinling, 951 
 Kelsack v. Nicholson, 561 
 Kemp V. Balne, 1248 
 Kemp V. Burt, 499 
 Kemp V. NeviUe, 698, 770, 776 
 Kemp V. Rose, 771, 773 
 Kempston v. Butler, 112, 149 
 KendaU v. King, 1292 
 KendaUiiE. Wilkinson, 856 
 Kendillon v. Maltby, 964, 968 
 Kennedy v. Panama Steam Co., 1012 
 Kent V. Astley, 490 
 Kent V. Freehold Land Co., 1011 
 Kent V. Gt. Westera RaU. Co., 914 
 Kent V. Shuckard, 611 
 Kent Coast Rail. Co. v. Lend., Chatham 
 
 and Dover Rail. Co., 922 
 Kenyon v. Hart, 9 
 Keppel V. Bailey, 118, 119 
 Kerbey v. Denby, 786 
 Kerby v. Harding, 663 
 Kerford v. Mondel, 401, 408 
 Kernaghan v. WiUiams, 1230 
 Kershaw v. Bailey, 965 
 Key, JBx parte, 428 
 Key V. Flint, 540, 543 
 Keyn.sham Blue Lias Co. v. Baker, 1138 
 Keyse v. Powell, 330 
 Keyworth v. Hill, 448, 1124 
 KiddeU v. Burnard, 1044 
 KidgiU V. Moore, 175, 178 
 Kimberly v. Dick, 771 
 Kimbray v. Draper 1 189 
 Kimpton V. Wiley, 1239, 1244 
 Kine v. Evershed, 713, 714 
 King (The) v. Watts, 273 
 King V. England, 660, 666 
 King V. Hoare, 1158 
 
 King V. Lake, 953, 959 
 
 Bang V. Milsom, 405 
 
 King V. Rose, 393 
 
 Kingsford v. Merry, 421, 422 
 
 Kingsley, In re, 1059 , 
 
 Kingston's (Dutches of) Case, 859 
 
 Kinloch v. Craig, 544 
 
 Kinloch v. Nevile, 368 
 
 Kinlyside v. Thornton, 280 
 
 Kinning v. Buchanan, 810 
 
 Kirby v. Simpson, 870, 873, 874, 877 
 
 Kirkin v. Jenkins, 839 
 
 Kirkley v. Hodgson, 432 
 
 Kirkman v. Shawcross, 548 
 
 Kitchen v. Campbell, 1156 
 
 Kite and Lane's case, 849 
 
 Knapman v. Pryer, 1211 
 
 Knapp V. Lond., Chatham and Dover 
 
 Rail. Co., 895, 900 
 Knapp V. Salisbury, 723 
 Knight V. Bennett, 637 
 Knight V. Cox, 685 
 Knight V. Egerton, 688 
 Knight V. Fox, 246 
 Knight V. Gibbs, 963 
 Knight V. Mosely, 318 
 Knight V. Quarles, 499, 1112 
 Knight V. Waterford (Marquis), 1175 
 Knock V. Metropolitan Rail. Co., 901 
 Knott V. Morgan, 1053 
 Knowles v. Holden, 1245 
 Knowles v. Richardson, 4 
 Kramer v. Waymark, 26 
 Krehl v. Gt. Central Gas Co., 426 
 Kruger v. Wilcox, 543 
 Kynaston v. Crouch, 450 
 
 L V. H , 1087 
 
 Labalmondiere v. Addison, 236 
 
 Labalmondiere v. Frost, 236, 847 
 
 Laclough V. Towle, 626 
 
 Lacon v. Litfen, 426 
 
 Lacy V. Rhys, 56 
 
 Ladd V. Thomas, 661 
 
 Lade v. Shepherd, 332 
 
 Ladyman v. Grave, 137, 152 
 
 Lafone v. Smith, 979, 1208 
 
 Laing v. Whaley, 81, 87, 177 
 
 Laii-d V. Birkenhead Rail. Co., 186, 362 
 
 Lake v. King, 935 
 
 Lake v. Smith, 1124 
 
 Lamb's Case, 980 
 
 Lamb v. Burnett, 727 
 
 Lamb V. Palk, 477 
 
 Lambert v. Buckmaster, 546 
 
 Lambert v. Hepworth, 681 
 
 Lamb v. Hodgson, 1167 
 
 Lamb v. Robinson, 602 
 
 La Mert, Ex parte, 1271 
 
 Lampen v. Kedgewin, 1158 
 
 Lancaster v. Eve, 282, 296 
 
CVlll 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Lane. Canal Co., Ex parte, 432 
 ' Lane. Canal Co. v. Pai-naby, 203, 221 
 Lane. Waggon Co. v. Fitzhugh, 396, 
 
 1167 
 Lane, and York Rail. Co. v. Evans, 909 
 Land v. North, 561 
 Land Credit Co. of Ireland v. Fermoy 
 
 (Lord), 502 
 Landens v. Shiel, 1254 
 Lane v. Applegate, 1155 
 Lane v. Cotton, 20 
 Lane v. Dixon, 371 
 Lane v. Tewson, 451, 559 
 Lanfranchi v. Mackenzie, 153, 187, 189 
 Lang V. Gisborne, 1230 
 Langford v. Foot, 788 
 Langford v. Selmes, 635 
 Langley v. Hammond, 168 
 Langley v. Heajdland, 546 
 Langmead, In re, 433 
 Langridge v. Levy, 35, 1004, 1006, 1035 
 Langton v. Waite, '408 
 Lanphier v. Phipos, 496 
 Lansdowne v. Lansdowne, 286 
 Lanyon v. Blanchard, 550 
 Latch V. Rumner Rail. Co., 470, 472 
 Latham v. Rutley, 625 
 Lathropp v. Marsh, 317 
 Laugher v. Brefitt, 462 
 Laugher v. Pointer, 31, 478 
 Laughton v. Taylor, 1155 
 Laveraek v. Bean, 1248 
 Laveroni v. Drury, 529 
 Law V. Dodd, 918 
 
 Lawford v. Partridge, 1140, 1206, 1245 
 Lawless v. Anglo-Egypt. Cotton Co., 933, 
 
 945 
 Lawrence v. Gt. jSTorthern Rail. Co., 883, 
 
 884, 906, 909, 1192 
 Lawrence v. Hedger, 699 
 Lawrence v. Hitch, 17 
 Lawrence v. King, 237 
 Lawrence v. Obee, 162 
 Lawrenson v. Hill, 835, 838, 852, 868, 
 
 870, 872 
 Lawson v. Carr, 488 
 Lawson v. Dickenson, 547 
 Lawson v. London (Bank of), 1030 
 Lawson v. Weston, 404, 423 
 Lawton V. Lawton, 297 
 Layton v. HuiTy, 670 
 Lea V. Rossi, 791 
 Leach v. Thomas, 295, 1185 
 Leader, The, 547 
 Leader v. Homewood, 299 
 Leader v. Moxon, 39, 887, 899 
 Leader v. Rhys. 1214 
 Leake v. Loveday, 451 
 Leame v. Bray, 2, 302, 393, 416, 512 
 Leary v. Patrick, 834, 853, 869 
 Leather v. Simpson, 1026, 1046 
 Leather Cloth Co. v. American Cloth 
 
 Co., 1051, 1054 
 Leather Cloth Co. v. Hirschfleld, 11 
 
 Leatt V. Vine, 842 
 
 Leek V. Maestaer, 528 
 
 Leconfield (Lord) v. Dixon, 101 
 
 Le Couteur v. Lond. and S. W. Rail. 
 
 Co., 570, 582 
 Lee, Bx parte, 1260 
 Lee V. Bayes, 41, 401, 418, 554 
 Lee V. Cooke, 658 
 Lee V. Gansell, 785 
 Lee V. Haley, 1051 
 Lee V. Jones, 35 
 
 Lee V. Lane, and York. Rail., 1154 
 Lee V. Lopes, 793 
 Lee V. Milner, 905 
 Lee V. Riley, 29, 324 
 Lee V. Robinson, 401 
 Lee V. Smith, 638 
 Lee V. Stevenson, 99, 113, 116 
 Lee V. Vessey, 867 
 Leech v. North Staffordshire Rail. Co., 
 
 220 
 Leeds (Duke of) v. Lord Amherst, 286 
 Leete v. Harte, 713, 714, 715 
 Lette V. Leete, 1061 
 Le Fanu v. Malcolmson, 971, 984, 1115 
 Legg V, Evans, 551 
 Legg V. Pardoe, 842 
 Legge V. Tucker, 1212 
 Lehmann v. McArthur, 19 
 Leicester (Earl of) v. Walter, 995 
 Leigh V. Shepherd, 641 
 Leigh V. Smith, 531 
 Leigh V. Webb, 749 
 Leith V. Pope, 768 
 Lempriere v. Humphry, 376 ji 
 Lempriere v. Lempriere, 1067^ 
 Lempriere v. Pasley, 435, 541 
 Le Neve v. Mile End, etc.. Vestry, 206, 
 
 271, 272 
 Le Roy v. Campion, 1273 
 Leslie v. Guthrie, 430 
 LesUe v. Pound, 197, 211, 245 
 Lester V. Garland, 716 
 Lestrange v. Rowe, 347 
 Lethbridge v. Phillip^, 400 
 Lethbridge v. Winter, 268 
 Letton V. Goodden, 15 
 Leuckhart v. Cooper, 543, 549, 560 
 Levi V. Sanderson, 1211 
 Levy V. Edwards, 703 
 Levy V. Langridge, 35 
 Levy V. Moylan, 776 
 Levy V. Rice, 1147 
 Levy V. Rutley, 53, 54 
 Leward v. Baseley, 727 
 Lewis, Jix parte, 441 
 Lewis V. Alcock, 812 
 Lewis V. Branthwaite, 330 
 Lewis V. Clement, 947 
 Lewis V. Davis, 65 
 Lewis v. Great West. Co., 590 
 Lewis V. Harris, 640 
 Lewis V. Levy, 772, 829, 935, 947, 977 
 Lewis v. Marling, 59, 67 
 
TABLE OF ENGLISB CASES CITED. 
 
 CIX 
 
 Lewis V. Peake. 1190 
 
 Lewis V. Read, 676 
 
 Lewis V. Rochester (Mayor of), 891 
 
 Lewis V. Walter, 946, 964 
 
 Lexden Un. v. Southgate, 1242 
 
 Ley V. Peter, 339 
 
 Liddard v. Kain, 1013, 1015 
 
 Lidster v. Borrow, 714 
 
 Liford's Case, 104, 118, 374 
 
 Liggins V. Inge, 89, 100, 161 
 
 Lightfoot V. Keane, 547 
 
 Lilley v. Harvey, 1141 
 
 Lillie V. Pi-ice, 977 
 
 Limpus V. Lond. Gen. Omu. Co. (Lim- 
 ited), 34, 477 
 
 Lindon v. Hooper, 666 
 
 Lindsay v. Leigh, 847 
 
 Linford v. Gudgeon, 806 
 
 Linford v. Lalie, 734, 737, 1195 
 
 Lingard v. Messiter, 432 
 
 Lingham v. Biggs, 431, 482 
 
 Lingwood v. Gyde, 124 
 
 Lingwood v. Stowmarket Paper Co., 92 
 
 Lion, The, 481 
 
 Litchfield V. Ready, 375 
 
 Littledale, Ex parte, 433 
 
 Littledale v. Scaith, 414 
 
 Liverpool (Mayor of), JUx parte, 233 
 
 Liverpool Adelphi, etc. v. Fairhurst, 44, 
 1031, 1125, 1153 
 
 Liverpool New Cattle Market v. Hudson, 
 194 
 
 Liverpool (Rector of), HJx parte, 344 
 
 Livesay v. Hood, 438 
 
 Livett V. Wilson, 136, 347 
 
 Llandaff,«tc., Market Co. v. Lyndon, 17 
 
 Lloyd, Bx parte, 431 
 
 Lloyd V. Burrap, 49 
 
 Lloyd V. Peell, 1130 
 
 Lloyd V. Sandilands, 785 
 
 Lloyd V. Screw Collier Co., 487 
 
 Load V. Green, 439, 541 
 
 Lock V. Askton, 734 
 
 Locke V. Matthews, 343 
 
 Lockley v. Pye, 461 
 
 Loeschman v. Machin, 445, 511 
 
 Lomax v. Buxton, 427 
 
 London's (Bishop of) Case, 413 
 
 London (Bishop of) v. Web, 286, 316 
 
 London (City of) v. Pugh, 317 
 
 London (City of) v. Wood, 773 
 
 London, Chatham & Dover Railway, He, 
 923 
 
 London (Mayor of) v. Cox, 1237, 1239 
 
 London (Mayor of) v. Hedger, 316 
 
 London & N. W. R. Co. v. Ackroyd, 109 
 
 London & JST. W. R. Co. v. Bartlett, 594 
 
 London & N. W. R. Co. v. Bradley, 882, 
 902, 909 
 
 London & N. W. R. Co. v. Lancashire, 
 etc.. Rail. Co., 187, 389 
 
 London & N. W. R. Co. v. Skerton 220 
 
 London & N. W. R. Co. v. Smith, 903 
 
 Ltodon &S..W. Rwy. v. Blackmore, 910 
 
 London & West. Loan, etc., Co., 300 
 
 London Cotton Co., Me, 789 
 
 London & Devon Biscuit Co., Re, 789 
 
 London & Provincial Tel. Co., Me, 1179 
 
 Long V. Orsi, 499 
 
 Longbottom v. Berry, 300, 644 
 
 Longbottom v. Longbottom, 1244 
 
 Longford v. Ellis, 1130 
 
 Longman v. Tripp, 431 
 
 Longmeid v. HoUiday, 1036, 1103, 1108 
 
 Longmore v. Great West. Rail. Co., 219 
 
 Lonsdale (Earl) v. Curwen, 388 
 
 Lonsdale v. Nelson, 235 
 
 Lonsdale v. Rigg, 413 
 
 Looker v. Halcomb, 702 
 
 Loosemore v. Radford, 1191 
 
 Lopes V. De Tastet, 512 
 
 Lord V. Mid. Rail. Co., 593 
 
 Lord V. Sidney (Commrs. of), 350 
 
 Loring v. Warburton, 661 
 
 Losh V. Hague, 61, 67 
 
 Lotan V. Cross, 446 
 
 Loton V. Devereux, 821 
 
 Louis V. Louis, 1066 
 
 Lousley v. Hayward, 135 
 
 Lovegrove v. Lond. & Brighton Rail. 
 
 Co., 492 
 Lovegrove v. White, 500 
 Lovell v. Martin, 428 
 Lovell V. Smith, 164 
 Lover v. Davidson, 55 
 Leveling v. Lovering, 1069 
 Lovett V. Hobbs, 571, 624 
 Low V. Rutledge, 52 
 Low V. Ward, 52, 53 
 Lowe V. Carpenter, 154 
 Lowe V. Govett, 349 
 Lowe's Case, 1294 
 Loweth V. Smith, 726 ♦ 
 
 Lowiy V. Guildford, 498 
 Luwther v. Radnor (Earl), 830 
 Lucan (Earl) v. Smith, 977 
 Lucas V. Doi-iien, 544, 545 
 Lucas V. Lond. Dock Co., 448 
 Lucas V. Tarleton, 665, 677, 683, 684. 
 
 688' 
 Ludlow V. Browning, 440 
 Lukin V. Godsall, 257, 315 
 Lumby v. AUday, 960, 990 
 Lumley v. Gye, 11, 37, 1088, 1098 
 Lumsden's Case, 1294 
 Lunde'Granite Co., Me, 635, 650 
 iJunn V. Thornton, 118 
 Lunt V. Lond. & North Rail. Co., 474 
 Lutterell v. Reynell, 41 
 LuttreU's Case, 128 
 Lycett V. Staff. & Uttox. Rail., 922 
 Lyde v. Barnard, 1008 
 Lygo V. Newbold, 494 
 Lyme Regis (Mayor, etc., of) v. Henley, 
 
 68, 1117 
 Lynch v. Knight, 5, 44, 954, 961 
 Lynch v. Nurdin, 8, 26, 494, 511, 517 
 Lyne, Ex parte, 706 
 
ex 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Lyne v. Leonard, 239 
 
 Lyne v. Siesfeld, 1151 
 
 Lynvi Co., Ex parte, 424 
 
 Lynvi v. Brogden, 383 
 
 Lyou V. Knowles, 56 
 
 Lyon V. Mells, 590 
 
 Lyon V. Tomkies, 664 
 
 Lyons v. Blenkin, 1074 
 
 Lyons v. Martin, 676 
 
 Lysney v. Silby, 1014, 1018, 1039, 1042 
 
 Lythgoe v. Vernon, 44 
 
 M 
 
 Maauss v. Henderson, 550 
 
 M'Cance v. Lond. & N. "W. Rail. Co., 
 
 592, 627, 1178 
 MacCarthy v. Young, 22, 524 
 M'Clellan, Ex paHe, 1074 
 Mi'Combie v. Davies, 397 
 Macrae v. Clark, 820 
 M'Crea v. Holdsworth, 56, 57 
 M'Curday v. DriscoU, 726 
 M'Dermott v. Justices of British Guiana, 
 
 859 
 M'Donald v. Rooke, 745 
 M'Donald v. Thompson, 424 
 M'Donnell v. Evans, 1170 
 M'Donnell v. M'Kinty, 835 
 Macdougal v. Patterson, 1209, 1214 
 M'Dougall V. Claridge, 941 
 M'Eniry v. Watei-ford, 492 
 M'Padzeu v. Mayor, etc., of Liverpool, 
 
 761 
 M'Gregor v. Deal & Dover Rail. Co., 
 
 1027 
 M'Gregor v. Galsworthy, 716 
 M'Gregor v. Gregory, 979 
 M'Gregor v. Thwaites, 772, 927, 948 
 Mackay v. Ford, 966 
 McKean v. M'lvor, 594 
 McKenzie v. M'Leod, 308 
 M'Kewen v. Cotching, 455 
 M'Kinnon v. Penson, 888 
 M'Kone v. Wood, 230 
 M'Laughlin v. Pryor, 478 
 M'Leish v. Tafe, 637 
 M'Leod V. M'Ghie, 462 
 M'Manus v. Ci-ickett, 33, 476 
 M'Manus v. Lane, etc.. Rail. Co., 589, 
 
 590, 592 
 M'Murray v. Wright, 1156 
 McNiel's Case, 1011 
 M'Pherson v. Daniels, 964, 972, 976, 979, 
 
 991 
 M'Swiney v. Haynes, 94, 106, 170 
 Mace V. Cammel, 433 
 Mace V. Philcox, 47, 133, 347 
 Machell v. Ellis, 675 
 Machu V. L. & S. W. Rail. Co., 586 
 Mackhn v. Richardson, 1231 
 Macrow v. Gt. West. Rwy., 570 
 Madrid Bank, He, 1011 
 
 Magdalena Steam Navig. Co. v. Martin, 
 
 1149 
 Magnay v. Burt, 752, 757, 796 
 Magnay v. Monger, 796 
 Magor V. Chadwick, 146 
 Mahoney v. Widows' Life Ass., 1154 
 Maitland v. Goldney, 972, 983 
 Major V. Pai'k Lane Co., 286 
 Malachy v. Soper, 969 
 MaU Ivo, The, 483, 1155 
 Mallam v.'Arden, 639 
 Mallinson v. Mallinson, 1065, 1073 
 Manby v. Scott, 1126 
 Manby v. Witt, 942 
 Manceaux, Ex parte, 63 
 Manchester & Altr. Bail. Co. v. FuUar- 
 
 ton, 882, 885 
 Manchester & Sheff., etc., Rail. Co. v. 
 
 Worksop Board of Health, 892 
 Man., SheflF, & Lin. Rail. Co. v. Wallis, 
 
 215, 668 
 Man., Sheff. & Lin. Rail. Co. v. Wood, 
 
 241 
 Manders v. Williams, 446, 553 
 Mangan v. Atterton, 26 
 Manley v. Field, 1091 
 Manley v. St. Helen's Can. & Rail Co., 
 
 222, 884 
 Manu V. Forrester, 544, 549 
 Mann v. Shniffner, 544 
 Manning v. Clement, 991 
 Manning v. Farquharson, 1239, 1246 
 Manning v. Wasdale, 96 ' 
 Mansergh v. In re, 776 
 Manton v. Moare, 435 
 Manton v. Pai'ker, 62 
 March v. March, 1071, 1074 ■ 
 Marchmont v. Marchmont, 1081 
 Marfell v. South Wales Rail. Co., 214, 
 
 217, 221 
 Margate Pier Company (The) v. Han- 
 
 nam, 834 
 Margetson v. Wright, 1013 
 Maria, The, 481 
 Marker v. Kenrick, 280 
 Markham v. Cobb, 41 
 Marks v. Lahee, 1175 
 Marks v. Peldman, 426 
 Marlborough (Duke of) v. Saint John, 
 
 288, 3lS 
 Marrable, Ex parte, 434 
 Marriott v. Lond. & S. W. Rail. Co., 630 
 Marris v. Man-is, 1070 
 Marsh v. Conquest, 56 
 Marsh v. Dewes, 1140 
 Marsh v. Loader, 698 
 Marsh v. Marsh, 1071 
 Marshall v. Martin, 1208 
 Marshall v. Moran, 481 
 Marshall v. Ross, 1055 
 Marshall v. Ulleswater, 349 
 Marshall v. Watson, 319 
 Marshall v. York, Newcastle, etc.. Rail. 
 
 Co., 578, 620, 1103 
 
TABLE OF ENGLISB CASES CITED. 
 
 CXI 
 
 Mii.rshalsea (The) Case, 803 
 
 Marson v. Lond., Chat. & Dover Rail. 
 
 Co., 911 
 Martin, Ex paifte, 439 
 Martin v. Bell, 815 
 Martin v. Gilham, 283, 311 
 Martin v. Great Ind. Peninsul. Rail. 
 
 Co., 569 
 Martin v. Great North Rail Co., 218, 
 
 494 
 Martin v. Headon, 187, 188 
 Martin v. Kennedy, 1156 
 Martin v. Porter, 388 
 Martin v. Pridgeon, 839 
 Martin v. Roe, 289, 292 
 Martin v. Shopper, 690 
 Martin v. Strong, 943 
 Martin v. Temperley, 507 
 Martindale v. Smith, 395 
 Martini v. Coles, 1105 
 Martins v. Upcher 716, 874 
 Martyn v. Knowles, 290, 1104, 1116 
 Martyn v. Williams, 119, 1181 
 Martyr v. Bradley, 298, 311 
 Mai-y's (Robert) Case, 718 
 Mary Caroline, The, 518 
 Marzetti v. Williams, 11, 18 
 Mason v. Barker, 879 
 Mason v. Bii'kenhead Com., etc., 913 
 Mason v. Csesar, 235 
 Mason v. Faraell, 559, 560 
 Mason v. Hill, 77 
 Mason v. Keeling, 230, 324, 329 
 Mason v. MitcheU, 1058 
 Mason v. Newland, 675 
 Mason v. Paynter, 780, 819 
 Mason v. Sainsbui-y, 1198 
 Mason v. Shi'ewsbury & Hereford Rail., 
 
 77, 139, 147 
 Mason v. Tucker, 1214 
 Massam v. Hunter, 166 
 Massey, Re, 547 
 Massey v. Goyder, 213 
 Massey v. Johnson, 847, 864, 872 
 Massey v. Sladen, 410 
 Masterman, Ex parte, 433 
 Masters v. Farris, 687, 1199 
 Mather v. Lay, 429 
 Mathers v. Green, 66 
 Mathew v. Sherwell, 462 
 Mathieson v. Harrod, 58 
 Matson v. Cooke, 372 
 Matthews v. Hopping, 534 
 Matthias v. Mesnard, 648 
 Matts V. Hawkins, 354 
 Maughan v. Sharpe, 526 
 Maund v. Monm. Rail. Co., 1117 
 Maunder v. Venn, 1096 
 Mawby, Ex parte, 1271 
 Maxwell v. Hogg, 53, 1051, 1232 
 May, Ex parte, 845, 857 
 May V. Brown, 986 
 May V. Burdett, 229, 250 
 May V. Footner, 1182 
 
 May V. Great West. Rail., 911 
 
 May V. Harvey, 555 
 
 Mayall v. Higby, 13, 1239 
 
 Mayer v. Burgess, 1252 
 
 Mayhew v. Fames, 24 
 
 Mayhew v. Herrick, 406 
 
 Mayhew v. Locke, 834 
 
 Mayhew v. Maxwell, 52 
 
 Mayhew v. Nelson, 584 
 
 Mayhew v. Suttle, 335, 446 
 
 Maynard v. Moseley, 1019 
 
 Mears v. Lond. & S. W. Rail., Co., 445, 
 
 505, 553 
 Mechelen v. Wallace, 638 
 Med. Nav. Co. v. Romney (Earl of), 84 
 Medina v. Stoughton, 1020 
 Melling v. Leak, 337 
 Mellor V. Baddeley, 751 
 Mellor V. Leather, 678, 711, 808 
 Mellor V. Spateman, 129 
 Mellors v. Shaw, 223, 226, 489 
 Melville v. Doidge, 533 
 Melvina, The, 504 
 Mennie v. Blake, 672, 673 
 Mercer v. Jones, 462 
 Mercer v. Peterson, 410 ^ 
 
 Mercer v. Stanbury, 1148 
 Mercer v. Whall, 1168 
 Mercer v. Woodgate, 206 
 Merest v. Harvey, 7, 322, 882, 1192 
 Meriton v. Coombes, 323, 331, 361 
 Merivale v. Exeter Turnp. Rd. (Trustees 
 
 of), 193, 276 
 Merryweather v. Nixon, 1197 
 Mersey Dock Tras'ees v. Gibbs, 888 
 Mersey Dock v. Penhallow, 222 
 Meryweather v. Turner, 984 
 Mesnard v. Aldridge, 1043 
 Messiter v. Roe, 1150 
 Metcalf V. Hetherington, 178, 249 
 Metcalf V. Lond. & Bri., etc., Rail. Co., 
 
 556, 586, 625 
 Metcalf V. Lumsden, 418 
 Metcalf V. Westaway, 40] 
 Metropolitan Associat. v. Petch, 175, 
 
 180, 188, 249 
 Metropolitan Bd. of Works v. Metro. 
 
 Rail. Co., 107 
 Metropolitan Co. Ins. Soc. v. Brown, 298 
 Metropolitan Rail. Co. v. Tumham, 1222 
 Metropolitan Saloon Om. Co. v. Hawkins, 
 
 929, 976, 992 
 Meyer v. Everth, 1043 
 Meyerstein v. Barber, 422 
 Meynell v. Angell, 557 
 Michael v. Alesti-ee, 480 
 Michell V. Brown, 239 
 Michell V. Hughes, 1113 
 Michell V. Williams, 746, 758 
 Micklethwaite v. Micklethwaite, 286 
 Middlesex, Sheriff of, Ex parte, 425 
 Middleton v. Fowler, 624 
 Midi. Rail. Co. v. Checkley, 109 
 Midi. Rail. Co. v. Daykin, 216 
 
cxu 
 
 TAJBnE OF ENGLISB CASES CITED. 
 
 ■Midi. Rail. Co. v. Pye, 1059 
 
 Midi. Rail. Co. v. Taylor, 1273 
 
 Midelton v. Gale, 869 
 
 Milan, The, 405, 480, 484, 487, 504, 519 
 
 Mil burn v. L. & S. "W. Rail., 486 
 
 Mildred v. Weaver, 267 
 
 Miles V. Cattle, 628 
 
 Milford V. Milford, 1062, 1072, 1073 
 
 Milgate v. Kebble, 409 
 
 Mill V. New Forest Coram., 142 
 
 Millar v. Taylor, 51 
 
 Miller v. Miller, 1097 
 
 Miller v. Race, 404, 405, 422 
 
 Milligan v. Pioken, 56 
 
 Milligan v. Wedge, 508 
 
 Millington v. Fox, 1051 
 
 Mills V. Colchester (Mayor of), 100, 121 
 
 Mills V. CoUett, 836 
 
 Mills V. Graham, 1127 
 
 Milman v. Dolwell, 450 
 
 Milne v. Leisler, 1176 
 
 Milne v. Marwood, 1006, 1007 
 
 Milne v. Milne, 1071, 1087 
 
 Milner, ISx parte, 1259 
 
 Milner v. Milner, 1067 
 
 Milner v. Milnes, 1107 
 
 Milton V. Green, 866 
 
 Miner v. Gilmour, 78, 116 
 
 Minet v. Morgan, 190 
 
 Minna, The,. 481, 504 
 
 Minor v. Lond. & N. W. Rail. Co 1138 
 
 MinshuU v. Lloyd, 815 
 
 Minter v. Wells, 61, 62 
 
 Minter v. Williams, 65 
 
 Mires v. Solebay, 401 
 
 Mitchell V. Crassweller, 477, 1149, 1181 
 
 Mitchell V. Foster, 839 
 
 Mitchell V. Jenkin.s, 764 
 
 Mitchell V. Tarbutt, 359, 1131 
 
 Mitten v. Paudrye, 393 
 
 Mobbs V. Vandenbrande, 1204 
 
 Mody V. Gregson, 1024 
 
 Moffat V. Bateman, 23, 476 
 
 Mold V. Wheatcroft, 186, 1228 
 
 Molesworth v. Robbing, 547 
 
 Money v. Leach, 867 
 
 Moneypenny v. Hartland, 495 
 
 Monk V. Sharp, 425 
 
 Monkton v. Ashley, 730 
 
 Monmouth Canal Co. v. Harford, 367 
 
 Monm. Can. & Rail. Co. v. Hill, 352 
 
 Monprivatt v. Smith, 1167 
 
 Moody V. Spencer, 546 
 
 Moody V. Steward, 1226 
 
 Moon V. Raphael, 462 
 
 Moone v. Rbse, 805 
 
 Moore v. Gt. South & West. Rail.Co., 902 
 
 Moore v. Meagher, 975 
 
 Moore v. Plymouth (Earl), 363 
 
 Moore v. Rawson, 160, 162 
 
 Moore v. Robinson, 1105 
 
 Moore v. Watson, 1213, 1215 
 
 Moore v. Wilson, 620 
 
 Morant v. Chamberlain, 206, 272 
 
 Mordaunt v. Mordaunt, 1068 
 
 Mordeu v. Porter, 842 
 
 Moreland v. Richardson, 1230 
 
 Moreton v. Harden, 511 
 
 Moreton v. Holt, 1248 
 
 Morgan v. Cubitt, 1107 
 
 Morgan v. Hughes, 719, 836 
 
 Morgan v. Knight, 1113 
 
 Morgan v. Lingen, 929 
 
 Morgan v. Marquis, 407, 559 
 
 Morgan v. Met. Rail. Co. 900, 904, 1278, 
 
 1290 
 Morgan v. Palmer, 873 
 Morgan v. Powell, 383 
 MiDrgan v, Ravey, 607, 613 
 Morgan v. Seaward, 55, 62, 68 
 Morgan v. Sim, 23 
 Morgan v. Steble, 1114 
 Morgan v. Vale of Neath R. Co., 491, 493 
 Moriarty v. L. C. & D. Rail., 516 
 Morison v. Salmon, 1039, 1045, 1210 
 Morland v. Cook, 132 
 Morley v. Attenborough, 418, 422, 1020 
 Morley v. Pincombe, 645 
 Morley v. Pragnall, 192 
 Morphett v. Morphett, 1063 
 Morrell v. Martin, 868 
 Morris v. Ashbee, 53 
 Morris v. Branson, 65 
 Morris v. Cannan, 433 
 Morris v. ^dgington, 103, 105 
 Morris v. Miller, 1082 
 Morris v. Morris, 286, 316 
 Morris v. Nugent, 231 
 Morris v. Ogden, 849 
 Morris v. Reynolds, 771 
 Monis V. Robinson, 1161 
 Morris v. Wright, 53 
 Morrish v. Murray, 783 
 Moriison, Hx parte, 546 
 Morrison v. Gen. St. Nav. Co., 484 
 Morse v. James, 813 
 Mortimer v. Cottrell, 387 
 Mortimer v. Cradock, 459, 1186 
 Mortimer v. S. W. Rail. Co., 908 
 Mortimer v. Wright, 1080 
 Morton v. Woods, 935, 637 
 Mosley v. Fosset, 532 
 Moss, Me, 547 
 Moss V. Tovynsend, 617 
 Mossop V. Gt. North. Rail. Co., 1245 
 Mostyn v. Fabrigas, 88, 40, 1149 
 Motley V. Downman, 1054 
 Motteram v. E. Co. Rail. Co., 846 
 Moule V. Garrett, 19 
 Mounsey v. Ismay, 122, 141, 879 
 Mount V. Taylor, 1211 
 Mountjoy's Case, 120 
 Mountjoy v. Wood, 778 
 Mountney v. Watton, 979 
 Mountnoy v. Collier, 1141, 1143 
 Mourilyan v. Labalmondiere, 236 
 Mouse's Case, 606 
 Muir V. Fleming, 540 
 
TABLE OF ENGLISH CASES CITED. 
 
 CXUl 
 
 Mulkern v. Ward, 929 
 Muller V. Moss, 433 
 Mullet V. Challis, 781 
 MuUett V. Mason, 1032, 1047 
 Mumford v. Oxford, Wore. & Wolv. Rail. 
 
 Co., 244 
 Mummery v. Paul, 1040 
 Mungean v. Wheatley, 674, 1245, 1253 
 Munns v. Isle of Wight Rail., 922 
 Munro v. Butt, 496 
 Munster v. S. E. Rail. Co., 588, 599 
 Murchie v. Black, 73, 76 
 Mure V. Kaye, 728 
 
 Murgatroyd v. Robinson," 81, 198, 251 
 Murish v. Murray, 1145 
 Murly V. M'Dermott, 354 
 Murpby v. CaraUi, 509 
 Murray, JEx parte, 438 
 Murray v. Currie, 509 
 Murray v. Hall, 354, 357 
 Muschamp v. Lan. & Prea. Rail. Co., 
 
 596 
 Musgrave's Case, 1294 
 Musgrave v. Bovey, 959 
 Musgrave v. Foi-ster, 101 
 Mushett V. Hill, 120 
 Muspratt v. Gregory, 647, 650 
 Mutton V. Young, 792 
 Myers v. L. & S. W. Rail., 568, 572 
 Myttou V. Mid. Rail. Co., 596, 599, 622 
 
 N 
 
 Napier, JSx parte, 1265 
 
 Nargett v. Nias, 645, 675, 677 
 
 Nash, Ex parte, 1273 
 
 Nash V. Dickenson, 788 
 
 Nash V. Lucas, 643 
 
 Nathan v. Buckland, 555 
 
 National Guar. Manure Co. v. Donald, 
 
 161 
 Naylor v. CoUinge, 298 
 Naylor v. Mangles, 543 
 Neale v. Cripps, 319 
 Neale v. Mackenzie, 636 
 Neat V. Harding, 442 
 Needham v. Rawbone, 395 
 Neilau v. Hanny, 395 
 Neilsou V. Betts, 1230 
 Nelson's Case, 167 
 Nelson v. Couch, 482, 504, 1162 
 Nelson v. Mackintosh, 534 
 Nepoter, The, 487 
 Neville, JEx parte, 496 
 Newbold v. Coltman, 844, 845 
 Newbould v. Met. Rail. Co., 897 
 New Bruns., etc.. Rail. Co. v. Cony- 
 
 beare, 1010, 1027 
 New Bruns., etc.. Rail. Co. v. Mugge- 
 
 ridge, 1010 
 Newby v. Colt's Firearms Co., 1117 
 Newby v. Harrison, 120, 121 
 Newcastle (Duke of) v. Clark, 373 
 
 Ad. — ^H 
 
 Newcastle (Duke of) v. Hundred of 
 Broxtowe, 383 
 
 Newcastle (Duke of) v. Morris, 796 
 
 Newcombe v. De Ross, 1244 
 
 Newman v. Bendyshe, 841 
 
 New River Co. v. Johnson, 897 
 
 Newsan v. Carr, 767 
 
 Newsome v. Newsome, 1070 
 
 Newton v. Beck, 415 
 
 Newton v. Boodle, 1223 
 
 Newton v. Cubitt, 16 
 
 Newton v. Ellis, 890, 915 
 
 Newton v. Harland, 331, 694, 786 
 
 Newton v. Holford, 1153 
 
 Newton v. Newton, 415, 545 
 
 Newton v. Rowe, 1208 
 
 Newton v. Scott, 635 
 
 NichoU V. Allen, 63 
 
 NichoU V. Darley, 798 
 
 NichoUs V. Chamberlain, 103 
 
 NichoUs V. Parker, 1174 
 
 Nicholson v. Great West. Rail. Co., 631 
 
 Nicholson v. Lane. & York. Rail. Co., 
 218 
 
 Nicholson v. Mouncey, 485 
 
 Nicholson v. Williams, 345 
 
 Nickhn v. Wilhams, 172 
 
 NicoU v. Glennie, 448, 1122, 1131 
 
 NicoUs V. Bastard, 446, 555, 620 
 
 Nightingale v. Adams, 672 
 
 Nixon V. Freeman, 643 
 
 Nixon V. Roberts, 482 
 
 Noden v. Johnson, 695, 726 
 
 Norbury (Lord) v. Kitchen, 78 
 
 Norman v. Westcombe, 682 
 
 Normand's Patent, 60 
 
 Normandy, The, 486 
 
 Norris v. Baker, 233 
 
 Norris v. Irish Land Co., 1273, 1275, 
 1290 
 
 Norris v. Seed, 709 
 
 Norris v. Staps, 46 
 
 Norris V. Williams, 537 
 
 North v. Cox, 129 
 
 North V. Gt. Northern Rail. Co., 1132 
 
 North V. Holroyd, 1244, 1252 
 
 North v. Miles, 816 
 
 North V. Smith, 33, 467 
 
 North-East Rail. Co. v. Crossland, 101, 
 110 
 
 North-East Rail. Co. v. Elliott, 108, 111, 
 189 
 
 Northam v. Bowden, 372, 453 
 
 North am v. Hurley, 177 
 
 Northampton's (Lord) Case, 979 
 
 Northampton (Mayor of) v. Ward, 332 
 
 Northumberland (Duke of) v. Hough- 
 ton, 348 
 
 Northumbria, The, 482 
 
 Norton v. NichoUs, 57 
 
 Norton v. Scholefield, 192, 250, 977 
 
 Norway v. Rowe, 319 
 
 Norwood v. Pitt, 713, 1218 
 
 Notara v. Henderson, 487 
 
CXIV 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Nott V. Nott, 1066 
 
 Nottingham's Town Clerk's Case, 1267 
 
 Novello V. Siidlow, 52 
 
 Nugent V. Vetzera, 1078 
 
 Nuova Raffaelina, The, 1144 
 
 Nuttall V. Bracewell, 82 
 
 Nuttall V. Staunton, 640 
 
 Nutting, Hx parte, 433 
 
 Nylander v. Barnes, 1225 
 
 
 
 Oakes v. Turquand, 1011 
 
 Oakes v. Wood, 693, 696, 732 
 
 Oakley v. Davis, 1168 
 
 Oakley v. Kensington Can. Co., 913 
 
 Oakley v. Ports, and Hyde St. Packet 
 
 Co., 575, 605 
 O'Brien v. Bryant, 991 
 O'Brien v. Clement, 978, 979 
 O'Brien v. Lewis, 546 
 Ogle V. Atkinson, 554 
 O'Hanlan v. Great West. Railway Co., 
 
 629 
 Ohrby v. Ryde Comm., 888 
 Ohrloff V. Briscall, 482 
 Oldacre v. Punt, 257 
 Oldham v. Langmead, 66 
 Oldham Bridge Co. v. Heald, 1138 
 Olivant v. Berino, 448 
 Olive V. Smith, 549 
 Oliver v. Bartlett, 481 
 Oliver v. OUver, 416, 561, 1062 
 OUiet V. Bessey, 774, 804 
 Onley v. Gardiner, 154, 159 
 
 Onslow V. , 317 
 
 Oppenheim v. Russell, 602 
 Oppenheim v. White Lion Hotel Co., 
 
 612 
 Opperman v. Smith, 653 
 Orchard v. Rackstraw, 539 
 Ord, ISx parte, 440 
 Orme v. Oi-me, 1060 
 Ormond v. Holland, 227 
 Ormrod v. Huth, 1005, 1023, 1024 
 Orpheus (The), 482 
 Orpwood V. Barkes, 983 
 Osbond V. Meadows, 9 
 Osbom V. Gough, 717 
 OsteU V. Lepage, 1155 
 Overend & Co. v. Gumey, 502, 1128 
 Overton v. Freeman, 246, 510 
 Owen V. Burnett, 584 
 Owen V. Knight, 451 
 Owen V. Legh, 661 
 Owen V. Lond. and N. W. Rail. Co., 
 
 1222 
 Owens V. Jones, 1139 
 Owens V. Woosnam, 1139 
 Oxlade, In re, 572 
 Oxlade v. North-Eastem Railway Co., 
 
 572 
 Oxley V. Watts, 393, 655 
 
 Packer v. Wellstead, 167 
 
 Pacldngton's Case, 316 
 
 Padmore v. Lawrence, 966 
 
 Page V. Cowasjee Edulgee, 395 
 
 Page V. Hatchett, 89 
 
 Page V. Pearce, 1211 
 
 Paget's Case, 310 
 
 Painter v. Liv. Gas Co., 810, 854, 876 
 
 Painter v. Lond. and Br. Rail. Co., 631 
 
 Palk V. Skinner, 159 
 
 Palmer's Case, 118 / 
 
 ? aimer v. Fletcher, 114 
 aimer v. Grand June. Rail. Co., 914 
 Palmer v. Jarmain, 404 
 Palmer v. Lond. and Br. Rail., 603, 631 
 Palmer v. Lond. and S. W. Rail. Co., 
 
 632 
 Panton v. Isham, 302, 312, 315 
 Panton v. Jones, 685 
 Panton v. Williams, 764, 766 
 Papa V. Lister, 1154 
 Papendick v. IBridgwater, 184 
 Pappa V. Rose, 771 
 Pardington v. South Wales Rail. Co., 
 
 590 
 Pardo V. Bingham, 1163 
 Pariente v. Pennell, 430 
 Paris V. Levy, 951 
 Parke v Eliason, 437 
 Parker v. Bristol and Ex. Rail. Co., 
 
 1251, 1253 
 Parker V. Crole, 1130 
 Parker v. Flint, 607, 616 
 Parker v. Godin, 447 
 Parker v. Gt. West. Rail. Co., 604 
 Parker v. Leach, 135 
 Parker v. Mitchell, 156 
 Parker v. Norton, 1130 
 Parker V. Patiick, 541 
 Parker v. Smith, 183 
 Parker v. Staniland, 372 
 Parker v. Tootal, 1204 
 Parkes v. Stevens, 62, 66 
 Park Gate Iron Go. v. Coates, 1252 
 Parkins v. Scott, 7, 964, 972 
 Parkinson v. Gt. West. Rail., 631 
 Parkinson v. Lee, 1023 
 Parkinson v. Parkinson, 1066 
 Parmenter v. Webber, 634 
 Parmiter v. Coupland, 952, 997 
 Parr v. Lillicrap, 1213 
 Parrett v. Navigation Co. v. Robins, 
 
 210 
 Parringi^on v. Moore, 702 
 Parrot v. Carpenter, 953 
 Parrott v. Anderson, 643, 658 
 Parrott v. Palmer, 820, 1232 
 Parry v. Roberts, 533 
 Parry v. Thomas, 366 
 Parsons v. Brown, 762 
 Parsons v. Gingell, 650, 651 
 Parsons v. Lloyd, 720, 800 
 
TABLE OF ENGLISH CASES CITED. 
 
 Parsons v. St. Matthews, Betli. Green, 
 
 888 
 Parteriche v. Powlett, 286 
 Partton v. 'Williams, 875, 878 
 Partridge v. Elkington, 806 
 Partridge v. Gardner, 1204 
 Partridge v. Scott, 73, 148 
 Paslay v. Freeman, 35, 1006, 1008, 1020, 
 
 1046 
 Patch V. Ward, 859 
 Pater, Re, 858, 859 
 Pater v. Baker, 971, 1180 
 Paterson v. Hai-ris, 1166 
 Patej-son v. Paterson, 1062 
 Paterson v. Wallace, 488 
 Patrick V. Colerick, 362, 381 
 Patrickson v. Patrickson, 1084 
 Patten v. Rea, 515, 517 
 Patterson v. Patterson, 546, 1087 
 Pattisou V. Jones, 944 
 Paul V. Paul, 1071 
 Pauli, Ex parte, 438 
 Pawly V. Holly, 566 
 Pawsey v. Gooday, 1253 
 Pawson V. Watson, 1007, 1015 
 Payne v. Beaumorris, 961 
 Payne v. Brander, 419 
 Payne v. Rogers, 211, 253 
 Payne v. Shedden, 143, 164 
 Peaceable v. Watson, 1179 
 Peachey v. Rowland, 245, 246 
 Peacock v. Bell, 1145 
 Peacock v. Peacock, 1070, 1071 
 Peacock v. Reynal, 981 
 Peake v. Oldham, 956 
 Pearce v. Omsby, 981 
 Pearce v. Pearce, 1071 
 Pearcy v. Walter, 723 
 Peardou v. Underhill, 378 
 Pearman v. Pearman, 1063 
 Pears v. Wilson, 1244, 1245 
 Pearse v. Coker, 387 
 Pearse v. Dobinson, 859 
 Pearson V. Glazebrook, 1141 
 Pearson v. Le Maitre, 988 
 Pearson v. Spencer, 103, 167, 168 
 Peape v. Chaytor, 828, 829, 843, 845, 858, 
 
 868 
 Pease v. Gloahec, 422 
 Peatfield v. Barlow, 546 
 Pechell V. Watson, 753 
 Pedgrift V. Chevallier, 862 
 Pedley v. Davis, 772, 844, 855, 866, 871 
 Peek V. Gumey, 1010 
 Peek V. Larsen, 537 
 Peek V. North Staflf. Rail. Co., 532, 587, 
 
 589, 590, 592 
 Peek V. Spencer, 190 
 Peek V. Waterloo, etc., Loc. Bd., 234, 
 
 236 
 Peel's Case, 1011 
 Peer v. Humphrey, 417, 541 
 Peerless, The, 481 
 Peerless, Re, 849 
 
 Pegler v. Monm. Rail. Co., 603 
 
 Pell V. Northampton and Banbury Rail. 
 
 Co., 922 
 Pellas V. Bresslauer, 1212 
 Pemberton v. Colls, 95-7 
 Pembroke's (Earl of ) Case, 128 
 Penfold V. Westcote, 956 
 Penn v. Bibby, 1230 
 Peun V. Jack, 64, 1228 
 Penn v. Ward, 727, 732 
 Pennell v. Woodburn, 1190 
 Penny, In re, 778, 862, 907, 1203 
 Penruddock's Case, 192, 242, 1109 
 Penson v. Gooday, 1185 
 fenton v. Browne, 785 
 Penton v. Robart, 297 
 Peppercorn v. Hofman, 867 
 Peppin V. Shakspear, 98. 365 
 Pel'cival v. Nanson, 1176 
 Percival v. Stamp, 371, 788, 795 
 Perham, In re. 838 
 Perkins v. Smith, 1123 
 Perkins v. Vaughn, 1194 
 Perkinson v. Gilford, 1128 
 Perren v. Monm. Rail. Co., 1170 
 Perrot v. Perrot, 316 
 Perry v. Bennett, 1220 
 Perry v. Fitzhowe, 234 
 Periy v Truefitt, 1052 
 Ferryman v. Lister, 729, 743 
 Peskett V. Somers, 636 
 Petchv. Tutin,.119 
 Peter v. Daniel, 367 
 Peter v. Kendal, 16 
 Peterson v. Ayre, 1187 
 Peto V. Blade, 1032 
 Petrie V. Lamont, 677, 757, 761, 1132 
 Pettimangin, Mx parte, 831 
 Pewtriss V. Austen, 1027, 1039 
 Peyton v. London (Mayor of), 112, 149 
 Phelps V. Lond. & N. Western Rail. 
 
 Co., 570. 598 
 Phene v. Popplewell, 653 
 Pheysey v. Vicary, 104, 168 
 Philippine, The, 546 
 Philips V. Biron, 720 
 Phillips V. Bacon, 1204 
 Phillips V. Barlow, 285 
 Phillips V. Bei-ryman, 682, 1158 
 PhilUps V. Clark, 589 
 PhilUps V. Eyre, 38, 40 
 Phillips V. Homfray, 383 
 Phillips V. Hudson, 190 
 Philhps V. Jansen, 981 
 Phillips V. Jones, 564 
 Phillips V. Phillips, 1060, 1069 
 PhiUips V. Naylor, 746, 751, 763 
 Phillips V. Shervill, 635 
 Phillips V. Smitrh, 282 
 Phillipson v. Gibbon, 353 
 Philp V. Squire, 1088 
 Philpott V. Dobbinson, 680 
 Philpott V. Kelley, 397 
 Phosphate of Lime Co. v. Green, 921 
 
CXVl 
 
 TABLE OF ENOLISH CASES CITED. 
 
 Phythian v. White, 376 
 
 Pianciani v. Lond. and S. W. Rail. Co., 
 
 582, 623 
 Pickard v. Sears, 1178 
 Pickard v. SmitV201, 205 
 Piclaering' v. Dowson, 1034 
 Pickering v. Rudd, 247 , 
 
 Piokford v. Grand June. Rail. Co., 568, 
 
 622 
 Pierce v. Bartrum, 47 
 Pierpoint v. Shapland, 1169 
 Piggot V. East. Co. Rail. Co., 305, 312 
 Piggott V. Birtles, 656, 683, 688 
 Piggott V. Cubley, 895, 408 
 Piggott V. Stratton, 1178 
 Pike V. Carter, 830 
 Pike V. Nicholas, 53 
 Pilgrim V. Southamp., etc., Rail. Co., 
 
 374 ' . 
 
 Pilkington v. Cooke, 802, 812 
 Pilkington v. Riley, 716 
 Pillot V. Wilkinson, 402 
 Pilmore v. Hood, 1035 
 Pirn V. Curell, 1174 
 Pindar v. Wadsworth, 173, 814 
 Pinhom v. Souster, 337, 681 
 Pinkett v. Wright, 440 
 Pinnington v. Galland, 105 
 Pipe V. Fulcher, 1175 
 Pippet V. Hearn, 767 
 Pitcher v. King, 780 
 Pitt V. Donovan, 970 
 Pitt V. Shew, 644 
 Pitt V. Yalden, 498 
 Pitts V. Gaince, 1105 
 Plant V. James, 168 
 Plasterei's' Co. v. Parish Clerks' Co., 
 
 151 
 Plas-yn-Mhowys Mining Co., Re., 789 
 Playfair v. Muagrove, 787 
 Playford v. United Kingdom Telegraph 
 
 Co., 18, 535 
 Pluckwell V. Wilson, 475 
 Plumerv. Pliimer, 1085 
 Plunket V. Gilmore, 38 
 Poe, -f?i re, 1245 
 Polden V. Bastard, 167 
 Polhill V. Walter, 1006, 1025, 1039 
 Polkinhorn v. Wright, 694, 730 
 Pollard, £!x paHe, 859 
 Pollen V. Brewer, 331 
 PoUitt V. Forrest, 637, 679 
 Pollock V. Lester, 195 
 Pomfret v. Ricroft, 104, 115, 170 
 Ponsford v. Walton, 427 
 Pontifex v. Bignold, 1039 
 Poole's Case, 297 
 Poole V. Huskisson, 267 
 Popham V. Pickbum, 936, 949 
 Portland (Duke of) v. Hill, 124 
 Portman v. Middleton, 1047, 1187 
 Postlfithwaite v. Gibson, 866 
 Potter V. Faulkner, 493 
 Potter V. North, 135 
 
 Potteries, Shrewsbuiy & North Wales 
 
 Rail., He, 790 
 Potteries v. Minor, 790 
 Potts V. Port Carlisle Co., 224, 489 
 Potts V. Plunkett, 224, 489 
 Potts V. Smith, 182 
 Poulson V. Thirst, 915 
 Poulton V. Lond. and S. West. Rail, 
 
 Co., 708, 721 
 Pow V. Davis, 1026, 1190 
 Powell V. Hodgetts, 1177 
 Powell V. Rees, 1128 
 Powell V. Salisbuiy, 185 
 Powell V. Thomas, 186 
 Powes V. Marshall, 676 
 Powle V. Gandy, 1214 
 Powlett V. Bolton (Duchess of), 411 
 Powys V. Blagrave, 286, 267, 319 
 Poyntou V. GiU, 192 
 Pozzi V. Shipton, 1131 
 Pratt V. Brett, 316 
 Pratt V. Jeijner, 1071 
 Pratt V, Pratt, 363 
 Preece v. Corrie, 634 
 Prentice v. Harrison, 814 
 Prestige v. Woodman, 873 
 Preston, In re, 1074 
 Price V. Harewood, 195 
 Price V. Hewitt, 1030 
 Price V. Messenger, 867 
 Price V. Seeley, 703, 729 
 Price V. Severn, 1201 
 Price v. Woodhouse, 1172 
 Priestly V. Fowler, 489 
 Prickett v. Gratrix, 834, 858,. 874 
 Prickett V. Piatt, 434 
 Prince V. Molt, 1202 
 Prince Albert v. Strange, 13, 1231 
 Princess Royal, The, 488 
 Pringle V. Taylor, 461, 1186 
 Pi-ingle V. Wemham, 183 
 Pristwick V. Poley, 498 , 
 
 Pritchard v. Long, 452, 512 
 Pritchett V. Boevey, 464, 736, 1191 
 Proctor V. Harris, 202, 206 
 Proctor V. Hodgson, 106, 366 
 Progress Assurance Co., Re, 649 
 Prohibitions del Roy, 1237 
 Protheroe v. Mathews, 457 
 Protheroe v. May, 66 
 Proud V. Holis, 379 
 Proudfoot V. Montefiore, 1036 
 Proudlove v. Twemlow, 688 
 Provost, etc.. Queen's College v lallett, 
 
 280 
 Pudding Norton (Overseers of) ',e, 860 
 Pugh V. Acton, 299 
 Pugh V. Griffith, 785 
 Pugh V. Vaughan, 287 
 PuUen V. Palmer, 641 
 Pulsford V. Richards, 1007, 1045 
 Pultney v. Keymer, 544 
 Purcell V. Macnamara, 765 
 Purcell V. Nash, 317 
 
TABLE OF ENGLISH CASES CITED. 
 
 CXVU 
 
 Pursell V. Home, 690, 692 
 
 Purves V. Landell, 499 
 
 Pye V. Mumfoi-d, 370 
 
 Pyev V. Carter, 104 
 
 Pym V. Gt. North. Rail. Co., 504, 520, 
 
 1199 
 Pyne v. Dor, 286 
 
 Q 
 
 Quarman v. Burnett, 478 
 Queensberry (Duke of) v. Shebbeare, 
 
 13, 1231 
 Queen, The, 485 
 Queen's Case, The, 1170 
 Queen's College (Provost, etc., of,) v. 
 
 Hallett, 280 
 Quick V. Staines, 788 
 
 R 
 
 Race, In re, 1075 
 
 Race V. Ward, 96, 122 
 
 Rackham v. Jesup, 453 
 
 RadcUff V. D'Oyly, 1129 
 
 Raitt V. Mitchell, 540 
 
 Ralston v. Smith, 64 
 
 Ram V. Lamley, 934 
 
 Ramsay, Re, 775 
 
 Ramsbottom v. Buckhurst, 814 
 
 Ramshire v. Bolton, 1046 
 
 Ranee's Case, 502 
 
 Rand v. Vaughan, 653 
 
 Randal v. Cockran, 310, 1198 
 
 Handall v. Raper, 1190, 1191, 1192 
 
 Randall v. Stevens, 342 
 
 Randell v. Trimen, 1007, 1025, 1039, 
 
 1G46, 1188 
 Randell v. Wheble, 816 
 Randleson v. Murray, 509 
 Rangeley v. Midland Rail. Co., 919 
 Rankin v. De Medina, 813 
 Ranscme v. East. Co. Rail. Co., 603, 
 
 629, 631 
 Raphael v. Bank of England, 404, 405, 
 
 423 
 Raphael v. Goodman, 782 
 Raphael v. Pickfoi-d, 593 
 Raphael v. Thames VaUey Rail. Co., 920 
 Rapson v. Cubitt, 510 
 Rashdall v. Ford, 1012, 1017 
 Ratcliif v. Davies, 551 
 RatcliflFe v. Barnard, 500 
 Ratcliffe v. Burton, 783 
 Rateliffe v. RatcliflFe, 1081, 1084 
 Rawlings v. Bell, 661, 1028, 1039, 1125 
 Rawlings V. Till, 692 
 Rawlins v. Wickham, 1166 
 Rawnsley v. Hutchinson, 865 
 Rawstome v. Backhouse; 239 
 Rawstron v. Taylor, 147 
 Raymond v. Pitch, 1110 
 
 Rea V. Sheward, 381, 392, 451 
 
 Read v. Burley, 646 
 
 Read v. Coker, 690, 713, 867 
 
 Read v. Edwards, 30, 231, 327, 329, 457 
 
 Read v. Gt. East. Rail. Co., 503 
 
 Read v. Vict, and PimUco Rail. Co., 904, 
 
 908 
 Reade v. Conquest, 51, 54, 55 
 Reade v. Lacy, 55 
 
 Readhead v. Midi. Rail. Co., 468, 475 
 Reddie v. Scoolt, 1094, 1095 
 Redfern v. Smith, 278 
 Redway v. Webber, 1205 
 Reece v. Rigby, 498 
 Reece v. Taylor, 729 
 Reed v. Harrison, 323 
 Reed v. Taylor, 751 
 Reed v. Thoyts, 816 
 Reedie v. Lend. & N. Western Rail. Co., 
 
 507, 509 
 Rees V. Bowen, 761 
 Rees V. Davies, 843 
 Rees V. Williams, 1250, 1253 
 Reeve v. Holgate, 957 
 Reeve v. Palmer, 529, 557, 562 
 Reeve v. Taylor, 732 
 Reeve v. Whitmore, 652 
 Reeves v. Capper, 550 
 Reg. V. Aberdare Canal Co., 859, 1238 
 Reg. V. Aberdeen Canal Co., 773 
 Reg. V. Abrahams, 1261, 1265 
 Reg. V. Aire & Calder Nav. Co., Ill, 
 
 906, 1278 
 Reg. v. Allen, 831, 1249 
 Reg. V. Ambergate, 1257, 1266, 1283, 
 
 1284 
 Reg. V. Ardley, 1049 
 Reg. V. Arkwright, 1238 
 Reg. V. Ashby Polville, 275 
 Reg. V. Aston, 856 
 Reg. V. Badger, 859, 1250 
 Reg. V. Bailies, 1269 
 Reg. V. Baker, 276 
 Reg. V. Balby, etc.. Turnpike Trust, 
 
 1265 
 Reg. V. Bateman, 233 
 Reg. V. Bedfordshire, 1174 
 Reg. V. Bessel, 56 
 Reg. V. Bii-m., etc.. Rail. Co., 265, 1278, 
 
 1282 
 Reg. V. Blackburn, 843 
 Reg. V. Blanshard, 1258 
 Reg. V. Bolton, 862 
 Reg. V. Boteler, 843, 1258 
 Reg. V. Bradford Nav. Co., 883 
 Reg. V. Brickhall, 839, 859 
 Reg. V. Brancaster Churchwardens, 
 
 1276 
 Reg. V. Bristol Dock Co., 1264 
 Reg. V. Bristol & Exeter Rail. Co., 1264, 
 
 1280 
 Reg. V. Brown, 905 
 Reg. V. Browne, 864 
 Reg, V. Bryan, 1049 
 
CXVUl 
 
 TABLE OF ENOLISB CASES CITED. 
 
 Reg. V. Bucks (Justices of), 837, 862 
 Re'g. V. Burslem Local Board, 1278, 
 
 1279 
 Reg. V. Caledonian Rail. Co., 1281 
 Reg. V. Cambrian Rail. Co., 16, 901, 902 
 Reg. V. Casterton, 850 , 
 Reg. V. Cheadle Highway Trustees, 1280 
 Reg. V. Cheek, 1260, 1286 
 Reg. V. Cheltenham Commers., 858, 859 
 Reg. V. Chester (Dean and Chapter of), 
 
 1270 
 Reg. V. Chickheater (Bishop of), 1266 
 Reg. V. Chorley, 165 
 Reg. V. Churchwardens, etc., 1277 
 Reg. V. Coles, 1238 
 Reg. y. Collins, 864 
 Reg. V. Colvill, 1261 
 Reg. V. Commissioners of Woods and 
 
 Forests, 1278 
 Reg. V. Cooper, 981 
 Reg. V. Cotesworth, 692 
 Reg. V. Cridland, 842, 851 
 Reg. V. Crowan, 849 
 Reg. V. Cumberland (Clerk, etc., of), 
 
 1269 
 Reg. V. Darlington Local Board, 882 
 Reg. V. Darlington School Governors, 
 
 1270, 1287 
 Reg. V. Davis, 867 
 Reg. V. Deny, 840 
 Reg. V. Derby, 1272 
 Reg. V. Derbys., etc., Rail. Co., 1275 
 Reg. V. Dickenson, 846, 857, 860, 862 
 Reg. V. Dodson, 842 
 Reg. V. Dolgelly Guard, etc., 1272 
 Reg. V. Driscoll, 693 
 Reg. V. Dundas, 1048 
 Reg. V. Eagleton, 1049 
 Reg. V. East. Co. Rail. Co., 1256, 1280 
 Reg. V. East Mark, 268 
 Reg. V. East Riding Justices, 1258 
 Reg. V. Evans, 1049 
 Reg. V. Fall, 1284, 1287 
 Reg. V. Farrer, 275 
 Reg. V. Pox, 1261, 1267 
 Reg. V. Frere, 605 
 Reg. V. Garland, 1256, 1273 
 Reg. V. Gen. Cemet. Co., 1275, 1290 
 Reg. V. Gen. Council Med., etc., 1268 
 Reg. V. Gillyard, 859 
 Reg. V. -Goodrich, 1258 
 Reg. V. Gt. North of Engl. Rail. Co., 265 
 Reg. V. Grey, 860 
 
 Reg. V. Halifax Road Trustees, 1279 
 Reg. V. Hampshire (Justices of), 1206 
 Reg. V. Harden, 234, 1142 
 Reg. V. Hardey, 42 
 Reg. V. Harris, 264 
 Reg. V. Harwood, 1260 
 Reg. V. Hawkhurst, 271 
 Reg. V. Hawkins, 725, 841 
 Reg. V. Hellingley, 863 
 Reg. V. Henson, 262 
 Reg. V. Herefordshire Justices, 833 
 
 Reg. V. Hereford (Mayor of), 1282 
 
 Reg. V. Herford, 1238 
 
 Reg. V. Hertfordshire Justices, 833, 858 
 
 Reg. V. Higginson, 845 
 
 Reg. V. High "Wycombe Rail. Co., 1278 
 
 Reg. V. Higham, 863 
 
 Reg. V. Hopkins, 1266 
 
 Reg. V. Hornsea, 274 
 
 Reg. V. Hornsey (Inhab. of), 271 
 
 Reg. V. Howes, 1075 
 
 Reg. V. Hull and Selby Rail. Co., 1264, 
 
 1282 
 Reg. V. Huntingtower (Lord), 858 
 Reg. V. Huntley, 865 
 R%. V. Huntsworth, 843 
 Reg. V. Hui-stbourne Tarrant, etc., 1277, 
 
 1279 
 Reg. V. Jenkins, 233 
 Reg. V. Johnson, 691, 841, 851 
 Reg. V. Kendal, 1273 
 Reg. V. Kent Justices, 1258 
 Reg. V. Kilham, 1049 
 Reg. V. Lambarge, 857 
 Reg. V. Langley, 1000 
 Reg. V. Ledgard, 1281, 1288 
 Reg. V. Lee, 1049 
 Reg. V. Leech, 262 
 Reg. V. Leeds (Mayor of), 1272 
 Reg. V. Leicester Deputies, 1258 
 Reg. V. Levi, 454 
 Reg. V. Light, 702 
 Keg. V. Liver., Manch., etc.. Rail. Co., 
 
 1275 
 Reg. V. Liverpool Recorder, 1258 
 Reg. V. Lond. and Coleraine Rail. Co., 
 
 1275 
 Reg. V. Lond. and N. W. Rail. Co., 897, 
 
 904, 907, 908, 1257, 1260, 1283 
 Reg. V. Lond. and S. W. Rail. Co., 1281 
 Reg. V. London (Lord Mayor of), 900 
 Reg. V. Long, 1249 
 
 Reg. V. Longton Gas Co., 263, 886, 917 
 Reg. V. Lundie, 48 
 Reg. V. McCIeverty, 416 
 Reg. v. Mainwaring, 864, 1084, 1283 
 Reg. v. Manch. & Sheffield Rail. Co., 
 
 773, 778, 832, 900 
 Reg. V. Manktelow, 1099 
 Reg. V. Mann, 48 
 Reg. v. Martin, 691 
 Reg. V. Master, 1130 
 Reg. v. Mathias, 267 
 Reg. V. Metrop. Board, etc., 74, 82, 897, 
 
 903 
 Reg. V. Metrop. Com. of Sewers, 897 
 Reg. V. Metrop. Police (Receiver of), 
 
 1266 
 Reg. V. Mid. Rail. Co., 1275 
 Reg. V. Middlesex Justices, 865 
 Reg. V. Monmouth (Mayor of >, 1257, 1262 
 Reg. V. Munstei-, 709 
 Reg. V. Musson, 345 
 Reg. V. Mutters, 205 
 Reg. V. Newborough, 1250 
 
TABLE OF ENGLISH CASES CITED. 
 
 CXIX 
 
 Reg. V. Newton Ferrers, 851 
 Reg-. V. New Windsor (Mayor of), 1283 
 Reg. V. Newport Guardians, 1258 
 Reg. V. Norfolk Comm. of Sewers, 1277 
 Reg. V. North Mid. Rail. Co., 1257 
 Reg. V. Norwich and Brandon, Rail. 
 
 Co., 1280 
 Reg. V. Nunneley, 843 
 Reg. V. Orchard, 264 
 Reg. V. Orton Trustees, 1265, 1273 
 Reg. V. Oxford (Mayor of), 1272 
 Reg. V. Oxford, etc.. Roads, 1261 
 Reg. V. Payn, 825 
 Reg. V. Paynter, 864, 1286 
 Reg. V. Petrie, 268 
 Reg. V. Pinder, 709 
 Reg. V. Ponsford, 1265 
 Reg. V. Powell, 1282, 1286 
 Reg. V. Pratt, 854 
 Reg. V. Purdey, 863, 865 
 Reg. V. Ragg, 1049 
 Reg. V. Ramsden, 274 
 Reg. V. Rand, 773, 832 
 Reg. V. Riall, 1252 
 Reg. V. Richards, 863, 1257, 1259 
 Reg. V. Richmond Recorder, 1258, 1279 
 Reg. V. Rochester (Dean, etc., of), 1270 
 Reg. V. Roebuck, 1049 
 Reg. V. Rogier, 263 
 Reg. V. Rose. 46 
 Reg. V. Rotherham, 1277 
 Reg. V. Rynd, 1278 
 Reg. V. Sadlers' Co., 1268, 1273 
 Heg. V. St. Albans, 859 ' 
 Reg. V. St. George's Bloomsbury, 847, 
 
 850 
 Reg. V. Saintiff, 264 
 Reg. V. St. Luke's, 902 
 Reg. V. St. Luke's, Chelsea, 1281 
 Reg. V. St. Martin's 1272 
 Reg. V. St. Stephen's, 1272 
 Reg. V. Salford, 1238 
 Reg. V. Salop, 843 
 Reg. V. Scaife, 1253 
 Reg. V. Scott, 841 
 Reg. V. Scotton, 838 
 Reg. V. Sheffield (Mayor of), 891, 922, 
 
 1249 
 Reg; V. Sherwood, 1049 
 Reg. V. Skinner, 968 
 Reg. V. Smith, 1049, 1074, 1268 
 Reg. V. Southampton Poi-t Commrs., 
 
 1281 
 Reg. V. S. E. Rail. Co., 1281 
 Reg. V. South Wales Rail. Co., 779, 907 
 Reg. V. Spencer, 860 
 Reg. V. Stamford (Mayor of), 1286 
 Reg. V. Stannard, 263 
 Reg. V. Stephens, 109 
 Reg. V. Stewart, 1263 
 Reg. V. Stimpson, 132, 842 
 Reg. V. Stock, 855 
 Reg. V. Stockton, 849 
 Reg. V. Stone, 900 
 
 Reg. V. Strand Board of Works, 349 
 
 Reg. V. Suffolk Justices, 833 
 
 Reg. V. Suffolk, 1250, 1252 
 
 Reg. V. Surrey Justices, 274, 432, 1250 
 
 Reg. V. Thallman, 264 
 
 Reg. V. Timmins, 1075, 1099 
 
 Reg. V. Tithe Commissioners, 1281 
 
 Reg. V. Totness, 849, 854 
 
 Reg. V. Train, 264, 272 
 
 Reg. V. Treasury (Comma, of), 1265 
 
 Reg. V. Treasury (Lords of), 1266 
 
 Reg. V. Trustees of Cheadle Highw., 
 1280 
 
 Reg. V. Twiss, 1239 
 
 Reg. V. United Kingd. Teleg. Co., 272 
 
 Reg. V. Vaughan, 897 
 
 Reg. V. Victoria Park Co., 1264, 1276 
 
 Reg. V. Wallasey Local Board, 898 
 
 Reg. V. Warwick Justices, 859 
 
 Reg. V. Watson, 262, 264 
 
 Reg. V. Watts, 212 
 
 Reg. V. West Riding Justices, 858, 1259 
 
 Reg. V. Whitecross Street Prison (Gover- 
 nors of), 1261 
 
 Reg. V. Williams, 263 
 
 Reg. V. Wing, 1275 
 
 Reg. V. Wood, 46, 48, 846, 860 
 
 Reg. V. Wood Ditton Surveyors, 1263 
 
 Regnart v. P(ji-ter, 638 
 
 Reid V. Ashby, 1215 
 
 Reid V. Fairbanks, 460 
 
 Reid V. Margison, 814 
 
 Reignolds v. Edwards, 379 
 
 Rennison v. Walker, 1135 
 
 Renshaw v. Bean, 163 
 
 Revett V. Brown, 374 
 
 Revis V. Smith, 934, 967- 
 
 Rex V. Abingdon (Lord), 949 
 
 Rex V. Abingdon (Mayor, etc., of), 1282, 
 1288 
 
 Rex V. Allen, 860 
 
 Rex V. Amphlit, 982 
 
 Rex V. Arkwright, 61, 63, 65 
 
 Rex V. Atkins, 860 
 
 Rex V. Austin, 850 
 
 Rex V. Avering Atte Bower, 1257 
 
 Rex v. Axbridge (Mayor, etc., of), 1273 
 
 Rex V. Backhouse, 786 
 
 Rex v. Bagley, 274 
 
 Rex V. Bank of England, 1275 
 
 Rex V. Barker, 1273 
 
 Rex V. Barr, 265 
 
 Rex V. Beare, 980 
 
 Rex V. Bedford Level, 1272 
 
 Rex V. Benn, 1260 
 
 Rex V. Berkley, 860 
 
 Rex V. Bett«rton, 260 
 
 Rex V. Birmingham Canal Co., 1257 
 
 Rex V. Birmingham Rector, 1271 
 
 Rex V. Bimie, 833 
 
 Rex V. Bradshaw, 659 
 
 Rex V. Brangan, 764 
 
 Rex V. Brecknock, etc., Canal Co., 1280 
 
 Rex V. Bristow, 1263 
 
cxx 
 
 TABLE OF BNOLISB CASES CITED. 
 
 Rex V. BucKing-ham (Marquis of), 222 
 
 Rex V. Burdett, 980, 982, 1000 
 
 Rex V. Bumaby, 842 
 
 Rex V. Butterton, 320 
 
 Rex V. Cambriag-e, 1272 
 
 Rex V. Cambridge Justices, 1260 
 
 Rex V. Cambi'idge University, 1272 
 
 Rex V. Cariile, 947 
 
 Rex V. Cashiobury, Justices, 855 
 
 Rex V. Chalke, 1270 
 
 Rex V. Chandler, 849 
 
 Rex V. Churchill, 130 
 
 Rex V. Clapham, 1267 
 
 Rex V. Clear, 1265, 1281 
 
 Rex V. Colchester (Mayor of), 1272 
 
 Rex V. Colebrook, 1260 
 
 Rex V. Coleridg:e, 1264 
 
 Rex V. Commissioners of Customs, 1261 
 
 Rex V. Commissioners of Sewers of 
 
 Essex, 132 
 Rex V. Commissioners of Tower Hamlets, 
 
 890 
 Rex V. Cotton, 636 
 Rex V. Creevey, 949 
 Rex V. Cross, 262 
 Rex V. Croydon Churchwardens, 1267 
 
 1273 
 Rex V. Crunden, 47, 133, 263 
 •Rex V. Cumberland Justices, 1256, 1259 
 Rex V. Curghey, 1282 
 Rex V. Dant, 229 
 Rex V. Davies, 860 
 Rex V. Davis, 850 
 Rex V. De Manneville, 1076 
 Rex V. Derbyshire Justices, 859 
 Rex V. Dewsnap, 262 
 Rex V. Dixon, 263 
 Rex V. Dobbyn, 850 
 Rex V. Doherty, 741 
 Rex.v. Dorset Justices, 260 
 Rex V. Ecclesfield, 274 
 Rex V. Edwards, 849 
 Rex V. Ely (Bishop of), 1260 
 Rex V. England (Bank of), 1275 
 Rex V. Essex, 865, 890 
 .Rex V. Exeter (Bishop of), 1283 
 Rex V. Faversham Pisli. Co., 1283 
 Rex v. Gaskin, 1268 
 Rex v. Grantham, 1260 
 Rex V. Great Chart, 831 
 Rex V. Great Yarmouth, 831 
 Rex V. Greenhill, 1076 
 Rex V. Griffiths, 1283 
 Rex V. Gudridge, 831 
 Rex V. Hardwick, 1177 
 Rex V. Harrison, 849 
 Rex V. Hastings (Mayor of), 1257 
 Rex V. Hatfield, 350 
 Rex V. Hazell, 849 
 Rex V. Hendon, 1273 
 Rex V. Hermitage, 167 
 Rex V. Higginson, 263 
 Rex V. Holt, 1000, 1001 
 Rex V. Hoseason, 831 
 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 •1278 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 
 1271 
 Rex V 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 
 1278 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 
 210 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 Rex V. 
 ■Rex V. 
 
 Hostmen of Newcastle, 1274 
 
 Huggins, 230 
 
 Hull, 685 
 
 Humphery, 549 
 
 Ilchester Bailiffs, etc., 1260 
 
 Ingram, 1267 
 
 Ivens, 606 
 
 James, 775 
 
 Jeflferies, 852 
 
 Jeyes, 1263 
 
 Johnson, 849 
 
 Jones, 262, 263 
 
 Jotham, 1269, 1273 
 
 Jukes, 848 
 
 Kent justices, etc., 1256 
 
 King, 860 
 
 Langley, 1000 
 
 Leake, 270 
 
 Leeds and Selby Rail. Co., 906, 
 
 Leicester Justices, 1261 
 Liverpool, (Mayor of), 1269, 1283 
 Lloyd, 265 
 
 London Dock Co., 902 
 London (Mayor, etc., of), 372, 
 , 1283 
 
 Londo»thorpe, 296 
 Lymef Regis (Mayor of), 1283 
 March, 1273 
 
 Margate Pier Co., 1282, 1286 
 Merchant Taylors' Co., 1274 
 Middlesex Justices, 1260 
 Midhurst, 1260 
 Milverton (Lord of), 1260 
 Mitton, 442i 
 
 Monmouth Justices, 858 
 Montacute (Lord) 1260 
 Moor Critchell, 850 
 Moore, 199, 263 
 Moreley, 858 
 Morley, 849 
 Morpeth Ballivos, 1267 
 Neil, 262 
 
 Newcastle Coopers, etc., 48 
 North, 849 
 
 North Riding, etc,. Justices, 1256 
 Norwich (Dean, etc., of), 1272 
 Norwich (Mayor of), 1282 
 Nottingham Old Water W&rks, 
 
 Osborne, 999 
 
 Otley, 296 
 
 Oxfordshire Justices, 855 
 
 Pagham (Commissioners of), 23, 
 
 Pappineau, 262 
 Payn, 1263, 1266 
 Pease, 882, 885 
 Pedley, 196, 197, 211 
 ■Pilkington, 1288 
 Pocock, 1000 
 Price, 849 
 Priest, 852 
 Reed, 763 
 
TABLE OF ENGLISH CASES CITED. 
 
 CXXl 
 
 Rex V. Revel, 832 
 Rex V. Richardson, 1269 • 
 Rex V. Ripon (Mayor of), 1282, 1287 
 Rex V. Rislip, 991 
 Rex V. Robinson, 726 
 Rex V. Rosewell, 234 
 Rex V. Russell, 262, 264, 273 
 Rex V. St. Cath. Dock Co., 1276 
 Rex V. St. George, 690 
 Rex V. St. Nicholas, 1270 
 Rex V. Sankey, 547 
 
 Rex V. Severn and Wye Rail. Co., 1264 
 Rex V. Sillifant, 1260 
 Rex V. SmaUpiece, 1281 
 Rex V. Smith, 199, 263 
 Rex V. Southerby, 794 
 Rex V. Sparrow, 759 
 Rex V. Speed, 847 
 Rex V. Stafford (Marquis of), 1265 
 Rex V. Staffordshire Justices, 1261 
 Rex V. Stoke Damerel, 1273 
 Rex V. Stratford (Mayor of), 1270 
 Rex V. Symonds, 832 
 Rex V. Taylor, 262 
 Rex V. Tindall, 264, 272 
 Rex V. Topham, 999 
 Rex V. Tower, 1273 
 Rex V. Treasury (Lords of), 1265, 1266 
 Rex V. Vantandillo, 262 
 Rex V. "Ward, 264, 272 
 Rex V. Watson,. 984, 997, 999 
 Rex V. Watts, 273 
 Rex V. Wells (Mayor of), 1257 
 Rex V. Weltye, 1000 
 Rex V. West Torringion, 825 
 Rex V. We^twood, 46 
 Rex V. Wheeler, 62, 63 
 Rex V. White, 262, 999 
 Rex V. Wildman, 1267 
 Rex V. Williams, 999 
 Rex V. Wilson, 1075 
 Rex V. Wilton (Mayor of), 1270 
 Rex V. Winchester (Mavor of), 1272 
 Rex V. Windham, 1272, 1273 
 Rex V. Wix, 1271 
 
 Rex V. Worcestershire Canal Co., 1275 
 Rex V. Worcestei'shire Justices, 1260 
 Rex V. Wi-ight, 272, 380 
 Rex V. Wrightson, 1000 
 Rex V. Yarmouth (Great), 831 . 
 Rex V. Yoi-k (Archbishop of), 1283 
 Reynolds v. Barford, 801 
 Reynolds v. Bowley, 433 
 Reynolds v. Clark, 192 
 Reynolds v. Clarke, 324 
 Reynolds v. Harris, 1223, 1224. 
 Reynolds v. Reynolds, 333 
 . Rhodes v. Hull, 781 
 Rice V. Dub. and Wick. Rail. Co., 1225 
 Rich V. Aldred, 555, 556 
 Rich V Basterfield, 198 
 Rich V. Wooley, 660, 682 
 Richards v. Dyke, 1240 
 Richards v. Praakum, 559 
 
 Richards v. Gellatly, 1154 
 
 Richards v. Harper, 76 
 
 Richards v. Johnston, 792 
 
 Richards v. Lend., B., etc.. Rail. Co., 
 
 595, 599, 625 
 Richards v. Morgan, 1172 
 Richards v. Richards, 996 
 Richards v. Rose, 112 . 
 
 Richards v. Symons, 451 
 Richards v. Turner, 992 
 Richardson, Ex parte, 431, 433 
 Richardson v. Ardley, 793 
 Richardson v." Atkinson, 397 
 Richardson v. Dunn, 1025, 1188, 1190 
 Richardson v. Goss, 549 
 Richardson v.. Locklin, 241 
 Richardson v. Mellish, 1191 
 Richardson v. Metrop. Rail. Co., 472 
 Richardson V. North-East. Rail., 577 
 Richardson v. Williamson, 1026, 1182 
 Richbell v. Alexander, 1114 
 Richmond v. Nicholson, 1129 
 Richmond v. N. Lond. Rail. Co., 900 
 Richardson v. Smith, 611 
 Ricket V. Metrop. Rail. Co., 884, 896, 
 
 903 ' 
 Ricketts, Ex paHe, 1266 
 Ricketts v. East and West India Docks 
 
 Rail. Co., 215 
 Riddle v. Pakeman, 800 
 Rideal v. Fort, 789, 796 
 Rideal v. Gt. West. Rail. Co., 1154 
 Rideout's Trusts, Re, 1080 
 Rider v. Smith, 176, 249 
 Ridgway v. Lord Stafford, 663 
 Riga, The, 1143 
 Rigby V. Hewitt, 480, 1186 
 Rigg V. Lonsdale, 130, 142 
 Rigg V. Parsons, 314 
 Riley v. Baxendale, 489 
 Ringland v. Lowndes, 898, 1146, 1277, 
 
 1279, 1283 
 Rinquist v. Ditchell, 1037 
 Ripon (Earl) v. Hobart, 92, 1233 
 Rippiiiv. Bastin, 843 
 Risely v. Ryle, 811, 817 
 Ritchings v. Cordingley, 345 
 Riviere v. Bower, 115 
 Roads V. Overseers of Tpumpington, 372 
 Robbins v. Jones, 206, 211, 212, 252 
 Robert Mary's Case, 718 
 Roberts v. Camden, 969, 985 
 Roberts v. Cair, 265 
 Roberts v. E. C. Rail. Co., 1154 
 Roberts v. Gt. West. Rail. Co., 217 
 Roberts V. Haines, 75 
 Roberts v. Humby, 1240 
 Roberts v. Hunt, 273 
 Roberts v. McCord, 182 
 Roberts v. Orchard, 715 
 Roberts V. Read, 912, 1163 
 Roberts v. Roberts, 961 
 Roberts v. Rose, 94, 238, 251 
 Roberts v. Smith, 226 
 
CXXll 
 
 TABLE OF MNGLISH CASES CITED. 
 
 Roberts v. Taylor, 361, 693 
 Roberta v. Thomas, 787 
 Roberts v. 'Williams, 717 
 Roberts v. Wyatt, 444 
 Robertson v. Adamson, 224 
 Robertson v. Fleming, 18 
 Robertson v. Gantlett, 1167 
 Robertson v. Sterne, 1215 
 Robertson v. Womack, 1252 
 Robins v. Barnes, 116 
 Robinson v. Brigg-s, 410 
 Robinson v. Byron (Lord), 93 
 Robinson v. Chartered Bank, 1229 
 Robinson v. Dunmore, 535, 599 
 Robinson v. Gell, 780 
 Robinson v. Gt. "West. Rail. Co., 572, 
 
 589 
 Robinson v. Hoffman, 641 
 Robinson v. Lenag-han, 1242, 1245 
 Robinson v. Litton, 317, 318 
 Robinson v. Marchant, 957, 977 
 Robinson v. S. West. Rail. Co., 583 
 Robinson v. Vaughton, 835 
 Robinson v. Waddington, 663 
 Robinson v. Ward, 530 
 Robinson v. Wray, 101, 130 * 
 Robotham v. Robotham, 1071 
 Rochdale Canal Co. v. King, 10, 90 
 Rochester (Mayor of) v. Reg., 1262 
 Rocke, Ex parte, 428 
 Roden v. Eyton, 657 
 Rodger v. Comptoir d'Escompte de 
 
 Paris, 422, 537 
 Rodgers v. Maw, 442 
 Rodgers v. Nowill, 10, 1029, 1039, 1045 
 Rodgers v. Parker, 665, 684, 688 
 Rodrigues v. Melhuish, 481 
 Rodriguez v. Tadmire, 767 
 Roe V. Birkenhead, Lane, etc., Rail. 
 
 Co.', 1121, 1123 
 Roebuck v. Stirlin-g, 61 
 Rogers, Ex parte, 440 
 Rogers v. Brenton, 121, 124, 130 
 Rogers v. Challis, 1228 
 Rogers v. Clifton, 944 
 Rogers v. Davenant, 1241 
 Rogers v. Driver, 56 
 Rogers V. Head, 534 
 Rogei's V. Jones, 839 
 Rogers v. Mcnamara, 9, 1139 
 Rogers v. Ragendro Dutt, 15, 21, 36 
 Rogers v. Spence, 382, 1114, 1151, 1168 
 Rogers v. Taylor, 75, 87, 148, 179 
 Roles V. Davis, 1181 
 Rolfe V. Gregory, 407 
 Rolfe V. Peterson, 317 
 Rolin V. Steward, 11 
 RoUe V. "Whyte, 182, 239 
 Rollins V. Hinks, 979 
 Romney Marsh (Bailiffs of) v. Trinity 
 
 House, 488 
 Ronnebergv. Falkland Islands Co., 1190 
 Rooke V. Mid. Rail. Co., 403 
 Rooth V. N. East. Rail Co., 217, 588 
 
 Rooth V. Wilson, 176, 185, 214 
 
 Roper V. Harper, 377, 1132 
 
 Roret V. Lewis, 752 
 
 Rbscorla v. Thomas, 1014, 1039 
 
 Rose V. Groves, 208, 242 
 
 Rose V. Hart, 543 
 
 Rose V. Miles, 43, 242 
 
 Rose V. Wilson, 729 
 
 Rosewell v. Pryor, 116, 176, 197, 1161 
 
 Roskell V. Whitworth, 1234 
 
 Roskruge v. Caddy, 679 
 
 Ross V. Adcock, 289 
 
 Ross V. Estates Invest. Co., 1011, 1012 
 
 Ross V. Hill, 534, 571 
 
 Koss V. Norman, 757 
 
 Ross V. Ross, 1070 
 
 Rosse V. Bramsteed, 617 
 
 Roswell V. Prior, 197 
 
 Roswell V. Vaughan, 1019 
 
 Rothery v.'Wood, 793 
 
 Routledge v. Hislop, 1158 
 
 Rowbotham v. Wilson, 75, 76, 118, 120, 
 
 124, 1163 
 Rowe V. Brenton, 453, 1175 
 Rowlands v. Samuel, 768 
 Rowley v. Rowley, 1064 
 Rowning v. Goodchild, 21, 45, 50 
 Royal British Bank, In re, 1012 
 Ruck V. Williams, 890, 917 
 Rudd V. Scott, 713 
 Ruflfey V. Henderson, 299 
 Rugby Charity, Ex parte, 1261 
 Rugg V. Kingsmill, 344 
 Rugg V. Winchester (Bishop of ), 343 
 Rumsey v. N. East. Rail. Co., 598 
 Runcorn v. Cooper, 137 
 Rundle v. Little, 459 
 Rushforth v. Hadtield, 543, 602 
 Rushton V. Crawley, 63 
 Rushworth v. Taylor, 399 
 Russell V. Briant, 56 » 
 Russell V. Cowley, 62 
 Russell V. Harford, 104 
 Russell V. Palmer, 497 
 RusseU V. Shenton, 247 
 Rutherford v. Evans, 990 
 Rutland's (Countess of) Case, 799 
 Ruttinger v. Temple, 1079 
 Ryall v. Rowles, 432 
 Ryan v. Clark, 361 
 Ryan v. Shilcock, 643, 785 
 Ryan v. Thompson, 680 
 Ryde Com. v. Isle of Wight Ferry Co., 
 
 1229 
 Ryder v. Bentham, 188 
 Ryder v. Ryder, 1073, 1075 
 
 S 
 
 Sabin v. Long, 1197 
 Sablicich v. Russell, 402 
 Sacheverell v. Porter, 125 
 Sadler v. Belcher, 437 
 
TABLE OF ENOLISH CASES CITED. 
 
 cxxni 
 
 Sadler v. Henlock, 506 
 
 Saflron Hill (Overseers of ), Ex parte, 
 
 239 
 Sagrill V. Milward, 324 
 Sahlgreen's Case, 1294 
 Saint Devereux v. Much Dew Church, 
 
 1084 
 St. Albans (Duke of) v. Skipwith, 288 
 St. Germans (Earl of) v. Crystal Palace 
 
 Rail., 922 
 Saint Helen's Smelting' Co. v. Tipping-, 
 
 195 
 Saint John's Coll. v. Murcott, 649 
 Saint Panacras Vestry v. Batterbury, 49 
 St. Luke V. Middlesex Justipes, 1260 
 St. Margaret's Rochester (Burial Board 
 
 of) V. Thompson, 345 i 
 
 St. Martin's Birmingham (Rector of). 
 
 Ex parte, 344 
 St. Mary Newington v. Jacobs, 332 
 St. Paul V. St. Paul, 1069 
 Salisbuiy (Mai-quis of) v. Gt. North. 
 
 Rail. Co., 349 
 Salisbury (Marquis of) v. Gladstone, 
 
 290 
 Salisbury v. Metrop. Rail. Co., 1230 
 Salmon v. Bensley, 242 
 Salmon v. Ward, 1015 
 Salter v. Metrop. Distr. Rail., 911 
 Salters' Co. v. Jay, 140 
 Sammell v. Wi-ight, 478 
 Sampson v. Hoddinott, 78, 80, 144 
 Sampson v. Mackay, 1212 
 Sampson v. Smith, 258, 261 
 Samuel v. BuUer, 798 
 Samuel v. Payne, 699 
 Sandeman v. Scui-r, 485 
 Sanders v. Spencer, 614 
 . Sanderson v. Bell, 538 
 Sandford v. Clarke, 1199 
 Sandon v. Jervis, J31, 785 
 Sandys, Ex parte, 1270 
 Sankey Brook Coal Co. (Re), 537 
 Sarazin v. Hamel, 57 
 Sarch v. Blackburn, 229, 231 
 Saterwaite v. Durest, 1090 
 SsTunders v. Bate, 1181 
 Saunders v. Edwards, 1164 
 Saunders v. Mills, 946 
 Saunders v. Musgi-ave, 817 
 Saunders v. Newman, 144 
 Saunders v. Oliffe, 167 
 Saunders v. Plummer, 607 
 Saunders v. Saunders, 1061 
 Saunders v. Smith, 1229, 1231 
 Saunderson v. Baker, 787 
 Savage v. Brook, 48 
 Savile v. Jardine, 5, 926, 954 
 Savile v. Roberts, 752, 758, 767 
 Savill V. Barchard, 543 
 Sav:Ile v. Sweeney, 1107 
 Savin v. Hoylake Rail. Co., 1258 
 Savory v. Price, 60, 63 
 Sawin v. Guild, 65 
 
 Saxby's Patent, 60 
 
 Saxby v. Manchester Rail., 176 196 
 
 Saxby v. Eastei;brook, 1230 
 
 Saxon V. Castle, 754 
 
 Scarfe v. Morgan, 408, 538, 541 
 
 Scattergood v. Silvester, 417 
 
 Schneider v. Heath, 1015, 1034 
 
 Scholefield v. Robb, 1045 
 
 Scholefield v. Templer, 1028 
 
 Schotsmans v. Lane, and Yorksh. Rail 
 
 Co., 1228, 1232 
 Schroder v. Ward, 1220 
 Schuringe v. DoweU, 267 
 Schuster v. M'Kellar, 447 
 Schwalbe, The, 481 
 Scothorn v. South Staff. Rail. Co., 597 
 Scott V. Craig, 227 
 Scott V. Dixon, 1006, 1010, 1041 
 Scott V. Dub. and Wickl. Rail. Co., 28, 
 
 493 
 Scott V. Hanson, 1016 
 Scott V. Jones, 1173 
 Scott V. London Dock Co., 23, 202, 472, 
 
 514 
 Scott V. Manch. (Mayor, etc., of), 884, 
 
 1118 • 
 Scott V. Marshall, 816 
 Scott V. Nevnngton, 445 
 Scott V. Pilkington, 1155 
 Scott V. Porcher, 421 
 Scott V. Rayment, 1228 
 Scott V. Scott, 485, 1063 
 Scott V. Seymour (Lord), 40, 1154 
 Scott V. Shepherd, 3, 7, 510 
 Scott V. Stanford, 52 
 Scott V. Stansfield, 772 
 Scott V. Sut-man, 439 
 Scott and Young, Ex parte, 63 
 Sci-atton V. Brown, 348 
 Seagram v. Knight, 285 
 Scare v. Prentipe, 496 
 Searle v. Law, 561 
 Sejirle v. Lindsay, 227, 490 
 Sears V. Lyons, 9, 382 
 Seddon v. Seddon, 1072, 1081, 1085 
 Seddon v. Tutop, 1159 
 Sedgworth v. Overend, 506 
 Sedley v. Sutherland, 1132 
 Seixo V. Provezende, 1046, 105Sf 
 Selby V. Cryst. Pal. Distr. Gas Co., 269 
 Selby V. Greaves, 634 
 Selby V. Robinson, 127 
 Seller V. Seller, 1071 
 Sellers v. Till, 985 
 Selmes v. Judge, 916 
 Sells v. Hoare, 684 
 Selway v. Fogg. 1005, 1016 
 Selway v. Holloway, 624 
 Semayne's Case, 784 
 Semple v. Lond. and Birm. Rail. Co., 
 
 92, 258 
 Senhouse v. Chi-istian, 106 
 Senior v. Medland, 965 
 Senior v. Metrop. Rail. Co., 903 
 
CXXIV 
 
 TABLE OF BNGLma CASES dITEB. 
 
 Senior v. Pawson, 188 
 
 Senior v. "Ward, 226, 490, 493, 495 
 
 Serres v. Dod, 676 
 
 Sewell, Ex ■parte, 1059 
 
 Seymour v. Greenwood, 33, 478 
 
 Seymour v. Maddox, 224, 249, 1147 
 
 Shackell v. West, 526 
 
 Shadwell v. Hutchinson, 174, 175, 185, 
 
 243, 256, 1161 i 
 
 Sharp, Ex parte, 1058 
 Sharp V. Grey, 468, 474 
 Sharp V. Powell, 7 
 Sharpe v. Brice, 1184 
 Sharpe v. Hancock, 72 
 Sharrod v. Lond, and N W. Rail. Co., 
 
 1121 
 Shattock V. Garden, 801 
 Shatwell v. Hall, 714 
 Shaw, In re, 433 
 Shaw V. Harvey, 434, 438 
 Shea V. United Assur. Co., 1139 
 Sheers v. Brooks, 784 
 Sheffield Waterworks v. Yeomans, 189 
 Shelbury v. Scotsford, 562 
 Shelley v. Westbrooke, 1076 
 Shepherd v. Bristol and Exeter Rail. 
 
 Co., 595 
 Shepherd v. Harrison, 422 
 Shepherd v. Hills, 49, 899, 901 
 Sheppard v. Schooolbred, 420 
 Sheppard v. Wakeman, 11 
 Sherborn v. Wells, 839 
 Sheridan's Case, 980, 983 
 Sheiidan v. New Quay Co., 401, 623 
 Sherwin v. Swindall, 1216 
 Shiels V. Gt. North. Rail. Co., 1138 
 Shilcock V. Passman, 499 
 Ship V. Crosskill, 501, 1225 
 Shipley v. Todhunter, 986 
 Shipraan's Case, 1295 
 Shirley v. Wright, 814 
 Short V. Kalloway, 1190 
 Shower V. Pilck, 415 
 Shrewsbury's (Earl of) Case, 1269 
 Shrewsbury v. Blount, 1042 
 Shrewsbury (Countess of) v. Crompton, 
 
 301 
 Shury V. Piggot, 72 
 Shuttleworth v. Cocker, 1210, 1216 
 Shuttleworth v. Hernaman, 432 
 Shuttleworth v. Le Fleming, 141 
 Sichel V. Lambert, 1084 
 Sichell's Case, 1294 
 Sidley's Case, 263 
 
 Simmond's v. Gt. East. Rail. Co., 547 
 Simmond's v. South East. Rail. Co., 628 
 Simmons v. Edwai-ds, 433, 439 
 Simmons v. Lillystone, 359, 397, 1147 
 Simmons v. Millingen, 702, 703, 707 
 Simons v. Gt. West. Rail. Co., 590, 592, 
 
 625 
 Simons v. Patchett, 1046 
 Simpson v. Blues, 1144 
 Simpson v. Dendy,'350 
 
 Simpson v. Hartopp, 645 
 
 Simpson v. Holliday, 63, 1233 
 
 Simpson v. Lethwaite,.366 
 
 Simpson v. Robinson, 989 
 
 Simpson v. Sadd, 1156 
 
 Simpson v. Savage, 244 
 
 Sinden v. Bankes, 50 
 
 Siner v. Gt. West. Rail. Co., 470 
 
 Singleton v. East. Co. Rail. Co., 494 
 
 Singleton v. Williamson, 668, 669 
 
 Six Carpenters' Case, 323, 655 
 
 Skelton v. Lond. and N. W. RaiL Co., 
 
 473 
 ^Skelton v. Springett, 1080 
 Skinner, Ex parte, 1076 
 Skinner v. Chapman, 414 
 Skinner v. Lond. Br., etc., Rail. Co.i 470 
 Skinner v. Shoppee, 1207 
 Skipp v. East. Co. Rail. Co., 488 
 Skipton Indus. Co-operative Society v. 
 
 Prince, 1140, 1242 
 
 Skipwith V. , 616 
 
 Skull V. Glennister, 379 • 
 
 Skuse V. Davis, 725 
 
 Slackford v. Austen, 798 
 
 Sladden v. Serjeant, 1171 
 
 Slade's Case, 1158 
 
 Slater v. Baker, 496 
 
 Slater v. Pinder, 428 
 
 Slater v. Sunderland .(Mayor of), 546 
 
 Slater v. Swann, 392 
 
 Slatterie v. Pooley, 686 
 
 Sleat V. Fagg, 628 
 
 Sleath V. Wilson, 476 
 
 Sleddon v. Cruikshank, 296 
 
 Slim V. Gt. North. Rail. Co., 624 
 
 Slocombe v. Lyall, 361 
 
 Small V. Moates, 537 
 
 Smallcombe's Case, 1012 
 
 Smallman v. Pollard, 793, 811, 817 
 
 Smart v. Hutton, 782 
 
 Smart v. Morton, 75, 113 
 
 Smeed v. Foord, 1186 
 
 Smith's Case, 1010 • 
 
 Smith, Ex parte, 847, 863, S64 
 
 Smith, In re, 1266 
 
 Smith V. Ashforth, 657, 684 
 
 Smith V. Birm. Gas Co., 1117 
 
 Smith V. Bonsall, 126 
 
 Smith V. Brown, 483, 488, 504 
 
 Smith V. Brownlow (Earl of), 190 
 
 Smith V. Carey, 985 
 
 Smith V. Dearlove, 615, 617 
 
 Smith V. Edge, 1215 
 
 Smith V. Feverell, 173 
 
 Smith V. Goodwin, 658 
 
 Smith V. Gt. East. Rail. Co., 230 
 
 Smith V. Harnor, 1213 
 
 Smith V. Hopper, 713, 916 
 
 Smith V. Hudson, 439 
 
 Smith V. Kenrick, 83 
 
 Smith V. Knowelden, 1180 
 
 Smith V. Lawrence, 478 
 
 Smith V. Lloyd, 325 
 
TABLE OF ENGLISH OASES CITED. 
 
 CXXV 
 
 Smith V. Lond. and Br. Rail. Co., 584 
 
 Smith, V. Lond. & N. W. Rail. Co., 1104 
 
 Smith V. Lond. & S. W. Rail., 306 
 
 Smith V. Lond. Dock Co., 223 
 
 Smith V. Mayor of London, 1242 
 
 Smith V. Mapleback, 634 
 
 Smith V. Milles, 453 
 
 Smith V. Moffat, 1112 
 
 Smith V. Powdieh, 21 
 
 Smith V. Pritchard, 782, 802 
 
 Smith V. Reese River Mining- Co., 1011 
 
 Smith V. Render, 296 
 
 Smith V. Richardson, 978 
 
 Smith V. Royston, 375 
 
 Smith V. Russell, 649 
 
 Smith V. Shaw, 913 
 
 Smith V. Shirley, 364 
 
 Smith V. Smith, 911. 1072, 1125 
 
 Smith V. Spooner, 970 
 
 Smith V. Stokes, 204 
 
 Smith V. Sydney, 720 
 
 Smith V. Taylor, 990 
 
 Smith V. Tett, 886 
 
 Smith V. Thackerah, 12, 912, 1163 
 
 Smith V. Thomas, 977 
 
 Smith V. Topping-, 431 
 
 Smith V. Wiltshire, 875, 913 
 
 Smith V. Wood, 980 
 
 Smith V. Wright, 656, 660 
 
 Smith V. Young, 400 
 
 Smout V. llbery, 1007, 1025 
 
 Smyth V. Carter, 279, 318 
 
 Smythe v. Smythe, 286, 
 
 Snag V. Gray, 959 
 
 Snead v. Watkins, 616 
 
 Snelgrove v. Hart, 1115 
 
 Snelgrove v. Stevens, 1172 
 
 SneU V. Finch, 641 
 
 Snook V. Davidson, 550 
 
 Snow v. Latham, 405 
 
 Snow V. Peacock, 405 
 
 Snowball V. Gotdricke,.816 
 
 Soady v. Tumbull, 1130 
 
 Soames v. Edge, 1228 
 
 Soane v. Knight, 951 
 
 Solomon v. Lawson, 984, 998 
 
 Solomon v. Vinters' Co., 73, 112, 149 
 
 Solomons v. Dawes, 402, 554 
 
 Soltau V. De Held, 199, 241, 261 
 
 Some V. Bai-wish, 1109, 1115 
 
 Somers, In re, 900 
 
 Somerville v. Hawkins, 765, 931 
 
 Southampton, etc., Bridge Co. v. Local 
 
 Board, Southampton, 890, 891, 917, 
 
 1292 
 South Australian Co. v. RandeU, 522 
 Southcote's Case, 798 
 Southcote V. Stanley, 227, 249 
 Southee v. Deny, 958, 1180 
 Southerne v. Howe, 1032 
 Southernwood v. Ramsden, 1096 
 South East. Rail. Co. v. Richardson, 
 
 1222 
 South Essex Reclamation Co., Me, 545 
 
 South Yorkshire Rail. Co., In re, 1278 
 
 Sowell V. Champion, 687, 810, 819, 1196 
 
 Sowerby v. Coleman, 122 
 
 Sowerby v. Prior, 288 
 
 Spackman v. Miller, 432 
 
 Spark V. Heslop, 1191 
 
 Sparry's Case, 1155 
 
 Speaker of Victoria Assembly v. Glass, 
 
 775 
 Spears v. Hartly 537, 543 
 Speck V. Philips, 734, 737, 1194 
 Spedding v. Nevell, 1048, 1188 
 Speight V. Olivera, 1093 
 Spencer v. Lond. &; Birm. Rail. Co., 261 
 Spering V. Spering, 1060 
 Spill V. Maule, 998 
 Spilsbury v. Micklethwaite, 732, 812 
 Spokes V. Banbury Board of Health, 259 
 Spooner v. Brewster, 9 
 Spring, The, 484 
 Springhead Spinning Co. v. Riley, 14, 
 
 929 
 Squire, Hx parte, 427 
 Stace V. Griffith, 932, 998 
 Stacey v. Stacey, 1074 
 Stafford (Marquis of) v. Coyney, 270, 
 
 380 
 StaSbi'dshire, etc.. Canal Co. Y. Birm. 
 
 Canal Navigations, 147 
 Sta;ight V. Bum, 164 
 Staight V. Gee, 715, 722 
 Stainback v. Fernley, 1010 
 Stainton v. Metrop. Board, etc., 919 
 Stainton v. Woolrych, 894 
 Stallard v. Gt. West. Rail Co., 532 
 Stammers v. Yearsly, 726 
 Stanford v. Robinson, 415 
 Stanhope v. Thorsby, 857 
 Stannard Ulithorne, 497 
 Stannerd v. Lee, 58, 1232 
 Stansfeld v. Cubitt, 429 
 Stansfeld v. Mayor of Portsmouth, 299 
 Stante v. Pricket, 730 
 Staple V. Heydon, 105 
 Staples V. Accid. Death Ins. Co., 1252 
 Stapley v. Lond., Br. and S. Coast Rail. 
 
 Co., 474 
 Starling v. Turner, 36 
 Staveley v. AUcock, 641 
 Stead v. Williams, 61 
 Steadman v. Hockley, 547 
 Stebbing v. Met. Bd. of Works, 344, 905 
 Stedman v. Bates, 680 
 Stedman v. Smith, 354 
 Steel V. Prickett, 266, 351 
 Steel V. Soixth-East. Rail. Co., 510 
 Steele v. Midland Rail. Co., 911 
 Steele v. North. Metrop. Rail. Co., 923 
 Stephens v. Elwall, 447, 1123 
 Stephens v. Myers, 690 
 Stephenson, Re, 1059 
 Stephenson, v. Hart, 594, 619 
 Stevens v. Adamson, 1032 
 Stevens v. Benning, '1232 . 
 
CXXVl 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Stevens V. Chapman, 1213, 1215 
 
 Stevens v. Evans, 49 
 
 Stevens v. Jeacocke, 49. 51, 414 
 
 Stevens v. Mid. Rail. Co., 743, 759, 1119 
 
 Stevenson v. Blakelocke, 546 
 
 Stevenson v. Newnham, 425, 658 
 
 Steward v. Gromett, 742 
 
 Steward v. Young-, 970 
 
 Stewart's Case, 1011 
 
 Stewart, JSx parte, 436, 440 
 
 Stewart v. Austin, 50], 1025 
 
 Stewart v. Gt. West. Rail., 1154 
 
 Stewart v. Lond. and N. W. Rail. Co., 
 578, 579, 588, 598 
 
 Stewart v. Smith, 760 
 
 Stiles V. Cardiff Steam Navigation Co., 
 230 
 
 Stiles V. Nokes, 947 
 
 Stimson v. Farnham, 801 
 
 Stinson v. Browning, 204 
 
 Stockdale v. Hansard, 948 
 
 Stockley v. Hornidge, 758 
 
 Stockport Dis. Waterworks Co. v. Man- 
 chester (Mayor of), 1229 
 
 Stockport Dis. Waterworks Co. v. Pot- 
 ter, 81, 195, 198 
 
 Stockport, etc.. Rail. Co., Re, 896 
 
 Stodhard v. Johnson, 1207 
 
 Stoessiger v. South-East. Rail. Co. 584 
 
 Stokoe V. Singers, 162 
 
 Stonard v. Dunkin, 421 
 
 Stone V. Cartwright, 245, 507 
 
 Stone V. Dean, 1252 
 
 Stone V. Jackson, 203, 229 
 
 Stone V. March, 41 
 
 Stoneham v. Lond. & Bright. Rail., 125 
 
 Stonehouse v. Elliott, 719 
 
 Storer v. Hunter, 299, 436 
 
 Storey v. Ashton, 477 
 
 Storr V. Crowley, 594 
 
 Story, Ex pa-He, 1240 
 
 Story V. Richardson, 1115 
 
 Stott V. Stott, 90 
 
 Stourbridge Canal Co. v. Dudley, 109 
 
 Strachy v. Francis, 288 
 
 Strader v. Graham, 1206 
 
 Strafford's CasQ, 1202 
 
 Stretton v. Gt. West. Rail., 922 
 
 Strick V. Swansea Canal Co., 631 
 
 Stricklarid v. Ward, 853 
 
 Strother v. Barr, 1170 
 
 Stroud V. Watts, 1209 
 
 Stuart V. Crawley, 577 
 
 Stuart V. Lovell, 950 
 
 Stuart V. Whittafcer, 817 
 
 Stubley v. Lond. & N. W. Rail. Co., 473 
 
 Stubs V. Stubs, 415, 1138 
 
 Studdy V. Studdy, 1067 
 
 Stukeley v.. Butler, 118 
 
 Sturgis V. Smith, 1134 
 
 Sturt V. Blagg, 935, 997 
 
 Submarine TelegTaph Co. v. Dickson, 
 209 
 
 Suffield V. Brawn, 102, 103, 168 
 
 Suggate V. Suggate, 1074 
 
 Sumner v. Bromilow, 295, 298, 299 
 
 Sunbolf V. Alford, 617 
 
 Surgeons' Company's Case, 1288 
 
 Surrey Canal Co. v. Hall, 267 
 
 Sury V. Pigot, 170 
 
 Sutcliffe V. Booth, 146 
 
 SutcliflFe V. Surveyors of Sowerby, 237 
 
 Suter V. Burrell, 815 
 
 Sutherland v. Murray, 38 
 
 Sutton V. Buck, 443 
 
 Sutton V. Clarke, 885, 886, lI20, 1131 
 
 Sutton V. Gt. West. Rail. Co., 572 
 
 Sutton V. Johnstone, 43, 751 
 
 Button V. Ld. Montfort, 188 
 
 Sutton V. Moody, 413 
 
 Sutton V. South-East. Rail. Co., 1236 
 
 Sutton V. Wilders, 1027 
 
 Swan, The, 1144 
 
 Swan, Ex parte, 1079, 1294 
 
 Swan V. Brit. Austr. Co., 1291 
 
 Swan V. Dakins, 863 
 
 Swan V. North Brit. Aust». Co., 22, 27, 
 
 1178, 1273 
 Swann v. Falmouth (Earl), 654 
 Swann v. PhilUps, 1008, 1039 
 Swannell v. Ellis, 498 
 Swansborough v. Coventry, 114 
 Swayne's Case, 129 
 Sweet V. Pym, 550 
 Sweetman v. Guest, 837, 838, 857 
 Swinfen v. Ld. Chelmsford, 500, 1169 
 Swire v. Leach, 648 
 Swithin v. Vincent, 972 
 Sybray v. White, 201, 253 
 Syeds v. Hay, 395, 462, 595 
 Sykes v. Sykes, 1039, 1072, 1225 
 Sylph, The, 488 
 Syme v. Harvey, 296 
 Symonds v. Dimsdale, 1252 
 Syms's Case, 128 
 Syms V. Chaplin,' 625 
 
 T 
 
 Taafe v. Downes, 744 
 
 Tabart v. Tipper, 950 
 
 Taff Vale Rail. Co. v. Giles, 621 
 
 Tailors of Ipswich's Case, 45 
 
 Tait's Case, iOll 
 
 Tait V. Harris, 1132 
 
 Talbot (Earl) v. Scott, 319, 388 
 
 Talley v. Gt. West. Rwy., 599 
 
 Tanored v. Allgood, 445, 452, 788, 794, 
 
 810 
 Tancred v. Leyland, 657, 662, 683 
 Tanistry's Case, 121 
 Tanner v. European Bank, 557 
 TapKn v. Atty, 815 
 Tapling v. Jones, 150, 163 
 Tarletou v. M'Gawley, 14 
 Tarpley v. Blabey, 980, 996 
 Tarrant v. Webb, 490 
 
TABLE OF ENGLISH CASES CITBV. 
 
 CXXVU 
 
 Tate V. Gleed, 651 
 
 Tattan v. Gt. West. Rail. Co., 1213 
 
 Tatton V. Wade, 1008, 1039 
 
 Taunton v. Costar, 695 
 
 Taverner v. Little, 513 
 
 Tayler v. Fish, 376 
 
 Taylerson v. Petei-s, 640 
 
 Taylor v. Ashton, 1005, 1010, 1041 
 
 Taylor v. Blacklow, 497 
 
 Taylor v. BuUer, 1034 ' 
 
 Taylor v. Cass, 1212 
 
 Taylor v. Chester, 537 
 
 Taylor v. Chichester & Midhurst Rail. 
 Co 921 
 
 Taylor v. Cole, 363, 367, 695, 726, 1067 
 
 Taylor v. Gt. Ind. Penins., 27 
 
 Taylor v. Gt. North. Rail. Co., 574, 1220 
 
 Taylor v. Green, 1036 
 
 Taylor v. Hawkins, 932 
 
 Taylor v. Humphreys, 
 
 Taylor v. Lanyon, 606 
 
 Taylor v. Nesfield, 716, 874, 876 
 
 Taylor v. Pillow, 56 
 
 Taylor v. Plumer, 437 
 
 Taylor v. Robinson, 544 
 
 Taylor v. Smith, 730 
 
 Taylor v. Stendall, 212 
 
 Taylor v. Whitehead, 106, 379 
 
 Taylor v. Willans, 766 
 
 Tealby v. Gascoigne, 816 
 
 Tear v. Preebody, 395 
 
 Tebb V. Hodge, 300 
 
 Tebbutt V. Brist. & Ex. Rail., 33 
 
 Tebbuttv. Selby, 177 
 
 Telford v. Met. Board, 923 
 
 Tenant v. Golding, 193, 248 
 
 Tenant v. Goldwin, 112, 328 
 
 Tenham v. Herbert, 190 
 
 Tennant's Case, 61 
 
 Tennant v. Field, 660 
 
 Terry v. Huntington, 861 
 
 ' feiTy V. Hutchinson, 1091 
 
 rhackthwaite v. Cock, 434 
 
 Thames Conservators v. Hall, 481 
 
 Thames Conservators v. Victoria Station 
 Co., 900 
 
 Thames Iron Works Co. v. Patent Der- 
 rick Co., 539 
 
 rharp V. Stallwood, 1112 
 
 Thaxbie v. Smith, 1185 
 
 Theobald v. Cidchmore, 712 
 
 Theobald v. Rail. Pass. Assur. Co., 1187 
 
 Thistlewood's Case, 980 
 
 Thorn V. Bigland, 1041 
 
 Thomas, Ex parte, 440 
 
 Thomas v. Chirton, 968 
 
 Thomas v. Daw, 921 
 
 Thomas v. Harries, 654, 659, 669 
 
 Thomas v. Harris, 1193 
 
 Thomas v. Jones, 317 
 
 Thomas v. Morgan, 255, 1040 
 
 Thomas v. Oakley, 316, 388 
 
 Thomas v. Philips, 419 
 
 Thomas v. Powel, 736 
 
 Thomas v. Rhymney Rail., 597 
 
 Thomas v. Roberts, 1076 
 
 Thomas v. Russell, 766, 767 
 
 Thomas v. Saunders, 722 
 
 Thomas v. Sorrell, 100 
 
 Thomas v. Thomas, 168, 1072 
 
 Thomas v. Welch, 63 
 
 Thomas v. Williams, 914 
 
 Thomlinson v. Brown, 162 
 
 Thompson, In re, 840 
 
 Thompson v. Bernard, 956 
 
 Thompson v. Dallas, 1212 
 
 Thompson v. Gibson, 197, 243, 1210 
 
 Thompson v. Giles, 437 
 
 Thompson v. Hill, 213 
 
 Thompson v. Ingham, 862, 1141, 1245 
 
 Thompson v. Lacy, 608 
 
 Thompson v. Mashiter, 648 
 
 Thompson v. . North-East. Rail. Co., 222 
 
 Thompson v. Nye, 996 
 
 Thompson v. Pettit, 314 
 
 Thompson v. Ross, 1090, 1091 
 
 Thompson v. Stanhope, 1231 
 
 Thompson v. Thompson, 1060, 1064, 1072 
 
 Thompson v. Trevanion, 1176 
 
 Thompson v. Wood, 678 
 
 Thomson v. Simpson, 1045 
 
 Thorburn v. Barnes, 771 
 
 Thorley v. Kei-ry (Lord), 927 
 
 Thorn v. Bigland, 1027 
 
 Thorne v. Tilbury, 451,- 562 
 
 Thornewell v. Wigner, 1139 
 
 Thornton v. Adams, 653 
 
 Thornton v. Pickering, 991 
 
 Thorogood v. Bryan, 479, 511 
 
 Thorogood v. Robinson, 398 
 
 Thorp V. Facey, 337, 343 
 
 Thorpe v. Adams, 1258 
 
 Thresher v. East Lond. Water Co., 298 
 
 Throgmorton v. Allen, 698 
 
 Thurgood v. Richardson, 811 
 
 Tickle V. Brown, 156, 367, 370 
 
 Tidman v. Ainslie, 964, 972, 979 
 
 Tighe V. Cooper, 978 
 
 Tilk V. Parsons, 990 
 
 Tilson V. Warwick Gas Light Co., 49 
 
 Timothy v. Simpson, 694, 695, 703 
 
 Tindall v. Bell, 518, 1189 
 
 Tinkler v. Wandsworth District Board, 
 
 919, 921, 12^9 
 Tinsley v. Lacey, 52, 54 
 Tipping V. St. Helen's Smelting Co., 196 
 
 260 
 Titchmarsh v. Chapman, 1240 
 Tobacco Pipe, etc., Co., v. Loder, 46 
 Tobin V. The Queen, 447 
 Todd V. Flight, 211 
 Todd V. Hawkins, 939 
 Todd V. Todd, 1067 
 Todhunter, Ex parte, 428 
 Toft V. Rayner, 1242 
 Tollemache v. Lond. & S. W Rail. Co., 
 
 708 
 Tollit V. Sherstone, 1102 
 
CXXVIU 
 
 TABLE OF MN6LISH CASSIS CITED. 
 
 TomlinsoH, In re, 1079 
 Tonson v. Walker, 1231 
 Toogood V. Spyring-, 931, 943 
 Tooke V. HoUingworth, 437, 439 
 Toomey v. Lond. & Br. Rail. Co., 218 
 Topham v. Dent, 1114 
 Torrence v. Glbbins, 1095, 1096 
 • Torriano v. Young, 280 
 Tottenkam v. Byrne, 350 
 Towne v. Lewis, 400 
 Townley v. Gibson, 100 
 Towpley v^ Jones, 499 
 Townsend v. Wathen, 200 
 Tozer v. Child, 36, 37, 771 
 Tozer v. Mashford, 956 
 Tracy v. Open Stock Exchange, 778 
 Tracy v. Veal, 42 
 Traherne v. Gardner, 1224 
 Treadwin V. Gt. East. RaiL.Co., 580, 585 
 Trelawney v. Coleman, 1086 
 Trent v. Hunt, 641, 663, 680- 
 Trent Nav. Co. v. Ward, 577 
 Tripp V. Thomas, 992 
 Trismall v. Lovegrove, 431 
 •Trower v. Chadwick, 212 
 Truscott V. Merchant Taylor's Co., 140 
 Trust. Brit. Museum v. Pinnis, 267 
 Tubb V. Good, 236 
 Tubervil v. Stamp, 12, 803, 305 
 Tuberville v. Savage. 691 
 Tucker v. Newman, 244, 256 
 Tucker v. Turpin, 1052 
 Tucker v. Wright, 448 
 Tuff V. Warman, 28, 485, 493, 516 
 Tufton V. Harding, 792 
 Tulk V. Metrop. Board of Works, 122 
 TuUay v. Reed, 694 
 TuUidge V. Wade, 733, 1097, 1193 
 Tullit V. Tullit, 411 
 Tunney v. Midland Rail. Co., 492 
 Tunnicliffe v. Moss, 990 
 Tunnicliffe v. Tedd, 725 
 Tunno v. Morris, 777 
 Turberville v. Stampe, 515 
 Turner v. Ambler, 744, 766 • 
 Turner v. Baynes, 345, 640 
 Turner v. Cameron, 644 
 Turner v. Deane, 547 
 Turner v. Doe, 336 
 Turner v. Pelgate, 800, 813 
 Tui-ner v. Ford, 445, 446, 460 
 Turner v. Horton, 1208 
 Turner v. Postmaster-General, 840 
 Turner v. Ringwood Highway Board, 
 
 272, 380 
 Turner v. Spooner, 152, 163, 188 
 Turaer v. Winter, 63 
 Turner v. Wright, 286 
 Turnley v. Macgregor, 1041 
 Turquand v. Marshall, 502 
 Turrill v. Crawley, 616 
 Tuson V. Evans, 946 
 Tutton V. Darke, 644 
 Tutty V. Alewin, 958 
 
 Two Ellens, The, 538 
 
 Twort V. Twoi-t, 318 
 
 Twyman v. Knowles, 384 
 
 Twynam v. Porter, 547 
 
 Tyler v. Bennett, 1209 
 
 Tyler v. Leeds (Duke of), 819 
 
 Tyne Improvement Commissioners v. 
 
 Gen. Steam Nav. Co., 481 
 Tyi-ingham's Case, 167 
 Tyson v. Smith, 121, 122 
 Tyson v. London (Mayor of), 900 
 
 U 
 
 Udell V. Atherton, 1027, 1121 
 
 Uhla, The, 488 
 
 Umphelby v. McLean, 915 
 
 TJnderhill v. EUicombe, 49 
 
 Underwood v. Hewson, 466 
 
 Underwood v. Parks, 993 
 
 Union Bank of Manchester, Ex parte, 
 431, 432 
 
 Union Cement and Brick Co., Be, 545 
 
 United Service Co., In re, 27, 501, 518 
 
 Unity Joint-Stock Bank Min. Associa- 
 tion v. King, 362 
 
 Upmann v. Elkan, 64, 1052 
 
 Valentine v. Cleugh, 1220 
 
 Valentine v. Penny, 127 
 
 Vallance, Ex parte, 432 
 
 Vallanoe v. Savage, 85, 1105 
 
 Valpy V. Manley, 819 
 
 Valpy V. Sanders, 426 
 
 Vanderburg v. Ti-uax, 8 
 
 Vanderzee v. WiUis, 545 
 
 Vane v. Lord Barna^d, 286 
 
 Van Sandau v. Turner, 775 
 
 Van Toll v. South-East. Rail. Co., 532, 
 
 593 
 Vaughan, Ex parte, 861 
 Vaughan v. Cork and Yough. Rail. Co., 
 
 493' 
 Vaughan v. Lewis, 1287 
 Vaughan v. Menlo-\>^e, 304, 807, 308, 312 
 Vaughan v. Taff Vale Rail. Co., 307, 312 
 Vaughtou V. Bradshaw, 725 
 Velasquez, The, 481 
 Veley v. Burder, 1238; 1241 
 Venafra v. Johnson, 741, 835 
 Veness, Ex parte, 428 
 Venezuela Rail. Co. v. Kisch, 1011 
 Vere v. Cawdor (Lord), 457 
 Venaon v. Keyes, 1022 
 Verrall v. Robinson, 399, 450 
 Verry v. Watkins, 1097 
 Vicars vl Wilcocks, 6, 962, 963, 989 
 Victor, The, 482 
 VilUers v. Mousley, 926, 928 
 Vine V. Saunders, 1125 
 
TABLE OF ENBLISB OASES CITED. 
 
 CXXIX 
 
 Viner v. CAd«ll, 432 
 
 Viner v. Vaaghan, 316 
 
 Violett V. Sympson, 872 
 
 Virtue v. Bird, 25 
 
 Vivian v. Champion, 1109 
 
 Vivid, The, 485 
 
 Vizard, Re, 424 
 
 Vose V. Lane, and York. Rail. Co., 218, 
 
 224, 490 
 Vowles V. Miller, 354 
 Voyce V. Voyee, 854 
 
 w 
 
 Waddell v. Waddell, 1061 
 
 Wade V. Tatton, 1008 
 
 Wadhurst v. Damme, 393, 457 
 
 Wadsworth v. Bentley, 1157 
 
 "Wain V. Bailey, 416 
 
 Wait V. Wait, 1087 
 
 Waite V. Garston Local Board, 47 
 
 Waite V. North-East. Kail. Co., 493 
 
 Wakefield v. Bucdeugh (Duke of), 75, 
 
 124, 189 
 Wakenian v. Linsey, 662 
 Wakeman v. Robinson, 466, 514 
 Wakley v. Cooke, 930 
 Wakley v. Frogg-att, 362, 1166 
 Wakley v. Healey, 985 
 Walker v. Birch, 542- 
 Walker v. Brewster, 199 
 Walker v. Brit. Guarantee Ass., 523, 528 
 Walker v. Kvans, 241 
 Walker v. Gann, 1248 
 Walker v. Goe, 222, 887 
 Walker v. Jackson, 628 
 Walker v. Milner, 1022 
 Walker v. Olding-, 1187 
 Walker v. S. E. Rail., 721, 759, 1118 
 Walker v. Willoughby, 795 
 Wall V. Hinds, 297 
 Wall v. London and S. W. Railway Co., 
 
 1223 
 Wall v. McNamara, 39 
 WaUace, Re, 775 
 Wallace v. CaiToU, 965 
 Wallace v. Jarman, 1013, 1014 
 Wallace v. Woodgate, 550, 603 
 Waller v. Drakeford, 456 
 Waller v. Holmes, 546 
 Walker v. South-Bast. Rail. Co., 492 
 Walley v. M'Connell, 809 
 Wallington v. Wood, 1185 
 Wallis V. Harrison, 120, 378, 1106 
 Wallis V. L. and S. W. Rail., 602 
 Walmsley, Ex parte, 1265 
 Walmsley v. Milne, 291, 294 
 Walsham v. Stainton, 741 
 Walshe v. Provan, 556' 
 Walter v. Selfe, 192i 195; 258 
 Walters V. Mace, 98»- 
 Walters v. Pfiel, 212 
 Walters v. Webb, 338 
 
 A.-D. — ^I 
 
 Walton V. Brown, 1206 
 
 Walton V. Lavater, 66 
 
 Walton v. Walton, 1067 
 
 Wandsworth Board v. Lond. and S. W. 
 
 Rail. Co., 92, 258, 262, 387, 1229 
 Wanless v. N. E. RaiL, 474 
 Wansbrough v. Maton, 296 
 Wanstead Local Board, etc., v. Hill, 46, 
 
 59 195 
 Warburton v. Gt. West. Rail. Co., 493 
 Warburton v. Parke, 142, 144, 168 
 Warde, Ex parte, 1295 
 Warde v. Lee, 890, 892 
 Warde v. Lowndes, 1277, 1291, 1294 
 Warde v. Robins, 154, 156 
 Warde v. Shew, 641 
 Warde v. South-East. Rail. Co., 1291 
 Warde v. Waa-d, 156, 160, 164, 1067 
 Warde v. Weeks, 7, 964, 972 
 Warde v. Eyre, 411 
 Warde v. Warde, 1076, 1077 
 Warden v. Mourillyan, 595 
 Warden v. Bailey, 1121 
 Wardle v. Brocklehurst, 103, 104, 169 
 Ware, In re, 909 • 
 Ware v. Regent^s Canal Co., 1232 
 Waring v. Waring, 1061 
 Warne v. Chadwell, 989 
 Warner v. Riddiford, 647, 719, 731 
 Wan- V.' Jolly, 942 
 Warren v. Warren, 981 
 Warren v. Webb, 359 
 Warrick v. Queem's. Coll., 122, 154, 190, 
 
 1174 
 Warwick v. Fbulkes, 729, 993 
 Wason V. Walter, 948, 949, 950 
 Watbroke v. Griffith, 616 
 Waterer v. Freeman,. 242, 753 
 Waterhouse v. Jamieson, 1011 
 Waterhouse v. Keen, 914 
 Waterlow v. Bacon, 180, 189 
 Waterman v. Soper, 352, 1116 
 Waters v. Monarch, 461 
 Waters v. Towers, 463 
 Watkin v. Hall, 973, 975 
 Watkins, Ex parte, 436, 1249 
 Watkins v. Gt. North. Rail. Co., 364, 
 
 901, 919 
 Watkins v. Lee, 760 
 Watkins v. Reddin, 204, 263 
 Watling v. Oastler, 225 
 Watson V. Ambergate Rail. Co., 596 
 Watson V. Bodell, 803 
 Watson V. Chai'lemont (Earl), 1009 
 Watson V. Christie, 734, 995, 1195 
 Watson V. Denton, 1044 
 Watson V. Maclean, 416 
 Watson V. Peaehe, 436 
 Watson V. Poulson, 1004- 
 Watson V. RuBsell, 423 
 Watson V. Waud, 686 
 Watts, ExpwH6,4S,?> 
 Watts V. Fraeer, 996 
 Watts V. Kelsoiii 103, 169 
 
cxxx 
 
 TABLE OF ENGLISH CASES CITED. 
 
 ■Watts V. Lueaa, 239 
 
 Weall V. King-, 1131 
 
 Weatherby v. Ross, 163, 188 
 
 Weatherston v. Hawkins, 943 
 
 Weaver v. Bush, 693 
 
 Weaver v. Ward, 2, 466 
 
 Webb's Case, 264 
 
 Webb, In re, 595 
 
 Webb v. Bird, 142, 183 
 
 Webb V. Cook, 991 
 
 Webb V. Fairmaner, 716 
 
 Webb V. Fox, 452, 543 
 
 Webb V. Paternoster, 392 
 
 Webb V. Portland Manufact. Co., 10 
 
 Webber v. Gt. Western Rail. Co., 596 
 
 Webber v. Sparkes, 1151 
 
 Webster's Case, 1011 
 
 Webster v. Watts, 694, 794 
 
 Webster v. Webster, 1073 
 
 Wednesbury Bd. of Health v. Stephen- 
 son, 1220 
 
 Weekly v. Wildman, 129 
 
 Weeks v. Goode, 408, 540 
 
 Weeks, v. Sparke, 1174 
 
 Weems v. Mathieson, 226, 489 
 
 Welch V. Nash, 843, 861 
 
 Welcome V. Upton, 130 
 
 Weld V. Hornby, 262 
 
 Weldon v. Gould, 541 
 
 Welfare v. Brighton Rail., 23, 202, 514 
 
 Weller v. Toke, 873 
 
 Wellesley v. Wellesley, 286, 1076 
 
 Wellock V. Constantine, 40 , 
 
 Wells V. Guraey, 795 
 
 Wells V. Head, 393, 457, 459 
 
 Wells V. Ody, 183 i 
 
 WeUs V. Watling, 173 
 
 Welsh V. Rose, 642 
 
 Wenman v. Ash, 931, 936, 981 
 
 Wentworth v. BuUen, 754 
 
 West V. Baxendale, 728 
 
 West V. Blakeway, 298 
 
 West V. Francis, 58 
 
 West V. L. & N. W. Rail., 573 
 
 West V. Nibbs, 665, 675 
 
 West V. Skip, 431 
 
 West V. Smallwood, 724, 876 
 
 West V. West, 1086 
 
 West Riding- Rail. Co. v. Wakefield Bd. 
 of Health, 220, 509 
 
 Western Bank of Scotland v. Addie, 
 1010, 1027, 1Q38 
 
 Weston's Case, 1294 
 
 Weston V. Beeman, 750, 758, 766 
 
 Weston V. Dobniet, 934 
 
 Weston V. Sneyd, 871, 1250 
 
 Westwood V. Bell, 549 
 
 Westwood V. Cowne, 663, 688 
 
 Wettorv. Dunk, 201 
 
 Whaley v. Laingr, 81, 87, 177, 1206 
 
 Wharton v. Brook, 953 
 
 Wharton v. Naylor, 649, 817 
 
 Whatman v. Pearson, 34, 915 
 
 Wheatley v. Patrick, 479 
 
 Wheeler v. Branscombe, 680 
 
 Wheeler v. Whiting, 694, 704, 719 
 
 Whistler v. Forster, 423 
 
 White's Case, 612, 1273 
 
 White V. Bailey, 336, 446 
 
 White V. Bass, 114, 151 
 
 White V. Binsteak, 793, 819 
 
 White V. Cohen, 92 
 
 White V. Crisp, 209. 273 
 
 White V. Gainer, 540 
 
 White V. Garden, 420, 541 
 
 White V. Gt. West. Rail. Co., 623, 625 
 
 White V. Humphrey, 529, 593 
 
 White V. Hunt, 424 
 
 White V. Morris, 813, 817 
 
 White V. Phillips,' 209, 223 
 
 White V. R. Ex. Ass. Co., 546 
 
 White V. Spettigue, 41, 408, 418 
 
 White V. Steele. 889, 1220, 1238, 1242, 
 1247 
 
 Whitecomb v. Jacob, 439 
 
 Whitehead v. Bennett, 298 
 
 Whitehead v. Greetham, 499 
 
 Whitehead v. Proctor, 779 
 
 Whitehead v. Scott, 1173 
 
 Whitehead v. Taylor, 679 
 
 Whitehouse's Case, 1011 
 
 Whitehouse v. Birm. Can. Co., 883 
 
 Whitehouse v. Fell, 1163 
 
 Whitehouse v. Fellowes, 243, 886, 899, 
 913 
 
 Whitehouse V. Wolverhampton Rail., 110 
 
 Whitelegg v. Richards, 777 
 
 Whitely v. Adams, 931 
 
 Whitelock v. Hutchinson, 126 
 
 Whiteman v. King, 172 
 
 Whitfield V. Bewitt, 411 
 
 Whitfield V. Brand, 438 
 
 Whitfield V. S. E. Rail. Co., 972, 1118 
 
 Whitfield V. Le Despenser (Lord), 20 
 
 Whitley v. Roberts, 642 
 
 Whitmore v. Black, 460 
 
 Whitmore v. Greene, 809 
 
 Whitmore v. Humphries, 334 
 
 Whitmore v. Whitmore, 1060, 1087 
 
 Whitstable (Free Fishers of) v. Fore- 
 man, 347 
 
 Whitstable (Free Fishers of) v. Gann, 
 347 
 
 Whittaker v. Jackson, 353, 361 
 
 Whittall V. Campbell, 1225 
 
 Whitten v. Fuller, 448 
 
 Whittington v. Boxall, 360 
 
 Whitworth v. Hall, 755 
 
 Whitworth v. Maden, 688 
 
 Wickham v. Hawker, 363 
 
 Wicks V. Fentham, 767 
 
 Wicks V. Hunt, 1232 
 
 Wieler v. Schilizzi, 1022 
 
 Wiffin v. Kincard, 692 
 
 Wigens v. Cook, 1215 
 
 Wiggett V. Pox, 490, 493 
 
 Wiggins, Ex parte, 435 
 
 Wigmore v. Jay, 227 
 
TABLE OF ENOLISE CASES CITED. 
 
 CXXiLl 
 
 Wilby V. Elston, 5, 953, 954, 977, 1149 
 
 Wilby V. West Cora. Rail. Co., 596 
 
 Wilcox V. Marshall, 1143 
 
 Wild V. Holte, 383 
 
 Wilde V. Gibson, 1006 ■ 
 
 Wilde V. Minsterley, 74 
 
 Wilde V. Sheridan, ]244 
 
 Wilde V. Waters, 282 
 
 Wilder v. Speer, 670 
 
 Wildes V. Russell, 832, 1269 
 
 Wiles V. Woodward, 456 
 
 Wilford V. Berkeley, 1085 
 
 Wilkes V. Broadbent, 98 
 
 Wilkes V. Himg'. Mark. Co., 43, 884 
 
 Wilk's Case, 957 
 
 Wilkin V. Reed, 1181, 1182 
 
 Wilkins v. Bromhead, 437 
 
 Wilkinson v. Fairrie, 201 
 
 Wilkinson v. Haygarth, 356, 376, 1117 
 
 Wilkinson v. Kirby, 387, 1151 
 
 Wilkinson v. Proud, 75, 135 
 
 Wilkinson v. Verity, 345, 1164 
 
 Wilkinson v. Whalley, 450 
 
 Willans v. Taylor, 743 
 
 WilUams v. Adams, 842 
 
 Williams v. AUsup, 538 
 
 Williams v. Archer, 566 
 
 Williams v. Baily, 1060 
 
 Williams v. Banks, 746 
 
 Williams v. Blackwall, 233 
 
 Williams v. Cloug-h, 223, 227, 513 
 
 Williams v. Cranston, 620 
 
 Williams v. Currie, 382, 1184 
 
 Williams v. East India Co., 1033 
 
 Williams v. Everett, 421 
 
 Williams v. Eyton, 165 
 
 Williams v. Fitzmaurice, 496 
 
 Williams v. Gardiner, 985 
 
 Williams v. Gibbs, 498 
 
 Williams v. Glenister, 704 
 
 WiUiams v. Golding-, 218, 496 
 
 Williams v. Groucott, 201 
 
 Williams v. Gt. West. Rail. Co., 599 
 
 Williams v. Holmes, 648 
 
 Williams v. James, 182 
 
 Willimas v. Jersey (Earl of), 259 
 
 Williams v.. Jones, 308, 507, 681, 692 
 
 Williams v.' Milling-ton, 1105 
 
 Williams v. Morland, 80 
 
 Williams v. Morris, 377, 381 ' 
 
 Williams v. Mostyn, 797, 818 
 
 Williams v. Pott, 334, 338 
 
 Williams v. Richards, 476 
 
 Williams v. Roberts, 653 
 
 Williams v. Smith, 720, 757, 799, 810 
 
 Williams v. Stiven, 639, 679 
 
 Williams v. Stott, 985 
 
 Williams v. Wilcox, 183, 238, 1152 
 
 Williams v. Williams, 60, 1060, 1066 
 
 Williamson v. Allison, 1013, 1014 
 
 Willing-ale v. Maitland, 123, 127 
 
 WilUs V. Bernard, 1086 
 
 Willoug-hby v. Backhouse, 685 
 
 Willoughby v. Horridge, 605 
 
 Willoug-hby v. Marshall, 657 
 
 Wills V. Maccarmick, 771 
 
 Wills V. Wells, 462 
 
 Wilson's (Carus) Case, 832 
 
 Wilson, Ex 'parte, 425, 431 
 
 Wilson V. Anderton, 403 
 
 Wilson V. Barker, 1122 
 
 Wilson V. Brett, 527 
 
 Wilson V. Fuller, 1036 
 
 Wilson V. Halifax (Mayor of), 888, 915 
 
 Wilson V. Lane. & York. Rail. Co., 628, 
 
 1187 
 Wilson V. Merry, 490 
 Wilson V. Ne-wberry, 83 
 Wilson V. JSTewport Dock Co., 518 
 Wilson V. Peto, 176, 245, 507 
 Wilson V. Rankin, 1027 
 Wilson V. Robinson, 940 
 Wilson V. Stanley, 143, 158 
 Wilson V. Towend, 2.58 
 Wilson V. Tucker, 49*9 
 Wilson V. Tummen, 809, 810, 1122 
 Wilson V. Willes, 98, 127 
 Wilsons, In re, 672 
 Wilton V. Girdlestone, 398' 
 Wiltshear v. Cottrell, 296 
 Wiltshire v. Sidford, 353 
 Wiltshire Iron Co. v. Gt. West. Rwy., 537 
 Windham v. Clere, 836 
 Windover v. Smith, 57 
 Wingate v. Waite, 774 
 Winship v. Hudspeth, 143 
 Winsmore v. Greenbank, 2, 11, 43, 242, 
 
 1088, 1099 
 Winter v. Bartholomew, 792 
 Winter v. Brockwell, 100, 161, 180 
 Winter v. Henn, 1085 
 Winterbottom v. Derby (Lord), 143, 158 
 
 241 
 Winterbottom v. Wright, 18, 489, 1102 
 Winterburn v. Brooks, 727 
 Wintle V. Brist. & S. W. Rail. Co., 1229 
 Wintle V. Freeman, 801 
 Wise V. Gt. West. Rail. Co., 494 
 Wise V. Metcalf, 279, 288, 1129 
 Witham, Ex parte, 440 
 Witham Nav. Co. v. Padley, 724 
 Wither v. Dean, etc., of Winchester, 318 
 Withers v. Henly, 700 
 Withers v. North Kent Rail. Co., 219 
 Withers v. Parker, 796 
 Witte V. Hague, 245 
 Woburn Abbey, The, 481 
 Wolf V. Somers, 603 
 Wolton V. Gavin, 708 
 Wontner v. Shaiip, 1009 
 Wood V. Bell, 463 
 Wood V. Boosey, 54, 55 
 Wood V. Brown, 973 
 Wood V. Chart, 52 
 Wood V. Clarke, 645, 648 
 Wood V. Gunstone, 966 
 Wood V. Hewett, 296 
 Wood V. Lane, 698 
 
cxxxu 
 
 TABLE OF EN&IjISB CASUS CITED. 
 
 Wood V. Leadbitter; 9^ llS, 180 
 
 ■Wood V. Morewood, 383, 457 
 
 Wood V. Nunn, 654 
 
 Wood V. Riley, 1211 
 
 Wood V. Sutolifie, 257 
 
 Wood V. Veal, 158, 27a 
 
 Wood V. Waud, 77, 90, 147 
 
 Wood V. Wedgewood, 378 
 
 Wood V. Zimner, 60 
 
 Woodgate v. Knatohbull, 802, 809, 815 
 
 Woodgate v. Naylor, 1068 
 
 Woodger v. Gt. West. Rail. Co., 629 
 
 Woodhall V. Voight, 1224 
 
 Woodhouse v. Mflrray, 427 
 
 Woodin V. Burford, 1037 
 
 Wooding V. Oxley, 704 
 
 Wec.dley v. Coventry, 402 
 
 Woods V. Knnis/783, 797 
 
 Woods V. Russell, 435 
 
 Woodward v. Gyles, 317 
 
 Woodward v. Lander, 932 
 
 Woodyer v. Haddec, 268, 269 
 
 Wookey v. Pole, 545 
 
 Wooldridge, Ex parte, 1140 
 
 Woollen V. Wright,. 809, 1122 
 
 WooUey v. Clark, 800 
 
 WooUey v. North London Rail. 1154 
 
 Woolley V. Scovell, 476 
 
 Woolnoth V. Meadows,. 969 
 
 Wore. Co. Bank v. Dorch. and Milt. 
 
 Bank, 405 
 Wordsworth v. Harley, 912 
 Workman) V. Gt. North. Rail. Co., 1186 
 Wormer v. Biggs, 566, 666 
 Wormwell v. Hailstone, 1121 
 Worrall Waterworks Co. v. Lloyd, 888 
 Worsley v. Stuart, 316 
 Worth TT. Silling, 254,, 1181 
 Worth V. Terrington, 726, 730 
 Worthington v. Gimson, 169 
 Worthington v. Hulton, 1277 1279 
 Wotherspoon v. Currie, 1052 
 Wray v. Toke, 888, 851 
 Wren v. Weild, 36, 969, 970, 979 
 Wright's Case, 1011 
 Wright V. Child, 783 
 Wright V. Clements, 973 ' 
 
 Wiight V. Court, 691, 700, 867 
 Wright V. Crookes,. 1036, 1043 
 Wright V. Goodlake, 52 
 Wright V. Hitchcock, 62, 65 
 Wright V. Howard, 80 
 Wright V. Lainsdn, 812 
 Wright V. Leonard, 44, 1031, 1125 
 Wright V. Pearson,, 30 
 Wright V. Snell,. 601 
 Wright V. Tallis, 53 
 Wright V. Williams, 145, 158 
 Wright V. Woodgate, 945 
 Wrightup V. Chamberlain, 1190 
 
 Wrightup V. Gre&nacre, 802, 812 
 Wyaitt V. Gore, 977, 978i 996 
 Wyatt V. Gt. West. Raiil. Co., 220, 49» 
 Wyatt V. Harrison, 73 
 Wyatt V. White, 749, 751, 828 
 Wyer v. Dorch., etc., Bank, 405 
 Wyld V. Pickforf, 585 
 Wylde V. Radford, 545 
 Wylie V. Birch, 801 
 Wynne v. Tyrwhit, 1175 
 Wynstanley v. Lee, 92, 188 
 Wyrley Canal Co. v. Bradley, 110 
 
 Yarborough v. Bank of England, 119 
 
 Yard v. Ford, 17 
 
 Yarmouth (Great), Mayor of v. Groom 
 
 16 
 Yates V. Duuster, 815 
 I Yates V. Jack, 153, 189 
 Yates V. Palmer, 1240, 1249 
 Yates V. Whyte, 310, 519, 1159, 1198- 
 Yearsley v. Heane, 796 
 Yeatman v. Yeatman, 1065, 1067 
 Yellowly v. Gower, 278 
 Yeo V. Tatem, 1162 
 Yeoman v. Ellison, 637 
 York V. Grindstone, 615 
 York (Mayor of) v. Pilkingtou, 190 
 York & N. Mid. Rail. Co; v. Miliier, 
 
 1281 
 York & N. Mid. Rail. Co. v. The Queen, 
 
 1257 
 Yorke v. Grenaugh, 539, 616 
 Young V. Cooper, 450, 
 Young V. Davis, 21, 171, 888 
 Young V. Edwards, 45, 47 
 ; Young V. Fletcher, 426 
 Young V. Grattridge, 233 
 Young V. Grote, 23 
 Young V. Hichena, 15, 414 
 Young V. Higgon, 716, 875 
 Young V. Hope, 430^ 432 
 Young V. Lambert, 551 
 Young V. Macrae, 952 
 Young V. Matthews, 419 
 Young V. Spencer, 280, 311 
 Yrisarri v. Clement, 930 
 
 z 
 
 Zetland (Earl of) v. Glover Incorp. of 
 
 Perth, 132 
 Zinck V. Walker, 437 
 Zouch V. Willingale, 635, 640 
 Zunz,v. S. E. Rail., 590, 597 
 Zychlinski, v. Maitby, 1225 
 
THE LAW OF TORTS. 
 
 CHAPTER I. 
 
 THE LAW OF TORTS, 
 
 Beotiow I. — Of actionable vyrongs, and injuries that are not actionable. — Of the 
 conjunction of damage and wrong necessary to constitute a tort — Damage 
 ■without wi'ong — Damage too remote to give rise to a cause of action — Damage 
 sufficiently connected with the wrong — Actual pecuniary damage not neces- 
 sary — Injury to a right — ^Procurement of the violation of a right — General 
 legal rights — Injuries to property — Literary and artistic p^op^rty — Interfer- 
 ence by force or fraud with the free exercise of another's trade or occupation, 
 or means of livelihood — Fair competition — Disturbance of ferries and markets 
 — Torts founded on contract and breach of duty — Duties of public officers — 
 Consignors and bailors of chattels — Torts founded on negligence — Contribu- 
 tory negligence on the part of the plaintiff— Liability in respect of the remote 
 ulterior and unusual consequences of a negligent act — Liability of masters 
 for negligence of servants — Indemnification of masters by servants — Fraud 
 and falsehood creating a cause of action — Disobedience of judicial decrees — 
 Malicious injuries — Malicious procurement of loss or damage to another — 
 Abuse of authority by governors and naval and military officers — Torts com- 
 mitted by British subjects abroad — Suspension of remedy by action when the 
 tort amounts to a felony — Public and private wrongs — Maxim of no wrong 
 without a remedy — "Waiver of tort. 
 
 S^TTioN II. — Of rights, duties and obligatioTis created by by-law and by statute. — 
 By-laws imposing penalties for the suppression of torts — By-laws of munici- 
 pal corporations — Bathing by-laws — By-laws of commissioners, local boards 
 and public companies — Enforcement of statutory duties and obligations — 
 Imposition of a penalty as a cumulative, exclusive or alternative remedy for 
 the protection of a right or the suppression of a wrong — Infringement of 
 statutory copyright — Penalties and actions — Dramatic literary property and 
 musical compositions — Sculpture Copyright Acts — Piracy of useful and orna- 
 mental designs, prints, engravings, paintings, drawings and photographs — 
 Piracy of trade-marks — Penalties for the commission of nuisances — Patent 
 right and its infringement — Statutory benefits and burthens. 
 
ACTIONABLE WBONQS, [Chap. 1. 
 
 SECTION I. 
 
 OP ACTIONABLE WRONGS, AND INJURIES THAT ARE NOT ACTIONABLE. 
 
 1 Of the conjunction of da/mage and vyrong necessary to create a Tort. — 
 To constitute a Tort, two things must concur, actual or legal damage 
 to the plaintiff, and a wrongful act committed by the defendant(a). 
 
 Ex damno sine injuria nan oritur actio — is a very ancient rule or 
 maxim of the common law. " There must," observes Hobart, C.J,., 
 " be a damage either already fallen upon the party or inevitable ; 
 there must also be a thing don6 amiss "(&). " By injuria" observes 
 Willes, C.J., "is meant a tortious act; it need not be wilful and ma- 
 licious, for though it be accidental, an action will lie "(c). 
 & Damage and wrong — Dangerous things set in motion. — If the damage 
 done is the immediate result of force exercised by the defendant, in a 
 place where the probable and natural result of misdirected force would 
 be to cause injury to others, the defendant will be responsible for the dam- 
 age done, though it happen accidentally, or by misfortune(d), unless the 
 force was used strictly in self-defence. Thus, where one shooting at 
 butts for a trial of skill with the bow and arrow accidentally wounded a 
 man, it was holden that he was responsible in damages, though he was 
 doing an act lawful in itself, and had no unlawful purpose in view(e). 
 And the same was holden where a like unfortunate accident happened , 
 whilst persons were lawfully exercising themselves in arms(/). 
 
 "If I put in motion a dangerous thing, as, if I let loose a dangerous 
 animal, and leave to hazard what may happen, and mischief ensue to 
 any person, I am answerable in an action of trespass "{g). " If I turn 
 
 (o) Bayley, J., Bex v. Pagham Commissioners, etc., 8 B. & C. 362. 
 
 (&) Waterer v. Freeman, Hob. 266. One person cannot maintain an action against anotlier 
 for a mere illegal or wrongful act, unless lie lias tliereby sustained an injury. Nicliola t>. Val 
 entine, 36 Maine, 322. Lambard «. Pilie, 33 Maine, 151. 
 
 (c) Winsmore v. Greenbank, Willes, 577. 
 
 (d) Dickenson v. Watson, 2 Jones, 205. 
 
 I («) 21 Hen. 7, 28 a. BuUools v. Babcook, 3 Wend. (N. T.) 391. So a person shooting at a 
 mark witli a pistol is liable for injuries inflicted by the glancing of the ball. Welch v. Durand, 
 36 Conn. 182. , 
 
 (/) Weaver v. Ward, Hob." 134. Thus, where a spectator at a regimental parade was 
 severely wounded by a ball fi-om a musket supposed to be loaded with blank cartridge only, 
 the colonel in command, who gave the order to Are, was held liable for the injury, although 
 he had taken proper precaution to prevent the possible use of ball cartridges. Castle v 
 Duryee, 2 Keyes (N. Y.), 169 ; post, ch. 8, s. 1. 
 
 (g) Ld. EUenborough, Leame v. Bray, 3 East, 595. A person who suffers animals of a kind 
 dangerous to person or property to run at large, is liable for all damages resulting from theli 
 acts. McManus v. Finan, 4 Iowa, 283. 
 
Seel.] AND INJURIES NOT ACTIONABLE. 3 
 
 suddenly round and knock a man down without intending it, I am 
 responsible for the injury I do him"(^). 
 
 3 Damage without wrong. — ^A man may, however, sustain grievous 
 damage at the hands of another ; and yet, if it be the result of inevit- 
 able accident or a lawful act, done in a lawful manner, without any 
 carelessness or negligence, there is no legal injury, and no tort giving 
 rise to an action for damages(i). An act of force, for example, done in 
 necessary self-defence, causing injury to an innocent by-stander, is 
 damnum sine injuria, " for no man does wrong or contracts guilt in de- 
 fending himself against an aggressor "(ii). Thus, if a lighted firework 
 is thrown into a coach full of company, and is flung out again in neces- 
 sary self-defence, and falls against and burns a by-stander, or explodes 
 in his face and blinds him, the person throwing out the firework is not 
 answerable for the damage, as his act was inevitable, and he has done 
 no wrong(^). The wrong-doer is the party who originally threw the 
 burning material into the coach ; and as against him there is that con- 
 junction of damage and wrong which constitute a tort, and will sup- 
 port an action(^). 
 
 4 If a landowner whose land is exposed to inroads of the sea, or to 
 inundation from the overflowing of an adjoining creek or river, ere'cts 
 sea-walls, groins, or dams, for the protection of his land, and by so do- 
 ing causes the tide, the current, or the waves to flow against the land 
 of his neighbor and wash it away, or cover it with water, the land- 
 owner so causing an injury to his neighbor is not responsible in dam- 
 ages to the latter, as he has done no wrong, having acted in self- 
 defence, and having a right to protect his land and his crops from in- 
 undation(Z). But if he runs out a wharf or embankment into the stream 
 for the mere purpose of acquiring additional land, and improving the 
 value of his property, and encroaches upon the waterway of a navigable 
 river, and thereby gives a new direction to the current, and causes his 
 neighbor's land to be washed away, he commits a tort or wrong, and 
 is responsible for all its injurious consequences ; for " if an individual. 
 
 (ft) Lawrence, J., ib. 596 ; post, ch. 8, s. 1. 
 
 (i) Bizzell T. Booker, 16 Ai-k. 308. Harvey T. Dunlop, Hill & Denio (N. T.), 193. Tahn v. 
 Eeiohart, 8 Wis. 2S5. 
 
 (ji) De Grey, C.J., 3 Wils. 412. Morris v. Piatt, 32 Conn. 75. 
 
 U) Gould, J., 2 W. Bl.89^. 
 
 (Ic) Scott V. Shepherd, 2 W. Bl. 892. 
 
 (V) Eex V. Pagham Com., etc., 8 B. & C. 360. It has heen decided in New Hampshire that 
 the owner of land adjoining a river, who builds a breakwater to prevent the water from 
 encroaching upon his land, and thereby causes the cuiTent to be thrown upon and wash 
 away the lands of the opposite proprietor, is responsible to the latter for the resulting dam- 
 ages. Gerrish v. Clough, 48 N. H. 9. 
 
4 ACTIONABLE WRONGS, [Chap. 1, 
 
 for his own benefit, makes an improvement on his own land, and 
 thereby unwittingly injures his neighbor, he is answerable "(m). 
 
 5 If a man sells a house commanding a fine sea view, or a lovely pros- 
 pect, and then builds on his own adjoining land, so as to shut out the 
 sea view or the prospect, and thereby greatly diminishes the market- 
 able value of the house he has just sold, a great damage is done to the 
 purchaser thereof; but there is no tort or wrong, as the vendor has 
 done nothing which restrains him from interfering with hia neighbor's 
 prospect(w). So the building of a gasometer which obstructs the view, 
 by the public, of the plaintiif 's place' of business, is not an injury for 
 which an injunction can be maintained(o). 
 
 6 The simple sale of horses diseased with glanders, or of horned cattle 
 infected with the lung disease, or sheep infected with the scab, has 
 been held not to be unlawful ; and therefore, if a man buys horses, 
 cattle or sheep so infected, and mixes them with his own flocks and 
 herds, and sustains grievous damage from the spread of the disease, 
 he has no remedy ; although the vendor knew at the time of the sale 
 that the animals had the disease upon them, and the purchaser was 
 wholly ignorant of it. The maxim of caveat emptor has been applied 
 to'such a case ; and the purchaser, it is said, ought to have had a war- 
 ranty(p). The damage, however, resulting from the spread of infecr 
 tious and contagious disorders amongst sheep and cattle is so serious, 
 that every vendor who sells an animal, knowing it to be laboring un- 
 der a highly contagious or infectious disorder, ought to be held respon- 
 sible for fraudulent concealment, if he fails to disclose the fact at the 
 time he makes the bargain(g'). 
 
 7 By the Contagious Diseases (Animals) Act, 1869 (32 & 33 Yict. 
 c. 70), it is provided (ss. 6 & 57) that if any person exposes, either in a 
 public market or private sale-yard, or places in a lair adjacent to a 
 market or fair, or sends by railway, canal or coasting vessel, or drives 
 along a highway any cattle, sheep, goats or pigs affected with a con 
 
 (m) Gibbs, C. J., 6 Taunt. M ; post, oh. 4. 
 
 (n) Aldred's case, 9 Co. 68 b. Knowles v. Richardson, 5 Mod. 55. Att.-Gen. v. Doughty, 2 
 Ves. senr. 463. There is a broad distinction between the right ,to obstruct the view from » 
 window, and the right to obstmct the free passage of light and air. An action does not lie 
 for obstructing a view, unless upon express covenant. Harwoodw. Tompkins, 4 Zabr. (N. J.) 
 425. But the rule is otherwise where the obstruction extends to light and air. Thus, if a man 
 builds a house, at the same time owning both the site of the house and the adjoining land, and 
 then sells the house, neither he nor his gi-antee can afterwards so build upon the vacant 
 ground as to obstruct the windows of the house. Lampman v. Milks, 21 N. Y. 505. Storj v. 
 Odin, 12 Mass. 157. Grant v. Chase, 17 Mass. 443. Hubbard v. Town, 33 Vt. 295. 
 
 (o) Butt V. Imperial Gas Co., L. K., 2 Ch. App. 158. 
 
 (p) HiU V. BaUs, 2 H. & N. 302. 
 
 (5) Post, Fraud and Falsehood. Blakemore v. Brist. Si Ex. Rail. Co., 8 Ell. St, Bl. 1051. 
 Anderson v. Bnckton, 1 Str. 192, 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 5 
 
 tagious or infectious disease, he is liable to a penalty (s. 103); and by sec. 
 58, that any person keeping on any common or uninclosed land, or in any 
 field insufficiently fenced, or on the side of a highway, any animal so 
 affected, is liable to a similar penalty, unless, in either case, he did not, 
 and could not reasonably have known that the animals were diseased(r'). 
 8 Wrong without damage. — -There may, on the other hand, be a wrong 
 done to another, but if it has not caused what the law terms actual 
 legal damage to the plaintiff, there is no tort in respect of which an 
 action is maintainable. Thus, in cases of slander by word of mouth, 
 where the words do not convey any imputation of an indictable 'offence, 
 there is no cause of action in respect of them, unless the injured party 
 has sustained some pecuniary loss, or has been deprived of some gain- 
 ful occupation and employment, or has been injured in his trade, 
 occupation, or profession, or means of 'livelihood, or has lost a marriage 
 by reason of the slander(s). An imputation, for example, by words, 
 however gross, and on an occasion however public, upon the chastity 
 of a modest matron or a pure virgin is not actionable, without proof 
 that it has actually produced special temporal damage to her(i) ; 
 neither is it actionable to call a man a swindler or a cheat, a black- 
 guard or a rogue, or to say that he is a low fellow, a disgrace to the 
 town, and unfit for decent society, unless it can be proved that actual 
 legal damage has resulted to the plaintiff from the slander(M). 
 
 (r) Very extensive powers'are also given by tlie Act to tlie Privy Connoil as to the importa- 
 ation, etc., of foreign animals (ss. 16—21, and schedule 4). See CuUen v. Triiuhle, L. E., 7 
 Q. B. 416. But where the owner of sheep having an infectious disease, turns them into his 
 own lot, and thus causes the disease to be communicated to a neighbor's sheep, pastured in 
 an adjoining lot, this will not be deemed such an act of wrong or negligence as to give the 
 latter a legal cause of action for the injury sustained. Fisher v. Clark, 41 Barb. (N. T.) 329. 
 
 («) Post, ch. 17, 8. 2. 
 
 (t) Ld. Wensleydale, Lynch v. Knight, 8 Jur., N. S. (H. L.) 724). 9 H. of L. Ca. 577, S. C. 
 Wilby V. Blston, 8 C. B. 142. McQueen v. Falgham, 27 Texas, 463. Linney v. Meaton, 13 Texas, 
 449. Underbill i;, Welton, 32 Vt. (3 Shaw) 40. See Davies ». Solomon, L. R., 7 Q. B. 112. The 
 rule requiring proof of special damage to support an action of slander for words imputing a 
 want of chastity to a female has never been recognized in some of the States, and has been 
 changed by express statute in most of the others. By the common law of Connecticut, words 
 imputing a want of cha.9tity to a female are actionable per se. Frisbie v. Fowler, 2 Conn. 707. 
 In New York it is provided by statute that an action may be maintained by a female, whether 
 married or single, to recover damages for words spoken imputing unohastity to her, and that 
 it shall not be necessary to allege or prove special damages in order to maintain the action. 
 Lows of New York (1871), ch. 219. A similar rule exists in Alabama. Sidgreaves v. Myatt, 
 22 Ala. 617 ; Downing v. Wilson, 36 Ala. 717. In Kentucky, Smalley v. Anderson, 2 Monroe, 
 66. In Illinois, Spencer v. McMasters, 16 111. 405. In Missouri, Moberly v. Preston, 8 Mo. 462 ; 
 Stieber v. Wensel, 19 Mo. 513. In Ohio, Maloue v. Stewart, 15 Ohio, 319. In Maryland, Terry 
 V. Bright, 4 Md. 430. In Indiana, Shields v. Cunningham, 1 Blackf S6 ; Eodgers v. Lacey, 23 
 [nd. 507. In North Carolina, Snow v. Witcher, 9 Ired. 346. In South Carolina, Freeman t>. 
 Price, 2 Bailey, 115. In Iowa, Beardsley v. Bridgraan, 17 Iowa, 290 ; Smith v. Silence, 4 Iowa, 
 321 ; Truman v. Taylor, 4 Iowa, 424 ; Dailey v. KejTiolds, 4 Greene (Iowa), 354. In Wisconsin, 
 Ranger v. Goodrich, 17 Wis. 78 ; and in Georgia, Richardson v. Roberts, 23 Ga. 215. 
 
 (a) Savile V. Jardine, Hopwood v. Thorn, Barhel;t v. Allen, post, oh. 17, s. 2. Artieta ». 
 
6 ACTIONABLE WRONGS, [Chap. I. 
 
 9 If instructions for an action are given, and through the mistake of 
 the attorney a wrong person is sued, and the latter fails to appear and 
 plead, and judgment goes against him by default, and he is im- 
 prisoned, or his goods are seized in execution, this is " damnum absque 
 injuria," and no action is maintainable. If he defends the action, 
 and incurs costs which he cannot recover, he is in no better situation(a;). 
 
 1 Damage too remote to give rise to a cause of action. — If the wrong and 
 the legal damage are not known by common experience to be usually 
 in sequence, and the damage does noj, according to the ordinary course 
 of events, follow from the wrong, the wrong and the damage are not 
 sufficiently conjoined or "concatenated as cause and effect to support 
 an action "(y). Thus, a defendant has been held not to be liable either 
 for the wrongful act of a third party, or the arbitrary choice of a fourth 
 party, detrimental to the plaintiff, but not proximately ca^used by the 
 defendant's wrong(z). 
 
 Where the manager of a theatre brought an action against the 
 defendant for a libel on an opera-singer, who had been engaged by 
 him to sing at hjs theatre, and who had been deterred from singing 
 by reason of the publication of the libel, whereby the plaintiff lost the 
 benefit of her services, it was held that the damage was too remote, 
 and was not recoverable by the plaintiff, for the opera-singer was 
 deterred from singing, not directly in consequence of anything done 
 by the defendant, but in consequence of her fear that what he did 
 might induce somebody else to assault and ill-treat her(a). 
 
 1 1 If the wrong would not havjs been followed by the damage, if other 
 circumstances had not intervened, for which circumstances the defend- 
 ant is not responsible, the damage is not the proximate result of th«> 
 wrong, and is not sufiiciently "concatenated" therewith(6). Thus, 
 where the defendant's servant, in breach of an Act of Parliament 
 (2 & 3 Vict. c. 47, s. 54), washed a carriage in a public street, and 
 allowed the waste water to run down a gutter towards a grating lead- 
 ing to a sewer, but in consequence of the grating being stopped up, 
 without the knowledge of the defendant, the water flowed over the 
 
 Aj-tieta, 15 La. An. 43. Ford v. Johnson, 21 Ga. 399. Chase ». Whitlook, 3 Hill (N. T.) 139 
 Idol V. Jones, 2 Dev. 162. Caldwell v. Abby, Hardin, 629. 
 
 Acts showing: an unlawful intent, but not occasioning actual damage, are no ground for a 
 ciril action. Morgan v. Bliss, 2 Ifess. 111. Chatfleld v. Wilson, 28 Vt. i9. "Oocum Co. t>. 
 Sprague, etc., Co., 34 Conn. 529. 
 
 (K) Rplfe, B., Pavies v. Jenkins, 11 M. & W. 755. 
 
 iy) Ld. Campbell, Gerhard ». Bates, 2 EU. & Bl. 490. 
 
 («) Vicars v. Wilcox, post, ah. 17. 
 
 ia) Ashley v. Harrison, 1 Esp. 49. 
 
 (6) Hoe J V. Foltou, 11 C. B., N. S. 14fi ; 31 Law J., C. P. 106 ; post, p. 18. 
 
Sec. l.J AND INJORIBS NOT ACTIONABLE. 7 
 
 road and subsequently froze, and the plaintiff's horse slipped upon the 
 ice and injured himself, it was held that this was a consequence too 
 remote to be attributed to the wrongful act of the defendant. And in 
 actions for slander, where a defendant is proved to have uttered slan- 
 derous words in respect of the plaintiff, not imputing to him any 
 indictable offence, and creating a cause of action only in case the 
 utterance of the slander has caused actual legal damage to the plain- 
 tiff, and no such damage has accrued to the plaintiff directly from the 
 utterance of the words, and they would have failed to produce any 
 injurious consequences to the plaintiff if they had not been repeated 
 by another person, the injury resulting from the intervention of that 
 other person cannot be visited upon the defendant(c). 
 12 Damage, though remote, sufficiently connected with the wrong.— ^The 
 general rule of law, however, is, that whoever does an illegal or wrong- 
 ful act is answerable for all the consequences that ensue in the ordinary 
 and natural course of events, though those consequences be immedi- 
 ately and directly brought about by the intervening agency of others, 
 provided the intervening agents were set in inotion by the primary 
 wrong-doer, or provided their acts, causing the damage, were the 
 necessary or legal and natural consequence of the original wrongful 
 act(ci3). Thus, where the defendant threw a lighted squib into the 
 market-house, in a market-place, during a fair, and the squib fell 
 upon a ginger-bread stall, and the stall-keeper, to protect hiipself and 
 his wares, threw the squib across the market-house, where it fell upon 
 another stall, and was again thrown off and exploded near the plain- 
 tiff's eye and blinded him, it was held that the original thrower was 
 responsible in damages for the injury sustained by the plaintiff, 
 through the intervening agency of the others. "All the injury," 
 observes De Grey, C.J., " was done by the first act of the defendant. 
 That, and all the intervening acts of throwing, must be considered as 
 one single act. It is the same as if a cracker had been flung, which 
 had bounded and rebounded again and again before it had strucjs 
 out the plaintiff's eye"((^). So, where the defendant, having had a 
 
 (0) Ward v. Weeks, Partins v. Soott, post, eh. 17, s. 2. Sharp v. Powell, L. E., 7 Exch. 253. 
 Olmsted v. Brown, 12 Barb. (N. T.) 667. Slanderous words contained In a letter sent by the 
 defendant to the plaintiff will not sustain an action in the absence of proof of publication. 
 Mcintosh V. Matherly, 9 B. Mon. 119. 
 
 {cc) Scott V. Hunter, 46 Penn. St. 192. Where an injury to one is caused by, and is the 
 natural and probable result of the wrongful act or omission of another, such other is liable 
 therefor, although other causes put in motion by the act and omission, which in the absence 
 thereof, would not haye produced the result, contribute to the injury. PoUett v. Long, 56 
 N. Y. 200. 
 
 (d) Scott V. Shepherd, 3 Wils. 403 ; 2 W. Bl. 892. 
 
8 ACTIONABLE WRONGS, [Chap. 1. 
 
 quaiTel with a boy in the street, took up a pickaxe, and pursued the 
 boy, and the latter ran for safety into a wine-shop and upset a cask 
 of wine, it was held that the defendant, the pursuer of the boy, was 
 responsible in damages for the loss of the wine(e). " If I ride upon 
 a horse, and J. S. whips the horse so that he runs away with me, 
 and runs over any other person, he who whipped the horse is guilty 
 of the assaiilt and battery, and not I "(/)• 
 
 13 Wherever a party is guilty of misconduct in leaving anything dan- 
 gerous in a place, where' he must know it to be extremely probable 
 that some other person will unjustifiably set it in motion to the injury 
 of a third person, and that injury is brought about, the sufferer may 
 have redress by action against both the wrong-doers(5r), unless he has 
 himself been a co-operative cause of the injury of which he complains, 
 under circumstances which deprive, him of a claim to legal redress(A). 
 
 14 If the natural result of a wrongful act committed by a defendant 
 has been to plunge the plaintiff into a chancery suit, and thereby to 
 cause him to incur costs and expenses, whatever may be the event of 
 the suit, there is that conjunction of wrong and damage which will 
 give the plaintiff a good cause of action(i). If a seaman, or a pas- 
 senger on board ship, engages in acts of smuggling, and thereby- 
 causes the vessel to be condemned and forfeited, the shipowner is 
 entitled to recover the value of the vessel from the wrong-dqer who 
 has caused the loss; and it is no answer to the action to show that the 
 plaintiff's servants on board participated in the illegal transaction(A), 
 
 15 Jt is not necessary to show that actual pecuniary damage has been sus- 
 tained in order to establish that conjunction of damage and wrong 
 which is necessary to create a tort ; for a party may be legally damni- 
 fied although he has sustained no pecuniary loss. "The damage," 
 observes Lord Holt, "is not merely pecuniary, for if a man gets a cuff 
 on the ear from another, though it cost him nothing, no, not so much 
 as a little diachylon, yet he shall have his action, for it is a personal 
 damage." So, a man shall have an action against another for riding 
 
 (e) Vandenburgh «. Trnax, i Denio, 464. So, where a person ascended in a balloon, and in 
 descending became so entangled in a neighboring garden as to be obliged to call for help, it 
 ■was held that he was answerable in trespass for damages done to the garden by persons 
 roshing to his assistance. GuiUe v. Swan, 19 Johns. (N. T.) 381. 
 
 (/) Gibbons v. Pepper, 1 Ld. Raym. 38. 
 
 i.g) midge v. Goodwin, 5 C. & P. 190. Lynch v. Nnrdin, 1 Q. B. 29. Thns where a horse 
 left unhifched and unattended in a public street runs away and does damage to the person 
 or property of others, the owner of the horse and the pex*son who caused the animal to be- 
 come frightened are liable for the damages. McCahil v. Kipp, 2 E. D. Smith (X. Y.), 413. 
 
 (ft) Barhart v. Youngblood, 27 Penn. St. 331. Neal v. GUlett, 23 Conn. 437 ; post, pp. 23 24, 
 
 (i) Dixon v. Fawcns, 30 Law J., Q. B. 137. 
 
 (4) Blewitt V. HUl, 13 East, 14. 
 
Sec. 1.] ANU INJURIES NOT ACTIONABLE. 9 
 
 over his ground, though it do him no pecuniary injury, for it is an 
 invasion of his property, and the other had no right to come there(Z) ; 
 and if the trespasser wilfully .perseveres in trespassing after being 
 warned off, exemplary damages will be recovered(m). 
 
 A landowner who starts a pheasant on his own land, and shoots the 
 bird whilst it is flying over the adjoining land of his neighbor commits 
 a trespass if he goes on such adjoining land to pick it up ; and if he 
 carries the dead bird away with him, he would now probably be held 
 guilty of another tort, and liable to an action for the conversion to his 
 own use of the dead bird as well as for the original trespass(w). 
 
 Every unauthorized interference by one man with the goods and 
 chatties and personal property of another constitutes a tort, and gives 
 rise to a cause of action, although no pecuniary damage may be sus- 
 tained(t)). If a man, without having any legal authority to excuse or 
 justify the act, writes any remarks or observations upon a cab-driver's 
 licence, or upon another man's certificate of character or good conduct, 
 he is guilty of a tort, and is responsible in damages, although no 
 pecuniary loss has been incurred(p). 
 
 Damages are recoverable from a person who takes up tombstones 
 from a churchyard, and defaces the inscriptions, for although the free- 
 hold of the churchyard is in the parson, the property in the tombstones 
 remains in the persons who erect them(g'). 
 1 6 Every injury to a right imports a dannage, though it does not cost the 
 party one farthmg(r), for wherever the plaintiff establishes some legal 
 right or title in himself whiph has been invaded, weakened, or de- 
 stroyed by the unlawful or malicious act of the defendant, there is a 
 wrong and damage in law resTilting therefrom, in respect of which an 
 
 (I) Holt, C. J., Ashby v. White, 2 Ld. Eaym. 955. Sears v. Lyons, 2 Stark, 318. It is no bar to 
 an action for a constantly recurring wrongful act that present damages resulting therefrom 
 may not be susceptible of proof. Delaware & Hudson Canal Co. ■;;. Torrey, 33 Peun. St. 143. 
 And it has been held that a person may maintain an action of trespass for an unauthorized 
 entry upon his land, not only when the act constituting the trespass resulted in no actual 
 damage, but even when it was positively beneficial. Parker v. Griswold, 17 Conn. 288. Post, 
 ch. 6. 
 
 (m) Merest ». Harvey, 5 Taunt. 441. See Perkins «. Towle, 43 N. H. 220 ; Devaughnc. Heath, 
 37 Ala. 595 ; Wylie v. Smithei-man, 8 Ired. 286 ; Mitchell ». BilUngsley, 17 Ala. 391 ; Pierce v. 
 Hall, 41 Barb. (N. Y.) 142. 'Post, ch. 6, s. 3 ; ch. 22, o. 1, Damages. 
 
 (n) Osbondo. Meadows, 12 C. B., N. S. 10; 31 Law J., C. P. 281 ; M.C.23S. Blades ». Higgs, 
 34 L. J., C. P. 286. See post, ch. 7, s. 3. Kenyon ». Hart, 34 Law J., M. C. 87. 
 
 (o.) Post, ch. 7, s. 1. Wintringham v. Lafoy, 7 Cow. 735 ; Stevens v, Somerindyke, 4 E. D. 
 Smith (N. T.) 418 ; Dudley v. Tilton, 14 La. An. 283 ; Dexter v. Cole, 6 Wis. 319. 
 
 (p) Rogers v. Macnamara, 14 C. B. 37 ; 23 Law J., C. P. 1. 
 
 (g) Spooner v. Brewster, 3 Bing. 139. Prances v. Ley, Cro. Jac. 367. As to tombstones in a 
 private cemetery, see Ashby v. Harris, L. B., 3 C. P. 523. 
 
 (r) Bonomi v. Backhouse, EU. Bl. & EU. 657. Holt, C.J., Ashby w. White, 2Ld. Eaym. 
 964. 
 
10 ACTIONABLE WRONGS, • [Chap; 1. 
 
 action is maintainable, for pecuniary compensation, though no actual 
 pecuniary loss can be proved(s). 
 
 Where a man is entitled to have a stream of water flowing through 
 his land, he may maintain an action for substantial damages for the 
 diversion of the water, though he hats not used, and does npt want to 
 use, the water(i). So where a tenant makes material alterations in 
 property demised to him, by opening new doors, putting up new 
 buildings, taking down partitions, or changing the form and appear- 
 ance of a house without the consent of the landlord, he is responsible 
 in damages for infringing upon the proprietary rights of the latter, 
 although the premises may be improved and rendered more valuable 
 by the alterations(M). 
 17 Every invasion of the plaintiff's right by the fraudulent act of the 
 defendant entitles the plaintiff to some damages. Thus, where an 
 inventor or manufactjirer adopts a particular trade-mark, and the 
 defendant imitates it and uses it for the purpose of palming off his 
 own goods as the goods of the plaintiff, the plaintiff is entitled to 
 nominal damages at all events, as his right has been invaded, although 
 no specific damage be proved(i)). And there is nothing to prevent 
 the jury from giving more than nominal damages(w). But upon an 
 injunction in equity to restrain the infringement of the plaintiff's 
 trade-mark, some evidence of damage must be given, and proof of 
 the sale by the defendant of an inferior article at a different price is 
 
 (s) Embi-ey w. Owen, 6 Exch. 353; 20 Law J., Exoh. 212. Eochdale Caiial Co. v. King, 14 
 Q. 135. Webb!). Portland Manuf. Co., 3 Sumner, 197. Bowe. ». Hill, 1 So. 526. The removal 
 of the division walls on the ground floor of a building is such a violation of the right of the 
 owner of the upper stories of the building to the support of the walls as will entitle him 
 to maintain an action for the infringement of the right without proof of special damages. 
 MoConnel v. Kibbe, 33 lU. 175. The law presumes damages where a right has been invaded. 
 Bolivar Mauuf. Co. v. Neponset Manuf. Co., 16 Pick. 235. 
 
 (i) Embrey v. Owen, 6 Exch. 353. Proof of actual injury is not necessary to enable the 
 owner of laud through which an ancient water course runs, to maintain an action for nomi- 
 nal damages against one who diverts it above him so as to materially diminish the flow of 
 water by his land. Coming v. Troy Iron and Nail Factory, 40 N. Y. 191, 204. StoweU v. Lin- 
 coln, 11 Gray (Mass.), 434. Tyler v. Wilkinson, 4 Mason, 400. TiUotson v. Smith, 32 N. H. 90. 
 Stein V, Burden, 24 Ala. 130. Newhall v. Ireson, 8 Cush. 595. Whipple v. Cumberland Manuf. 
 Co., 2 Story, 661. Blanchard». Baker, 8 Greenl. 253. Butmau v. Hussey,'3 Tairf. 407. The 
 wrongful diversion of a stream of water implies some damage, though merely nominal. 
 Chatfleld». Wilson, 1 Williams (Vt.), 670. But an action of nuisance cannot be maintained 
 for any obsti'uction or diversion of the water of a stream for domestic, agricultural or manu- 
 facturing purposes unless the damages occasioned thereby are real, material and substantial. 
 McElroy v. Goble, 6 Ohio (N. S.), 187. Post, ch. 2, s. 1. 
 
 [u] Cole V. Green, 1 Lev. 309, and cases cited post, ch. 5, o. 1. 
 
 (V) Blofleld V. Payne, 4 B. & Ad. 410. 
 
 [w) Bodgers ». Nowill, 5 C. B. 125. In an action to recover for the violation of a trade- 
 mark it is not erroneous for the court to award as damages the whole profit realized b" the 
 defendant from sales of the spurious articles under the simulated trade-mark. Graham v. 
 Plate, 40 Cal. 593 ; post, ch. 18. 
 
Sec. l.J AND INJURIES NOT ACTIONABLE. 11 
 
 not such evidence(a;). Every infringement of a right ex contractu 
 also creates a claim to damages. Therefore, when one person mali- 
 ciously procures or persuades another to break a contract, or interferes 
 between an employer and workman to prevent the latter from complet- 
 ing work he has undertaken to perform, or procures the non-delivery 
 of goods according to contract(2/), or deprives a woman of her marriage 
 by false representations, substantial damages are recoverable(z). 
 
 A refusal by a banker to pay the order or draft of his customer, he 
 having at the time in his hands sufficient funds of the customer for 
 the purpose, is a wrongful act, injurious to the credit of the customer, 
 entitling him to substantial damages, although no actual damage can 
 be proved at the trial(a). 
 1 8 The procurement of the violation of a right creates a cause of action in 
 all instances where the violation is an actionable wrong — as in viola- 
 tions of a right to property, whether real or personal, or to personal 
 security ; he who procures the wrong is a joint wrong-doer, and may 
 be sued, either alone or jointly with the agent, for the wrong done(&). 
 
 Where the plaintiff complained that his wife had unlawfully left 
 him and lived apart from him, and that whilst she was so living apart 
 a large fortune was left her, to her separate use, and she being desir- 
 ous of returning to the plaintiff to cohabit with him, and the plaintiff 
 being willing and desirous to be reconciled to her, the defendant un- 
 lawfully and unjustly persuaded, procured, and enticed her to continue 
 absent and apart from the plaintiff and conceal herself from him, 
 whereby the plaintiff /lost the comfort and society of the said wife, 
 and her aid and assistance in his domestic affairs, and the enjoyment 
 of the fortune that had been left her, it was held that this was a wrong 
 and damage such as the law would not leave without a remedy(c). 
 
 («) Leather Cloth Co. v. Hirsohfleld, L. R., 1 Bq. Ca. 299. 
 
 (2/) Green v. Button, 2 C. M. & E. 707. Lumley v, Gye, 2 Ell. & Bl. 238. 
 
 (2) Sheppard s.Wakeman, 1 Lev. 53. Moody v. Baker, 5 Cow. 351. One who misrepresents 
 the quality of lands to one about to purchase the same, and thereby prevents the owner from 
 making an advantageous sale, is liable in damages in a suit in the nature of an action of 
 slander for defamation of title. PauU v. Halferty, 63 Penn. St. 46. 
 
 (a) Jlaizetti v. Williams, 1 B. & Ad. 415. Eobiu ». Steward, 14 C. B. 595 ; 23 Law J., C. P. 
 148 ; pest, eh. 8, s. 1. 
 
 (6) Erie, J., Lumley v. Gye, 2Bli. & Bl. 216. 
 
 (c) Winsmore v. Greenbank, Willes, 577. Where a wife applies to a stranger for aid, 
 shelter and protection against the cruelty and opi^ression of her husband, and this aid and 
 protection is given in good faith and from motives of humanity, no action can be maintained 
 by the husband against such party for harboring the wife. The burden is on the husband to 
 show that the protection was given from an unworthy motive. Barnes v. Allen, 1 Keyes 
 - (J). Y.) 390. Hutchinson u. Peck, 5 Johns. 196. Sohuneman ». Palmer, 4 Barb. 225. A father 
 may lawfully receive his married daughter into his house, and even advise her to leave her 
 husband, if the character of the husband is such as to excuse her leaving liim. Bennett v. 
 Smith, 21 Barb. 439. See Burnett V. Burkhead, 21 Ai-k. 77. 
 
12 ACTIONABLE WRONGS, [Chap. 1. 
 
 1 9 The gen&ral legal rights of mankind are the rights of personal securityy 
 personal liberty, or private property ; and private property is either 
 property in possession, property in action, or property that an indi- 
 vidual has a special right tci acquire(cZ). 
 
 Wherever personal security has been violated by an assault, Or 
 individual liberty has been infringed by unlawful restraint of the • 
 person {post, ch. 12), an action for substantial damages is maintain- 
 able, although the personal inconvenience and suffering may be of the 
 slightest character ; and wherever the wrong is accompanied by cir- 
 cumstances of personal insult, or by a false charge or accusation of 
 some crime or misdemeanor, exemplary damages will be recoverable(e). 
 
 There are many cases in which an act is perfectly lawful in itself, 
 and will continue to be so, until damage has been done to the property 
 or person of another ; but from the moment such damage arises the 
 act becomes unlawful, and an action is maintainable for the injury. 
 This is the case where a man sinks mines and makes excavations in 
 his own land, or lights a fire thereon, doing no damage in the first 
 instance to his neighbor, but subsequently causing his neighbor's land 
 to slide down into the artificial hollow(/), or the neighbor's house to 
 be burned by the unexpected spreading of the fire(^). 
 
 20 Injuries to property indirectly brought about by menaces, false 
 representation, or fraud, create as valid a cause of action as any direct 
 injury from force or trespass. Thus, if the plaintiff's tenants have 
 been driven away from their holdings by the menaces of the defend- 
 ant, damages are recoverable for the wrong done(A). 
 
 Questions of proprietary right often involve nice distinctions. Thus, 
 as regards the right of a landowner or occupier of lands to the preser- 
 vation on his land, and to the means of reducing into his possession, 
 birds and animals ferae naturae, it has been held that the owner of a 
 decoy pond may maintain an action against a person who wilfully dis- 
 charges guns near the decoy pond, and frightens away the wild 
 
 {(J) Bayley, J., Hatmarn v. Mockett, 2 B. & C. 937. 
 
 (e) Goddartl v. Grand Trunk E. R. Co., 67 Maine, 202. Taylor v. Grand Trunk E. E. Co., 48 
 N. H. 304. Atlantic & Great Western E. E. Co. v. Dunn, 19 Ohio St. 162. Hunt v. Bennett, 19 
 N". y. 173. Ellsworth v. Potter, 41 Vt. 685. Baltimore, etc., E. E. Co. v. Blooher, 27 Md, 277. 
 Block V. MoGuire, 18 La. An. 417. Ahem v. CoUius, 39 Mo. 145. Hodgson v. Millwanl, 3 
 Grant (Penn.) 406. Foote v. Nichols, 28 111. 486. For the rale as to exemplary damages see 
 Hamilton v. Third Avenue E. R. Co., 53 N. Y. 25. Post, ch. 22, s. 1. 
 
 (/) Bonomi v. Backhouse, BU. Bl. & Ell. 662 ; 28 Law J., Q. B. 378. Smith v. Thackerah, 
 L. E., 1 C. P. 564. Moody v. McCleUand, 39 AJa. 45. Austin v. Hudson Eiver E. E. Co., 25 
 N. Y. 334. McGuire v. Grant, 1 Dutch. (N. J.) 356. CharlesB v. Eankin, 22 Mo. (1 Jones) 566. 
 Farrand v. Marshall, 21 Barb. (N. Y.) 409. 
 
 (g) Filister v. Phippar'd, 11 Q. B. 347. Tubervil v. Stamp, 1 Salk. 13. Webb ». Eome, 
 Watertown & Ogdensburgh E. E. Co., 49 N. Y. 420. Higgins v. Dewey, 107 Mass. 494. 
 
 (7») 1 Eoll. Abr. 108, pi. 21. See Carew ». Euthcrlbrd, 106 Mass. 1. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 13 
 
 fowls(i), because wild fowl are protected by the statute 25 Hen. 8, c, 
 11, and constitute a known article of food ; and the keeping of a decoy 
 pond is useful to the public, and a profitable mode of employing the 
 land ; but that no such action is maintainable against a person who 
 has wilfully and maliciously discharged guns near the plaintiff's rook- 
 ery, and frightened away the rooks, and caused them to forsake the 
 plaintiff's trees, for rooks have been declared to be a nuisance by the 
 legislature ; and no person can claim a right to have them resort to his 
 lands, nor can any person become a wrong-doer by preventing their 
 so doing(^). So it is an actionable injury to fire off guns to frighten 
 your neighbor's grouse, and prevent them going from your land to 
 his(0. 
 
 21 Literary and artistio property. — ^Every one has at common law a right 
 to the exclusive possession and enjoyment of his intellectual and man- 
 ual labors, so that if a man devotes his private hours to literary com- 
 position, or artistic works, another person has no right to appropriate 
 to himself the produce of his labor without his consent. The unpub- 
 lished manuscript of the author, for example, cannot be used, copied, 
 or published, without his authority(m) ; nor the unpublished lectures 
 of a lecturer(«) ; nor the picture, etching, or portrait of the painter or 
 photograph er(o). If, therefore, a geologist gets a fossil engraved or 
 photographed, in order to send it to his friends, or the owner of a pic- 
 ture or a portrait lends it to a friend to get it engraved, any one who 
 gets possession of the photograph or the engraving has no right at 
 common law to take copies of it for sale. , And whoever handles or 
 deals with photographs, without the consent of the owner of them, in 
 order to get negatives from them, or for any other purpose, is guilty 
 of an act of trespass(p.) • - 
 
 22 Interference hy fmoe <yr fraud with the free exercise of another's trade or 
 occupation, or means of livelihood, is a tort — such as preventing people 
 by the use of threats and intimidation from trading with the plaintiff's 
 
 (i) KeetletJ.Hickeringill, 11 Mod. 11, 130; 3 Salk. 9; Holt, U. Carrington v. Taylor, U 
 East, 571. 
 
 (*) Hannam ». Mockett, 2 B. & C, 943. 
 
 (I) Ibbotson V. Peat, U Law J., C. P. 118. 
 
 (m) Queensberry (0uke of) v. Shebbcare, 2 Eden, 329. Palmer ». De Witt, 47 N. T. 532. 
 
 (n) Abemethy v. Hutchinson, 1 H. & Tw. 40 ; 3 Law J., Ch. 209. Bartlett v. Critenden, 4 
 McLean, 300 ; 5 id. 32. 
 
 (0) Prince Albert v. Strange, 1 Mao. & Gord. 42 ; IS Law J., Ch. 12«. Oertel V. Wood, 40 
 How. (!<■. Y.) 10. The same rule applies to uncopyrighted musical compositions. Wall w. 
 Gordon, 12 Abb. N. S. (N. Y.) 349. To an uncopyirighted and unpublished manuscript drama. 
 Palmei t De Witt, 47 N. Y. 632. And to letters not intended for publication. Woolsey v. 
 Judd, 4 Duer (N. Y.), 379. Grigsby v. Breckinridge, 2 Bush (Ky.), 480. 
 
 [p) Mayall v. Higby, 1 H, & C. 148 ; 31 Law J., Exch. 329 ; post, s. 2, ^udpost, ch. 7. 
 
14 ACTIONABLE WRONGS, [Chap. 1 i 
 
 vessel in a foreign port(g), or dealing at the plaintiff's shop, or send- 
 ing their children to the plaintiff's school, or placing obstructions and 
 impediments in the way of the exercise of the right of free access to 
 and from a man's place of business(»'). 
 
 Where the plaintiff's declaration of his cause of action set forth that 
 he was a mason, and possessed of a stone quarry, and quarried and 
 dug stones therefrom, as well to sell as to bilild stone buildings, and 
 that the defendant, intending to deprive him of the benefit of his 
 quarry, disturbed his workmen and» all comers, threatening to' maim 
 and vex them with suits if they worked or bought stones there, where- 
 upon all the buyers desisted • from buying and the workmen from 
 working there, it was held that this was a great damage to the plain- 
 tiff and a good cause of action(s). And in a case of intimidation by 
 trades' unionists, an injunction was granted against issuing placards 
 enjoining workmen not to work for the plaintiff till the dispute between 
 the plaintiff and the trade union was settled, on the ground that, 
 although the act of such unionists amounted to a crime, yet it also 
 tended to the destruction or deterioration of the plaintiff's prop- 
 erty(<). 
 
 " There are two sorts of acts for doing damage to a man's employ- 
 ment, for which an action lies : the one is in respect of a man's privi- 
 lege, the other is in respect of his property. In that of a man's franchise 
 or privilege whereby he hath a fair, market, or ferry, if another should 
 use the like liberty, though out of his limits, he shall bei liable to an 
 action, though by grant from the king. But therein is the difference 
 to be taken between a liberty in which the public hath a benefit and 
 that wherein the public is not concerned. The other is where a violent 
 or malicious act is done to a man's occupation, profession, or way of 
 getting a livelihood ; there an action lies in all cases. But where one 
 man doth damage to another by using the same employment no action 
 will lie,^ because one man has as much liberty to use an employment 
 as another." Thus, where one schoolmaster sets up a new school to 
 the damage of an ancient school, and thereby the old scholars are 
 allured from the old school to come to the new school, an action is not 
 maintainable (m). But " if a man should lie in wait and fright the 
 
 (g) Tarleton v. McGawley, Peake 270. 
 
 [r) Boll V. Mid. Rail. Co., 10 C. B., N. S. 307 ; 30 Law J., C. P. 273. 
 
 (s) Garrett v. Taylor, Cro. Jac. 567. See Carew v. Rutherford, 106 Mass. 1 ; Commonwealth 
 V. Hunt, 4 Mete. Ill, 129. 
 
 {f) Springhead Spinning Co. v. Eiley, L. K. , 6 Eq. Ca. 551. See State v. Donaldson, 8 Troom. 
 (N. J.) 151. 
 
 («) 11 Hen. 4, fol. 47, pi. 21 ; fol. 14, pi. 23. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 15 
 
 boys from going to school, that schoolmaster might have an action for 
 the loss of his scholars"(c). 
 
 23 Interference with a man's trade hyfair competition is never actionable. 
 The loss in such a case is not, in fact, caused by wrong, but by 
 another's exercise of his undoubted right ; and in every complicated 
 society the exercise, however legitimate, by each member of his par- 
 ticular rights, or the discharge, however legitimate, by each member 
 of his particular duties, can hardly fail to cause conflicts of interest 
 which will be detrimental to some. It is essential, therefore, to the 
 maintenance of an action of tort, that the action complained of should 
 be legally wrongful as regards the party complaining ; that is, it must 
 prejudicially affect him in some legal right ; merely that it will do him 
 harm is not enough(a;). 
 
 If a fisherman fits out a boat with lines and nets, and goes to fish 
 in the high seas, and another fisherman comes and fishes beside him, 
 and with tempting baits, or other contrivances, draws away the fish 
 from the lines and nets of the first comer, with a view of catching 
 them himself, an injury may be done ; but there is no tort or wrong, 
 for the one had as much right to fish, and use fair and reasonable 
 means to catch fish, as the other ; but if the rival fisherman lays hold 
 of the nets of the first comer, or violently disturbs the water and 
 drives away the fish, and prevents the latter, by force or violence, 
 from exercising his occupation and calling, there is then a wrong done 
 to him, and he is entitled to compensation in damages(y). 
 
 24 Disturbance of a ferry. — The owner of a ferry has a cause of action 
 against every intruder who carries in the line of the ferry, whether it 
 be done directly or indirectly. He has a right to the transport of the 
 
 • passengers using the way, and whoever makes a landing-place neai 
 the ferry so as to be in substance the same as the ferry landing-place, 
 making no material difference to travellers, is guilty of a tort. And 
 this is on the ground that the owner of the ferry is bound to maintain 
 proper boats, boatmen, and all other things necessary to maintain the 
 ferry in an efficient state for the use of the public. It does not, there- 
 fore, necessarily apply to a monopoly of passage created by a statute(z). 
 
 (») Per Holt, C. J., Keeble v. Hickeringill, 11 East, 576, n. 
 
 (») Eogera v. Bagendro Dutt, 13 Moore, P. C. C. 241. If one person intentionally makes 
 false statements in regard to goods manutJictured by another, for the purpose of preventing 
 sales by the latter, and does, in fact, prevent such sales, the person making such statements 
 will be liable to the manufacturer for the resulting damages. Snow ». Judson, 38 Barb. 
 (N. Y.)210. 
 
 (y) Young V, Hichens, B Q. B. 606. 
 
 (2) Letton V. Goodden, L. R., 2Eq. Ca. I23. See p. H, mipra. A ferry fi-anchise will not be 
 eonstrued as exclusive by mere implication. An exclusive privilege can be claimed and pro- 
 
16 ACTIONABLE WRONGS, [Chap. 1. 
 
 However, if the public convenience requires a new passage at such a 
 distance from the old ferry as makes such new passage a real con- 
 venience to the public, the proximity seems not to be actionable. The 
 area for the monopoly of a ferry, therefore, depends on the need of the 
 public for a new passage(a). In an action for the disturbance of a 
 ferry, it is sufl&cient for the plaintiff to prove that he was in possession 
 of the ferry at the time the cause of action accrued. The right is an 
 incorporeal right, unaccompanied in general with any property in the 
 soil(&). Being an hereditament, however, it comes within the term 
 " lands " in the Lands Clauses Act, and statutory compensation, there- 
 fore, is claimable from a railway company, who in pursuance of their 
 Act, erect a bridge for foot passengers so near the ferry as to disturb 
 it(c). 
 25 Distwhance of a market. — If people come to a market to sell their 
 wares, they are subject to toll, which is payable to the owner of the 
 market((^) ; and if they come near the boundary of the market, and 
 avail themselves of the concourse of persons coming to and fro, to find 
 customers, and sell without the boundary of the market, so as to avoid 
 the payment of the toll, an action is maintainable against them by the 
 owner of the market for a disturbance of the market(e). But it must 
 be proved- that the thing was done wilfully and intentionally(/). It 
 is not necessary that the defendant should actually have sold any 
 thing ; any active interference by him in the conduct of the new mar- 
 ket, or participation in its profits or risk, is sufficient(^). And a new 
 
 teoted only under the express terms of the ferry charter or lioense. McBwen ». Taylor, 4 
 Greene (Iowa), 532. Perrin v. Oliver, 1 Minn. 202. Shorter o. Smith, 9 Oa. 817. See Miiia v. 
 St. Clair Co., 8 How. (U. S.) 669. 
 
 (a) Newton v. Cubitt, 12 C. B., N. S. 32. 31 Law J., C. P. 246. Bush v. Peru Bridge Co., 3 
 Ind. 21. A ferry franchise can be conferred only by the State government, and must be 
 founded on grant, license or prescription. Cason v. Stone, 1 Oregon, 39. Prosser v. Wapello 
 Co., 18 Iowa, 327. McRoberts v. Washbume, 10 Minn. 23. Newport v. Taylor, 16 B. Mon. 
 (Ky.) 699. Either State lying along a boundary river may gi-ant an exclusive right to ferry 
 from its own shore. Conway v. Taylor, 1 Black (V. S.) 603. But neither State can grant an 
 exclusive license to ferry from the shore of the other. Weld v. Chapman, 2 Clarke (Iowa) 524. 
 Newport v. Taylor, 16 B. Mon. (Ky.) 699. As to the jurisdiction of determining whether the 
 public convenience requires additional ferries, see Fall v, Paine, 23 Cal. 302. Norris v. Farm- 
 ers' & Teamsters' Co., 6 Cal. 590. Ca'son v. Stone, 1 Oregon, 39. 
 
 (6) Peter v. Kendal, 6 B. & C. 710. Ownership of the soil on both sides of a river does not 
 give the owner a right to maintain a public feixy. Prosser v. Wapello. Co., 18 Iowa, 327. 
 McRoberts v. Washburne, 10 Minn. 23. Richmond, etc., Co. v. Rogers, 1 Duval (Ky.) 136. 
 Gant V. Drew, 1 Oregon, 35. 
 
 (0) Reg. V. Cambrian Railway, L. R. 6 Q. B. 422. See Taylors. Wilmington & Manchester 
 R. R. Co., 4 Jones Law (N. C), 277. Aikin v. Western R. R. Co., 20 N. T. 370. 
 
 (d) Great Yarmouth (Mayor, &c.) v. Groom, 32 Law J., Exch. 74. . 
 
 («) Bridgland v. Shapter, 5 M. & W. 375. 
 
 (/) Brecon (Mayor, &e., of) v. Edwards, 31 Law J., Exch. 3S8. 
 
 ($') Mayor, &d., of Dorchester, v. Ensor, L. R., 4 Exch. 335. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE!. 17 
 
 market held on the same day as the old is a disturhance by intend- 
 ment of law(^). 
 
 According to Fleta, a new market, opened within seven miles of an 
 existing legally established market, is actionable(i). Such a limit 
 might be suited to the simple wants of a rude life, where inhabitants 
 are few, but is unfitted for large towns*, where daily wants are greatly 
 multiplied. Under the latter circumstances, it seems that the area 
 within which a new market would become actionable would be dimin- 
 ished, and would now depend upon the public need for it(A-). 
 
 26 Market tolls. — A toll imposed on the occupier of every stall erected 
 for the sale of articles is a toll on the stall itself, and not on the articles 
 sold at the stall, for the occupier is to pay the toll, whether he brings 
 the article to the market or not, and he pays in respect of the space 
 his stall occupies', and not on the articles he sells(Q. But when the 
 toll is placed on the specific article, such as a toll on every horse sold 
 within the limits of the market, then the article cannot be lawfully 
 sold witihout the payment of the toll(7ra). An immemorial toll may be 
 sustained as a claim to a reasonable toll, varying in amount from time 
 to time with the value of money, and its lawful origin may be pre- 
 sumed within legal memory, by means of a dedication of the streets 
 to the public, and a contemporaneous reservation of the toll on the 
 part of the crown between the time of Henry III. and Charles I.(re). 
 
 27 Torts founded' on contract. — A tort may be dependent upon, or inde- 
 pendent of, contract. If a contract imposes a legal duty upon a 
 person, the neglect of that duty is a tort founded on contract ; so that 
 an action ex contractu for the breach of contract, or an action ex 
 delicto for the breach of duty, may be brought at the option of the 
 plaintiff. When there is a violation of a legal right existing inde- 
 pendent of any contracjt between the parties, such as an invasion of 
 a right of property or of the right of personal security, or an injury 
 to character and reputation, then the tort is not founded on con- 
 tract and an action is alone maintainable. Whenever an action of 
 
 (ft) Yard v. Ford, 2 Wme. Sauud. 174. 
 
 (4) Fleta, lib. 4, o. 28, s. 13. 
 
 (A) WiUes, J., 31 Law J., C. P. 254. 
 
 (Z) Caawell ». Cook, 11 C. B., N. S. 637 ; 31 L. J., M. C. 185. 
 
 (m) Ijlandaff, etc., Market Co. ». Lyndon, 30 Law J., M. C. 105, as to sale ot horses by a 
 licensed auctioneer. See also as to stock sales, Fearon k. Mitchell, L. K., 7 Q. B 690. And 
 as to penalties t'orcan-ying things for sale from house to house within the boundaries of a 
 market, Caswell v. Cook, supra. As to the right to a stall in an ancient market, and the righ 
 of shopkeepers to place stalls in, the street in front of their houses on market days, Ellis v. 
 Mayor, &e., of Bridgnorth, 15 C. B., N. S. 52. Ashworth P. Heyworth, L. E., 4 Q. B. 316 ; 38 
 L. J., M. C. 91. 
 
 (n) Lawrence v. Hitch, L. E., 3 Q. B. 521. 
 
 Ad. Vol. I.— 2 
 
18 AOUONABLB WRONGS, [Chap. 1. 
 
 tort is founded on contract, an action is maintainable for nominal 
 damages, although no actual damage can be proved(o); but the 
 plaintiff who brings the action must be a party to the contract, for 
 no person can in general sue in respect of a tort founded on contract 
 who was not party, or privy to, and could not have been sued upon, 
 the contract(p) ; and the causfe of action cannot be transferred to 
 one to whom the contract itself is not transferable (g'). Thus an 
 electric telegraph company, though it would be answerable to a person 
 transmitting messages to a third person by its line for delay or mis- 
 takes in the transmission of the message, is not liable for any mistakes 
 made in transmitting the answer to such message, unless the person 
 so answering can be considered as the agent of the original sen- 
 der (r). 
 28 Breach of duty. — Wherever facts and circumstances can be shown 
 to exist which create a duty on the part of the defendant towards 
 the plaintiflF, and there has been a breach of that duty, and a conse- 
 quent damage to the plaintiff, an action for damages is maintain- 
 able. " If several are jointly bound to perform the duty, they are 
 liable jointly and severally for the failure or refusal to perform it ; 
 and if it is a duty which the majority of the number is bound to 
 perform, those who by their refusal prevent the greater' number 
 
 (o) Marzettl o. Williams, 1 B. & Ad. 423. 
 
 (p) Winterbottom v. Wright, 10 M. & W. 109, explained in Blaokmore v. Brist. & Ex. Bail. Co., 
 8 EU. & ,B1. 1049. Robertson v. Fleming, 4 Maeq. H. L. C. 167. Gray v. Ottolengul, 12 Rich. 
 Law. (S. C.) lOli Thus the manufacturer and vendor of a steam boiler is liable to the 
 purchaser only for defective iron or want of care or skill in its construction; and if after its 
 delivery to and acceptance by the vendee and while in use by him, a third, person is injured 
 in person or property by an explosion resulting from such defects, the injury will give such 
 person no cause of action against the manufacturer. Losee v. Clute, §1 N. Y. 494. So an 
 architect or builder of a public work is liable only to his employer for want of care and 
 skill, and any accident or injury to third persons occurring afiter the completion of the work 
 will not give such persons a cause of action against him. Mayor, etc. of Albany v. Cunliif, 
 2 N. Y. 165, So the manufacturer and vendor of an article containing defects pointed out to 
 the purchaser is not liable to a third person for injuries resulting from such defects while 
 qsing the same with the consent of the purchaser, unless the article is in its nature immi- 
 nently dangerous. Loop v. Litchfield, 42 N. Y. 361. But where a druggist carelessly lables 
 a deadly poison as a harmless medicine and sends it into the market, he is liable to all per- 
 sons injured by using the same, notwithstanding that it may have passed through the hands 
 of many dealers before reaching the hands of the person injured. The liability of the 
 druggist in such case arises out of the duty which the law imposes upon him to avoid acts 
 in their nature imminently dangerous to the lives of others, and not out of any privity of 
 contract between him and the person injui'ed. Thomas v. Winchester, 6 N Y. 397. 
 
 (g) Howard v. Shepherd, 9 C. B. 321. An agent who falsely represents his authority to 
 contract in behalf of another, is not liable in contract or in tort unless the principal would 
 have been bound by the contract made, if the agent had such authority. Dung v. Parker, 
 52 N. Y. 494. 
 
 (X) Playford ». United Kingdom Telegraph Co., L. E.,4Q. B. 706. See Henkel ». Pape, 
 L. E., 6 Bxch. 7. As to electric telegraph companies in Engl^i^d, see 31 & 32 Vict. c. 110; 
 32 & 33 Vict. c. 7b; vast, u. 20. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 19 
 
 from concurring a.re answerable to the party injured "(s). But 
 before an action can be maintained, it must of course be clearly 
 proved that the law imposes upon the defendant the duty which 
 he is charged with neglecting(i). Thus, where the declaration 
 alleged that the defendant wrongfully and negligently hung a chan- 
 delier in a public house, knowing that the plaintiff and others were 
 likely to be under the chandelier, and that if not properly hung it 
 would probably fall upon them, and that the chandelier fell upon the 
 plaintiff, it was held that the declaration did not disclose any duty by 
 the defendant to the plaintiff for the breach of which an action could 
 be maintained(M). 
 
 If facts are proved showing it to be the duty of a joint-stock com- 
 pany to register the plaintiff' as a shareholder, and grant him a certili- 
 cate of proprietorship of shares in the company, the company will be 
 responsible in damages for neglecting their duty in that behalf, though 
 no actual pecuniary damage is proved to have been sustained by the 
 plaintiff('B). So it is the duty of the shareholder who has sold shares 
 to execute a transfer of them, although the company is winding up, 
 and he will be liable to his broker, who has been obliged by the rules 
 of the Stock Exchange to buy other shares for the purpose of delivery 
 to the purchaser accordingly(w). 
 
 29 Breach of duty on the pari of assignees of leases. — Where a party 
 accepts an assignment of a lease subject to the payment of the rent 
 and the performance of the covenants, but enters into no express con- 
 tract that he will pay the rent and perform the covenants, the law, 
 nevertheless, imposes that duty upon him as incident to the position 
 he has chosen to occupy, and if by neglecting that duty a burthen is cast 
 upon the person from whom he took the estate, an action on the case 
 is maintainable against him by the latter(a;). A similar duty towards 
 the original lesse is, it seems, imposed upon each successive assignee, 
 BO far as regards any breaches of covenant during the continuance 
 of his term(y). 
 
 30 Breach of duty on the part of public officers. — Public functionaries 
 
 (») lid. Brougham, Ferguson v. Earl Kinnoul, 9 CI. & Fin. 305. 
 
 («) Curlewie v. Broad, 31 Law J., Exch. 473. Mayor, etc. of Albany v. Cunliff, 2 N. T. 
 165; Losee v. Clute, 61 N. Y. 494. 
 
 (M) Collis V. Selden, L. R., 3 C. P. 495. 
 
 (») Catohpole v. Ambergate, etc. Eail. Co., 1 Ell. & Bl. 120 ; 22 Law J., Q. B. 3*. 
 
 (M>) Blederman v. Stone, L. E., 2 C. P. 504. 
 
 (X) Burnett v. Lynch, 5 B. & C. 689. As to the lessee's duty to obtain his landlord's consent 
 to an assignment, see Lehmann v. M'Arthur, L. B., 3 Ch. App. 496 ; Bain v. Fothergill, L. K., 
 6 Exch. 69. 
 
 (») Moule V. Garret, L. E., 5 Exch. 132; 7 Ibid. 101. 
 
20 ACTIONABLE WRONGS, [Chap. 1. 
 
 appointed to act ministerially are liable to an action at the suit of any 
 one who suffers damage from their neglect or refusal to perform the 
 functions of their offices. Where there is a ministerial act to be done 
 by persons who on other occasions act judicially, the refusal to do the 
 ministerial act is equally actionable as if no judicial functions were 
 on any occasion intrusted to them ; but where the functions of the 
 public officer are partly ministerial aqd partly judicial, an action can- 
 not be brought against him unless malice be averred and proved(z). 
 
 Public officers, employed in the public departments, in the conduct 
 and management of the public business of the country, are not respon- 
 sible for the negligence and misconduct of those who act under them, 
 although such subordinate officers have been appointed by them. 
 Thus the Lords Commissioners of the Treasury, the Commissioners 
 of Customs and Excise, the auditors of the Exchequer, etc., have never 
 been held liable in damages for the negligence or misconduct of the 
 inferior officers in their several departments. A Queen's officer sta- 
 tioned on board ship to do his duty there, is not responsible for the 
 negligent acts of his subordinate officers, nor is the Postmaster-Gen- 
 eral responsible for the negligence or misconduct of clerks and letter- 
 sorters employed and appointed by him for the execution of certain 
 public duties in the Post-office, but these public functionaries are 
 responsible to every individual who sustains damage by reason of their 
 own personal neglect or misconduct(a). Thus, if a man who carries 
 the letters to the Post-office loses any of them, he is answerable ; so is 
 the sorter in the business of his department ; so is the postmaster for 
 any fault of his own(6). The collector of customs is, in like manner, 
 responsible in. damages to all who sustain a direct and immediate- 
 injury from a neglect by him to execute the duties of his office, as for 
 refusing to sign a bill of entry which it was his duty to sign, or to 
 make an order which it was his duty to make(c), 
 
 (z) Whenever duties of a judicial nature are imposed upon a public oflicer, the due execu- 
 tion of which depends upon his own judgment, he is exempt from all responsibility by action' 
 for the motives which influenced him, and the manner in which such duties are performed. 
 If corrupt, he may be impeached or indicted, but he cannot be prosecuted by an individual 
 to obtain redress for the wrong done ; but where duties which are purely ministerial ai-e cast 
 upon officers whose chief functions are judicial, and the ministerial duty is violated; the pub- 
 lic officer, though for most pui'poses, a judge is still civilly responsible for such misconduct. 
 Rochester White Lead Co. v. City of Rochester, 3 N. Y. 463. Wilson v. Mayor of New York, 
 1 Denio, 599. Bnt a ministerial officer acting in good faith, will not be liable for more than 
 compensatory damages for an injury done. Plummer v. Harbut,-5 Clark (Iowa), 303. Tracy 
 r. Swartwout, 10 Pet. 80. Post, ch. 15. 
 
 (a) Laue v. Cotton, 1 Salk. 17. To the same effect see Sawyer p. Corse, 17 Gratt. (Va.) 230 ; 
 Eichmond v. Long, 17 Gratt. (Va.) 375. 
 
 (6) Whitfield v. Lord Le Despenser, Cowp. 765. 
 
 ifi) Barry v. Ainaiid, 10 Ad. & E. 670. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 21 
 
 "Whenever a public officer abuses or neglects the powers or duties 
 of his office, either by an act of commission or omission, and in conse- 
 quence thereof an injury accrues to an individual, and no special 
 remedy for enforcing performance of the puolic duty is appointed by 
 statute, an action for damages is maintainable against such public 
 officer ; and every one who is appointed to discharge a public duty, 
 and receives a compensation, whether from the crown or otherwise, is 
 constituted a public officer(d). If a bishop, by neglecting to perform 
 the plain duties of his office, inflicts an injury upon another, an action 
 for damages is maintainable against him. And if a clergyman 
 wrongfully refuses to administer the sacrament to a man, who is 
 thereby prejudiced in his civil rights, or the registrar of births should 
 refuse to register the birth of a person, and so cause him to lose an 
 estate, an action for damages would be maintainable. So if a lord 
 of a manor were to refuse or neglect to hold a court, by which a copy- 
 holder should be prevented from having admission to his copyhold, an 
 action for damages would lie against such lord(e). 
 
 . If a superintendent of customs uses the power he possesses for the 
 purpose of obstructing or ruining the trade of a particular merchant, 
 he is responsible in damages for the injury he occasions(/). But a 
 surveyor of highways, upon whom is imposed the obligation of keep- 
 ing in repair the highways of which he has charge, is not liable to an 
 action by reason of his omission to repair the highways, a statutory 
 remedy for the enforcement of the public duty being provided by the 
 Highway Act(p'). 
 31 Breach of duty hy postmasters — Non-delixiery of letters. — ^A postmaster 
 is bound to deliver letters at the respective places of abode of the per- 
 sons to whom they are directed, and is liable to an action on the case 
 for substantial damages if he fails to do so. All deputy-postmasters 
 are responsible for their own personal misfeasance, for they are all 
 made public officers, and charged with a great public trust since the 
 legislative establishment of the Post-office. If, therefore, a person to 
 whom a letter is addressed cannot be found at the place indicated, it 
 is the duty of the postmaster to make reasonable inquiry after him(^). 
 
 (d) See Irwin o. Grey, T.. E., 1 C. P. 171 ; S F, & F. 635. Kobinson v. Chamberlain, 34 N. T. 
 389. A contractor engaged to perform tlie duties of a public ofBoer comes witliin this rule. Id. 
 
 (e Henley v. Mayor of Lime, 5 Bing. 108. Ferguson v. Earl Kinnoul, 9 CI. & Fin. 251. ' 
 
 (/) Rogers v. Ea^endro Dutt, 13 Moore, P. C. C. 209. 
 
 (J) Young V. Davis, post, ch. 16 ; 6 and 6 Wra. 4, oh. 50, ss. 30, 41. For the rule in New 
 york as to the liability of commissioners of highways for failure to keep the highway in re- 
 pair, see Robinson v. Chamberlain, 34 N. Y. 389 ; Hover v. Barkhoof, 44 N. Y. 113. See post, 
 ch. 4, s. 3, and oh. 16, s. 1. 
 
 (ft) Eowning v. Qoodchild, 2 W. Bl. 908. Snuth v. Powilich, 1 Cowp. 182. A postmaster 
 
22 ACTIONABLE WRONGS, [Chap. 1. 
 
 32 Negligence and breach of duty on the part of consignors and bailors of 
 chattels. — The law imposes upon all persons employing others to carry 
 explosive, corrosive, or dangerous articles, concealed in bottles, boxes, 
 or packages, the duty of giving reasonable notice to the persons they 
 employ of the character of such articles, in order that proper precau- 
 tions maybe taken to prevent injury to themselves and to others; 
 and if no such notice is given by the employer, and damage is 
 sustained by the party employed from the want of notice, there 
 is that conjunction of damage and [wrong which will support an 
 action (i). 
 
 Every person, also, who hires out or lends a chattel to another, 
 knowing at the time that the chattel has dangerous defects which 
 may make the thing perilous to use, is bound to disclose to the hirer 
 or borrower the existence of such defects, and if damage is sustained 
 by reason of the non-disclosure thereof, there is both damage and 
 wrong, and an action is maintainable(^). But it is otherwise if such 
 person was wholly ignorant of any secret defect or hidden- source of 
 danger, as he cannot of course disclose what he does not know(^). 
 Where the duty grows out of a contract between the parties, no one 
 can, in general, sue for a breach of that duty, who was not privy to, 
 and could not have sued upon, the contract, as has been before ob- 
 served (p. 14.) 
 
 33 Torts founded on negligence. — " The action for negligence proceeds 
 upon the idea of an obligation on the part of the defendant towards 
 the plaintiff to use care, and a breach of that obligation to the plain- 
 tiff's injury" (Z). As a rule there must be affirmative proof of negli- 
 gence on the part of the defendant to support an action, for where it 
 is a perfectly even balance on the evidence whether the injury has re- 
 sulted from the want of proper care on the part of one side or the 
 other, the party who founds his claim, on the imputation of negligence 
 
 ■who improperly detains a newspaper from the person to whom it is addresseil is liable in 
 damages for the convevsiou in an action brought in a State court, although such detention is 
 under color of the laws of the United States and the regulations of the post-oflice department. 
 Teall V. relton, 1 N. Y. 537 ; 12 How., U. S. 284. 
 
 (i) Farrant v. Barnes, 32 Law J., C. P. 137 ; post. oh. 8, a. 1. Barras v. Maitland, 6 EJl. & Bl. 
 470; 26 Law J., Q. B. 49. 
 
 (.;■) Blakeraore v. Brist.- & Ex. Kail. Co., 8 Ell. & Bl. 1051 ; post, ch. 9. 
 
 (ft) MacCarthy v. Young, 6 H. & N. 329. One who lets a carriage for hire is auswerahle to 
 the hirer for injuries happening by reason of a defect in the carriage, which might have been 
 discovered by a careful examination, but is not answerable for injuries resulting from hidden 
 defects which could not have been so discovered. Hadley i>. Cross, 34 Vt. 586. 
 
 («) Wilde B., 7 H. & N. 603. Swan v. North Brit. Austr. Co., 31 Law J., Exch. 437 It is 
 therefore a relative term, and the term " gross negligence " is only oi'dinary negligenci* with 
 a vituperative epithet. See Grill v. General Ii'on Screw Collier Co., L. R., 1. C. P. ti(.H). 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 23 
 
 fails to establish \i{m). However, where the accident is one which 
 would not, in all probability, happen if the person causing it was 
 using due care, and the actual machine causing the accident is solely 
 under the management of the defendant, it has been held that the 
 mere occurrence of the, accident is sufficient primd facie proof of neg- 
 ligence to impose on the defendant the onus of rebutting it(w). The 
 damage, too, must be proximately caused by the negligence, and must 
 not be the immediate result of any intervening negligence on the part 
 of the plaintiff himself {ante, pp. 5, 6) ; for if the plaintiff's own care- 
 lessness has directly conduced to the damage he has sustained, he' is 
 the author of his own misfortune, and cannot charge it upon others(o). 
 As between the plaintiff and a third person, however, not the defend- 
 ant, the defendant will be liable if the proximate cause of the injury 
 be his negligence, although some other person might have omitted to 
 perform some duty, the omission to perform which indirectly contrib- 
 uted to cause the injury complained of. Thus, where a company for 
 its own profit maintained a channel for carrying off water, the outfall 
 to which channel other persons were bound to piaintain of certain di- 
 mensions, but failed to do so, and consequently the water accumulated 
 in the channel, and because the banks were not sufficiently strongly 
 made, ultimately burst the embankment and flooded the plaintiff's 
 land, it was held that he could recover against the company(j3). So, 
 conversely,- if the defendant's negligence be the main cause of the in- 
 jury, the fact that the injury was caused immediately by the negli- 
 gent act of a stranger will not exonerate the defendant. Thus where 
 a gas company so negligently constructed a pipe, that the gas escaped 
 into the plaintiff's house, and a workman who happened to be in the 
 house went near the place where the gas escaped with a lighted candle 
 
 (m) Cotton V. Wood, 8 C. B., N. S. 568 ; 29 Law J., C. P. 333. Hammaok v. White, 11 C. B., 
 N. 8. 588. Ld. Wensleydale, Morgan v. Sim, 11 Moore, P. C. C. 312. Welfare v. Brighton 
 Bail., L. B., 4 Q. B. 693. Kearney v. Lond. & Brighton Bail., L. B., 5 Q. B. ill ; 6 Ibid. 759. 
 See lUlnois etp. B. E. Co. v. Middlesworth, 43 m. 64 ; Warner v. N. Y. Central B. E. Co., 44 
 N. T. 465 ; Button v. Hudson River E. E. Co., 18 N. Y. 248 ; Holbrook v. Utioa & Schenectady 
 B. E. Co., 12 N. Y. 236 ; WaXkax v. Herron, 22 Texas 55 ; Peoria Bridge Association v. Loomis, 
 20 lU. 235. 
 
 (n) Scott V. Lond. Dock Co., 34 Law J., Exch, 17 ; Ibid. 220. Briggs ». Oliver, 35 Law J., 
 Exoh. 163. Czech v. General Steam Navigation Co., L. B., 3 C. P. 14. See Moffat v. Bateman, 
 L. E., 3 P. C. Ca. 115 ; Curtis v. Bochester & Syracuse B. B. Co., 18 H. Y. 534. 
 
 (o) See post, ch. 8, s. 1, as to contributory negligence. Young v. Grote, 12 Moore 484 ; 4 
 Biiig, 253. Buttei-worth v. Brownlow, 34 Law J., C. P. 266. Wilds ©.Hudson Biver B. E. Co., 
 24 N. r. 430. Baltimore etc. B. B. Co. v. State, 29 Md. 252. Conlin v. Charleston, 15 Eich. (S. 
 C.) L. 201. Harper v. Brie E. B. Co., 3 Vroom (N, J.) 88. Meyer v. Paciflc B. E., 40 Mo. 161. 
 Haley v. Chicago etc. B. E. Co., 21 Iowa 15. Toledo etc. E. E. Co. v, Goddard, 25 Ind 185. 
 McAunrich v. Mississippi etc R. E. Co. , 20 Iowa 328. Heil v. Glanding, 42 Penn. St. 493. 
 Michigan etc. B. B. Co. v. Leahey, 10 Mich. 193. 
 
 (p) Harrison v. Great Northern EaU. Co., 33 Law J., Exoh. 268. 
 
24 ACTIONABLE WRONGS, [Chap. 1. 
 
 in his hand, which caused an explosion, it was held that the gas com- 
 pany was nevertheless responsible(g). 
 34 Contributory negligence on the part of the plaintiff, who complains that 
 he has been damnified by the negligence of the defendant, is in 
 general an answer to the action, on the ground that a man cannot 
 ccimplain of that which he has himself helped to bring about. Thus, 
 where a man hid one hundred pounds sterling in some hay in an old 
 nail bag, and delivered it to a common carrier to be earned to a banker, 
 and the money was lost, it was held* that the common carrier was not 
 responsible for the loss, as the consignor had neglected to inform the 
 carrier of the exceeding value of the bag, and had thereby prevented 
 him from taking proper care of it(r), 
 
 So, where the consignor concealed a quantity of guineas in an ordi- 
 nary brown paper parcel tied with a string(s), and a number of sover- 
 eigns in a packet of tea(i), and several hundred pounds' worth of 
 bank-notes and gold in an ordinary school-boy's box, and the money 
 so sent was lost by the way, it was held that the common carrier was 
 not responsible for the loss of it(M). And if glass, or china, or fragile 
 articles reguiring great care for their safe conveyance, are put into 
 boxes and packages and delivered to a carrier to be carried, and no 
 notice is given to the latter of the peculiar nature of the contents of 
 such packages, and of the additional care required for their safe con- 
 veyance, and the things are damaged in the course of the transit, the 
 carrier is not bound to make good the damage, as the consignor has 
 himself directly contributed to the injury by concealing the peculiar 
 nature of the articles, and the amount of care requisite for their safe 
 conveyance. 
 
 Wherever, indeed, the immediate and proximate cause of the dam- 
 age is the plaintiffs own supineness, carelessness, or unskilfulness, he 
 has no ground of action against the defendant, though the primary 
 and original cause of damage be the defendant's wrongful act. Thus, 
 where some bricklayers employed by the defendant had 'wrongfully 
 laid several barrowfuls of lime rubbish before the defendant's door, by 
 the side of a highway, and whilst the plaintiff was passing in his 
 
 {,q) Burrows v. March Gas Co., L. R., 5 Bxott. 67 ; quaere whether they would hare been 
 liabe if the workmen had been the plaintiff's servant ; Ibid. See Lannen v. Albany Gas-light 
 Co. 44 N. T. 469. The case of Burrows v. March Gas Company has been alHrmed on appeal, 
 L. R.,7Bxch. 98. 
 
 (r) Gibbon v. Paynton, 4 Burr. 2298. See Story on Bailments, f 565 ; Relf v. Rapp, 3 Wai-« 
 & Serg. 21' ; Richards v. Westcott, 2. Bosw. (N. Y.) 604, 589. 
 
 (s) Clay V. Willan, 1. H. Bl. 298. 
 
 «) Bradley v. Waterhouse, 3 C. & P. 318. 
 
 i«) Batson v. Donovan, 4 B. & Aid. 37. Mayhew », Eames, 3 B. & C. GOl ; 5 D. & R. 487. 
 
Sec. l.J AND INJUBIMS NOT ACTIONABLE. 25 
 
 chaise, the -wind raised a whirlwind of this rubbish, which frightened 
 the plaintiif s horse and caused it to start on one side, in the direction 
 of an approaching wagon, and the plaintiff, to prevent the horse from 
 running against the wagon, pulled him sharp round, and the horse 
 then ran over a lime-heap lying before another man's door, and the 
 shaft was broken by the shock, and the horse, being then still more 
 frightened, ran away and upset the chaise, and threw the plaintiff out 
 and injured him, it was held that although the defendant was to 
 blame for putting the rubbish by the side of the road, yet if the 
 plaintiffs running against the second heap of rubbish was owing, to 
 his pulling the horse round too sharp, the immediate cause of the 
 injury was his own unskilfulness in the management of his horse, 
 rather than the wrongful act of the defendant('!)). 
 
 Where the plaintiff complained that the defendant had hired him 
 to carry a load of timber to Ipswich, and that he carried the timber 
 there and asked the defendant where it was to be deposited, but the 
 defendant would give no directions, and made the plaintiff's horses, 
 which were heated, stay so long in the wagon that they took cold 
 and some of them died, and the rest were spoiled, it was held that 
 the immediate and proximate cause of the injury to the horses was 
 the plaintiff's o\^^l neglect, in not having them taken out of the wagon 
 and put into a stable, and that the original wrongful act of the 
 defendant, in not finding a place of deposit for the timber, was not 
 sufficiently connected with the loss of the horses to render the defend- 
 ant responsible for such 1oss(m!). 
 
 But the negligence or misconduct on the part of the plaintiff dis- 
 entitling him to an action for compensation must be such as he is 
 legally responsible for, and such as the law recognizes as a co- 
 operative cause of the injury. Where the defendant left his horse 
 and cart for a long time unattended in the street, where some little 
 boys were at play, and some of the boys got into the cart, and 
 another boy led the horse on to give them a ride, and one boy fell 
 off the shafts and got his leg crushed under the wheel, it was held 
 that the defendant was responsible for the fall and the broken leg, 
 as it was the natural result of his misconduct in leaving the cart 
 unattended, and that the boy, in consequence of his tender years, 
 and natural instinct for play, and want of reflection and foresight 
 could not be considered legally responsible for the damage he had 
 sustained, so as to be precluded from recovering compensation from 
 
 1») Flower V. Adam, 2 Taunt. 3M. (w) Virtue v. Bii-fl, 2 Lev. 196. 
 
26 ACTIONABLE wRoifes, [Chap. 1. 
 
 the defendant (x). However, where the defendant left the wooden 
 covering of a cellar leaning against the wall, and the plaintiff, a child 
 of seven years old, got upon it and jumped from it in play, by means 
 of which it fell upon and injured him, it was held he could not recover(2/). 
 And so where the defendant exposed for sale, without superintendence, 
 a machine which any passer by might set in motion, and which, when 
 set in motion, was dangerous, and the plaintiff, a boy of four years old, 
 by the direction of his brother, put Ids hands in the machine while 
 his brother set it in motion, it was held he could not recover(2). 
 
 And though a man may not disaffirm his own careless or culpable 
 acts, and complain of the consequences which those acts have brought 
 
 (k) Lynch v. Nurdin, 1 Q. B. 29. Negligence cannot be imputed to a child of such tender 
 years as to be wholly incapable of the exercise of care. Daffy v. Norwich K E. Co., 26 
 Conn. 591. Bii-ge «. Gardiner, 19 Conn. 507. All that can be required o( such a child is the 
 exercise of such care as it is capable of. Robinson v. Cone, 22 Vt. 213. Smith v. O'Connor, 
 ■48 Penn. St. 218. Kerr v. Forgue, 54 111. 482. Lynch v. Smith, 104 Mass. 52. The law has not 
 fixed the age at which an infant shall be deemed in law, "ow sui juris. It has been held thai 
 contributory negligence cannot be imputed to a child under the age of two years. Hart 
 field V. Eoper, 21 Wend. 615. Nor to a child of three or four years of age. Mangame T. 
 Brooklyn K. E. Co., 38 N. Y. 465. North Pennsylvania E. E. Co. v. Mahoney, 67 Penn. St. 
 142. But it may be imputed to infants of the age of sixteen. or thirteen. Neal )»• Gillett, 23 
 Conn. 437. See Achtenhagen v. Watertown, 18 Wis. 331. Haycroft v. Lake Shore & Michigan - 
 Southern E. R. Co., 5 Sup. Co. E. (N. Y.) 49. Or to an intelligent boy of the age of eleven 
 years. McMahon v. Mayor, etc., of New York, 33 N. Y. 642. But whether an intelligent boy 
 of six or seven years of age can be held sui juris is a question for the jury. Honesburgher 
 V. Second avenue E. E. Co., 33 How. (N. Y.) 195. See Mangam v. Brooklyn E. E. Co., 38 N. Y. 
 455. As to the comparative responsibilty of an infant of tender years and that of an adult in 
 respect to the doctrine of contributory negligence, see Lafayette, etc., E. E. Co. v. Huffman, 
 28 Ind. 287. That in an action by an infant against third persons for injuries the negligence 
 of the parent or guardian is defence. See Hartfleld v. Eoper, 21 Wend. 615 ; Chicago v. Starr, 
 42 m. 174; Lynch v. Smith, 104 Mass. 63; Pittsburgh, etc., E. E. Co. v. Vining, 27 Ind. 613; 
 Wright V. Maiden, etc., R.E. Co., 4 Allen (Mass.) 283 ; Mangam v. Brooklyn R. R. Co., 38 N. Y. 
 455 ; Callahan v. Bean, 9 Allen (Mass.) 401. To the contrary, see Robinson v. Cone, 22 Vt. 
 213 ; Daley v. Norwich, etc., R. R. Co., 26 Conn. 598 ; Philadelphia, etc., E. R. Co. v. Spearen, 
 47 Penn. St. 306 ; Smith v. O'Conner, 48 Id. 218 ; City of Chicago v. Mayor, 18 111. 360 ; City of 
 St. Paul V. Kirby, 8 Minn ; Boland v. Missouri E. E. Co., 36 Mo. 490 ; Whirley v. Whittemore, 
 1 Head. 620 ; niinois Central E. E. Co. v. McClellan, 42 Til. 356. That the negligence of the 
 parent will bar an action by him for his child's services, see Glassey v. Hestonville M. & F. 
 R. E. Co., 57 Penn. St. 172. All the cases in which the neligence of parents or custodians of 
 infants not sui juris is held to preclude a recovery by such infants or their representatives, 
 necessarily assume that the conduct of the infant was such as would, in the case of a person 
 sui juris, have amounted to contributory negligence, and hold that the negligence of the 
 parent or custodian, but not the personal conduct of the infant, constitutes the bar. But if 
 an infant not sui juris, whUe exercising proper care, is injured through the negligence of a 
 third person, such third person is liable therefor without regard to the negligence of the 
 parent or custodian. If, on the other hand, an infant old enough to be regarded sui juris 
 is injured through his own negligence and that of a third person, his negligence will be a bar 
 without regard to that of his parents. Ihl v. Forty-second street, etc., R. R. Co., 47 N. Y. 317. 
 Lynch v. Smith, 104 Mass. 52. 
 
 (y) Abbott V. Macfie, 33 Law J., Exch. 177. As to two children playing together, see S. C. 
 Where the defendant placed barrels and a counter on a public street, and a child twel v e years 
 of age placed his hands upon the counter, as if to jump upon it, and it fell and fi-actared his 
 leg, it was held that the defendant was liable for the damages resulting from his negligence. 
 KeiT V. Forgue, 64 111. 482. 
 
 (a) Maugan v. Attertou, L. E., 1 Exch. 2.39. As to the death of a child between verdict and 
 judgment, see iiramer v. Waymark, Ibid. 241. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 27 
 
 about in the conduct or omission of others, yet the rule must be limited 
 to such consequences as are in some degree direct and not collateral ; 
 probable, though perhaps not necessary(a). Although there may have 
 been contributory negligence on the part of the plaintiff, yet if the 
 damage is not the necessary, or ordinary, or likely result of such neg- 
 ligence, but is due to some wholly unlooked-for and unexpected event, 
 which could not reasonably have, been anticipated or expected to be 
 likely to occur, such contributory negligence will be too remote to be 
 set up as a bar to the action. Thus, if the customer of a banker, who 
 is desired to keep his cheque-book locked up, nevertheless negligently 
 leaves it.on his table, and thereby enables his servant to get possession 
 of it, and tear out a cheque and forge his master's signature to it, and 
 commit a fraud upon the bankers, this will not enable the bankers to 
 throw the loss upon their customer, as being the result of his negligent 
 keeping of his cheque-book, for it could not reasonably have been 
 anticipated that the power of obtaining a cheque would induce a ser- 
 vant to commit a forgery (&). 
 
 Where ijegligence on the part of the plaintiff is rfemotely connected 
 with the cause of injury, the question to be determined is whether the 
 defendant, by the exercise of ordinary care and skill, might have 
 avoided the injury. If he could have done so, the remote and indi- 
 rect negligence of the, plaintiff cannot be set up as an answer to the 
 action (c). 
 
 Thus, where the plaintiff negligently left his donkey in a public 
 highway, tied together, by the fore-feet, and the defendant carelessly 
 drove over and killed the ass with his horses and wagon in broad 
 daylight, the animal being unable to get out of the way of the wagon, 
 it was held that the misconduct of the plaintiff, in leaving the ass in 
 the highway, was no answer to the action ; for, although the ass 
 
 (a) Wilde, B., Swan v. North Brit. Austr. Co., 31 Law J., Exch. 437 ; 32 lb. (Exoh. Ch.) 273. 
 Haley v. Earie, 30 N. Y. 208. In a recent case it was held that where a boy, while standing in 
 a gangway from which he had been previously warned off by the defendant on account of the 
 danger from passing trucks, wheelbarrows, etc., was killed by the falling of a car negligently 
 pushed off a ti-amway overhead, no contributory negligence could be imputed to the boy, 
 there being no reason to expect danger from the cars above. Gray & Bell v. Scott & Wife, 
 eoPenn. St. 345, 
 
 (6) Bank of Ireland v. Trustees of Evans's Charity, 5 H. L. C. 411. Swan v. North Brit. 
 Austr. Co., supra. Taylor v. Gt. Ind. Penins., 28 Law J., Ch. 295 ; lb. 714. See Donaldson v. 
 Gillott, L. E., 3 Eq. Ca. 274 ; Johnson v. Renton, L. E., 9 Eq. Oa. 181 ; re United Service Co., 
 L, R., 6 Ch. App. 212. 
 
 (c) Greenland v. Chaplin, 5 Exoh. 248 ; Trow v. Vermont Central R. E. Co., 24 Vt. 487. But- 
 ton «. Hudson River R. R. Co., 18 N. Y. 248. Kerwhacker «. Cleveland, Columbus & Cincin- 
 nati R. R. Co., 3 Ohio (N. S.) 172. Morrissey v. Wiggins Ferry Co. ,43 Mo. 380. Chicago R. R. 
 Co. V. Triplett, 38 lU. 482. Richmond v. Sacraiuento, etc., R. E. Co., 18 Cal, 351. Stucke v. 
 Milmaukee, etc., E. R. Co., 9 Wis. 202. Indianapolis, etc., K. R. Co. ». CauldweJl, 9 Ind. 397. 
 State V, Manchester & Lawrence K. B. Co., 52 N. H. 528. 
 
28 ACTIONABLE^ WR0N9S, . [Chap. 1. 
 
 might have been wrongfully there, still the defendant was bound to 
 go along the road with care, and at such a pace as would be likely to 
 prevent mischief. "Were this not so, a man might justify the driving 
 over goods left in a public highway, or even over a man lying asleep 
 there, or the purposely running against a carriage going on the wrong 
 side of the road "(d). 
 
 Contributory negligence on the part of the plaintiff, therefore, will 
 not disentitle him to recover damages, unless it were such that, but 
 for that negligence, the misfortune could not have happened ; nor if 
 the defendant might, by the exercise of care on his part, have avoided 
 the consequences of the neglect or carelessness of the plaintiff(e). 
 35 Liability of the defendant in respect of the remote ulterior and unusual 
 consequences of a negligent act. — "I entertain," observes Pollock, C.B., 
 " considerable doubt whether a person who has been guilty of negli- 
 gence is responsible for all the consequences which may under any 
 circumstances arise, and in respect of mischief which could by no 
 possibility have been foreseen, and which no reasonable person would 
 have anticipated. I am inclined to consider the rule of law to be this, 
 
 (d) Davis v. Mann, 10 M. & W. 549. Mayor of Colchester v. Brooke, 7 Q. B. 376. • 
 
 (e) Tuff «. Warman, 6 C. B., N. S. 585. Scott v. Dub. & Wick. Rail. Co., 11 Ir. C. L. E. 396. 
 The accuracy of the proposition contained in the first part of -this paragraph may well be 
 doubted. The counter-proposition, *' that in an action to recover damages for negligence 
 there can be no recovery unless it appears that the injury happened or would have happened 
 irrespectively of any negligence on the part of the plaintiff," more nearly states the rule of 
 law recognized in tlfis country. Murphy & wife ». Deane, 101 Mass. 455. See Walker «. 
 Weetfleld, 39 Vt. 246. The rule most generally recognized and adopted in this country in de- 
 termining the effect of mutual negligence on the right of action, is thus stated in the well 
 considered case of Trow v. Vermont Central R. E. Co., 24 Vt. 487. " Where there is mutual 
 negligence on the part of the plaintiff and defendant, and the negligence of each was the 
 proximate cause of the injury, no action can be sustained. - 
 
 So where the negligence of the plaintiff is proximate and that of the defendant remote or 
 consisting in some other matter than what occurred at the time of the injury, no action can 
 be sustained. , 
 
 But where the negligence of the defendant is proximate and that of the plaintiff rctmote, 
 the action for the injuiY can well be sustained though the plaintiff were not eritirely without 
 fault. So that if there were negligence on the part of the plaintiff, yet if at the time when 
 the injury was committed it might have been avoided by the defendant by the exercise of 
 reasonable care and prudence, an action will lie for the injury." See Button v. Hudson R. 
 R. Co., 18 N. Y. 248, 256. By proximate cause of injury must be understood the cause which 
 naturally led to, and which might have been expected to produce the injury. State «. Man- 
 chester and Lawrence R. R., 52 N.. H. 528. For a review of the English and American 
 authorities on the subject of contributory negligence, and the application of the rule in the 
 several states, see the case last cited. 
 
 The contributory negligence which excuses another from liability for injuries caused, in 
 part at least, by his negligence, must be the personal act of the party injured, otherwise as to 
 him all contributing thereto are joint wrong doers. Artie Tire Ins. Co. v. Austin 6 Sup. Ct. 
 (N. T.) 63. 
 
 The fact that the party injured through the negligence of another, was at the time intoxi- 
 cated, wiU not preclude a recovery for the injury unless such intoxication contributed there- 
 to, and whether it did so contribute, is a question for the Jury. Healey v. Mayor of New 
 York, 6 Sup. Ct. (N. Y.) 92. And see Alger v. Lowell, 3 Allen, 402 ; Robinson ». Pioche, 5 
 Cal. 460. 
 
Sec. l.J AND INJURIES NOT ACTIONABLE. 29 
 
 that a person is expected to anticipate and guard against all reasona- 
 ble consequences, but that he is not by the law of England expected 
 to anticipate and guard against that which no reasonable man would 
 expect to occur "(/). 
 
 Where the owner of a horse negligently allowed his horse to stray 
 on the high road, it was held that the owner would be responsible for 
 all such damage as in the ordinary sequence of events might be ex- 
 pected to occur therefrom, such as the horse's walking into a neighbor- 
 ing pasture, and consuming the grass there, or wandering into a corn- 
 field and trampling down the corn ; but not for a kick to a child in 
 the road, unless it could be shown that the horse was naturally of a 
 vicious disposition, and wont to kick, and that the owner knew of it 
 at the time he allowed the horse to stray into the highway {g). 
 Where cattle afflicted with a contagious disorder trespassed upon an 
 adjoining pasture and infected other cattle there with the disease, it 
 was held that the owner of the trespassing beasts was responsible for 
 the damage arising from the spread of the disorder, as well as for the 
 injury to the grass and herbage(A). But the mere fact of the defend- 
 ant's scabby sheep getting amongst the plaintiff's healthy flock, and 
 infecting them with the disorder, establishes no cause of action, unless it 
 be proved that the defendant knew them to be infected, and neglected 
 to take proper and reasonable precautions to prevent them from get- 
 ting mixed with healthy flocks(i), or that he knowingly and wilfully 
 turned them out on some common or waste, etc., or exposed them for 
 sale in a public market or private sale-yard, etc.(^). 
 
 (/) Greenland v. Chaplin, 5 Exch. 'MS, Bank of Ireland v. Trustees of Evan's Chai'ities, 
 5 H. L. C. 411. McGrew v. Stone, 53 Penn. St. 436. See Webb v. Rome, Watertown & Ogdens- 
 bnrgh K. E. Co., 49 N. Y. 420 ; Ryan v. N. Y. Cential K. E. Co., 35 N. Y. 210; Pennsylvania 
 Railroad v. Kerr,i62 Penn. St. 353. 
 
 (pr) Holden ». Shattuck, 34 Vt. 336. Cox v. Burbidge, 13 C. B., N. S. 430 ; .32 Law J., C. P. 
 89. This is not necessary where the form of action is trespass, Lee v. Eiley, 34 Law J., C. P. 
 212. So it is necessary to allege the natural viciousness of the animal in these cases, only 
 where but for the vice of the animal the owner would be free from fault. Thus where the 
 owner of ahorse permitted him to go unattended upon the sidewalk of a populous city where 
 in passing he kicked and injured a child, it was held that the owner was liable for the injury 
 resulting from his negligence without any allegation or proof of the viciousness of the horse. 
 Dickson v. McCoy, 39 N. Y. 400. So it was held that where a sucking colt was kicked and 
 kiUed by a horse which had been turned loose in the highway, the owner of tlie colt could, 
 in the absence of negligence on his part, recover damages of the owner of the horse, although 
 the horse was not vicious Barnes v. Chapin, 4 Allen, (Mass.) 283. 
 
 (ft) Andrews w.'Buckton, 1 Str. 192. 
 
 (j) Cooke V. Waring, 32 Law J., Exch. 262. 
 
 \j) See ante, pp. 3, 4. Where one person, occupying the land of another as a mere licensee, 
 pastures upon it sheep infected with an infectious disease, and the owner of the land, relying 
 upon the false representations of the licensee as to the absence of danger from contagion, 
 subsequently moves his own sheep upon the same land, whereby the disease is communicated 
 to them, the originiil occupant or licensee is liable to the owner of the land for the damages. 
 
80 ACTIONABLE WRONGS, [Chap. 1 
 
 If the owner of a dog allows the dog to stray away and trespass oi 
 his neighbor's land, and the dog worries and kills the neighbor's 
 sheep, the owner of the dog is not responsible at common law for the 
 damage done, as the worrying and killing of sheep is, it is said, not in 
 accordance with the ordinary instinct of the animal, and would not in 
 the ordinary sequence of events be expected to result Irom a dog being, 
 allowed to stray away from his master's premises ; but, if the dog had 
 previously Vforried sheep with the knowledge of the owner, the ■ laW 
 throws upon the latter the duty of .keeping the animal on his own 
 premises, and not suffering him to go at large(i). But so far as inju- 
 ries to cattle and sheep by dogs ai^e concerned, this is altered by the 
 28 & 29 Vict. c. 60(Z). The word " cattle " in this Act includes horses 
 and mares(TO). The mere keeping oi an animal of a fierce nature, 
 such as a tiger or a bear, or a dog known to be wont to bite, is unlaw- 
 ful, and, therefore, if any person is bitten or irfjured by such an animal, 
 an action is maintainable against the person who keeps it(w). 
 36 Liability of the master for the negligence of his servant. — Every servant 
 acting in the execution of his master's business represents the master 
 himself, and his acts are, in contemplation of law, the acts of his mas- 
 ter. This rule of law applies not only to domestic servants, who have 
 the care of carriages, horses, and other things in the employ of the 
 family, but to other servants whom the master or owner selects and 
 appoints to do any work, or superintend any business, although such 
 servants be not in the immediate employ, or under the superintend- 
 ence, of the master. As, for instance, if a man is the owner of a ship, 
 he himself appoints the master, and he desires the master to appoint 
 
 Eaton V. Winnie, 20 Micli. 156. Communicating disease to tlie flocks of an adjoining owner 
 by merely pasturing diseased sheep in an adjoining lot, will not give the party injured a cause 
 of action against the owner of the sheep communicating the disease. Fisher v. Clark, 41 
 Barb. (IS. Y.) 329. 
 
 (ft) Anon. Dyer, pi. 162. Baker v. Webberly, Het. 171. Jenkins v. Turner, Ld. Baym. 109. 
 Card e. Case, 5 C. B. 622. As to dogs known to have a mischievous propensity for pursuing 
 and destroying game. Bead -o. Edwards, 17 0. B,, N. S. 245 ; 34 Law J., C. P. 31. As a gen- 
 eral rule the owner of a" domestic animal is not liable at common law for an injury committed 
 by such animal, unless it be alleged and shown that the owner had notice of its vicious pro- 
 pensity. But the owner is liable without an aUegation or proof of scienter, if it be alleged 
 and shown that the injury was committed by the animal while unlawfully in the close ot 
 another. Van Leuven v. Lyke, 1 N. Y. 615. And see Dearth v. Baker, 22 Wis. 73 ; Smith v. 
 Causey, 22 Ala. 568. 
 
 (I) And as to sheep only, in Ireland, by 25 & 26 Vict. c. 59. Tor decisions under similar 
 statutes of the various States, see Job v. Harlan, 13 Ohio (N. S.) 485 ; Osincup «. Nichols, 49 
 Barb. (N. Y.) 146 ; Woolf v. Chalder, 31 Conn. 121 ; Brewer v. Crosby, 11 Gray (Mass.) 29 ; 
 Campbell v. Brown> 1 Grant's Cas. (Penu.) 83 ; Fish v. Skut, 21 Barb. (N. Y.) 333 ; Auchmuty 
 V. Ham, 1 Denio 495. 
 
 (m) Wright v. Pearson, L. R. 4 Q. B. 582. 
 
 (») May ». Burdett, 9 Q. B. 112. Cox V. Burbidge, 13 C. B., N. S. 440. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 31 
 
 and select the crew ; the crew thus become appointed by the owner, 
 and are his servants for the management g-nd government of the ship, 
 and if any damage happens through their default, it is the same as if 
 it happened through the immediate default of the owner himself. So 
 the same principle prevails if the owner of a farm has it in his own 
 hands, and he does not personally interfere in the management, but 
 appoints a bailiff or hind, or hires other persons under him, all of them 
 being paid out of the funds of the owner, and selected by himself, or 
 by a person specially deputed by him; if any damage happen through 
 their default, the owner is answerable, because their neglect or default 
 is his, as they are appointed by and (through him. So, in the case of 
 a mine, if the owner employs a steward or manager to superintend the 
 working of the mine, and to hire under-workmen, and he pays them 
 on behalf of the owner, these under-workmen then become the imme- 
 diate servants of the owner, and the owner is answerable for their 
 default in doing any acts on account of their employer(o). But when- 
 ever one man employs another to execute a particular work respecting 
 personal moveable property, and that other furnishes his own servants 
 to do the work, the servants so furnished are not to be considered in 
 the same light as if they were servants selected, hired and paid by the 
 person who orders the execution of the work. 
 
 A master is responsible for the wrongful act of his servant, even if 
 it be wilful, or reckless, or malicious, provided' the act is dotie bj* the 
 servant within the scope of his employment, and in furtherance of his 
 master's business, or for the master's benefit(p); but if the servant, at 
 
 (o) Laugher ». Pointer, 5 B. & C. 654. Dalyell v. Tyrer, 28 Law J., Q. B. 52. 
 
 (^) Huzzey «. Field, 2 (A'. M. & E. 432, 440. The American authorities as to the liability of 
 the master for the wrongful acts of his servants are not harmonious, nor is there perfect uni- 
 formity in the theory of the origin of that liability. From a review of the authorities and 
 statutes of the several States, it seems that a master may be liable for the wrongful act of his 
 servant, 
 
 I. When the act was committed under the express authority or direction of the master. 
 
 II. When the act was committed in the master's service, and within the scope of the 
 employment of the servant, 
 
 III. When the act violates a contract between the master and the party injured. 
 
 IV. When the act is one for which the statute makes the master liable. 
 
 It needs no citation of authorities to support the lirst proposition ; but the converse of the 
 proposition, that the master will not be liable for a wrongful act which he has not authorized, 
 is not law, as the master may be liable for a wrongful act of his servant which he did not 
 authorize or know of, or even which he disapproved or forbade. Goddard v. Grand Ti-uhk 
 R. R. Co., 57 Me. 202. Philadelphia & Reading R. R. Co. v. Derby, 14 How. (U. S.) 468. Hig- 
 gins V. Watervliet Turnpike & R. R. Co., 46 N. Y. 23. Duggins v. Watson, 15 Ark. 118. South- 
 wick V. Estes, 7 Cush. .385. And see Story on Agency, ! 452 ; Smith on Master and Servant, 
 152. Thei'e are a class of c.ai5es which hold that a master is not liable for the trespass of his 
 servant, unless the trespass was committed under his express direction. Wesson ». Seaboard, 
 etc., E. R. Co., 4 Jones' Law (X. C), 379. Yerger ». Warren, 31 Penu. St. 319. Cox v. Keahey, 
 36 Ala. 340. McCoy v. McKown, 26 Miss. (4 Cush.) 487. Church v. Mansfield, 20 Conn. 284. 
 IsaacBB. Third Avenue R. R. Co., 47 N. Y. 122. Fraserj). Freeman, 43 N. Y. 666. And that 
 
32 ■ ACTIONABLE WRONGS, [Chap. 1. 
 
 the time he does the wrong, is not acting in the execution of the mas- 
 ter's business, and within the scope of his employment as his servant, 
 but is carrying into effect some exclusive object of his own, the master 
 will not be answerable for his act. \ Thus it is said, " if I command 
 my servant to distrain, and he ride on the distress, he shall be piin- 
 ished, and not I "(q). So, " if my servant, contrary to my will, chase 
 my beasts into the soil of another, I shall not be punished(?') ; and if 
 my servant, without my knowledge, put my beasts in another's land, 
 my servant is the trespasser, and noi I, because, by the voluntary put- 
 ting of the beasts there without my assent, he gains a special property 
 for the time, and so to this purpose they are his beasts "(s). 
 
 But where the servant, though acting contrary to his duty to his 
 master, is nevertheless acting in the course of his employment, the 
 master will be answerable for his misconduct(<). Thus, where a par- 
 tially intoxicated passenger in an omnibus refused to get out and to 
 pay his fare when the omnibus arrived at its destination, and the con- 
 
 even in the latter case the liability of the master does not depend on the relationship of mas- 
 ter and servant, but on the fact that the wrongful act is personally and immediately his own. 
 Yerger v. Warren, 31 Penn. St. 319. Thames Steamboat Co. «). Eousatonic E. E. Co., 24 
 Conn. 40. 
 
 That the master is liable civilly for the wrongful act of his servant, committed in the mas- 
 ter's service, and within the scope of the employment of the servant, is undisputed. Isaacs 
 V. Third Ave. E. E. Co., 47 N. Y. 122. Howe v. Newmarch, 12 Allen (Mass.), 49. Passenger 
 E. E. Co. V. Young, 21 Ohio St. 518. Little Miami E. E. Co. v. Wetmore, 19 Ohio, 131. Bryant 
 V. Eich, 106 Mass. 180. Higgins v. Watervliet Turnpike & E. E. Co., 46 N. Y. 23. Eamsden v. 
 Boston & Albany E. E. Co., 104 Mass. 117. Philadelphia & Eeading E. E. Co. v. Derby, 14 
 How. (U. S.) 468. "Wilton v. Middlesex E. E, Co., 107 Mass. 108. Duggins v. Watson, 15 Ark. 
 118. Walker «. Boiling, 22 Ala. 294. Southwick v. Bstes, 7 Cush. 385. Armstrong v. Cooley, 
 6 Gillman, 509. And in such cases it is immaterial whether the act is wilful or merely negli- 
 gent. Indianapolis, Peru <Sb Chicago E. E. Co. v. Anthony, 43 Ind. 183. Eailroad Co. v. 
 Eogera, 38 Ind. 116. Eamsden o. Boston & Albany E. E. Co. , 104 Mass. 117. Howe v. New- 
 march, 12 Allen, 49. Philadelphia & Eeading E E. Co. v. Derby, 14 How. (U. S.) 468. But 
 see Jackson v. Second Ave. E. E. Co., 47 N. Y. 274 ; Isaacs v. Third Ave. E. E. Co., Id. 122. 
 But ordinarily the master is not liable for the wrongful or tortious act of his servant, unless 
 committed by his express authority, or in his service, and within the scope of^the employ- 
 ment of the servant. Isaacs v. Third Ave. E. E. Co., 47 N. Y. 122. Howe v. Newmarch, 12 
 Allen (Mass.), 49. Yates v. Squires, 19 Iowa, 26. Little Miami E. E. Co. v. Wetmore, 19 Ohio 
 St. 373. Sherley v. Billings, 8 Bush (Ky.), 147. That the master ordinarily is not liable for 
 wilful or malicious acts of his servants, committed without his express or implied authority, 
 see EvansviUe, etc., E. E. Co. o. Baum, 26 Ind. 70; Frasers. Freeman, 43 N." Y. 6C6; Isaacs 
 V. Thu-d Ave. E. E. Co., 47 N. Y. 122. 
 
 That the master is liable for any wrongful act of his servant which violates a contract 
 between the master and the party injured, see note «, post. 
 
 For an illustration of the statutory liability of the master for the wrongful act of his ser 
 vant, see note y, post. 
 
 {q) Noy's Maxims, ch. 44. 
 
 ,r' Bro. Abr. Tkespass, pi. 435. If a servant is directed to drive cattle out of a certain 
 field, and he drives them somewhere else, and one of them dies, the master is not liable. 
 Oxford V. Peter, 28 m. 434. 
 
 (s) 2 EoU. Abr. 553. 
 
 (<) See further, as to injuries from negligence, post, ch. 8, s. 2. Higgins v. Watervliet Turn- 
 pike Co., 46 N. Y. 23. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 33 
 
 ductor dragged him out violently and recklessly, and caused him to 
 fall under the wheel of a passing cab, it was held that there was evi- 
 dence for the jury of the wrongful act having been done by the 
 servant in the course of his employment about the master's business, 
 and the omnibus proprietor was made responsible for the injury(M). 
 So, where a porter of a railway company so negligently managed a 
 truck containing luggage that a portmantau fell from it and injured 
 the plaintiff, it was held that the railway company were responsible, 
 although the plaintiff had neither arrived nor was going by the 
 defendant's line, and was merely passing along a platform used in 
 common by three railway companies('!)). 
 
 Wherever the master intrusts a horse, or carriage, or anything 
 which may readily be made an implement of mischief, to his servant, 
 to be used by him in furtherance of his master's business, or for the 
 execution of his orders, the master will be responsible for the negli- 
 gent management of the thing intrusted to the servant, so long as the 
 latter is using it or dealing with it in the ordinary course of his 
 employment. Where the master was riding along a public highway 
 with a mounted groom behind him, and the master having suddenly 
 quickened his pace, the groom spurred his horse to keep up with him, 
 whereupon the horse struck out with his hind legs and kicked a wag- 
 oner who was walking in the road at the head of his team, it was held 
 that the master was responsible for the injury(a;). 
 
 («) Seymour v. Greenwood, 6 H. & N. 359 ; 7 lb. 355 ; 30 Law J., Exch. 189, 327, qualifying 
 M'Manua v. Cricket, 1 East, 107. See Bayley v. Manchester, Sheffield, and Line. Rail. Co., L. 
 E., 7 C. P. 415. A new element enters into the question of the liability of the master for the 
 wrongful acts of his servants when the master is a common carrier of passengers and the 
 party injured is a passenger with whom he has entered into a contract for carriage. In addi- 
 tion to the contract for carriage the law implies a contract for the protection of the party 
 carried from the insults and wanton interference of sti-angers, fellow passengers and the car- 
 rier and his servants ; and for every violation of this implied contract by force or negligence, 
 the carrier is liable in an action of contract or of tort. Bryant v. Rich, 106 Mass. 180. Sher- 
 ley V. Billings, 8. Bush. (Ky.) 147. Passenger R. H. Co. v. Young, 21 Ohio St. 518, Goddard v. 
 Grand Trunk R. R. Co., 57 Me. 202. Railroad v. Blocher, 27 Md. 277. 
 
 In. the following cases common carriers have been held liable for the wilful assaults of their 
 servants upon passengers : Goddard v. Grand Trunk E. E. Co., 57 Me. 202 ; Railroad v. Fin- 
 ney, 10 Wis. 388 ; Railroad v. Vandiver, 42 Penn. St. 365 ; Passenger R. E. Co. «. Young, 21 
 Ohio St. 518; Bryant v. Eich, 106 Mass. 180; Sherley». Billings, 8 Bush. (Ky.)147; Sauford 
 1). Eighth Avenue E. R. Co., 23 N. Y. 343 ; Higgins v. Watervliet Turnpike Co., 46 N. Y. 23 ; 
 Railroad ». Blocher, 27 Md. 277. 
 
 In the following cases the liability has been denied : Isaacs v. Third Avenue E. R. Co., 4? 
 N. Y. 122'; Hibbard v. New York & Erie R. E. Co., 15 N. Y. 465 ; Evansville etc. E. E. Co. v. 
 Baum, 26 Ind. 70. 
 
 («) Tebbutt V. Bristol & Exeter Eailway, L. E., 6 Q. B. 73. 
 
 (a!) North v. Smith, 10 C. B., N. S. 572. Where the owner of a horse and cart pei-mits his 
 servant to use them in going to a fair, the owner will not be liable for damages resulting from 
 the negligent management of th^horse by the servant. Bard «. Yohn, 26 Penn. St. 482. 
 The fact that a servant, who negligently rode over a traveler, was at the time of the injury 
 in the general employment of a third person, is not a sufficient defence in an action against 
 
 Ad. Vol. I.— 3 
 
34 ACTIONABLE WRONGS, [Chap. 1. 
 
 In all cases of negligent and improvident driving by a servant 
 employed to drive, the master will he responsihle if the servant was 
 driving about the master's business, or using the master's horses and 
 carriage for the master's benefit; and the master cannot exonerate 
 himself from liability by showing that the servant was acting in diso- 
 bedience of his orders. Where, therefore, an omnibus company gave 
 written instructions to their drivers. " to drive at a steady pace, and 
 not on any account to race with or obstruct other omnibuses," and a 
 driver disobeyed these instruction^ and wilfully drew across the road 
 to obstruct another omnibus, and ran against it and upset it, it was 
 held that the instructions given by the omnibus company to their ser- 
 vants could not exonerate the company from responsibility for the 
 careless, wilful, or malicious acts of such servants whilst carrying pas- 
 sengers for the benefit of the company(2/). So, where the carter of a 
 contractor, in defiance of his masters orders, left his cart standing in 
 the street while he went away for dinner, and the horse ran away and 
 injured the plaintiff's railings, it was held that the contractor was 
 responsible(z). "Where, however, both the party injured and the per- 
 son inflicting the injury are fellow-servants in the same employment, 
 the master is generally, as we shall presently see, exempt from lia- 
 bility(a). 
 37 Indemnification of the master ly the servant. — If damages have been 
 recovered from the master by reason of the servant's negligence in 
 doing the master's work, or in executing his orders, these damages 
 may be recovered by the master from the servant, and the verdict and 
 
 the owner of the horse, unless it appears that the relation of such third person to the subject 
 matter of the business in which the servant was at the time engaged was such as to give him 
 exclusive conti'ol of the means and manner of its accomplishment and exclusive direction 
 of the person employed therefor. KimbaU v. Cushman, 103 Mass. 194. 
 
 Where an agent negligently injures a horse, carriage and harness hired by him for the 
 transaction of the business of his principal, the latter will be liable for the damages, although 
 the agent was under no particular instructions, was under no orders as to the route or mode 
 of travel he should adopt, and did not disclose his principal at the time of the hiring. Piclc- 
 eus V. Diecker, 21 Ohio St. 212. 
 
 (y) Limpus v. Lond. Gen. Om. Co., 1 H. & C. 526 ; 32 Law J., Exoh. 34. Bettsw. De Vitre, 
 L. E., 3 Ch. App. 441 ace. In New York the statute makes the owner of every carriage run- 
 ning or traveling upon any turnpike road or public highway, for the conveyance of passen- 
 gers, liable to the party injured, in all cases, for all injuries and damages done by any person • 
 in the employment of such owner as a driver, while driving such carriage, to any person or 
 to the property of any person, and that whether the act occasioning such injury or damage 
 be wilful or negligent or otherwise, in the same manner as such driver would be liable ; and 
 the term carriage, as used in the act is declared to include stage coaches, wagons, carts, 
 sleighs, sleds, and every other cari'iage or vehicle used for the transportation of persons and 
 goods, or either. 1 K. S. 696, S§ 6, 7. This act does not apply to the employees of a street 
 railway. Isaacs v. Third Avenue B. B. Co., 47 N. Y. 12?. Whit^ker v. Eighth Avenue K. K. 
 Co., 51 N. T. 295. 
 
 (a) VThatman v. Pearson, L. B., 3 C. P. 432. 
 
 (a) Post, ch. 3, 8. 1. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 35 
 
 judgment in the action against the master are evidence of the amount 
 of these damages, but not of the circumstances under which they were 
 recovered(6). If the captain of a ship engage in smuggling transac- 
 tions, and thereby causes the ship to be forfeited and condemned, he is 
 responsible in damages to the shipowner for causing the latter to lose 
 his proper ty(c). 
 38 Fraud and falsehood are mala in se, and wrongful in the eye of the 
 law, so that if damage results therefrom, there is the damage and wrong 
 necessary to create a cause of action. " An action cannot be supported 
 for telling a bare naked lie, where no loss or damage is caused by the 
 lie, but if it be attended with damage, it then becomes the subject of 
 an action "(d). Fraud may consist in the afiirmance of something not 
 true within the knowledge of the affirmant, or by the suppression of 
 something which is true, and which it was his duty to make known(e). 
 If A fraudulently makes a representation which is false, and which 
 he knew 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 damage, 
 B may maintain an action against A for the deceit, there being here 
 that conjunction of wrong and loss which entitles an injured and 
 suffering person to compensation in damages(/). Where the father 
 of the plaintiff went to the defendant, a gunmaker, and told him that 
 he wanted a gun, safe and fit to use, for the plaintiff, his son, and the 
 defendant gave the father a false and fraudulent warranty with a gun 
 which he sold and delivered to him for the use of the plaintiff, and the 
 plaintiff was injured by the bursting of the gun in his hand, it was 
 held that, there being here both fraud and damage the result of that 
 fraud, not from an act remote and consequential, but one contemplated 
 by the defendant at the time as one of its results, the defendant was 
 responsible to the plaintiff' for the injury he had sustained(^). 
 
 (6) Green v. New Eiver Co., 4 T. E. 590. 
 (0) Blewitfc V. Hill, 13 East, 12. 
 
 (d) Kenyon, C.J., Pasley v. Freeman, 3 T. E. 65. Collins v. Cave, 6 H. & N. 131 ; 30 taw J., 
 Exch. 65. Croke, J., Bailey v. Merrell, 3 Bulstr. 95. Nye v. Merriam, 35 Vt. 438. One who 
 by falsely and fraudulently assuming to be authorized to make a contract in behalf of another 
 draws a third party into a oonti'act, is liable to such party for the injury sustained, provided 
 such conti-act could have been enforced against the principal had the pretended ag^ent tlie 
 authority he assumed. Otherwise if the contract was void under the statute of frauds. Dung 
 V. Parker, 52 N. Y. 494. 
 
 (e) HorsfaJl v. Thomas, 1 H. & C. 90 ; 31 Law J., Exch. 323. See Lee v. Jones, 34 Law J., C. 
 P. 131 ; Devoe v. Brandt, 53 N. Y. 462 ; Grove v. Hodges, 65 Penn. St. 604 ; Wintz v. Morrison 
 17 Texas, 372 ; Belden v. Henriques, 8 Cal. 87 ; Marsh v. Webber, 13 Minn. 109. 
 
 (/) Com. Dig. Action on the Case for a Deceit (A 9), (A 10). Pasley v. Freeman, 3 T. B. SL 
 Garhard v. Bates, 2 EU. & Bl. 489. Marsh ». Falker, 40 N. Y. 662 ; post, ch. 18. 
 
 (jT) Langridge v. Levy, 2 M. & W. 529. Levy v. Langi-idge, 4 lb. 338. See George v. Skiv- 
 ington, L. E., 5 Exch. 1. 
 
36 ACTIONABLE WRONGS, [Chap. 1. 
 
 Where the defendant wrongfully and maliciously caused certain 
 persons to refuse to deliver goods to the plaintiff, by asserting that he 
 had a lien upon them, and ordering those persons to retaia the goods 
 until further orders from him, he well knowing at the time that he 
 had no lien, it was held that the action was maintainable, though the 
 persons who had the goods were under no legal obligation to obey the 
 orders of the defendant, and their refusal was their own spontaneous 
 act(A). 
 
 39 A refusal to obey the lawful decree of a court of justice is wrong ; and 
 if a party is thereby prejudiced, or impeded, or hindered in the exer- 
 cise of his legal rights, there is that conjunction of wrong and damage 
 which will support an action (i). 
 
 40 Malicious injuries. — The foundation of every action of tort is a 
 wrongful act, but it need not be malicious, for malice is not a neces- 
 sary ingredient in a wrong. An imprisonment of the person, for ex- 
 ample, a battery or a trespass on land may be committed without any 
 express or implied malice, and yet an action for damages may be 
 maintained(A). But every malicious act is wrongful in itself in the 
 eye of the law, and if it causes hurt or damage to another, it is a tort, 
 and may be made the foundation of an action. Malice may be proved 
 by evidence of personal hostility and spite entertained against the 
 injured party, or of any other corrupt or improper motive(Z). If a free 
 burgess of a corporation or any other person having an undoubted 
 right at law to give his vote at an election of a burgess or knight to 
 serve in parliament, be maliciously hindered or impeded in the exer- 
 cise of his right, an action for damages is maintainable against the 
 disturber(m). Any person has a right to stand for a place in parlia- 
 ment, or to offer himself as a candidate for a vacant office ; and if an 
 election takes place, and it becomes difficult to determine who has the 
 majority, he is entitled to demand a poll ; and if the public officer 
 who ought to have granted the poll maliciously denies it, he is liable- 
 to an action for substantial damages(re) ; for if public officers will 
 maliciously infringe men's Tights, and "refuse to receive a vote which 
 the party tendering has a right to give, and if an action for it comes 
 to be tried before me, observes Holt, C.J., " I will direct the jury to 
 
 (ft) Green v. Batton, 2 C. M. & B. 707. See Wren v. Weild, L. E., 4 Q. B., 730. 
 
 (j) Ferguson v. Earl of Kinuofil, 9 CI. & Fin. 3U. 
 
 (7c) Sogers v. Eagendro Dutt, 13 Moore, P. C. C. 209. Prell v. McDonald, 7 Kansas, 426. 
 
 (I) Tozer v. Child, % EU. & Bl. 381. Lyon v. Hancock, 35 Cal. 372. 
 
 (m) Holt, C.J., Ashby v. White, 2 Ld. Eaym. 95i. 
 
 (») starling ». Turner, 2 Lev. 50. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 37 
 
 make them pay well for it"(o). In order to maintain the action, the 
 plaintiff must show that the refusal was founded in malice ; for " if 
 the returning officer has acted honestly and uprightly, according to 
 the best of his judgment, he is not amenable to an action "(p). 
 
 The functions of a returning officer are not wholly ministerial, but 
 are partly judicial and partly ministerial ; and a judicial officer cannot 
 be made responsible for an erroneous or wrong judgment, where he 
 has acted bona fide in a matter of which the law gives him cog- 
 nizance(g). " It cannot be contended that he is to exercise no 
 judgment, no discretion whatever, in the admission or rejection of 
 votes, and he could not discharge his duty without great peril and 
 apprehension if, in consequence of a mistake, he became liable to an 
 action "(r). 
 
 In the celebrated case of Ashby v. "White, where an action was 
 brought against a returning officer for maliciously hindering an 
 elector in the enjoyment of his electoral right, by refusing to receive 
 his vote at an election. Lord Holt observes, " I do not find that the 
 defendants did by force of arms drive the plaintiff away from the 
 election, nor by menaces deter him, but I find they did maliciously 
 hinder him ; and so it is charged by the plaintiff in his declaration, 
 and so found by the jury, that they did it by fraud and malice. And 
 BO the defendant is an offender within the very words of the statute of 
 Westminster "(s). 
 
 41 Malicious^ proouremsnt of loss or damage to another, whether brought 
 about by libel or slander {post, chap. 17), or by instigating servants to 
 leave their service or desert their employment, to the injury of their 
 masters, or by maliciously inducing a party to a contract to break his 
 contract, to the injury of the person with whom the contract was made, 
 
 ■ creates that conjunction of wrong and damage which will support an 
 action(i). If one person incites another tocommit perjury, or forgery, 
 or a nuisance, or to bring a false charge or accusation, and the accused 
 party is acquitted of the charge, the instigator of the wrongful act is 
 
 (o) Ashby v. White, 2 Ld. Raym. 958. Herring v. Finch, lb. 260. 
 
 [p) Abbot, C.J., Cullen ». Morris, 2 Stark. 587. In support of the English rule that malice 
 must be shown to maintain the action, see Chrismau v. Bruce, 1 Duvall (Ky.) 63. Jenkins v. 
 WaWron, 11 Johns. (N. Y.) 114. Caulfleld v. BuUook, 18 B. Mon. (Ky.) 494. Kail v. Potts, 8 
 Humph. 225. Carter v. Harrison, 5 Blackf. 138. That proof of malice is not necessary to 
 maintain the action, see Gillespie v. Palmer, 20 Wis. 644 ; Lincoln v. Hapgood, 11 Mass. 360 ; 
 Blanchard v. Stearns, 5 Met. 298 ; Harris v. Whitcomb, 4 Gray, 433 ; Jeffries v. Aukeny, 11 
 Ohio, 373 ; Anderson v. Milliken, 9 Ohio St. 568. 
 
 (g) Post, ch. 15. 
 
 (r) Abbot, C.J., Cullen v. Morris, 2 Stark. 587. 
 
 (e) Lord Holt's judgment in Ashby v. White ; cited in Tozer V. Child, 7 Ell. & Bl. 381. 
 
 («) Lumley v. Gyc, 2 Ell. & Bl. 228. Green v. Button, 2 C. M. & B. 707. 
 
38 ACTIONABLE WRONGS, [Chap. 1. 
 
 responsible for all its injurious consequences(M). Thus, where the 
 . mistress of a wine-shop brought an action against the defendant for 
 procuring a soldier and others to come into her house with a man 
 dressed in woman's clothes, and there conduct themselves with in- 
 decency, and collect a crowd, and raise a cry of " bawdy house," by 
 reason whereof the mob threw stones and broke the plaintiif' s win- 
 dows, and damaged and destroyed her furniture, it was held that the 
 defendant was responsible for all the damage sustained by the plain- 
 tiff, although he did not himself appear upon the scene, or join in the 
 cry(a;). 
 42 Abuse of authority hy governors of colonies. — ^An ofB.cer representing 
 his sovereign in all functions, civil and military, may be made to 
 answer for an abuse of his authority, and for the exercise of arbitrary 
 power, above and beyond the law. An act of authority, lawful in 
 itself if rightly done, may become wholly unlawful and unjustifiable 
 by the harsh, oppressive, and cruel manner in which it is executed ; 
 for, where the law authorizes an act to be done, it does not protect 
 unnecessary violence or cruelty in the doing of ii{y). 
 
 Every governor of a colony is responsible in damages for unlawfully 
 spoiling, plundering, or imprisoning Her Majesty's subjects. But 
 whatever is a justification in the place where the thing is done, may 
 be pleaded as a justification in the place where the cause of action is 
 tried(z) ; and if the colonial legislature pass an act of indemnity 
 which is assented to by the crown before any action is commenced in 
 this country, such act of indemnity is pleadable in bar to an action in 
 the , courts here, although the governor was a necessary party to the 
 passing of the act and was himself interested in it(a). Where a car- 
 penter, who followed a train of artillery, but who was not subject to 
 martial law, brought an action against the Governor of Gibraltar for ■ 
 an assault and battery, and showed that he had been tried by court- 
 martial, and sentenced to be whipped, and that the governor con- 
 firmed the sentence, which was then carried into effect, it was held 
 that the action was maintainable against the governor, by reason of 
 his participation in the unlawful whipping, and the plaintiff recovered 
 700Z. damages(6). 
 
 («) Com. Dig. Action upon the Case, A. Ooxe v. Smitli, 1 Ley. 119. Fitzjohn v. Maokindor, 
 9 C. B., N. S. 616 ; 30 Law J., C. P. 257. 
 (x) Pluuket V. Gilmore, Portescue, 221. 
 (y) Sutherland v. Murray, 1 T. E. 538 ; post, ch. 5. 
 (z) Mostyn v. Pahrigaa, Cowp. 161. 
 
 (a) PhilUps V. Byre, L. E., 4 Q. B. 226 ; 6 Ibid. 1 ; 38 L. J., Q. B. 113. 
 (6) V. Sabine, cited Cowp. 176. 
 
Sec. l.J AND INJURIES NOT ACTIONABLE}. 39 
 
 43 Abuse of authority on the part of naval and military officers. — ^An ac- 
 tion is not maintainable by a subordinate oificer against his superior 
 officer for an act done in the course of discipline, and under powers 
 incident to his position(c) ; but for a corrupt and malicious abuse of 
 authority a commanding officer is responsible. Every superior officer 
 has a right to imprison his subordinate officer for any military offence, 
 and to bring him to a court-martial ; but this gives him no right to 
 act in an arbitrary and oppressive manner, and to inflict a prolonged, 
 harsh, and cruel imprisonment, without bringing the person impris- 
 oned to trial. If an officer has been guilty of a scandalous abuse of a 
 public trust, he will not be allowed to shelter himself under the thin 
 veil of legal forms, nor escape under the cover of a justification, the 
 most technically regular, from the consequences of his wrong-doing(d). 
 
 A naval or military officer is not responsible for acts done by him in 
 obedience to the commands of his superior officer, or of the government 
 • he serves, unless the commands are manifestly illegal. The justifica- 
 tion of an officer sued for acts of force and violence may be made to 
 rest upon a subsequent ratification of his acts by his government, as 
 well as upon a precedent authority(e). 
 
 Where two vessels were chartered by the government for a naval 
 expedition, and the captains of the vessels were to pay implicit obedi- 
 ence to the orders of the officers commanding the expedition, and one 
 of the vessels sustained damage from the other whilst acting in obedi- 
 ence to orders, it was held that the owner of the vessel doing damage 
 could not be made responsible to the owner of the vessel to which the 
 damage was done, if the damage was the natural result of the execu- 
 tion of the orders given, and was not caused by negligence or want of 
 nautical skill in the execution of the orders(/). 
 
 Where commissioners of public works, exercising powers given to 
 them by statute, and acting within their jurisdiction, nevertheless act 
 in an arbitrary, wanton, or negligent and oppressive manner, and 
 'inflict unnecessary injury upon private individuals, they are respon- 
 sible for their wrong-doing of what might have been rightly done, and 
 cannot protect themselves under cover of their statutory powers from 
 the consequences of their negligence and misconduct(^). 
 
 44 Torts committed by British subjects in foreign countries. — ^Actions may 
 
 (c) Jolinstonc v. Sutton, 1 T. B. 644. 
 
 (d) Ld. Mansfield, Wall v. M'Namara, 1 T. E. 536. 
 
 (e) Buron v. Denman, 2 Excii. 167 ; Kigga v. State, 3 Cold. (Tenm.) 85. 
 (/) Hodgkinson «. Pernie, 3 C. B., N. S. 436. 
 
 (j7) Leader v. Moxon, 2 W. Bl. 296 ; 3 Wils. 461 ; post, ch. 16, B. 1. 
 
40 , ACTIONABLE WRONGS, [Chap. 1. 
 
 be maintained in this country for wrongs committed by one of the 
 Qaeen's subjects against another of her subjects in a foreign country, 
 if all that is sought is reparation in damages, or satisfaction to be 
 made by process against the person of the wrongdoer or against his 
 effects, within the jurisdiction of the court(A). Thus, when Captain 
 Gambier pulled down some sutlers' houses in Nova Scotia, who sup- 
 plied spirits to his sailors, and afterwards inadvertently brought one 
 of the sutlers home j.n his own ship, and the sutler, as soon as he 
 landed, brought an , action against the captain, it was held that the 
 action was maintainable(i). But, in order to support an action in this 
 country for an injury sustained abroad, it must, it is apprehended, be 
 shown that the act prodacing damage was a wrongful act by the law 
 of the country in which it was done ; for if it was justifiable there, 
 the justification would, it is apprehended, be available here(A). 
 45 Suspension of the remedy hy action when the tort amounts to felony. — 
 Whenever a wrongful act amounts to a felony, the remedy for the tort, 
 or civil wrong, is postponed until the requirements of public justice 
 have been satisfied by the prosecution of the ofi'ender(Z). " The policy 
 of the law," observes Lord EUenborough, " requires, that before the 
 party injured by any felonious act can seek civil redress for it, the 
 matter should be heard and disposed of before the proper criminal 
 tribunal, in order that the justice of the country may be first satisfied 
 in respect to the public offence ; and after a verdict, either of acquittal 
 or conviction, the judgment is so far conclusive in any coUaterel pro- 
 ceeding quoad the particular matter, that the objection is thereby 
 removed of bringing that sub jvdice in a civil action, which ' was a 
 proper subject-matter of a criminal prosecution. Where, therefore, 
 the defendant has been tried and acquitted of a felony, the objection 
 founded upon the general policy of the law does not apply. The only 
 difference which can be suggested between the case of a prior convic- 
 tion and that of an acquittal is, that the acquittal may have been 
 
 (ft) Scott o. Lord Seymour, 1 H. & C. 219 ; 31 Law J., Exoh. i57. 
 
 (i) Per Ld. Mansfield, Cowp. 180. 
 
 (*) Per Ld. Mansfield, Mostyn o. Fabrigas, 1 Cowp. 175 ; 1 Smith's L. C. 607. Dobree T. 
 Napier, 2 Bing. N. C. 797. Duke of Brunswick «. King of Hanover, 6 Beav. 1. Philips v. Byre, 
 ante, p. 38. Contra Wightman, J., Scott v. Lord Seymour, ut sup. 
 
 (l) WeUock V. Constiintine, 7 Law T. R., N. S. 751 ; 2 F. & F. 791. This is otherwise, it 
 seems, in some of the United States. See Foster v. Tucker, 3 Greenl. 458 ; Boody v. Keating, 
 i Greenl. 164 ; Morgan ». Bhodes, 1 Stew. 70 ; McGrew v. Cato, Minor, 8 ; PettingiU v. Ride- 
 out, 6 N. H. 454 ; Robinson v. Calp, 1 Coast. Rep. 231 ; Gordon e. Hostetter, 37 N, Y. 99, 105 
 And see Cross v. Guttery, 2 Root, 90. The late case of Wells ». Abrahams, L. R,, 7 Q. B. 554, 
 throws conaiderable doubt on the above position, and it seems probable that the only way 
 of enforcing the suspension on the part of the defendant, the felon, is by application to tht 
 summary jurisdiction of the court. 
 
Sec. 1.] AND INJURIES NOT ACTIONABLE. 41 
 
 brought about by the defendant's colluding with the prosecutor ; but 
 if the acquittal be shown, either in pleading or by evidence, to have 
 been obtained by collusion, it would' be put aside, and the objection 
 would still remain. All the mischief, therefore, that could result from 
 extending the same rule to cases of acquittal which has established the 
 right to sue after a conviction of the felon, is done away by letting 
 the defendant in to show that the judgment of acquittal was obtained 
 per fraudem "(m). 
 46 The doctrine of the merger of a trespass in a felony, therefore, only 
 means that all redress by action for the private injury is suspended 
 until the criminal law has been put in force. It was never intended 
 to take away redress absolutely after the ends of public justice were 
 attained, but only to stimulate the party injured to bring the offender 
 to trial for the public offence, and to prevent any compromise thereof. 
 Where, therefore, a robber had been convicted of felony for breaking 
 into a house and stealing 250Z., it was held that an action for the tres- 
 pass and the taking of the money was maintainable against him after 
 his conviction for the felony(w). And if money has been taken under 
 a claim of right, and under circumstances manifestly not amounting 
 to a felony, an action may be brought for the money, notwithstanding 
 that the criminal law has not been put in force ; and it does not lie in 
 the mouth of the defendant to say that he is a thief, and that he stole 
 the money, if the surrounding circumstances do not establish a case of 
 felony, for "nemo allegans suam turpitudinem est audiendus"(o)i And 
 if the injured party has preferred a bill of indictment, which has 
 been thrown out, or not proceeded with, by the suggestion of the 
 judge, he has satisfied the requirements of the law in respect of the 
 prosecution of the public offence, and is remitted to his civil remedy(p). 
 
 This rule of law prohibiting an action for the recovery of stolen 
 property or its value, until the criminal law has been put in force, 
 does riot extend beyond the person robbed, and the thief or the felo- 
 nious receiver; for if stolen property is innocently taken in pledge by 
 a pawnbroker, or purchased out of market overt, an action may be 
 brought against the pavnibroker or purchaser before the institution of 
 any prosecution for the felony(g). 
 
 And whenever the death of a person has been caused by any wrong- 
 
 (m) Crosby ». Leng, 12 East, 413 ; 1 Hale, P. C. 546. 
 
 (K) Dawkes v. Coveneigh, Styles, 346. Markham v. Cobb, W. Jones, 147. 
 
 (o) Lntterell v. Eeynell, 1 Mod. 283. Stone v. Mai-sh, 6 B. & C. 564 
 
 (p) Dudley and West Bromwich Bank. Co. v. Spittle, 1 Johns. & H. 14. 
 
 ( q) White v. Spettigue, 13 M. & W. 608. Lee v. BayoB, 18 C. B. Mffl ; pott, eh. 7, B. 2. 
 
42 ACTIONABLE WRONGS, [Chap. 1. 
 
 ful act, neglect, or default, an action for damages is maintainable, 
 although the death has been caused under such circumstances as 
 amount in law to a felony(r). 
 47 Cheating hy forgery. — If a forgery has been committed, and the 
 party injured has prosecuted for the offence, he may maintain an ac- 
 tion for the recovery of the money of which he has been defrauded. 
 Where the plaintiff's declaration of his cause of action set forth that, 
 the plaintiff's servant having 65?. of the plaintiff's money in his cus- 
 tody, the defendant, in order to defraud the plaintiff of the money, 
 procured a letter to be written in the name of the plaintiff, directed 
 to his said servant, requiring the latter to pay the money to the de- 
 fendant, and counterfeited the signature of the plaintiff to the letter, 
 and also the plaintiff's seal, and caused the said counterfeit letter to 
 be delivered to the plaintiff's servant, as being the plaintiff's letter, 
 and thereby obtained possession of the plaintiff's money, and con- 
 verted it to his own use, it was held that there was a good cause of 
 action(s). "If a man forge a bond in my name, I can have no action, 
 unless I am sued upon the bond; but then I may for the wrong and 
 damage, though I can avoid the bond by plea. But if it were a recog- 
 nizance or a fine, I should have a writ of deceit presently "(<). 
 
 48 Actions for bigamy. — Where the plaintiff' declared that she was a 
 virgin, and sought for in marriage, and that the defendant, pretend- 
 ing to be a single person, made love to her and married her, when in 
 truth he was married to another woman, the court held that the action 
 lay. But, bigamy being now made a felony by statute, a prosecution 
 for the public offence is a condition precedent to the right of action(M). 
 
 49 Actions for misdemeanors. — Where the wrongful act amounts only 
 to a misdemeanor, the remedy for the wrong is not suspended until 
 the offender has been brought to trial for the indictable offence ; but 
 the injured party may at once bring an action for damages, whether 
 he does or does not subsequently prosecute(a;). This is the case where 
 the money of the plaintiff has been obtained by the defendant by 
 false pretences and converted to his own use, and the action is brought 
 to recover back an equivalent for the money fraudulently obtained. 
 Where persons conspire together to procure a forgery of title deeds, 
 
 (r) 9 & 10 Vict. c. 93, 8. 1. 
 
 (s) Tracey v. Veal, Cro. Jao. 223. 
 
 ^t) 43 Ed. 3, 20. Waterer v. Freeman, Hob. 266. 
 
 (») Anon. Skin. 119. Where a person, having a wife living from whom he is not lawfully 
 divorced, fraudulently induces a woman to marry him and to cohabit with him, he is liable 
 to her in damages for the fraud. Blossom v. Barrett, 37 N. Y. 434. 
 
 (X) Reg. V. Hardey, 14 Q. B. 641. 
 
Sec. 1.] AND INJVRIBS NOT ACTIONABLE. 43 
 
 and give them in evidence on a particular trial, and the deeds are 
 forged and given in evidence, and any person's land is thereby lost, 
 all the parties to the conspiracy are liable to an action for damages, 
 as well a» to an indictment for misdemeanor(2/). If two men conspire 
 to make it appear that a third person has been guilty of a felony, by 
 placing stolen goods upon his premises, and he is in consequence 
 thereof convicted, an action for damages would be maintainable 
 against the conspirators, whether the parties had or had not been 
 indicted for the misdemeanor(2). 
 
 50 Public and private wrongs. — For an injury which affects all persons 
 alike, such as an obstruction in a public thoroughfare, merely imped- 
 ing the right of passage, and rendering the way less convenient, the 
 only mode of proceeding is by indictment. For any special injury 
 which affects an individual beyond his fellows, such as being delayed 
 in making a journey, and compelled to take a circuitous course(a), or 
 driving against the obstruction during a dark night, compensation in 
 damages may be obtained(6). 
 
 510/ the legal maxim that there is no wrong without a remedy. — The 
 maxim of the law, " ubi jus, ibi remedium," has at all times been con- 
 sidered so valuable, that it gave occasion to the first invention of that 
 form of action called an action on the case, where the novelty of the 
 complaint is no objection to the action, provided an injury cognizabU 
 by law be shown to have been inflicted on the plain tiff(c) ; for " thii 
 form of action was introduced for the reason that the law would nevei 
 suffer a wrong and a damage without a remedy "(f^); but there are 
 many cases where persons have suffered serious injury from the acts 
 and doings of others of which the law takes no cognizance. An 
 action, for example, cannot be maintained against a commanding 
 officer in the army or navy for maliciously accusing, arresting, and 
 bringing to a court-martial a subordinate officer, however great may 
 hav67 been the perversion of his authority, and however false and 
 unfounded the charge(e) ; and a wife has no remedy for being 
 deprived of the society of her husband by slander, not amounting to 
 a charge of adultery, causing him to desert her, and treat her with 
 
 (j^) Pitzh. N. B. 116j D. 
 ■ («) Post, ch. 13. 
 
 (o) Greasly v. Codling, 2 Bing. 263. Kose v. Miles, post, ch. 4. 
 
 (6) Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281. Post, cb. i, s. 2, Damages. See 
 Wesson v. Washburn Iron Co., 13 Allen (Mass.) 9.5. Blane v. Klumpke, 29 Cal. 156. Fort 
 Plain Bridge Co. v. Smith, 30 N. Y. 4-t. Yole County v. Sacramento, 36 Cal. 193. 
 
 (c) See note to Ashby v. White, 1 Smith's L. C. 213-223. 
 
 (d) WiUes, C.J., Winsmore v. Greenbank, Willes, 577. 
 
 (e) Sutton V. Johnstone, Johnstone v. Sutton, 1 Bro. P. C. 76; 1 T. R. 512. 
 
44 ACTIONABLE WRONGS. [Chap. 1. 
 
 cruelty(/). No action will lie against a witness for uttering false state- 
 ments in the course of a judicial proceeding, even though it is alleged to 
 have been done falsely and maliciously, and without any reasonable or 
 probable cause, the proper course being a prosecution for perjury(^). 
 
 Damages are not recoverable from an infant for a false and fraud- 
 ulent representation that he was of full age, whereby the plaintiff 
 was induced to lend him money {post, ch. 18) : nor from a married 
 woman and her husband for a false and fraudulent representation by 
 such married woman that she was a feme sole whereby she induced 
 the plaintiff to make a contract with her, which he could not enforce 
 by reason of heir being married(A) ; or that the signature to a bill of 
 exchange was her husband's signature, whereby the plaintiff was 
 induced to advance money upon the bill(j) ; nor from a man who has 
 seduced a female infant, not being at the time of her seduction in 
 her father's service, actual or constructive, even though the father be 
 therefore obliged to provide nurses and medical attendance for her, 
 and to maintain her(^). 
 52 Waiver of tort. — If a man has taken possession of property, and 
 sold or disposed of it without lawful anthority, the owner may«ither 
 disaffirm his act and treat him as a wrong-doer, and sue him for a 
 trespass or for a conversion of the property ; or he may affirm his acts 
 and treat him as his agent, and claim the benefit of the transaction ; 
 and if he has once affirmed his acts and treated him as an agent, 
 he cannot afterwards treat him as a wrong-doer, nor can he affirm his 
 acts in part, and void them as to the rest. If, therefore, goods have 
 been sold by a wrong-doer, and the owner thinks tit to receive the 
 price, or part thereof, he ratifies and adopts the transaction, and can- 
 not afterwards treat it as a wrong(?). 
 
 (/) Lynch v. Knight, 9 H. L. C. 677. 
 
 ig) Erie, C.J., Barber v. Lesiter, 7 C. B., N. S. 187. 
 
 (ft) Liv. Adelph. Loan Asso. v. FairJmrst, 9 Exch. 429. See as to fraudulent representa- 
 tions made by infants, Studwell v. Shapter, 54 N. Y. 249. 
 
 (i) Wright V. Leonard, 11 C. B., N. S. 258; 30 Law J., C. P. 365. 
 
 (ft) GrinneU ». Wells, 8 So. N. K. 741; 7 M. & Gr. 1033. To the contrary see Furman V. Van 
 Sise, 66 N. Y. 435. The fact that tlie person seduced was, at the time of the seduction, inden- 
 tured to the defendant as a servant, will not defeat an action by the father, if it be shown 
 that the defendant procured her to be indentured for the purpose of effecting the seduction. 
 Dain v. Wyokoff, 18 N. Y. 45. 
 
 (I) Brewer v. Sparrow, 7 B. & C. 310. Lythgoe v. Vernon, 5 H. & N. 180; 29 Law J., Exch. 
 164. As to the right to waive the tort and sue on the contract, see Shaw v. Coflln, 58 M. 264 ; 
 Staat V. Evans, 35 lU. 455; PearsoU v. Chapin, 44 Penn. St. 9; Smith v. Smith, 43 N. H. 636; 
 Jones V. Gregg, 17 Ind. 84; Halleck v. Mixer, 16 Cal. 574; Pratt v. Clark, 12 Cal. 89; Balch t» 
 Patten, 45 Me. 41; Budd v. Hiler, 3 Dutch. (N. J.) 43; Hutton v. Wetherald, 6 Harring. (Del.) 
 38 ; Cooper v. Berry, 21 Geo. 626; PiJce v. Bright, 29 Ala. 332; Janes v. Buzzard, 1 Hemp. 
 240; Alsbrook v. Hathaway, 3 Sneed, (Tenn.) 454; Goodwin v. Snyder, 3 Iowa, 599; EUiott 
 V. Jackson, 3 Wis. 649; Kelly v. Owens, 4 Chand. (Wis.) 166; Humiston v. Smith, 22 Conn. 19. 
 
Sec. 2.] STATUTORY OBLIGATIONS — BY-LAWS. 45 
 
 SECTION II. 
 
 OP RIGHTS, DUTIES, AND OBLIGATIONS CREATED BY BY-LAW AND BY 
 
 STATtITB('m). 
 
 53 By-laws founded on statute, imposing penalties for the suppression of 
 certain torts, are cumulative upon the ordinary common law remedy by 
 way of action, and do not prevent a plaintiif who has ■ sustained 
 damage from an injury to his property or person or an infringement 
 of his legal right, from bringing his action just the same as if no 
 by-law had ever been made, for " wherever an action lies at common 
 law, the penalty is accumulative "(w). By-laws imposing penalties, 
 and establishing a summary mode of proceeding for the recovery of 
 such penalties, are regarded with the utmost jealousy, and must be 
 made in strict pursuance of statutory authority, more especially where 
 they restrain the freedom and liberty of the subject beyond the require- 
 ment of the ordinary law. The power of making them is an extraor- 
 dinary power, and will be narrowly construed. " We must," observes 
 Alderson, B., " look closely to the powers given by the legislature, to 
 see whether the by-law is within the scope of the authority, or whether 
 it does not relate to matters which ought to be left to the general law 
 of the land, by which the general conduct of the Queen's subjects is 
 regulated "(o). 
 
 54 By-laws of municipal corporations. — ^By s. 90 of the Municipal 
 Corporations Act (5 & 6 Wm. 4, c. 76), the council of any borough is 
 empowered to make by-laws for the good rule and government of 
 the borough, and the suppression of nuisances. By s. 91, all the 
 provisions of the statute relative to offences against the Act, punish-- 
 able upon summary conviction, are made to apply to offences com- 
 mitted in breach of any by-law made by virtue of the Act( p) ; 
 and by s. 1, all laws, statutes, and usages inconsistent with that 
 Act are repealed and annulled. By-laws of corporations " must 
 ever be subject to the laws of the realm, and subordinate thereto; 
 
 [m) See further as to this, post-, ch. 16. 
 
 (n) Per our., Eowning: v. Goodchild, 2 W. Bl. 910. Beckford v. Hood, 7 T. E. 627. Couch v. 
 steel, 3 Ell. & Bl. 414. 
 
 (o) Calder & Hibble Nav. Co. v. Pilling, 14 M. & W. 87. Tailors of Ipswich, 11 Rep. 101. 
 Brown ». Local Board of Holyhead, 32 Law J., C. P. 25. Young v. Edwards, 33 Law J., M. 
 C. 227. 
 
 (p) As to summary convictions upon by-laws, .see post, ch. 15, s. 1. 
 
46 STATUTORY OBLIGATIONS. [Chap. 1, 
 
 and, therefore, though there is no provision for that purpose, the 
 law supplies it. And if the king, in his letters patent of incorpora- 
 tion, do make ordinances himself, yet they are also subject to the 
 , same rule of law"(2)- The power of making by-laws for the "good 
 rule and government" of a borough has reference to the government 
 of the boroilgh as a corporation, and the making of regulations for 
 carrying into effect the purposes for which it was incorporated ; for 
 the election of the mayor, aldermen, and councillors, the appointment 
 of the officers of the corporation, and the enforcement of their several 
 duties(r) ; the management and disposition of the corporate property ; 
 the carrying on trade within the municipality ; the prevention of fraud, 
 and the sale of unfit and improper commodities ; the prevention of 
 nuisances by butchers, tallow-chandlers, and persons carrying on nox- 
 ious trades in crowded localities ; and generally for securing fair dealing 
 and convenient arrangement amongst the shopkeepers and traders of 
 the municipality(s). It does not enable a town council to carry out 
 any peculiar ideas of general good government, and to impose pen- 
 alties on persons for the doing of things which are not prohibited by 
 any public statute, nor by the common law(i). 
 
 The power of making by-laws for the suppression of nuisances under 
 the above (90th) section, is confined to the suppression and prohibition 
 of acts which, if done, must necessarily and inevitably cause a nuisance 
 (post, ch. 4). It does not empower the town council to impose penal- 
 ties for the doing of things which may or may not be a nuisance, 
 according to circumstances. Thus, where the town council of a 
 borough imposed a fine upon every person who should " keep, or suffer 
 to be kept, any swine within the borough, between the first of May 
 and the first of October," it was held that the by-law was wholly in- 
 valid, as the keeping of a pig did not necessarily create a nuisance(M). 
 By-laws for the government of corporations are binding upon all 
 persons who consent to become members of the corporation, in the 
 iiature of a contract founded on mutual promises(c(;). They are binding 
 also on all persons who come to inhabit a municipality, and to carry 
 on trade within it{y). 
 
 (g) Norris v. Staps, Hot. 211 ; 1 RoU. Abr. COKPOKATIONS, Q. pi. 4. 
 {?■) Rex V. Westwood, 4 B. & C. 781.' 
 (s) Wilcock on Corporations, pp. 141-146. 
 
 («) Reg. ». Wood, 5 Ell. & Bl. B5. Reg. p. Rose, 24 Law J., M. C. 130. 
 
 («; JEverett v. Grapes, 3 Law T. R., N. S., Q. B. 669. See Wanstead Local Board, etc., v. 
 Hill, 13 C. B., N. S. 479. 
 {X) Tobacco Pipe, etc., Co. v. Loder, 16 Q. B. 765 ; post, ah. 21. 
 iy) Pierce v. Bartrum, Cowp. 270. 
 
Sec. 2.] PREVENTION OF INDECENT BATSINO. 47 
 
 55 By-laws for the prevention of indecent bathing . — The bathing clauses in 
 the Town Police Clauses Act, 10 & 11 Vict. c. 89 (s. 69), incorporated 
 into many special Acts recently passed for the government and im- 
 provement of towns, enable local authorities, where any part of the 
 sea-shore or strand of any river within the limits of the special Act is 
 used as a public bathing-place, to make by-laws for fixing the stands 
 of bathing-machines on the sea-shore or strand, and the limits within 
 which persons of each sex shall be set down for bathing, and withiu 
 which persons shall bathe, and for preventing any indecent exposure 
 of the persons of the bathers. 
 
 The statutory power here conferred, of fixing the limits within 
 which persons shall bathe, does not enable a town council, or local 
 board to impose penalties on persons bathing outside those limits, 
 without reference to the decency or indecency of the proceeding, or its 
 lawfulness or unlawfulness, by the general law of the land. The 
 clauses are enabling, and not disabling clauses. They were framed 
 to facilitate the providing of bathing-machines, and the making of 
 arrangements for enabling persons of both sexes to undress and bathe 
 in public places where, in the absence of such arrangements, no per- 
 sons could undress and bathe without indecency, and without running 
 the risk of being prosecuted for a misdemeanor(z). They were not 
 intended to impose any additional restraint upon bathers, beyond 
 what is imposed by the general law ; or to authorize the prohibition of 
 bathing by town councils, according to their whim or caprice, without 
 reference to time, circumstance or locality, the lawfulness or unlawful- 
 ness of the act in reference thereto, and the existence or non-existence 
 of any nuisance. Nor do they interfere with the rights of the owner 
 of the shore(a). 
 
 All restraints imposed by by-law beyond what is imposed by the 
 general law of the land are invalid, unless a satisfactory reason is 
 shown for them, and an express statutory authority for their impo- 
 sition(6). Thus, where a statute, the Local Government Act, 1858 (21 
 & 22 Vict. c. 98), enacted by s. 34 that the local board might make 
 by-laws "with respect to — privies and ash-pits in connection with 
 buildings," it was held that this did not authorize a by-law directing 
 all houses to be built with a back entrance, so as to afford access to 
 such ash-pit or privy(c). 
 
 Iz) Rex V. Crnndun, 2 Campb. 89. 
 la) Mace v. Philoox, 33 Law J., C. P. 124. 
 
 (i) Calder & Hebble Nav. Co. v. rilling, 14 M. & W. 83. Young v. Edwards, 33 Law J., M. 
 <J. 227. 
 (c) Walte V. Garston Local Board, L. R., 3 Q. B. 5. 
 
48 STATUTORT OBLIGATIONS. [Chap. 1. 
 
 56 By-laws hy public ccnnmissioners, local boards and piiblio companies. — • 
 The power of making by-laws for certain specified purposes, and for 
 imposing penalties for breach of such by-laws((i), is also granted by 
 the Companies Clauses Consolidation Act (8 Vict. c. 16, ss. 124-127), 
 the Railways Clauses Act (8 Vict. c. 20, ss. 108-11), the Markets and 
 Fairs Clauses Act (10 Vict. c. 14, ss. 42-49), the Commissioners' Clauses 
 Act (10 Vict. c. 16, ss. 96-98), the Harbors, Docks and Piers Clauses 
 Act (10 Vict. c. 27, ss. 83-90), the Towns' Improvement Clauses Act 
 10 & 11 Vict. c. 34, ss. 128, 200-207) ; and the Town Police Clauses 
 Act '(10 & 11 Vic. c. 89, ss. 68-71)(e). A summary mode of proceeding 
 is established for the recovery of the penalties imposed under the 
 authority of these statutes, but the recovery of the penalty will not 
 protect a wrong-doer from an action for damages, or from a claim foi 
 compensation, wherever the commission of the penal offence is in itself 
 a tort, and gives rise to a cause of action at common law {post, pp. 39, 
 40). 
 
 Commissioners, or local boards acting under these statutory authori- 
 ties, have no general power of making by-laws affecting strangers. 
 They cannot make by-laws to carry out the general powers of the 
 statute from which they derive their authority, but only the special 
 powers enabling them to make by-laws for the specified and declared 
 purposes(/). 
 
 57 By-laws in restraint of trade, made by trading companies and corpo- 
 rations in the exercise of a power conferred upon them by charter or 
 by statute, must be reasonable and beneficial to the public, or they 
 cannot be supported(g'). 
 
 A by-law may be good in part and bad in part, when the two parts 
 are entire and distinct from each other, but not otherwise(A). 
 
 There is no power to apprehend a person for the breach of a by-law, 
 in order to bring him before a magistrate, unless such a power is 
 expressly given by statute(j). 
 
 58 Remedies for the enforcement of statutory duties and obligations. — The 
 statute of Westminster the second (1 stat. 13 Ed. 1), c. 50, gives a 
 remedy by actions on the case to all who are aggrieved by the neglect 
 
 (d) As to the recovery of penalties generally, see post, oh. 15, s. 1. 
 
 (e) Cox's Consolidation.Acts, by Tayler. As to by-laws for the regulation of markets, 
 under the Markets and Fairs Clauses Act, Sayage v. Brook, 33 Law J., M. C. 42. 
 
 (/) Crompton, J., Beg. v. Wood, 5 Ell. & Bl. 57. Child ». Hudson's Bay Co., 2 P. Wms. 208. 
 ig) Gunmakers' Co. v. Fell, WiUes, 389. Calder & Hebble Nav. Co. v. PhilUng, mpra. Rex 
 r. Newcastle Coopers, &o., 7 T. E. 548. 
 (ft) Eeg. r. Lundie, 31 Law J., M. C. 157. 
 «) Chilton V. Lond. & Croyd Rail. Co., 16 M. & W. 212. Eeg. i.. Mann, 23 Law T. E. 12. 
 
Sec. 2.] STATUTORY DUTIES ANT) OBLIGATIONS. 49 
 
 of any obligation or duty created or imposed by statute(A:) ; and " in 
 every case where a statute enacts or prohibits a thing for the beneiit 
 of a person, lie shall have a remedy upon the same statute for the 
 thing enacted for his advantage, or for the recompense of a wrong 
 done to him contrary to the said law"(Z). Wherever a statute creates 
 a right, or a duty, or an obligation, then, although it has not in ex- 
 press terms given a remedy, the remedy which by law is properly 
 applicable to that right or obligation follows as an incident(»i). But 
 when the right or duty is entirely the creature of the statute, and a 
 specific remedy is provided by the statute for its enforcement, that 
 remedy, and that only, must be pursued(w), 'unless the remedy does 
 not cover the entire right(o). * 
 
 Wherever an Act of Parliament creates a duty or obligation to pay 
 money, an action will lie for its recovery, unless the Act contains some 
 provision to the contrary(p), or provides some specific remedy, or parti- 
 cular mode of proceeding for the recovery of the money, and there is 
 no contract or obligation to pay independently of the statute. When 
 the duty or obligation exists independently of the statute, the statutory 
 remedy is simply cumulative, and does not preclude the ordinary 
 common law remedy by way of action, unless there are express words 
 to that eflfect(g). Under the Metropolis Local Management Act (25 
 & 26 Vict. c. 102), ss. 77, 96, which makes certain paving expenses 
 recoverable by the vestry against the present or future owner of the 
 premises, or from any tenant who subsequently occupies them, an unsat- 
 isfied judgment against a former owner is no bar to an action against 
 the occupying tenant of a succeeding owner(7'). 
 
 The remedies provided by the Friendly Societies Acts, for redress- 
 ing disputes between these societies and their members(s), are cumu- 
 lative upon the common-law remedy by action, where such remedy 
 
 (*) 3 Instit. i86. 
 
 (!) Com. Dig. Action upon Statute, F. 
 
 (m) Maule, B., Braithwaite v. Skinner, 5 M. & W. 327. 
 
 («) Stevens v. Evans, 2 Burr. 1157. Underbill v. EUioombe, M'Clel. & T. 455. Doe v Brid- 
 ges, 1 B. & Ad. 859. Dnndalk Western Railroad Co. v. Tapster, 1 Q. B. 667. Stevens v. Jea- 
 cocke, 11 Q. B. 741 ; 17 Law J., Q. B. 163. St. Pancras Testry v. Batterbury, 2 C. B., N. S. 
 477 ; 26 Law J., C. P. 243. Dorman v. City of Jacksonville, 13 Fla. 538. Ernst v. Kunkie, 5 
 Obio St. 520. Andover v. Gould, 6 Mass. 40. Hovey v. Mayo, 43 Me. 322. Cole v. Muscatine, 
 U la. 296. 
 
 (o) Sbepberd v. Hills, 11 Exch. 67. Williams, J., St. Pancras Vestry v. Batterbury, 26 Law 
 J., C. P. 243. 
 
 (p) Parke, B., Sbepberd v. HiUs, 11 Excb. 67. Tilson v. Worwick Gas Light Co., 4 B. & C. 
 967 ; 7 D. & E. 376. Cane v. Cbapman, 5 Ad. & E. 659. Lloyd v. Burrap, L. E., 4 Excb. 63. 
 
 (g) Com. Dig. Action upon Statute, C. Cbapman «. Pickersgill, 2 Wils. 145. 
 
 (r) Bermondsey (Vestry of) v. Eamsey, L. E., 6 C. P. 247. 
 
 («) Addison on Contracts, 6tb ed., pp. 729-733. 
 
 Ad. Vol. I.- 
 
50 STATUTORY OSLI&ATIONS. [Chap. 1 
 
 exists independently of the statute, unless the right of action is taken 
 away by express legislative enactment(i). 
 59 Of the imposition of a penalty as a cumulative, exclusive, or alternative ' 
 remedy, for the protection of a right, or the suppression of a wrong. — 
 Where a statute vests a right generally in a person, or imposes some 
 new duty upon one party for the benefit of another, and gives a 
 penalty against those who infringe the right or neglect the duty, and 
 by reason of the infringement of the right, or the neglect of the duty, a 
 special and particular damage has resulted to the plaintiff, the annexa- 
 tion by the statute of the penalty for the offence recoverable by a 
 common informer does not preclude the plaintiff from his common-law 
 remedy by action for damages(M), although it is competent to him, if 
 he is first in the field, to sue for the penalty(«). The penalty is 
 recoverable for the breach of the public duty, though no damage may 
 have been actually sustained by anybody, and is cumulative upon the 
 ordinary remedy by action for damages. But where the statute, cre- 
 ating a new duty or obligation, provides a mode of obtaining compen- 
 sation for private special damage, and gives the amount recovered to 
 the party grieved or injured by the neglect of the statutory duty, there 
 is no other remedy than that given by the Act, either for the public or 
 the private wrong. 
 
 Where no specific right is created and vested in the plaintiff for his 
 own benefit and advantage, and no specific duty in favor of the 
 plaintiff has been imposed, but the statute merely prohibits a thing 
 from being done linder a penalty for doing it, an action for damages 
 is not maintainable. Thus, where statutory regulations were estab- 
 lished for the management of the pilchard fishery, and specific penal- 
 ties appointed for the breach of each regulation, and the plaintiff, a 
 fisherman, br9ught an action for damages for the breach by the defend- 
 ant of one of the regulations, whereby the plaintiff lost his proper turn 
 and station in fishing, and the defendant was enabled to make a val- 
 uable capture of fish, which would otherwise have fallen to the lot of 
 the plaintiff, it was held that the action was not maintainable, as no 
 particular right was created and vested in the plaintiff, nor any par- 
 ticular duty in his favor imposed upon the defendant. The latter 
 was merely prohibited from doing a particular act under pain of incur- 
 ring a penalty for disobedience, and the enforcement of the penalty 
 
 («) Sinden ». Bankes, 30 Law J., Q, B. 102. 
 
 («) Couch V, steel, 3.EU. & Bl. 414. Kowning V. GooclohUa, 2 W. Bl. 906. 
 
 («) Beckford v. Hood, 7 T. E. 627. 
 
Sec. 2.] STATUTORY COPYRIGHT. 51 
 
 was the only mode of proceeding against him(2/). Where, on the other 
 hand, a statute(z) imposed upon a shipowner the duty of keeping a 
 constant supply of medicines on board for the use of sick seamen, and 
 appointed a penalty for every default, recoverable by the first person 
 who sued for it, the amount, when recovered, to be divided between 
 the informer and the seaman's hospital, and the medicines were not 
 kept, and the plaintiflF, being a seaman on board, and having contracted 
 a fever, was deprived of the benefit" of the medicines, and in con- 
 sequence thereof sustained a long and dangerous illness, it was held 
 that he was entitled to maintain an action for damages, notwithstand- 
 ing the imposition of the penalty(a)^ So where a duty was imposed 
 by statute(6) on a water company of keeping their pipes, to which fire 
 plugs were fixed, constantly charged with water at a certain pressure, 
 a person whose premises were burnt down in consequence of the 
 neglect of the water company to perform such duty, was held entitled 
 to sue them for the damage caused by such neglect(c). 
 60 Infringment of statutory copyright — Penalties and actions for dam- 
 ages{cc). — To put an end to the doubts which formerly existed as to the 
 extent and duration of the rights of authors of published works(d), the 
 statute 8 Ann. c. 19 was passed, defining those rights and protecting 
 the enjojrment of them by the imposition of penalties. These penal- 
 ties for the infringement of the right founded upon the statute, were 
 cumulative upon the common-law remedy, so that the author, if he was 
 first in the field, might sue for the penalty as well as for the damages he 
 had sustained(e). The statute of Anne, however, has been repealed by 
 5 & 6 Vict. c. 45(/), which provides a special remedy by action on the 
 case for the recovery of damages from any person who causes a book 
 to be printed for sale or exportation without the consent in writing of 
 the proprietor of the copyright ; or who imports for sale or hire any 
 
 (y) Stevens v. Jeacocke, 11 Q. B. 741. 
 
 (z) 7 & 8 Vict. c. 112, s. 18. And see 30 & 31 Viol. 0. 124, ss. 4, 5, 6. 
 
 (o) Couch V. Steel, 3 Ell. & Bl. 410. 
 
 (6) The Waterworks Clauses Act, 1847, 10 & 11 Vict. c. 17, ji. 42. 
 
 (c) Atkinson v. Newcastle and Gateshead Watei works Co., L. E., 6 Bxoh. 404. 
 
 (cc) In the United States copyright is secured by law oi' Congi'ess. U. S. Kev. Stat, 966, s. 4952, 
 et seq. 
 
 The common law right and property of authors, in their unpublished productions, is also 
 recognized and protected. Palmer v. De Witt, 47 N. Y. 532. 
 
 The courts of the several states have jurisdiction of actions for the redress of injuries to the 
 common law rights of authors, but they have no jurisdiction of actions arising under the 
 patent and copyright laws ; the federal courts having exclusive juiisdiction in those cases. 
 Dudley v. Mayhew, 3 N. T. 9. 
 
 ((J) Donaldson v. Beckett, 2 Bro. P. C. 129. MiUar v. Taylor, 4 Burr. 2303. Jefferys v. Boo- 
 sey, 4 H. L. C. 846-989. Eeade v. Conquest, 11 C. B., N. S. 479 ; 30 L. J., C. P. 213. 
 
 (e) Beckford v. Hood, 7 T. E. 627. 
 
 (/) This statute repeals also 41 Geo. 3, c. 107, and 54 Geo. 3, o. 156. 
 
52 STATUTORY COPTSIGHT^ [Chap. 1.. 
 
 such unlawfully printed book, or -with a guilty knowledge sells, pub^ 
 lishes, or exposes to sale or hire, or has in his possession for sale or hire, 
 any such book, without the consent of the proprietor. Penalties are 
 also imposed (s. 17) upon unauthorized parties unlawfully importing 
 books reprinted abroad, or selling, publishing, etc., such books or 
 having them in their possession for sale or hire. These penalties are 
 cumulative upon the remedy by way of action(g'). 
 
 But no proprietor of copyright in books, etc. (except dramatic pieces), 
 commencing after the 10th June, 1833, can sue or proceed for any 
 infringement of his copyright before making an entry of it at Station- 
 ers' Hall, and all actions for offences committed against the Copyright 
 Amendment Act must be commenced within twelve months after the 
 ■ commission of the offenCe(^). The Acjt applies to alien friends resid- 
 ing temporarily in any part of the British dominions, who during 
 such residence publish a book or part of a book in England(j). 
 
 The Act guards against piracy of words and sentiments ; but it does 
 not prohibit writing on the same subject. Thus, in the case of histo- 
 ries, a man may give a relation of the same facts, and in the S3.me 
 order of time ; and in the case of dictionaries, an interpretation may 
 be given of the same words. The same principle holds with regard to 
 charts ; whoever has it in his intention to publish a chart, may take 
 advantage of all prior publications(A). There is no monopoly of the 
 subject here any more than in the other instances; the jury must 
 decide whether it is a servile imitation or not(Z'). If, however, the 
 great bulk of the work consists of a mere mass of pirated matter, or 
 the appropriation is such that the effect must be to injure or supersede 
 the sale of the original work, the author or composer of the work will 
 be liable to an action for damages, and also to an injunction to prevent 
 the sale of the work(m). And it is no answer to say that the appro- 
 priation was fully acknowledged, and made without any dishonest 
 intention(w). The compiler of a guide-book or directory is not en- 
 
 (ffl NoTello o. Sudlow, 12 C. B. ISS. See ante, p. 49. As to forfeiture of copies of piratical 
 editions, Delfe ». Delamotte, 3 K. & J. 581 ; and as to the protection in the colonies of works 
 entitled to copyright in England, 10 & 11 Vict. c. 9.5 ; and as to international copyright, 7 & 8 
 \iot. c. 12 ; 15 & 16 Vict. c. 12. Avauzo v. Mudie, 10 Exoh. 203. Wood v. Chart, L. K., 10 Bq. 
 Ca. 193. As to interrogatories, see Wright ». Goodlake, 34 L. J., Exch. 82. 
 
 (A) 5 & 6 Vict. u. 45,- ss. 24, 26. As to articles published in magazines and periodical works, 
 Mayhew v. Maxwell, 1 Johns. & H. 312. 
 
 (i) Low V. Routledge, L. E., 1 Ch. App. 43 ; 3 Eng. & Ir. App. 100. Low v. Ward, infra. 
 
 {k) Subject to the qualification stated in Kelly v. Morris, infra. 
 
 (Z) Gary w. Longman, 1 East, 382. Jarrold u. Houlston, 3 Kay & J. 708. 
 
 (m) Campbell v. Scott, 11 Sim. 38. Bohn v. Bogue, 10 Jnr. 420. Tinsley «. Lacey, 82 Law J., 
 Ch. 535. Hotten ». Arthur, Ibid. 771. See post, ch. 23. 
 
 (») Scott V. Standford, L. E., 3 Eq. Ca. 718. 
 
Sec. 2.] COPTRIGHT IN LECTURES, 53 
 
 titled to avail himself of the information contained in previous works 
 on the same subject, but must obtain and arrange the requisite infor- 
 mation independently for himself(o) ; and it is not sufficient for him to 
 cut the slips from the rival directory, and send persons round to ascer- 
 tain their correctness(;p). He may, however, use such slips for the 
 purpose of directing his canvassers to the persons from whom the re- 
 quired information is to be obtained(g'). And an author who has been 
 led by a former author to refer to older writers may, without commit- 
 ting piracy, use the same passages from the older writers which were 
 used by the former author(r). 
 
 No copyright can be gained in a work which is founded on frauud- 
 lent representation and deceit, and professes to be written by some 
 celebrated author when it is not so written, or in a work which is sub- 
 versive of good order, morality, or religion(s). Nor can copyright, it 
 seems, be claimed in a single word, e. g., the title of a periodical pub- 
 lication, " Belgravia "(^), although the proprietor (of a newspaper for 
 instance) has a right to prevent other persons from adopting the name 
 of his newspaper for any similar publication(M). Copyright is, how- 
 ever, divisible, and may be obtained in respect to certain chapters of 
 a work only(a;). 
 
 The Act does not apply to newspapers, which are not mentioned in 
 it. The proprietor of a newspaper, however, is entitled at common 
 law to the property in any article for which he pays, whether it be 
 the letters of a correspondent, the publication of a tale or treatise, or 
 the review of a \)odk.{y). 
 
 Ql Infringement of copyright in lectures — Penalties and actions for dam- 
 ages. — By 5 & 6 Wm. 4. c. 65, vesting the sole right of printing and 
 publishing lectures in the author and his assigns(z), penalties are im- 
 posed upon all persons taking down, or making copy of such lectures, 
 and printing or otherwise copying and publishing them, without leave 
 of the author or his assigns, and upon all persons selling or publish- 
 
 (o) Kelly V. Mon-is, L. E., 1 Eq. Ca. 697. 
 
 (p) Morris v. Aslibee, L. E., 7 Eq. Ca. 34. 
 
 (2l Morris t>. Wright, L. E., 6 Ch. App. 279. 
 
 (r) Pike v. Nicholas, 38 Law J., Ch. 629 ; L. E., 5 Ch. App. 251. 
 
 (s) Wright ®. Tallis, 1 C. B. 907 ; U Law J., C. P. 283. Congress has no power to pass a law 
 confeiTing the privilege of copyright upon an immoral or indecent publication. Martinetti 
 V. Maguire, 1 Abb. (U. S.) 356. 
 
 (<) Mavwell V. Hogg, L. E., 2 Ch.'App. 307. 
 
 (M) Kelly V Hutton, L. E., 3 Ch. App. 703. 
 
 (a) Low ». Ward, L. E.,6 Eq. Ca. 415. See Levy ». Eutley, foyVa. There may be a valid 
 copyright in the plan of a book. Greene v. Bishop, 1 Clifford, Ct. Ct. 186. 
 
 (3/1 Cox V. Land and Water Journal Co., L. E., 9 Eq. Ca. 324. See Hattan ». Kean, infl-a, 
 
 («) As to the author's right at common law, see ante, p. IS. 
 
54 STATUTORY COPYRIGHT. [Chap. 1. 
 
 ing copies, etc., or exposing them for sale without consent, etc. These 
 penalties are camulative upon the common law remedy by way of ac- 
 tion(a) ; but it is provided (s. 5), that the Act shall not extend to lec- 
 tures of which notice in writing has not been given to two justices, iu 
 manner therein mentioned, nor to lectures delivered in a university or 
 public school, or college, or on a public foundation, etc. • 
 
 In all lectures printed and published by the author or his assigns 
 there is now the same copyright as in printed books(6). 
 62 InfriMgement of copyright in publMied dramatic literary property and 
 musical compositions. — Where one man employs another, for reward, to 
 compose a musical or dramatic piece, the composition becomes, upon 
 payment, the property of the employer(c). But a mere contract to 
 write a play will not vest the copyright in the employer, although part 
 of the price agreed upon be paid, nor will the employer become joint 
 owner with the writer by reason of alterations, even to the extent of 
 a whole scene, having, been made by others, at the suggestion and ex- 
 pense of the employer((i). To constitute a joint authorship of a dra- 
 matic piece or other literary work, it must be the result of a precon- 
 certed joint design((3). 
 
 Where the defendant represented the incidents of a published novel 
 in a dramatic form upon the stage, it was held that this was not an 
 infringement of the copyright in the novel, as the defendant had 
 neither printed nor multiplied copies of the work(/). But a person 
 who prints a drama constructed out of a novel infringes the copyright 
 in the novel(£^). Where the plaintiff published a drama called " Gold," 
 and then printed and published the drama in the form of a novel, and 
 the defendant's brother dramatized the novel without having seen or 
 known of the plain tiif's drama "Gold," but the consequence was that 
 much of the drama which the defendant caused to be represented 
 was the same as the plaintiff's, it was held that this was an infringe- 
 ment of the copyright of the drama, and that the defendant's brother 
 could not be considered the author of those parts of the drama which 
 he copied directly from the plaintiflTs novel, and indirectly from the 
 
 (a) See Beokford v. Hood, ante, p. H. 
 (6) 5 & 6 Vict. c. 45. 
 
 (c) Hattou V. Kean, 7 C. B., N. S. 268. 
 
 (d) Levy V. Eutley, L. E., 6 C. P. 523. , • 
 
 (e) 5. C. 
 
 (/) Reade v. Conquest, 9 C. B., N. S. 755 ; 30 Law J., C. P. 209. As to assignments of copy 
 right, see Addison on Contracts, 6th edit. p. 120-1. Cumberland v. Copeland, 31 Law J.. 
 Exch. 353. Wood v. Boosey, infra. 
 
 {g) Tinsley v. Lacy, 32 Law J., Ch. 535. 
 
Sec. 2.] IN DRAMATIC OR MUSICAL COMPOSITIONS. 55 
 
 plaintiffs draiiia(A). A dramatic production, therefore, to be_ entitled 
 to copyright, must be an original work, and not a mere copy of novels 
 or works of fiction, in which there is an existing copyright. If, how- 
 ever, the drama is partly made up of new matter, the composer will 
 be entitled to copyright in such new orignal matter(j). 
 
 If a musical composer adapts words of his own to an old air, he 
 acquires a copyright in the combination (X:). So if he arranges an 
 opera for the pianoforte, such an arrangement is an independent 
 musical composition, of which he, and not the composer of the opera, 
 is the author for purposes of registration(^), although it does not fol- 
 low that he would not infringe the copyright of the original author by 
 such an arrangement(')»). 
 
 63 Unlawful representation of dramatic pieces and musical compositions. — 
 The statutes 5 & 6 Vict. c. 45, ss. 20, 21, and 3 & 4 Wm. 4, c. 15, 
 vesting the sole and exclusive right of representing or performing 
 dramatic pieces or musical compositions in the author and his assigns, 
 impose penalties on all persons who, during the continuance of the 
 right, represent or cause to be represented, without the consent in 
 writing of the author or proprietor such dramatic pieces or musical 
 compositions at any place of dramatic entertainment. These penalties 
 are given as an alternative remedy, the author or proprietor having 
 the option of either suing for the penalty or bringing an action for all 
 the profit accruing from the representation, or all the loss he has sus- 
 tained, at his election ; but the action must be brought within twelve 
 calendar months(w). An assignment of the copyright of a book con- 
 sisting of, or containing, a dramatic piece or musical composition, does 
 not convey the right of representation to the assignee, unless the in- 
 tention of the parties to that effect is duly registered(o). But an 
 express assignment of the right of representation, although joined 
 
 (A) Eeade v. Conquest, 11 C. B., N. S. 479. 31 Law J., C. P. 153. Keade v. Laoy, 30 ib. 655. 
 
 (J) Gary v. Longman, 1 East, 360. Mere spectacles or arrangement of scenic effects are 
 not protected by copyright. Martinetti v. Maguire, 1 Abb. (TJ. S.) 356. See Daily ». Palmer, 
 6 BlatcM. 256. 
 
 ik) Lorer v. Davidson, 1 C. B., N. S. 182. 
 
 U) Wood V. Boosey, L. E., 2 Q. B. 340. Ib. 3. Q. B. 223. But see Eerel V. Carusi, Taney, 72. 
 
 (m) Per Blackburn, J., and KeUy, C. B. S. C. 
 
 (K) 3 & 4 Wm. i, c. 15, ss. 2. 5. 
 
 (o) 5 & 6 Vict. c. 45, s. 22. The rights of an author of a drama in his composition are two- 
 fold. He is entitled to the profit arising from its performance, and also from the sale of the 
 manuscript, or the printing and publishing of it. The mere public performance of a play 
 does not amount to an abandonment by the author of his title to it, or a dedication of it to 
 the public ; and it cannot be lawfully printed or published before or after such public per- 
 formance without the author's permission. Palmor v. De Witt, 47 N. Y. 532. 
 
56 STATUTORY COPYRIGHT. [Chap. 1. 
 
 with an assignment of the copyright, does not require registration to 
 entitle the assignee to sue for penalties(p). 
 
 ■ 'No one can be considered as an offender against these stat ites 
 so as to be liable to an action at the suit of an author or proprietor 
 unless he, by himself or his agent, actually takes part in the represen- 
 tation(g). But the lessee of a theatre, who lets the same, together 
 with the actors, properties, etc., to a third person, for one night, for 
 the purpose of taking a benefit, will be liable if, by the direction of 
 such person, a piece is performed without the consent of the author(r). 
 
 64 Infringement of the SciMptwre Copyright Acts. — ^The statute for the 
 encouragement of the art of making models and casts of busts(s) (54 
 Geo. III., c. 56), vests the sole right of property in every new, original 
 sculpture, model, copy, cast, and bust, for a certain term, in the per- 
 son who makes or causes it to be made, provided the name of such 
 person, and the date of publication, are put on the work before it is 
 put forth or published. A remedy for the infringement of the right 
 of property by persons making or importing copies, or exposing for 
 sale, or disposing of, pirated copies, or pirated casts, without the con- 
 sent of the proprietor, is provided by special action on the case, in 
 which double costs of suit are recoverable, but the action must be 
 brought within six calendar months after the discovery of the offence(i). 
 
 65 Piracy of useful and ornamental designs(u). — Penalties are recoverable 
 by action or by summary proceedings for the piracy of registered use- 
 ful or ornamental designs, or the proprietor of the design may elect to 
 bring an action for damages; but he cannot recover both the- penalties 
 and the damages(a;). Penalties also are recoverable for making or ex- 
 posing for sale pirated copies, or pirated casts, of registered copies, 
 drawings, prints, or descriptions in writing, or prints, of pieces of 
 sculpture, models, etc., within the protection of the. Sculpture Copy- 
 right Act, and for doing various specified things in derogation of the 
 rights of the proprietor of the design. These penalties are given as 
 an alternative, and not a cumulative remedy(2/). When utility and 
 
 (p) Lacy V. Rhys, 33 Lair J., Q. B. 157. Marsh v. Conquest, ib. C. P. 319. Aa to the rights 
 of assignors of copyright, see Taylor ». Pillow, L. K., 7 Eq. Ca. 418. 
 
 (g) RusseU v. Briant, 8 C. B. 836 ; 12 Law J., C. P. 33. Lyon v. Kuowles, 32 Law J., Q. B.71. 
 
 (r) Marsh v. Conquest, aupra. 
 
 (8) The Stat. 38 Geo. III., c. 71, has been repealed by 24 & 25 Vict., o. 101. 
 
 («) ss. 3, 4. 
 
 («) Millingen v. Piokeu, 1 C. B. 799 ; 14 Law J., C. P. 264. Reg. v. Bessel, 16 Q. B. 810. 
 
 (I) 5 & 6 Vict., c. 100, ss. 8, 9 ; 6 & 7 Vict., o. 65 ; 21 & 22 Vict., c. 70 ; 24 & 25 Vict., c. 73. As 
 to registration, Heywood ». Potter, 1 Ell. & Bl. 439 ; 22 Law J., Q. B. 133. Rogers ». Driver, 
 16 Q. B. 102 ; 20 Law J., Q. B. 31. McCrea v. Holdsworth, 33 Law J., Q. B. 329 ; L. E., 1 Q 
 B. 264 ; (in error) L. E., 2 H. of L. Ca. 380. ', 
 
 (») 13 & 14 Vict., c. 104, b. 7 ; 21 & 22 Vict., o. 70, s. 7. 
 
Sec. 2.] FIRACT OF PRINTS AND ENGRAVINBS. 57 
 
 beauty are blended together in the design, it may be registered under 
 both the Useful and the Ornamental Designs Acts ; but if there is 
 neither novelty nor utility in the article, it is not entitled to registra- 
 tion under either statute, and cannot claim any statutory protection(z). 
 If the inventor, instead of describing the design in words, prefers to 
 place the design itself upon the register in the shape of part of the 
 article designed, the design will be infringed by the sale of an article 
 to all appearance the same, though not actually identical(a). 
 
 A combination of old designs, forming a new and original combi- 
 nation, must, in order to obtain the statutory protection, be one new 
 design, and not a mere multiplication of old designs(6). 
 
 The proprietor of a design duly registered loses the benefit of the 
 Acts, unless the proper registration marks are attached to all articles 
 and substances to which the design is applied, whether the same are 
 sold abroad or in the British dominions(c). 
 66 Piracy of prints and engravings. — The statutes of 8 Geo. 2, c. 13, and 
 7 Geo. 3, c. 38, vesting the sole right and liberty of printing and re- 
 printing historical and other prints in the persons who invent- and 
 design them, or cause them to be designed and engraved from their 
 own works and inventions, impose penalties upon all persons who 
 engrave, etch, or in any manner copy and sell, in the whole or in part, 
 by varying, adding to, or diminishing from, the main design, any 
 historical or other print engraved with the name of the proprietor on 
 each plate(d), and printed on every such print, etc.(e), or print, reprint, 
 or import for sale, etc., any such print, without the written consent of 
 the proprietor attested as therein mentioned, or publish, sell, etc., 
 without such consent. These penalties are cumulative upon the right 
 of action(/), but the provision as to double costs of suit has been 
 repealed(^), and. the proceedings must be instituted within the time 
 limited by the statutes(A). 
 
 The copying of prints and engravings by photography, or by any 
 other process by which prints or engravings may be imitated or copied, 
 
 (a) Windover v. Smith, 9 Jur. N. S. 397. 
 
 (a) McEea o. Holdsworth, L. E., 6 Ch. App. 418. Gorham Co. V. White, 14 Wall. 511. 
 (6) Norton v. NichoUs, 1 EU. & Ell. 761. Harrison v. T^lor, 3 H. & N. 301 ; 27 Law J., 
 Exch. 315. 
 
 (c) Sarazin v. Hamel, 32 L. J., Ch. 380. 
 
 (d) See Graves v. Ashford, infra. 
 
 («) Colnaghi v. Ward, 12 Law J., Q. B. 1. 
 
 (/) 17 Geo. 3, c. 57. 
 
 {g) 24 & 25 Vict. c. 101. 
 
 (ft) 8 Geo. 2, c. 13, 6. 1 ; 7 Geo. 3, u. 38, es. 2-8. 
 
58 STATVTOBT C0PTBI6RT. [Chap. 1. 
 
 is within the mischief intended to be provided against(j), and so is the 
 selling of a copy with colorable variations(A:). 
 
 Books containing designs and prints which are mere illustrations of 
 the letter-press, are protected by 5 & 6 Vict. c. 45(Z). 
 
 The statute, 8 Geo. 2, c. 13, made it necessary to prove know edge 
 in proceedings against a person for selling a pirated engraving or 
 print. The 17 Geo. 3, c. 57, which was passed to amend the former 
 act, omits the word " knowingly," and enables the person having a 
 copyright in a print or engraving to maintain an action against per- 
 sons found selling pirated copies of it, without proof of guilty knowl- 
 edge(«?). 
 
 67 Infringment of copyright in paintings, d/rawings, and photographs. — 
 By 25 & 26 Vict. c. 68, conferring upon the authors of paintings, 
 drawings, and photographs, the sole and exclusive right, for a certain 
 term, of copying, engraving, reproducing, and multiplying them, and 
 the designs thereof, and photographs, and the negatives thereof, 
 penalties are imposed upon persons who repeat, copy, colorably 
 imitate, or otherwise multiply for sale, hire, exhibition, or distribution, 
 or cause to be repeated, etc., any painting, drawing, or photograph, 
 in which there shall be subsisting copyright, without the consent of 
 the proprietor of the copyright ; also for knowingly importing, selling, 
 etc., repetitions, copies, etc., unlawfully made ; also for fraudulently 
 alfixing names, etc., to any painting, drawing, or photograph, and 
 doing various other specified things in derogation of the rights of the 
 owner of the copyright. All these penalties are cumulative upon the 
 remedy by action. They are cumulative also upon any remedy which 
 any person aggrieved may be entitled to, either at law or in equity(w). 
 The Act applies to a photograph of an engraving which is itself en- 
 graved from the original picture(o). 
 
 68 Registration of the proprietorship of the copyright is made a condition 
 precedent to the maintenance of any action at law or suit in equity(p), 
 and to the recovery of any penalties under the statute(g'), which 
 penalties apply to each copy sold. But it is not necessary for ihe 
 original proprietor to register his title. If he assigns it, his assignee's 
 
 (i) Gambart v. Ball, 32 Law J., C. P. 166. Graves v. Ashford, L. E., 2 C. P. 410 ; See Wood 
 V. Abbot, 5 Blatchf. Ct. Ct. 326 ; Rossiter v. Hall, id. 362. 
 (7c) West «. JFranois, 6 B. & Aid. 742. 
 
 (!) Ante, p. 51. Bogue v. Houlston, 5 De G. & S. 273 ; 21 Law J., Ch. 470. 
 (m) Gambart v. Sumner, 6 H. & N. 8 ; 29 Law J., Exch. 98. 
 (n) See s. 11. As to the remedy by Injunction, see post, ch. 23. 
 (o) Ex parte Beal, L. R., 3 Q. B. 387. Graves's case, w^-o. 
 (p) See Stannerd v. Lee, L. E., 6 Ch. App. 346. 
 (g) See Ellwood v. Christy, 34 Law J., C. P. 130. Mathieaon ». Harrod, L. R., T Eq. Ca. 270. 
 
Sec. 2.] PATENT EIGBT. 59 
 
 title is good, and such assignee, on a due registration of the assign- 
 ment, is entitled to sue for an infringement of the copyright, or for 
 penalties, etc.(r). 
 
 69 Proof of the copyright. — When any painting or drawing, or the 
 negative of any photograph, is sold or disposed of, for the first time, 
 or is made or executed for any other person, for good consideration, 
 the person selling or disposing of, or making or executing the same, 
 cannot retain the copyright thereof, unless it is expressly reserved to 
 to him by agreement in writing, by the vendee, or assignee, of the 
 painting, or drawing, or negative, or the person for whom it has been 
 executed ; nor can the vendee or assignee claim the copyright, except 
 by virtue of an agreement in writing, signed by the person selling or 
 disposing of the same, or by his duly authorized agent(s). 
 
 70 Penalties for the use of counterfeit trade marks and false descriptions 
 of articles of manufacture and sale are imposed by 25 & 26 Vict. 
 c. 88, s. 4, and are cumulative upon any remedy which aggrieved 
 parties may be entitled to, either at law or in equity (s. 11). 
 
 71 Penalties for the commission of nuisances are also cumulative upon the 
 common-law remedy by action ; such as penalties for causing water to 
 be corrupted by gas washings or gas refuse, and the creation of pre- 
 ventible nuisances in the exercise of noxious trades(i), fouling the 
 water of wells, fountains, or pumps(M), wilfully and knowingly turning 
 out upon any common, or unenclosed land, cattle, sheep, etc., affected 
 with contagious or infectious diseases, or knowingly exposing such 
 cattle, sheep, etc., in any public market or private sale-yard(a;). 
 
 72 Of patent rightly). — Unlike copyright, an inventor of a new design 
 has no right at common law to the exclusive property in his own 
 invention. He may, of course, conceal his discovery from the world, 
 but the moment he publishes it, his exclusive right to it is gone(z). 
 However, "where any man by his own charge or industry, or by his 
 
 (r) Graves's case, L. E., 4 Q. B. 715. 
 
 («) 25 & 26 Viot. c. 68, SB. 1-3. 
 
 if) 18 & 19 Viot. 0. 131, ss. 23, 25, 27 ; 10 & 11 Vict. c. 15, ss. 21-23. See 34 & 35 Vict. c. 41. As 
 to penalties for newly establishing noxious trades witliout the consent of local boards of 
 health, 11 & 12 Vict. o. 63, o. 64 ; and as to what are noxious trades within the meaning of the ' 
 statute, see Wanstead Local Board v. HiU, 13 C. B., N. S. 479 ; 32 Law J., M. C. 135. 
 
 («) 23 & 24 Vict. 0. 77, s. 8. 
 
 (a:) ATiie, p. 4. 
 
 (y) As to assignment of patent right, see Addison on Contracts, 6th ed., pp. 121-2. For the 
 United States patent laws see TJ. S. Eev. Stat. 953 et seg. 
 
 (z) See Canham v. Jones, 2 V. & B. 218. The communication of his secret to one person, 
 however, in confidence, is not a publication. Morgan v. Seaward, 2 M. & W. 544. And will 
 not, therefore, if it goes no further, prevent another person taking out a patent subsequently 
 for the same invention. Jones v. Pearoe, 1 Webst. E. 122, 542. Lewis v. Marling, 10 B. & 22. 
 
60 PATENT SIGHT. [Chap. 1. 
 
 own wit or invention, doth bring any new trade into the realm, or any 
 engine tending to the furtherance of a trade that never was used be- 
 fore, and that for the good of the realm, in such cases the king may 
 grant to him a monopoly patent for some reasonable time until the 
 subjects may learn the same, in consideration of the good that he doth 
 bring by his invention to the commonwealth, otherwise not"(«). And 
 this prerogative of the Crown, which is the original source from which 
 the existing law and practice of letters patent for inventions are 
 derived, and on which (subject to the modifications subsequently intro- 
 duced by statute) they still rest(6), was confirmed by the Statute of 
 Monopolies (21 Jac. 1, c. 3), which is declaratory of the common law, 
 and by which, after decla,ring that all monopolies should be void, 
 it was enacted (s. 6) that " any declaration before-mentioned shall not 
 extend to any letters patent and grants of privilege for the term of 
 fourteen years or under(c), hereafter to be made, of the sole working 
 or making of any manner of new manufactures within this realm to 
 the true and fi.rst inventor and inventors of such manufactures, which 
 others at the time of making such letters patent and grant shall, not 
 use, so as also they be not contrary to the law nor mischievous to the 
 State by raising prices of commodities at home, or hurt of trade, or 
 generally inconvenient," etc. 
 
 It results from the principles mentioned above that a patent is a 
 kind of equitable contract made by the Sovereign with the patentee, 
 or a purchase made by the discoverer of an invention from the Sovereign 
 acting on behalf of the public, the consideration for such purchase 
 being the novelty and utility of the invention discovered or first intro- 
 duced into this country by the patentee((i) ; and the condition prece- 
 dent to the validity of such contract or purchase being, that after the 
 lapse of the prescribed period the inventor shall make public his 
 invention for the general benefit(e). It is still, however, legally speak- 
 ing, an exercise of prerogative, and being so, is not available against 
 the Crown itself; otherwise an invention essential to the defence of the 
 
 (a) Daroy v. Allin, Noy, 182. And see 3 Inst. 184. 
 (4) See Feathar v. The Queen, infra. 
 
 (c) Which: may, under 5 & 6 Will. 4 o. 83, s. 4, and 7 & 8 Viot. o. 83, s. 2, be fui-ther extended 
 for fourteen years or less. See Bovill v. Finch, L. K., 5 C. P. 523. ije Saxhy's Patent, L. E., 
 3 P. Ca. 292. Be Clark's Patent, VaiA. 421. Houghton's Patent, Ibid. 461. And as to an 
 application for a prolongation by an assignee ; Normaud's Patent, L. R., 3 P. C. Ca. 193. An 
 unporfced patent, however, expires on the expiry of the foreign patent, 16 & 16 Vict. o. 83, s. 25. 
 
 (d) See WlUiams v. Williams, 3 ^Mer. 160 ; 11 East, 107. Cartwright v. Bamer, cited 14 Voa. 
 131, 136. 
 
 (e) Lord Tenterden, C.J., Crompton v. Ibbotson, Dan. & Lloyd, 83. Gibbs, C.J., Wood V. 
 Zimnier, Holt, 58. Abbott, C.J., in Savory ». Price, Ity. & M. 1. 
 
Sec. 2.] PATENT RIGHT. 61 
 
 realm might'be unavailable on behalf of the public, whilst a foreign 
 power at war with this country might be profiting by it (/). 
 
 The grant must be " to the true and first inventor." " It is a 
 material question," said Tindal, C.J., " to determine whether the party ' 
 who got the patent was the real and original inventor or not, because 
 these patents are granted as a reward not only for the benefit that is 
 conferred upon the public by the discoffc'y, but also to the ingenuity 
 of the first inventor ; and although it is proved that it is a new discovery 
 BO far as the world is concerned, yet if anybody is able to show that, 
 although that was new, the party who got the patent was not the man 
 whose ingenuity first discovered it ; that he had borrowed it from A or 
 B{g), or taken it from a book that was printed in England(^), and 
 which was open to all the world ; then, although the public had the 
 benefit of it, it would become an important question whether he was 
 the first and original inventor of it(j). And not only must the patentee 
 be the actual inventor, but he must have invented every part of what 
 he claims to have invented(A-) ; for if a man claims by his patent to 
 have invented a number of things, and some of them are not original, his 
 patent his void(Z). There is nothing, however, to prevent him from 
 employing his servants in assisting him to bring a design to perfec- 
 tion, or to work out an idea first suggested by him(m), or from 
 employing third persons for such a purpose(w). He is still the true and 
 first inventor. If the invention be publicly known in any part of thfe 
 realm, in Ireland or the colonies for inst-ance, he is not the true and first 
 inventor(o). But a description of a similar process in a book, or in the 
 specification of a previous patent, must, to defeat a patent, impart 
 such information as to enable any one of reasonable intelligence in 
 that department of art or industry to reckon with confidence on the 
 result(p). 
 73 The sv^ject-matter of a patent. — The subject-matter of the grant is 
 " any manner of new manufactures." The word " manufacture " in 
 the statute may be construed in one of two ways. It may mean the 
 
 {/) Feather v. The Queen, 35 L. J., Q. B. 200. 
 
 (g) Barber v. Walduck, cited 1 C. & P. 667. 
 
 (A) stead v. Williams, 7 M. & G. 818. See Heurtelonp's case, 1 Webst E, 653. 
 
 (j) Cornish v. Keene, 1 Webst. R. 507. 
 
 (k) Tennant's case, 1 Webst. E, 125. 
 
 (I) Losh V. Ha^e, 1 Webst. K. 202. See E. v. Arkwright, DaT. P. C. 61. 
 
 (m) Minter v. Wells, 1 Webst. E. 132. 
 
 (n) Bloxam «, Elsee, 1 C. & P. 658. 
 
 (o) Brown ». AnnantJale, 1 Webst. E. 483. Eoebuck v. Sterling, ib. 45, iSk 
 
 {,p) Betts V. Neilson, L. E. 3 Ch. App. 429 ; 6 Kng. & Ir. App. I. 
 
62 PATENT RIGHT. [Chap. 1. 
 
 machine when completed, or the mode of constructing the machine(g'). 
 " The word ' manufacture,' " said Abbott, C.J.,(r) " has been gener- 
 ally understood to denote either a thing made which is useful for its 
 own sake, and vendible as such, as a medicine, a stove, a telescope 
 and many others; or to mean an engine or instrument, or some 
 part of an engine or instrument, to be employed either in the 
 making of some previously known article, or in some other useful 
 purpose — as a stocking frame, or a steam-engine for raising water 
 from mines ; or it may, perhaps €xtend also to a new process to 
 be carried on by known implements, or elements acting upon known 
 substances, and ultimately producing some other known substance^ 
 but producing it in a cheaper or more expeditious manner, or of a 
 better and more useful kind. No merely philosophical or abstract 
 principle can answer to the word ' manufactures.' Something of a 
 corporeal and substantial nature — something that can be made by man 
 from the matters subjected to his art and skill, or at the least some new 
 mode of employing practically his art and skill, is required to satisfy 
 this word "(s). And it is now perfectly well established that a method 
 or process in itself, and apart from its produce or results, or from the 
 substances used in the process, may be the subject of a patent privi- 
 lege, proved some beneficial result, such as the cheaper or better pro- 
 duction of the product, is attained from the use of such method or 
 process(^). 
 
 Thus there may be a valid patent for a new combination of materi- 
 als previously in use for the same purpose, or for a new method of 
 applying such articles(M), or for the mere omission of one of several 
 parts of a process, by which the article is manufactured cheaper or 
 better(iB) ; for a new method of lessening the 'consumption of fuel in 
 fire-engines(y) ; for a method of securing buildings from fire(z) ; for an 
 improvement in the construction of chairs(a) ; for a method of giving 
 fire to artillery and all kinds of fire-arms(6), and the like. So a 
 patent may be sustained for a combination of processes, each of which 
 
 (g) Parke, B., Morgan v. Seaward, 2 M. & W. 558. 
 
 (r) E. V. Wheeler, 2 B. & Aid. 349. 
 
 (s) And see Boulton v. Bull, 2 H. Bl. 481, 492, per Eyre, C.J., and Heath, J., Huddart r 
 Grimehaw, Day. P. G. 278, per Ld. BUeuborough. 
 
 {*) Crane ». Price, 4 M. & G. 580. Wrighjb o. Hitehcook, L. E., 5 Exch. 37. 
 
 (u) Hill V. Thompson, 3 Mer. 629, per Lord Eldon, C. See Parkes r. Stevens, L. E., 9 Eq. 
 Ca. 36. 
 
 (K) Eussell V Cowley, 1 Webst. E. 464. 
 
 •(y) Hornblower v. Boulton, 8 T. E. 95. 
 
 (z) 2 H. Bl. 493, per Byre, C.J . 
 
 (a) Minter v. Wells, I Cr. M. & E. 505. 
 
 (6) Forsyth's case, 1 Webst. E. 95. 
 
iSeC. 2.] SUBJECT-MATTER OF. 63 
 
 was previously well known, provided the combination be new and 
 produces a beneficial result(c). But the use of a new material to pro- 
 duce a known article cannot be the subject of a patent, unless some 
 invention and ingenuity are displayed in the adaptation(d). 
 
 However, as the title and terms of the letters patent in most cases 
 convey but very imperfect information as to the real subject-matter of 
 the patent, and as one of the fundamental principles upon which a 
 patent rests is (as has been mentioned before) that the public shall 
 have the benefit of the invention after the prescribed period has 
 elapsed, the grant always provides that the letters patent shall be void, 
 unless a sufficient description of the nature of the invention, and in 
 what manner the same is to be performed, — so as to enable any person 
 of moderate skill and knowledge in that department of manufacture 
 to which it relates, to practise and enjoy the invention at the expira- 
 tion of the terra in as ample and beneficial a manner as the patentee 
 himself(e), — (called the speciflcation)(/), be filed in the Court oi 
 Chancery(^) within a given time. It follows from this, that the speci- 
 fication forms an essential part of the patent contract, if such a term 
 be allowable, and that an incorrect or imperfect or ambiguous specifi- 
 cation(^), or one calculated to mislead(i), or materially differing from 
 the letters patent, will, if the defence be properly raised by the 
 pleadings(A:), and such ambiguity, incorrectness, etc., has not been 
 removed by disclaimer or alteration under the provisions of the 
 several statutes passed for that purpose(0, be sufficient to defeat the 
 plaintiffs claim or avoid the patent(m). Mere generality of the title, 
 however, if not inconsistent with the specification, will not do so, 
 and, indeed, the specification generally limits the description of the 
 patent(?i). Nor, on the other hand, will a small and immaterial 
 variation entitle a person to infringe a patent(o). 
 
 (c) Cannington ». Nuttall, L. R., 5 Bng. & Ir. App. 305. 
 
 (d) Eashtou v. Craivley, L. H., 10 Eq. Ca. 522. 
 
 (e) Campion v. Benyon, 3 B. & B. 12, per Pai-k, J. Bailer J., K. V. Arkwright, Dav. P. Ca. 
 106. CroBsley v. Beverley, 9 B. & C. 63. 
 
 (/) See an to provisional and complete specification, 15 & 16 Vic. c. 83. Thomas v. Welch, 
 L. E., 1 C. P. 192. Exparte Manceaux, L. K.,5Ch. App. 618. 6 Ibid. 272. Ex parte Scott & 
 Young, Ibid 274. 
 
 [g) 15 & 16 Vict. c. 83, s. 27. 
 
 (A) Campion v. Benyon, 3 B. & B. 5. Turner v. Winter, 1 T. E. 602. Simpson v. HoUiday, 
 L E, IH. ofL. 315. 
 
 (i) Savory ». Price, Ey. & Mo. 1. 
 
 (i) See Derosne v. Fairie, 2 C. M. & R. 476. 
 
 (I) 5 & 6 Will. 4, c. 83 ; see s. 1. 7 & 8 Vict. c. 69 ; see ss. 5 & 6. See Ealston v. Smith, 35 L. 
 J , C. P. 49. 
 
 (m) R. V. Wheeler, 2 B. & Aid., 345. Jessop's case, cited 2 H. Bl. 489. 
 
 (») Forsyth's case, 1 Webst. E. 95. 
 
 (0) Gibbs V. Cole, 3 P. Wms. 255. 
 
64 PATENT RIGHT. [Chap. 1. 
 
 A patent cannot be taken out for a principle, but it can for a principle 
 coupled with the mode of carrying the principle into eflEect(p). Although 
 machinery be employed, the machinery may not be of the essence 
 of the invention, but only incidental to it(g'). It follows from this that 
 an invention may be infringed by adopting the same general idea, 
 although carrying it on by different means(r). The invention must be 
 new to satisfy the terms of the statute, yet every novelty is not an 
 invention for which a patent may be granted(s), for it must be of pub- 
 lic utility also. If, however, it be new and useful, it is not material 
 whether it result from long experiment, profound research, and great 
 expense, or whether from some sudden and lucky thought or mere 
 accidental discovery(fi). 
 74 Remedies for infringement— Th& infringement of letters patent is 
 prohibited by a clause contained in the letters patent, and the remedy 
 for such infringement is either by action at law for damages(M), 
 in which action an injunction and an account may now be ordered('B), 
 or by a bill in equity for an injunction, which the court granted for- 
 merly on the principle of the fraudulent interference by the defend- 
 ant with property to which the plaintiff had, at all events, a colorable 
 possessory title(a;), and upon which the Court of Chancery, under recent 
 acts, may now give complete remedy, without sending the applicant 
 to a court of law for redress(2/). The Court of Chancery may also 
 award damages under 21 & 22 Vict. c. 27(z). 
 
 A person is guilty of a breach of patent privilege who, directly or 
 indirectly, by himself or his servants, has used the art or invention 
 which has. been made the subject of the privilege, or applied it in any 
 way for his own profit or benefit(a). And if the defendant has em- 
 ployed means only colbrably different to produce the same or a similar 
 result, yet he is guilty of an infringement if he has, in fact, used the 
 art which is the subject of the privilege(&). 
 
 (p\ Jupe «. Pratt, infra per Alderson, B. 
 
 (g) Boulton v. Watt, 2 H. Bl. 498, per Eyre, C.J. 
 
 (r) Jupe V. Pratt, 1 Webst. E. 146. 
 
 (a) Webster on Patents, pp. 24, 25, Supplement. Ealston v. Smith, supra. 
 
 («) Crane o. Price, 4 M. & G. 605, per Tindal, C.J. 
 
 («) 21 Jao. 1, u. 3, 8. 2. Com. Dig. Patent, E. 2. As to particulars of breaches, 16 & 16 Vict. 
 u. 83, 8. 41. 
 
 (») 15 & 16 Vict. c. 83, s. 42. 
 
 (a) Per Lord Eldoa, 6 Ves. 707. Hill v. Thompson, 3 Mer. 622. Bioltford o. Skewes, i My, 
 & Cr. 500. See post, oh. 23, s. 1. But see CoUard e. Allison, 4 My. & Cr. 487. 
 
 ly) Betts V. Neilson, infra. 
 
 (s) Penn v. Jack, L. E., 5 Bq. Ca. 81. 
 
 (a) Betts e. NeUson, L. E., 3 Ch. App. 429 ; 5 Eng. & Ir. App. 1, in which case the user was 
 simply by transmission through this country. Upman ti. Elkan, L. E., 12 Eq. Ca. 140, ace. 
 
 (ft) Hindmaroh on Patents, 257. See GiUett v. WUby, 9 C. & P. 334; Jupe v. Pratt, tupra. 
 
Sec. 2.] ASSIGNEES AND LICENSEES OF. 65 
 
 The vending of the patented article is prohibited by the terms of 
 the grant, and is, therefore, an infringement, though done in ignor- 
 ance(c); and so is the importation and sale in England of articles 
 manufactured abroad, according to the specification of an English 
 patent((i). But this does not extend to an exposure for sale only(e), 
 nor is the sale of a patented article, as part of the effects of a bank- 
 rupt or deceased person, it would seem, within the objects intended 
 to be prohibited(/). 
 
 The letters patent, so long as they exist, that is, until cancelled by 
 the judgment on a scire facias, entitle the patentee to assert his right 
 at law, although he may have been defeated in other actions(^). 
 
 The unauthorized use of the name of the patentee is made an 
 infringement, and a penalty of 50Z. is imposed for such user by 5 & 6 
 W. 4, c. 83, s. 7. 
 
 Letters patent may be granted for an improvement on an existing 
 patent(^), but the user of such, without a license, or before the expi- 
 ration of the term, would be an infringement on the first patent(i), 
 provided that be useful ; but, although the original patent be useless, 
 and therefore not the subject of an infringement, it does not follow 
 that the improvement upon it is useless(A). 
 75 Remedies for infringement hy assignees and licensees. — ^The letters patent 
 are granted to the patentee and his personal representatives,or assigns(^). 
 The assignments which may be made are of two kinds — either by the 
 act of the party(«2), or by act and operation of law, as in the case of 
 a bankrupt(w) or administrator. Such assignment confers as absolute 
 a title as the patentee himself possessed, and the assignee may sue 
 for any infringement, or file a bill for an injunction, either in his own 
 name only(o), or together with the patentee (if the patentee retains 
 any interest in the patent), for though > the interest be several, the 
 damage by infringement is joint(f)). Each co-owner of a patent, 
 
 (c) Wright V. nitchcock, L. E., 5 Exch. 37. 
 
 id) Elmslie v. Boursier, L. E., 9 Eq. Ca. 217 
 
 (e) Minter v. Williams, 4 A. & E. 251. 
 
 (/) See Sawin «. Guild, 1 GaUison, U. S. E. 435. And see Holmes v. L. & N.gfr. Eail., 
 Macr. P. C. 12, 21 et seg. 
 
 (ff) See E. t). Aikmight, Dav. P. Ca. 61. 
 
 (A) Morris v. Branson, Bull. N. P. 76o. 
 
 (i) Ex parte Fox, IV. & B. 67. 
 
 (,1c) Lewis V. Davis, 3 C. & P. 502. 
 
 (i) See Duvergier v. PeUows 10 B. & C. 829, and form given in the schedule to 15 & 16 Vlot. 
 c. 83. , 
 
 (m) Cartwright t>. Araatt, 2 B. & P. 4S. 
 
 (n) Hesse v. Stevenson, 3 B. & P. S65. 
 
 (0) Bloxam v. Elsee, 6 B. & C. 169. Hassall v. Wright, L. E. 10 Eq. Ca. 609. 
 
 (i>) 2 Wm. Saund. 115, 116a. 
 
 Ad. Vol. I. — 5 
 
66 PATENT BiGST. [Chap. 1. 
 
 however, may sue for an infringement(g'), for he is entitled to all the 
 profit he may make by working it(r). The patentee may also license 
 others to exercise the invention, provided the , terms of the grant 
 authorize such license, and such licenses may be either common or 
 exclusive(s). The only right, however, which such licensee (whether 
 a common or exclusive one) obtains being one of user, he cannot sue 
 for any infringement. He may, however, recover for any special dam- 
 age which he may have sustained from those exercising the invention 
 without license, if the letters pateitt are valid(<). The patentee is 
 estopped from denying the validity of the patent as between himself 
 and his assignee or licensee(w). And so may the assignee or licensee 
 be as between himself and the patentee(a;). As against third persons 
 the assignment must be registered under 15 & 16 Vict. c. 83 (see s. 35), 
 to entitle the assignee to B\\e{y). But as between the assignor anc7 
 assignee, or licensees from the assignor with notice of the assignment, 
 no such registration's, it seems, necessary(z). If the owner of a pat- 
 ent manufactures and sells the patented article both in this country 
 and abroad, the sale of the article in one country implies a license to 
 use it in the other. But if he has assigned it in either country, the 
 article cannot be sold in that country so as to defeat the rights of thd 
 assignee(a). 
 7 Q Pleas — Want of novelty{b) or utility. — Novelty is an essential condi- 
 tion of the grant, for if the invention were not new, one of the main 
 considerations upon which the exclusive use of the invention is granted 
 would fail, and further, there would be no benefit to the public, so 
 that the grant would be void by the common law. If an invention be 
 new in England, a patent may be granted for it, although it was prac- 
 tised beyond sea before((;), and for the purpose of granting a patent 
 the United Kingdom is now one country(d). The novelty may consist 
 in the combination of old materials to produce a new result(e). But if 
 
 (5) Dunnicliff «. MaUet, 7 C. B., N. S. 209. Walton V. Lavater, 8 ib. 162. 
 (r) Mathers v. Groon, L. R., 1 Ch. App. 29. 
 
 («) Protheroe v. May, 5 M. & W. 675. 
 
 if) G^irgo »• Beaumont, eited in Webster on patents, pp. 24, 128. 
 
 (K) Oldham v. Langmead, 3 T. K. 439. 
 
 (x) Baird v. Neilson, 8 CI. & P. 726. Bonnan v. Taylor, 2 A. & E. 278. 
 
 (y) Chollott V. Hoffman, 7 E. & B. 686. 
 
 («) Hassall v. Wright, L. E., 10 Eq. Ca. 609.' 
 
 (n> Betts V. Willmott, L. K., 6 Ch. App. 239. 
 
 (6) See Araory v. 'Rrown, L. E., 8 Eq. Ca. 66Si 
 
 (c) Edgeberry v. Stephens, 2 Salk. 446. • 
 
 (d) 15 & 16 Vict. c. 83, s. 18. This was not so formerly. See Ves. 703, per Lord Eldon, C. , 
 Crown «. Armandalo, 1 Wobst. K. 433. 
 
 («) Cornish v. Kcene, 3 B. N. C. 570. And see Parkes v. Stevens, L. E., 8 Eq; Ca. 358 ; 33 
 - L. J. Ch. 627. 
 
Bee. 2.J KOVELTT AND UTILITY. 67 
 
 any part of an invention comprised in a patent and claimed in the 
 specification be not new, although the remainder is, the patent will be 
 void(/), for the consideration for the grant of a patent being what is 
 termed in law entire, if any part of it fail, the patent is void(p'). If 
 the contrivance, or process, or art (whichever term be used) be new, 
 although applied to an old object, the patent is valid ; but if the con- 
 trivance, or any essential part of it, be old, it is void, although applied 
 to a new object(A). So the mere application of an old contrivance in 
 the old way to an analogous subject, without any novelty in the mode 
 of applying such old contrivance to the new purpose, is not a valid sub- 
 ject-matter of a patent {i), e.g., the substitution of wooden planking on 
 an iron frame for the construction of ships, instead of, as previously, 
 similar planking on a wpoden frame(/i). 
 
 Experiments made. upon the same line, and almost, if not entirely, 
 tending to the same result, although they are known to many persons, 
 if they rest in experiment only, and have not attained the object for 
 which a patent is subsequently taken out — mere e'xperiment, after- 
 wards supposed by the parties to be fruitless, and abandoned because 
 not brought to a complete result — will not prevent another person 
 availing himself of their discoveries, so far as they have gone, and, 
 by adding the last link of improvement, bringing it to perfection(?). 
 The prior use of an invention need not be general ; a single instance 
 would, it seems, suf&ce(m), but it must be public(w) ; and the meaning 
 of public use is this, that a man shall not by his own private inven- 
 tion, which he keeps locked up in his own breast or in his own desk 
 and never communicates, take away the right that another man has 
 to a patent for the same invention(o). It must be new at the time of 
 the graat(p). 
 
 Utility is an essential condition of the validity of letters patent, for 
 a monopoly in an invention altogether useless would be mischievous to 
 the State and to the hurt of trade, and generally inconvenient, by 
 precluding all improvements thereon until the expiration of the 
 
 ;/) Kay e. Marshall, 5 B. 3Sr. C. 192 ; 4 M. & G. 193 «. 
 
 ig) Brunton v. Hawkes, 4 B. & Aid. 511. 
 
 (ft) Losh V. ITayne, 1 Webst. E. 207, per Lord Abingor, C. E. 
 
 ',t) Harwood v. Great Northern Eailway, 35 L. J,, Q. B. 27. 
 
 (fc) Jordan v. Moore, L. E., 1 C. P. 624. 
 
 .1) Galloway v. Bleaden, 1 Webst. E. 629, per Tindal, C.J. 
 
 'm) Carpenter v. Smith, 1 Webst. E 534. Betts v. Neilson, atUe, p. 64. 
 
 (ij) Lewis V. Marling, 4 C. & P. 52. 
 
 (o) Abinger, C. B., in Carpenter v. Smith. 
 , (p) 21,Jac. c. 3, 6. 6. This is otherwise in the United States, whore the question is whether 
 f, was new at the time of the discovery. Phillips on Patents, p. 152 et seq., 188 et seq. 
 
68 STATUTORY BENEFITS AND BURTHENS. [Chap. 1, 
 
 pateiit(g), and if the utility of the invention be denied, affirmative 
 evidence of utility must be given(r). But the utility of part, if on 
 the whole a beneficial effect is produced, will not vitiate. And if a 
 machine be useful in the majority of cases, its inutility in some 
 instances will not vitiate(s). If, however, several distinct inventions 
 are comprised in a patent, and one of them is useless, the whole 
 patent is void, for reasons that have been previously given(i). If the 
 article that is produced by the machine be old, it must be furnished 
 to the public at a cheaper rate, or in some way rende^red a better 
 commodity for trade. The community must receive some benefit from 
 the invention. 
 77 Statutory benefits and bwthens. — A. person who seeks for and accepts 
 some statutory benefit to which a burthen is attached, cannot take the 
 benefit an^ reject the burthen. Where, therefore, the king, for the 
 benefit of the public, has made a grant of any property, benefit, right, 
 or privilege, imposing at the same time certain public duties or obliga- 
 tions, and the grant has been accepted, the public may enforce the 
 performance of the duty by indictment, and individuals peculiarly 
 injured by action(M). When statutory powers and authorities are 
 granted by permissive words, they are permissive only so long as the 
 benefits they confer are not taken under them, for as soon as the 
 grantee takes the advantage of the statute, and acts on their powers, 
 he takes all the burdens attached by those acts to the benefits, and is 
 liable to an action at the suit of any person who has sustained special 
 damage by the non-performance of the statutory duty(«). 
 
 Where a duty is imposed by statute upon a public officer, and no 
 provision is made for the payment of any renunciation, an action is 
 not maintainable upon the statute for the recovery of any remunera- 
 tion(2/). 
 
 (a) Morgan v. Seaward, 2 M. & W. 582, per Parke, B. 
 
 (r) Marton v. Parker, Dav. P. Ca. 337. In the United States it is sufficient, it saems, if the 
 ■invention be not injurious, and may be usel'ul. Bedford v. Hunt, 1 Mason, 302. - 
 («) Haworth v. Hardoastle, 1 B. N. C. 189. 
 it) And see Hill v. Thompson, 8 Taunt. 401, Dallas, J. 
 («) Lyme Regis (Mayor of) v. Henley, 1 B. N. C. 222 ; 2 CI. & Fin. 331. 
 (a) NiohoU V. Allen, 1 B. & S. 916 ; 31 Law J., Q. B. 283. See ante, p. 49. 
 (V) Jones V. Carmarthen (Mayor of, etc.), 8 M. & W. 605. 
 
CHAPTER II. 
 
 OP INFRINGEMENTS UPON RIGHTS NATURALLY INCIDENT TO THE 
 POSSESSION AND OWNERSHIP OP LAND. 
 
 SBCTioif I. — Of the riffht arid burtlien of natural servitude. — Torts arising, from 
 disturbance of rights of servitude — Natural and necessary servitudes — 
 Dominant and servient tenements — Prsedial and urban servitudes — Servitudes 
 accessorial to the drainage of lands — Of the natural servitude of support 
 from adjoining lands — Mutual rights and duties of separate owners of the 
 surface and subsoil — Abridgement of the right and servitude of support by 
 express contract — Transfer of natural servitudes — Torts arising from the 
 diversion of running water — Diversion of water for purposes of irrigation 
 and drainage — Effect of acquiescence in the unlawful diversion of water — Of 
 the right to pen back water — Injuries from the defilement of streams — 
 Disturbance of the permissive use and enjoyment of water — Right to well 
 water — Statutoiy interest of navigation companies in the water of navigable 
 rivers. 
 
 Section II. — Of the remed/y by action and by injunction for infringements of rights 
 incident to the possession and ownership of land. — Direct and consequential 
 injuries— Parties to be made plaintiflFs — Tenant and reversioner — Parties to 
 be defendants — Declaration of the cause of action — Pleadings — Defences — 
 Evidence — Damages — Apportionment of damages as between tenant and 
 reversioner — Injunction to prevent the disturbance of rights incident to the 
 possession and ownership of land — Jurisdiction of the Court of Chancery to 
 prevent infringements of legal rights — Injunction to restrain the diversion of 
 water — Injunction to prevent obstruction to the repair of a watercourse in 
 aiieno solo. 
 
 SECTION I. 
 
 OF THE RIGHT AND BURTHEN OF NATURAL SERVITUDE. 
 
 78 Torts cmsing from the Disturbance of rights of servitude. — We have 
 already seen that every invasion of a man's legal right constitutes a 
 tort or civil wrong, in respect of which compensation in damages is 
 
70 NATURAL SERVITUDES. [Chap. 2. 
 
 recoverable {ante, p. 8) ; and one of the most interesting and important 
 branches of the law of torts is the law regulating the rights, duties, 
 and responsibilities of neighboring landowners, in respect of the use 
 and enjoyment of their respective properties. 
 
 79 Natural and necesmry servitudes. — The unrestricted ownership of 
 property naturally carries with it a right to do whatever the owner 
 pleases with his property,' without regard to the question whether 
 what he does tends to the injury of another or not ; but the common 
 interests of mankind require certain, restrictions to be placed upon 
 this freedom of ownership, to prevent one proprietor from so using 
 and managing his property as to render it a source of injury and annoy- 
 ance to another. Thus, it is impossible for landed property to be 
 beneficially occupied and enjoyed unless one landowner, or occupier, 
 is prevented from damming up or diverting the natural streams and 
 watercourses on his land, and thereby depriving his neighbor of water, 
 which would otherwise naturally flow to him. Neither could land be 
 usefully and beneficially cultivated or enjoyed if one man was allowed 
 to dig pits, mines, or quarries, so near to the boundary of his estate, 
 that his neighbor's land, being deprived of its natural support, would 
 slide down and sink into the hollow(a). 
 
 Every landed estate, therefore, is burthened with a certain duty or 
 service, which it is bound by law to render to the adjoining property. 
 In the Roman law this service was denominated a servitude — a term 
 used to denote both the right and the obligation(5).' The Roman ser- 
 vitude was either affirmative or negative. The affirmative servitude 
 bound th? proprietor to suff'er something to be done on his own land 
 for the benefit of the adjoining estate. The passive servitude merely 
 required him to refrain from doing something, which, if done, would 
 be injurious to his neighbor. 
 
 80 Dominant and servient tenements. — The land on which the burthen 
 was imposed was called the servient tenement, and the estate,orprop-, 
 erty which had the right to the servitude was called the dominant 
 tenement. The existence of the benefit in fa,vor of one property, and 
 the burthen thereby imposed upon another, depended upon the lands 
 being so situate as to render it a necessary adjunct to the beneficial 
 use and enjoyment of the dominant tenement; and the exercise of the 
 
 (al Bonomi v. Backhouse, EU. Bl. & Ell. 659. See Lasala v. Holbrook, 4 Paige 369. 
 
 (6) Item a jure imponitur servitas priediorura vicinorum : scilicet ne quis stagnnm snnm 
 altius toUat, per quod tenementum viciui submergatur ; item ne faciat fossam in suo per 
 quara aquam Ticini divertat, Tel per quod ad alreum suum pristinumrevertinonpossitintoto 
 vel in parte. Braotou, lib. 4. fol. 221. 
 
Sec. 1.] DOMINANT AND SERVIENT TENEMENTS. 71 
 
 right of servitude was confined to what was reasonable and necessary 
 for such enjoyment, and merely accessorial thereto. 
 
 8 1 Prasdial and urban servitudes. — Servitudes among the Romans were 
 further divided into praedial and urban servitudes. The term " prae- 
 dial servitude " was used to denote the burthen imposed upon one 
 field, or parcel of cultivated ground, in favor of the use and enjoyment 
 of another adjoining piece of cultivated land; whilst the term " urban 
 servitude " was applied to the burthens imposed upon houses and build- 
 ings, whether situate in town or country. In the Roman law, through 
 the operation of urban servitudes, one neighbor might be permitted to 
 place a beam upon the wall .of another ; or might be compelled to 
 receive the droppings and currents from the gutter-pipes of another 
 man's house upon his own house, area, or sewer; or might be exempted 
 from receiving them ; or restrained from raising his house in height, 
 lest he should darken the habitation of his neighbor(c). But our own 
 law does not impose any such burthen, ex jure naturas, upon adjoining 
 proprietors ; but the servitude may be established by contract, grant, 
 or prescription {post, ch. 3). 
 
 There are, therefore, two principal classes of servitudes in our law, 
 viz., natural servitudes, which are derived from the situation of places, 
 and are a necessary and natural adjunct to the properties to which 
 they are annexed ; and conventional servitudes, which are founded on 
 contract, and are established by grant or prescription {post, ch. 3). 
 
 The right and burthen of natural servitude are contemporaneous 
 with the right of property itself(d). 
 
 82 Natural and necessary servitudes accessorial to the drainage of land. — 
 Land cannot be cultivated or enjoyed unless the springs which rise on 
 the surface and the rains that fall thereon be allowed to make their 
 escape through the adjoining and neighboring lands. All lands, there- 
 fore, are of necessity burthened with the servitude of receiving and 
 discharging all waters which naturally flow down to them from lands 
 on a higher level ; and if the owner or occupier of the lower lands 
 interposes artificial impediments in the way of the natural flow of the 
 water through or across his lands, and by so doing causes the higher 
 lands to be flooded, he is responsible in damages for infringing the 
 natural right of the possessor of such higher lands to the natural out- 
 fall and drainage of the soil, unless he has gained a right to pen back 
 water by contract, grant, or^ prescription, in the manner presently 
 
 (c) Instit. lib. 2, tit. 3, a. 1. 
 
 (d) Pardessus, Tr. des. Serv. Introduction, 1, 
 
72 NATURAL SERVITUDES. [Chap. 2 
 
 pointed out {post, p. 80)(e). So if the proprietor of the higher lands 
 alters the natural condition of his property, and collects the surface 
 and rain-water together at the boundary of his estate, and pours it in 
 a concentrated form, and in unnatural quantities upon the land below, 
 he will be responsible for all damage thereby caused to the possessor 
 of the lower lands(/). 
 
 ' Every land proprietor has, ex jure natura, a right to the continued 
 flow of natural streams and rivulets running through his land, and a 
 right to the reasonable use of the ^'ater of such streams. Lands, 
 therefore, through which a natural stiieam flows, are burthened with 
 the servitude of receiving. and transmitting the waters of the stream 
 to the lower land ; and the possessor of the land, throtfgh which the 
 stream runs, is clothed with the duty of keeping the channel and bed 
 thereof free from artificial and unnatural obstructions. 
 
 In the Roman law, we find that every proprietor of land is enjoined 
 to refrain from doing anything on his land to impede the natural 
 flow of water from the high land to the land below, whilst the pro- 
 prietor of the higher land is prohibited from sending, by means of 
 artificial contrivances, larger quantities of water on to the lower land 
 than would naturally flow there, or altering the course of streams and 
 giving a new direction to the surface water, to the prejudice of the 
 proprietor of the lower land(5'). 
 
 In the Code Napoleon, under the head of " Servitudes derived from 
 the Situation of Places" we read, that " All lower lands are subjected, 
 as regards those which are higher, to receive the waters which flow 
 naturally therefrom, to which the hand ' of man has not contributed. 
 The proprietor of the lower ground cannot raise a bank which shall 
 
 (e) Shury v. Piggot, 3 Bulstr. 340., Chasemore v. Rich.ards, 7 H. L. C. 319 ; 29 Law J., Exoh. 
 81 , Dig. lib. 39, tit. 3. In a late case decided in Wisconsin, Chief Justice Dixon denies the 
 existence, at common law, of such natural easement or servitude in favor of the owner of the 
 superior or higher ground or fields as to mere surface water, or such as falls or accumulates 
 by rain or the melting of snow ; and declares that at common law the proprietor of the in- 
 ferior or lower tenement or estate may, if he chooses, lawfully obstract or hinder the natural 
 flow of such water thereon, and in so doing may turn the same back upon, or off, on to, or 
 over the lands of other proprietors without liability for injuries ensuing from such obstruction 
 or diversion. Hoyt v. City of Hudson, 27 Wis. 656. This is the rule in Maine, Massachusetts, 
 Kew York, Connecticut, Vermont, New Jersey and New Hampshire. Sweet v. Cutts, 50 N. 
 H. 439 ; Goodale v. Tuttle, 29 N. Y. 459 ; Wagner v. Long Island E. K. Co., 5 Sup. Ct. (N. Y.) 
 163 ; Trustees of the village of Delhi v. Youmans, 60 Barb. 316 ; Waffle v. N. Y. Central R. E., 
 58 id. 413 ; Baugor v. Lausil, 61 Me. 521 ; Bowlsby v. Speer, 31 N. J. Law K. (2 Vroom.) 351 ; 
 Dickenson v. Worcester, 7 Allen, 19 ; Parks v. City of Newburyport, 10 Gray, 29 ; Chatflold v. 
 Wilson, 28 Vt. 49. See Earl v. De Hart, 1 Beasley (N. J.), 280. 
 
 (/) Sharps v. Hancock, 8 Sc. N. E. 46. See Harrison v. Great Northern R. Co., 33 Law J., 
 Exch. 267 ; Miller v. Lanback, 47 Penn. St. 164 ; Adams v. Walker, 34 Conn. 466. See Petti- 
 grew «. Village of Evansville, 25 Wis. 223. 
 
 {g) Pardessus, part 2, ch. i. s. 1. Obligations qui conoernent les eaux. Dig. lib. 8, De Ser- 
 vitutibus. 
 
Sec. l.J OF SUPPORT. 73 
 
 prevent such flowing, nor can the superior proprietor of the higher 
 lands do anything to increase the servitude of the lower lands "(Ji). 
 
 83 Statutory 'powers for the improvement of the drainage of lands for 
 agricultural purposes have recently been conceded or extended to 
 various drainage boards, or public bodies facilitating the removal of 
 weirs, dams, and obstructions in streams and rivers, and the granting 
 of compensation to the owners of them ; the deepening, cleansing, 
 repairing, and maintaining watercourses or outfalls for water, and 
 walls and defences against the inroads of water, and the making and 
 maintaining of new drains, watercourses and outfalls(i). Power is 
 also given to private owners to procure outfalls(^). 
 
 84 Of the natural servitude of support from, adjoining lands. — Every 
 proprietor of land is entitled of common right to such an amojjnt 
 of lateral support from the adjoining land of his neighbor as is 
 necessary to sustain his own land in its natural state, not weighted 
 by walls or buildings(Z). If the land has been weighted by super- 
 structures, the landowner who has thus weighted his land is not 
 entitled, ex jure natures, to the additional support from his neigh- 
 bor's soil, necessary for the maintenance of the buildings, for one 
 landowner cannot by altering the natural condition of his land by 
 erecting buildings thereon, deprive his neighbor of the privilege 
 of using his land, as he might have done before(»i). But where 
 the houses are ancient, and the ad.ditional support required by them 
 has been enjoyed for twenty years, the owner will, in general, have 
 acquired a right to the continued enjoyment of such additional sup- 
 port(w). 
 
 (7i) Cod. Nap. No. 640, 642. Hoyt v. City of Hudson, 27 Wis. 656. This is the rule it. 
 Louisiana (Hooper v. Wilkinson, 15 La. An. 497 ; Burrow ». Landry, 15 La. An. 681) ; and it 
 seems to be the mle in Pennsylvania, Iowa, Illinois, and, perhaps, in Missouri and Ohio. 
 Kaufmann v. Grieamer, 26 Penn. St. 407 ; Martin v. Riddle, id. 415 ; Livingston v. McDonald, 
 21 Iowa, ISO ; GiUham ». Madison Co. E. K. Co., 49 111. 484 ; Laumier v. Francis, 23 Mo. 181 ; 
 Butler V. Peck, 16 Ohio St. 334. 
 
 (j) See 10 & 11 Vict. u. 38, 24 & 25 Tict. c. 133, and 32 & 33 Vict. c. 72 ; Griffiths v. Langdon 
 and Ellersfleld Drainage Board, L. R., 6 Q. B. 738. As to Ii-eland, 26 & 27 Viot. u. 88 ; 27 & 
 28 Vict. 0. 72, and 28 and 29 Vict. c. S2. 
 
 (*) 24 & 25 Vict. c. 133, 8. 72, et seq. 
 
 {I) Humphries ». Brogden, 12 Q. B. 744. Solomon ». Vintners' Company, 4 H. & N. 585 ; 28 
 Law J., Exch. 370. See Murchie v. Black, post, p. 76 ; Farrand v, Marshall, 21 Barb. 409 ; 
 Lasala v. Holbroolc, 4 Paige, 169. 
 
 (m) Wyatt v. HaiTison, 3 B. & Ad. 875. Partridge v. Scott, 3 M. & W. 220. Lasala v. Hol- 
 brook, 4 Paige, 169. Thurston o. Hancock, 12 Mass. 220. Eadcliff's Executors v. Mayor, etc., 
 of Brooklyn, 4 N. T. 195. 
 
 (71) Hunt V. Peake, 1 Johns. 710 ; 29 Law J., Ch. 785. In the Roman law, under the head of 
 legal restrictions upon rights of property, we find that no proprietor of land was permitted to 
 excavate on his ovm land so as to endanger his neighbor's building ; but that every man 
 erecting a new building was bound to place the new structure a certain distance from his 
 neighbor's boundary. 
 
74 NATURAL SZRVITVDES [Chap. 2.' 
 
 In an old case in Rolle's "Abridgement," it is said, that "if A be 
 seised in fee of copyhold land closely adjoining the land of B, and A 
 erect a new house upon. his copyhold land, and any part of his house 
 is erected on the confines of his land adjoining the land of B, if B 
 afterwards dig his land so near to the foundation of the house of A, 
 but not in the land of A, that by it the foundation of the messuage, 
 and the messuage itself, fall into the pit, still no action lies by A 
 against B, inasmuch as it was the fault of A himself that he built his 
 house so near the land of B, for he oannot by his own act prevent B 
 from making the best use of his land that he can : but it seems, that 
 a man who has land closely adjoining my land, cannot dig his land so 
 near mine that mine would fall into his pit ; and an action brought 
 for^uch an act would lie "(o). 
 
 If a man digs a well on his own land so close to the soil of his 
 neighbor as to require the support of a rib of clay or stone in his 
 neighbor's land to retain the water in the well, no action will lie 
 against the owner of the adjacent land for digging away such clay or 
 stone which is his own property, and thereby letting out the water, 
 unless a prescriptive right to the use of the water has been gained by 
 twenty years' uninterrupted enjoyment(p). 
 85 Of the natural servitude of support from the subsoil to the surface of land, 
 when the surface and subsoil constitute separate freeholds vested in different 
 proprietors — Mutual rights and duties of separate owners of the surface and 
 subsoil. — The possession of the surface of land may be in one man and 
 the subsoil in another, by separate grants from the owner of the inherit- 
 ance ; or the owner may grant the surface to another to be cultivated 
 and enjoyed, reserving to himself a right to the subsoil, and to all 
 stones and minerals beneath the surface? When land is so held each 
 proprietor is possessed of a " close," and has a separate and distinct 
 freehold. If the owner of land grants the subsoil, reserving the sur- 
 face to himself, he impliedly grants reasonable means of access to the 
 subsoil, and the grantee would have a right to go upon and dig 
 through the surface, to enable him to reach the subsoil, if he had no 
 other means of access thereto. But the owner of the subsoil may main- 
 tain an action against the owner of the surface if he digs holes in the 
 
 (o) Wilde V. Minstorloj-, 2 Roll. Abr. 565. See Radoliflf's Executors v. Mayor, etc., of Brook- 
 lyn, i N. Y. 195, 202. 
 
 (J)) Tlnilal, C. J., Acton v. Blundell, 12 M. & W. 353. Eeg. v. Metrop. Board, 32 Law J., Q. 
 B. 110. The rale stated in the text might not apply if the excavation was made maliciously 
 and with a view to destroy the neighbor's well. See Wheatley v. Baugh, 25 Penn. St. 532 ; 
 SwoM V Cutts, 50 X. H. 439 ; Greenleaf v. Francis, 18 Pick. 117 ; Eoath v. Driscoll, 20 Conn. 
 633 ; but see Chatfield v. Wilson, 28 Vt. 49 ; and see post, oh. 3. 
 
Sec. l.J OF SVPFOET. 75 
 
 subsoil to a greater extent than is reasonably necessary for the proper 
 and fair use, cultivation and enjoyment of the surface(5); and the 
 owner of the surface may, on the other hand, maintain an action 
 against the owner of the subsoil if the latter carries on his mining and 
 subterranean operations so as to interfere with the fair use and enjoy- 
 ment of the surface in accordance with the ancient maxims, "pro- 
 hibetur ne quis faciat in suo quod nocere possit alieno," and, "sic 
 utere tuo ut alienum non laedas "(r). 
 
 The owner of the surface, therefore, is entitled of common right to 
 the support of the subjacent strata, so that the owner of the subsoil 
 and minerals cannot lawfully remove them without leaving support 
 sufficient to maintain the surface in its natural state(s). This is a 
 rule of law founded on natural justice, and is a restraint on the exer- 
 cise of dominion over property essential to the beneficial occupation 
 and enjoyment of the soil. If land not granted expressly for building 
 purposes is weighted with buildings, the owner of the surface has no 
 right to the additional support necessary for the maintenance of the 
 buildings, until he has acquired the right by grant or prescription 
 (pnst, ch. 3); so that if the owner of the subsoil in working mines 
 leaves sufficient support for the surface, but the land sinks in con- 
 sequence of the weight of the buildings that have been placed upon 
 it, the owner of the subsoil is not responsible for the damage done(;;). 
 But if the weight of the buildings has in no way caused the' sinking 
 of the laud, and the land would have fallen in whether buildings had 
 been erected on it or not, the building on the land becomes quite 
 immaterial, and the defendant is responsible in damages to the extent 
 of the injury done to both houses and land(M). 
 
 Upon every demise of mineral or other subjacent strata the lessor 
 impliedly retains his right of support from the subsoil to the surface, 
 
 (ff) Cox V. Glue, 5 C. B. 551. 
 
 («■) Wilkinson v. Proud, H M. & W. 33. KowlJOtham v. Wilson, 8 Ell. & Bl. 142 ; 8 H. L. C. 
 3.59 ; 30 Law J., Q. B. 965. The rule is otherwise in California, where the rights of the settler 
 on mineral lands for the purpose of agriculture are by statute made suhjeot to the rights of 
 the miner. McClintock v. Bryden, 5 Cal. 97. As to the i-ule in Pennsylvania, see Jones v 
 Wagner, 66 Penn. St. 439. 
 
 (s) Humphries v. Brogden, 12 Q. B. 739; 28 Law J., Q. B. 10. Smart V. Morton, 5 Ell. & 
 Bl. 47 ; 24 Law J-, Q. B. 260. Koherts v. Haines, 27 ib. Exch. 49. As to copyhold .allotted 
 under an Inclosure Act, see Wakefleld «. Duke of Buccleugh, 36 Law J., Ch. 763. L. E. 4 
 Eq. Ca. 613. 4 Engl. & Ir. App. 377. Post, ch. 3, sec. 2. 
 
 V) Backhouse v. Bonomi, 9 H. L. C. 503 ; affirming Bonomi v. Backhouse, Ell. Bl. & Ell. 
 W3 ; 28 Law J., Q. B. 378. . 
 
 (m) Broivn v. Eobins, 4 H. & N. 191 ; 28 Law J., Exch. 250. Rogers v. Taylor, 2 H. & N. 
 828 ; 27 Law J., Exch. 175. Hamer v. IQiowles, 6 H. & N. 454; 30 Law J., Exch. 102. Hunt 
 V. Peake, 1 Johns. 712 ; 29 Law J., Ch. 785. 
 
76 NATURAL SEBVITVDES. [Chap. 2. 
 
 in the absence of express words showing distinctly that he has waived 
 or qualified his right(c). 
 
 If the owner of the subsoil excavates it' without leaving proper 
 support for the surface, the owner of the surface has no right of 
 action until some actual damage has been sustained by him. " If 
 that were not so, the owner of the subjacent land could not abstract 
 the minerals, nor avail himself of the full benefit of his property, 
 without being liable to an action ; though, before any damage had ac- 
 tually occurred he had, by substitftting other means of support, re- 
 moved all danger of injury to the plaintiffs property. This would be 
 wholly inconsistent with the right of the proprietor to use his property 
 as he pleases, provided he does not injure that of his neighbor "(a;). 
 
 86 Abrulgement of the right and servitude of support Iry express contract. — 
 If the owner of land with subjacent mines grants away the mines, 
 together with the power of raising the minerals, without regard to 
 any injury done thereby to the surface, such a grant would, it seems, 
 be good, and would bind the inheritance, and his estate in the surface 
 would pass to his assigns, abridged to that extent of the right of sup- 
 port from the minerals. Hence it seems to follow, that it is competent 
 for the owner of the surface of land effectually to curtail by grant, in 
 favor of the owner of subjacent mines, the right to support therefrom(y). 
 And similarly where a man sells a portion of his land, or the whole of 
 his land in several lots, he may by the stipulations contained in the 
 conditions of sale deprive himself, or his vendee, as the case may be, 
 of the right to lateral support from the adjoining land(z). However, 
 where a man sold land adjoining his own, and the vendee covenanted 
 by a separate deed that the vendor should not be liable for any sub- 
 sidence of the land sold, created by the vendor working the mines 
 under his own land adjoining, it was held that the vendor was, never- 
 theless, liable for such subsidence to persons who had purchased the 
 land from the original vendee without any notice of the deed(a). 
 
 87 Transfer of natural servitudes. — Natural servitudes derived from the 
 situation of places are regarded as appurtenant to the lands for whose 
 benefit they exist, so that they cannot be alienated from the land, and 
 
 (o) Dugdale v. Eobertson, 5 Kay & J. 700. 
 
 (w) Per Wightman, J., Bonomi v. Backhouse, Ell. Bl. & Ell. 637 ; aflirmed ib. 648 ; 28 Law 
 J.,Q. B. 378.- 
 
 (yr EoTV'Uotham v. Wilson, 8 Ell. & Bl. 123 ; 27 Law J., Q. B. 64 ; 8 H. L. C. 369 ; 30 Law J., 
 Q. B. 965. 
 
 (z) Marchie ». Black, 34 Law J., C. P. 337. 
 
 (a) Eiohavcls v. Harper, L. E., 1 Exoh. 199. In this case the land sold was copyhold, and 
 the deed was not entered on the court rolls, but the court would, it seems, hare deoWed in 
 the same way (diss. Pollock, C. B.) had the land been freehold. 
 
Sec. 1.] BIGST TO WATMB — RIPARIAN PROPRIETORS. 77 
 
 cannot be transferred from one person to another as benefits and priv- 
 ileges in gross. Being annexed to the land itself, the right to exercise 
 them passes with the land to every owner and possessor of the domi- 
 nant tenement. 
 
 88 Torts arising from the diversion of running watei: — Every landed pro- 
 prietor has a right to use the water of a natural stream flowing along 
 his land for any reasonable purpose of his own, not inconsistent with 
 a similar right in the proprietors of the land above and below ; he can- 
 not seriously diminish the quantity nor deteriorate the quality of the 
 water which would otherwise descend, if by so doing he deprives 
 another riparian proprietor of the beneficial use of the water, unless 
 he has gained a title, by grant or prescription, so to use the water(&). 
 But an artificial rivulet created by the drainage and pumping of a 
 colliery may be diverted before it flows into the natural stream, and 
 the proprietor on the banks of the natural stream will have no right of 
 action for the diversion of that water(c). So, conversely, where a canal 
 company has for many years diverted water from a stream, above the 
 plaintiffs land, and has subsequently restored it, the plaintiff cannot 
 complain of damage resulting from a flood caused by such restoration(c^). 
 
 89 A right to the use and enjoyment of a natural watercourse and 
 water is not affected by reason of the supply of water being uncertain 
 and precarious, and dependent upon the dryness or humidity of the 
 season. The intervention of a single dry season or of a series of dry 
 seasons, cutting off all the water for a shorter or a longer period, 
 cannot deprive a person of his right to the water when it re-appears 
 again in its ancient channel. Where a natural stream, which had its 
 rise in land of the defendant, whence it flowed by an underground 
 channel to a lane dividing the defendant's land from the plaintiflfs, 
 meandered a little way down the lane before it entered the plaintiffs 
 land, and the plaintiff slightly varied the ancient channel, by making 
 a straight cut across the lane from the spout under the defendant's 
 hedge to his own premises, it was held that his right to the water was 
 not affected by so slight an alteration of the natural channel(e). 
 
 Diversion of water for purposes of irrigation and drainage. — If a man 
 
 (5) Embrey v. Owen, 6 Exch. 370. Mason ». Hill, 5 B. & Ad. 13. Chasemore v. Eiehards, 
 7 H. of L. Ca. 349 ; 26 Law J., Exch. 401. Holaman v. Boiling Spring etc., Co. 1 McCartei- 
 (N. J.) 335. McCallum v. Gerraantown Water Co. 54 Penu. St. 40. Cowles v. Kidder, 4 Foster 
 (N. H.)364. Davis «. Fuller, 12 Vt. 178. Brown ». Bowen, 30 N. T. 519. Clinton ». Myers, 4B 
 N. Y. .511. 
 
 (c) Wood V. Waud, 3 Exch. 779. 
 
 (d) Mason v. Shrewsbury and Hartford Railway, L. E., 6 Q. B. 678. 
 
 (e) Hall V. Swilt, 6 So. 169. Dig. lib. 8, tit. 3, 1. 35. 
 
78 NATURAL SERVITUDES. [Chap. 2. 
 
 places a temporary bar or weir across a stream in order to turn it into 
 his own land for purposes of irrigation and by that means seriously 
 diminishes the current to the prejudice of a riparian proprietor lower 
 down the stream, it is no answer to an action by the latter for damages 
 to set up that the water was only temporarily arrested by the defend- 
 ant for the purpose of enabling him to irrigate his land(/). The right 
 of the possessor of land through which a natural stream flows to use 
 the water of the stream for irrigation and for manufacturing purposes, 
 depends upon the particular circumstances of each case, upon the 
 volume of the stream, the extent of the loss of water from evaporation 
 or absorption, and the amount of injury inflicted thereby upon other 
 riparian proprietors. " On the one hand, it could not be permitted 
 that the owner of a tract of many thousand acres of porous soil abut- 
 ting on one part of the stream should irrigate them continually by 
 canals and drains, and so cause a serious diminution of the quantity 
 of water; and, on the other hand, one's common sense would be 
 shocked by supposing that a riparian owner could not dip a watering- 
 pot into the stream in order to water his garden. It is entirely a 
 question of degree, and it is impossible to define precisely the limits 
 which separate the reasonable and permitted use of the stream from 
 its wrongful application"(p'). 
 
 In the case of casual and intermittent surface waters not running 
 in any defined channel, but spreading themselves over the surface of 
 the land, there is nothing to prevent the landowner from dealing- with 
 them as he pleases(/2), but he must not divert the perennial supply of 
 water from a spring-head, or prevent it from flowing by a natural 
 channel to the lands below(i). He has no right by any system of arti- 
 
 {/) Sampson!). Hocldinott.l. C.B.,N.S. 612. See Miller «. MiUer, 9 Bftrr. 74 ; Cook V.Hull, 
 3 Pick. 269. The owner of land lying along an ancient watercourse has as a general rule a 
 right to use or divert the stream I'or the purpose of irrigating his land provided he returns 
 the surplus to its ancient channel. Weston v. Alden, 8 Mass. 136. And does not seriously 
 diminish the volume of the stream. Blanchard v. Baker, 8 Grecnl. 253. Stem v. Burden, 29 
 Ala. 127. Evans v. Merriweather, 3 Scam. 492. But he has no right to so divert the stream for 
 the purpose of irrigation as to impede the operation of a mill below, of forty years' standing. 
 Cook V. Hull, 3 Pick. 269. Nor can he lawfully detain the surplus. Anthony ». Lapham, 
 5 Pick. 175. Perkins v, Dow, 1 Root, 535. And if the stream is not of sufficient volume to 
 supply the natural wants of all the owners of the land lying along its banks, none of the pro- 
 prietors can lawfully use it for irrigation or for maufaoturing purposes, Evans v. Merri- 
 weather, 3 Scam. 492. And see Perren v. Knipe, 28 Cal. 340 ; Arnold v. Foot, 12 Wend. 330. 
 • (^) Embrey «. Owen, 6E.\cli.372. Minerc. Gitaiour, 12Moore, P. C. C.156. Norbury (Lord) 
 V. Kitchiu, 9 Jur. N. S. 132. -See Parker v. Hotchkiss, 25 Conn. 321; Wadsworth v. Tilletson, 
 15 Conn. 366 ; Thomas v. Brackney, 17 Barb. (N. Y.) 654. 
 
 Qi) Brofldbent v. Ramshotham, 11 Exch. 617 ; 25 Law J., Exch. 115 ; Luther v. Winnisimmet 
 Co., 9 Cush. 174; Ashley «. Wolcott, 11 id. 192; Prazier v. Brown, 12 Ohio St. 294; ^weete. 
 Cutts, 50 N. H. 439. 
 
 (i) Ennor v. Barwell, 2 Giff. 424. Brown v. Best, 1 Wils. 174. Dndden v. Guardians of 
 Clutton Union, 1 H. & N. 627 ; 26 Law J., Exch. 146. Where a spring rises on the land of ona 
 
Sec. 1.] SIGST TO WATER — RIFABIAN PROPRIBTOItS. 79 
 
 ficial drainage to cut off the natural visible supply of surfece-water 
 from ancient water-courses and rivulets ; and he ought so to arrange 
 his drains as to restore the water at the boundary of his estate to its 
 ancient channels, that the lands situate on a lower level may not be 
 deprived of their natural supply of the precious element, for a man 
 has no right, as we have seen, to make improvements on his land 
 which produce injury to his neighbor(J). 
 
 By the French law, the proprietor of a field in which a spring rises 
 or through which it flows, is not entitled to take and appropriate to 
 his own use the whole of the water, or divert it from other proprietors 
 of lower fields through which the water flows. He cannot change the 
 course of the strea.m, or materially diminish the ancient supply of 
 water ; but every proprietor of land bordering on a running stream 
 may use it for the purpose of irrigating his land, and when his estate 
 is intersected by such water, he may divert it for purposes of irriga- 
 tion, on condition that he restores it at the boundary of his projDerty 
 to its ordinary channel ; and in all disputes respecting the right to 
 take water from running streams, the courts are enjoined to reconcile 
 as much as possible the interests of agriculture with the respect due to 
 property and the rights of individuals(A). 
 90 Effect of acquiescence in the unlawful diversion of water from a running 
 stream. — If a portion of a natural stream has been unlawfully diverted 
 for the supply of a mill, causing an injurious diminution in the flow 
 of water to the proprietors lower down the stream, such proprietors 
 must interrupt the unlawful enjoyment of the diverted water by taking 
 
 person anrl flows by a natural channel to the land of another, the owner of the Land contain- 
 ing the spring has no right to divert the stream although ho may need the water for his own 
 use. Arnold v. Foot, 12 Wend. 330. Chatfleld v. Willson, 27 Vt. 670. But a landowner may 
 la^vfully prevent water from reaching the spring or open running stream on the lands of 
 another, by intercepting its percolation or underground currents, if the act is for liis benefit 
 and not done in malice. Village of Delhi v. Youmans, 45 N. T. 363. Pixley v. Clark, 35 N. 
 Y. 520, 627. Ellis w. Duncan, 21 Barb. (N. Y.) 230. Boath ii. DriscoU, 20 Conn. 333. Goodale 
 V, Tuttle, 29 N. Y. 459. Chatfleld v. Wilson, 28 Vt. 358, Greeuleaff. Francis, 18 Pick. 117. 
 Wheatley v. Baugh, 25 Penn. St. 528. Haldeman v, Bructhart, 45 id. 518. Parker v. Boston 
 & Maine E. H. Co. 3 Cush. 107. Hosier ».' Caldwell, 7 Nev. 363. But the landowner's right to 
 divert or obstruct water percolating through tlie soil is limited to what is necessary in the 
 reasonable use of his laud. Bassett ». Salisbury Manufacturing Co., 43 N. H. 6S9. Swett v. 
 Cults, 50 N. H. 439. And cannot be exercised maliciously, and without justifiable purpose. 
 M'heatley v. Baugh, 25 Penn. St. 528. Eoath v. DriscoU, 20 Conn. 633. Greenleaf «. Francis, 
 18 Pick. 117. Butsee Chatfiold v. Wilson, 28 Vt. 49. 
 
 (,)■) Briscoe v. Drought, 11 Ii-. C. L. E. 250. See ante, p. 3. 1 Hilliard on Torts, p. 689, et seq. ; 
 and ^o.?*, p. 93 ; Enuor o. BanveU. A proprietor has an absolute right to drain the surfivce 
 water upon Ills land into a sti'eam which is its natural outlet, through ditches constructed 
 upon his own land, although the quantity of water in the stream is thereby increased in 
 times of high water and diminished at other times. WaDle v. New York Central E. E. Co., 
 63 N. Y. 11 ; Gannon v. Hargadon, 10 Allen 106 ; MiUer v. Laubaeh, 47 Penn. St. 154, 
 
 (A) Cod. Nap. Uv. 2, No. 640-045. 
 
80 NATURAL SERVITUDES. [Chap. 2. 
 
 * 
 
 legal proceedings against the wrong-doer, in order tc> prevent the 
 injurious act from being eventually converted into a vighi{post, eh. 3). 
 If the wrong-doer is convicted and fined, or a verdict is obtained 
 against him in an actio^, the convictioni and record of the proceedings 
 show conclusively that the enjoyment was interrupted, and that there 
 was no acquiescence in the unlawful use of the water(Z). 
 
 910/ the right to pen hack water. — ^A landowner may put a pen stock on 
 his own grounds, and pen the water there as he will, until he has done 
 damage to his neighbor. " Until you prejudice your neighbor by pen- 
 ning back the water, you do that which you have a right to do ; but 
 where you begin to injure your neighbor, there your right to pen back 
 terminates "{m), unless you have penned back under a title by grant 
 or prescription(pos<, ch. 3). No action will lie for diverting or throw- 
 ing back the water, except by a person who sustains actual injury 
 therefrom(w). But the person by or over whose land the stream passes, 
 must not shut the gates of his dams and detain the water unreason- 
 ably, or let it off in unusual quantities to the prejudice of his neighbor. 
 The just and equitable principle is given in the Roman law : " Sic 
 enim debere quem meliorem agrum suum facere, ne vicini deteriorem 
 faciat "(o). If the user by the defendant has been beyond his natural 
 right, and is injurious to the natural rights of the plaintiff, an action is 
 maintainable, unless the user is sanctioned by grant or prescription(p). 
 
 02 Injuries from the defilement of streams. — Every riparian proprietor 
 has a right to the flow of the stream through his land in its natural 
 purity ; and if a riparian proprietor higher up the stream throws dirt 
 and ashes, or gas refuse into it, so as to defile the water and render it 
 unfit for use, to the damage of another riparian proprietor who has 
 
 (Z) Eaton v. Swansea Water Co., 17 Q. B. 267. No acquiescence in the diversion of a water- 
 course for a less period tliau that required by law to give a right by prescription will repel 
 the presumption that the diversion was in hostility to the rights of the riparian proprietors, 
 or authorize the presumption either of grant or of license. Haight v. Price, 21 N. Y. 241 ; Gloa- 
 Bon V. Tuttle, 46 Me. 283. And no prescription runs in favor of the continuance of such diver- 
 sion or obstruction, until the owner of the land below has been injured by the diversion and 
 thereby gained a right of action. Norton v. Volentine, 14 Vermont 2S9 ; Holsman v. Boiling 
 Spring, etc. Co., 1 McCarter {N. J.) 335. 
 
 (m) Lawrence, J., Cooper o. Barber, 3 Taunt. 108. ■ Brown v. Bowen, 30 N. T. 519 ; Boi'man 
 V. Ames, 12 Minn. 461 ; Haas v. Chousard, 17 Texas 588 ; McCoy v. IJanley, 20 Penn. (8 Harris) 
 85 ; Hen(lriok v. Cook, 4 Geo. 241 ; Hill v. Ward, 2 GiUman, 285. 
 
 (n) Wright v. Howard, 1 Sim. & Stu. 203. Williams v. Morland, 2 B. & C. 910. But see 
 Harrop v. Hirst,po««, p. 90. See also Bickett v. M.orna,post, ch. 6, s. 2; Hilliard on Torts, 
 p. 115. But see Branch v. Doane, 18 Conn. 233 ; Norton v. Volentine, 14 Vt. 239 ; Holsman V. 
 Boiling Spring, etc. Co., 1 McCarter (N. J.) 335. 
 
 (o) Parke, B., Embrey ». Owen, 6 Exch. 371. 
 
 (p) Sampson v. Hoddinott, 1 C. B., N. S. 612 ; Pixley v. Clark, 35 N. T. 520 ; AngeU on 
 Watercourses, f 330 ; Eadcliff 's Executors v. Mayor, etc., of Brooklyn, 1 N. Y. 195, 199. Sea 
 post, ch. 3. 
 
Sec. 1.] BIGHT TO WATER — RIPARIAN PROPRIETORS. 81 
 
 been in the habit of using the water, an action is maintainable for the 
 injury(g), unless an advferse right has become vested in the other by- 
 grant or prescription. And it would seem that an action may be 
 maintained without proving damage, for such pollution would, if 
 allowed to continue, become a right(r). A right to foul a stream with 
 all sorts of refuse may, as we shall presently see, be established by 
 proof of the continued and uninterrupted use of the streani as a drain 
 and sewer for twenty years(s). 
 93 Disturbance of the permissine use and enjoyment of water. — A land- 
 owner or occupier of a house who receives permission from an adjoin- 
 ing landowner to draw water from the premises of the latter through 
 a pipe or watercourse, is entitled to an action for damages if the 
 water is fouled by a wrong-doer, and damage is sustained by him 
 from the fouling of the water. Though there may be no right on the 
 part of a plaintiff to have water flow to his premises, yet if -the water 
 does come, and the defendant fouls it without having any right so to 
 do, and so causes foul water to flow into the plaintiff's premises, and 
 the plaintiff sustains damage therefrom, and the defendant cannot 
 justify, the plaintiff will be entitled to recover all the damage he 
 has sustained from the wrongful act. The plaintiff in such a case 
 relies upon no title to the water as a riparian proprietor, but merely 
 alleges that he was lawfully in the enjoyment and use of water flow- 
 ing through his premises in a pure and unpolluted state, and that 
 the defendant wrongfully fouled ii{f). 
 
 It seems doubtful whether a riparian proprietor can grant his right 
 to the flow of water to a person who is not a riparian proprietor, so 
 as to give such grantee a right of action against a proprietor higher 
 up the stream for the diversion or fouling of the water(M). But two 
 adjoining riparian proprieters may clearly agree to divide the stream 
 into two channels in the land of the higher owner by making an 
 artificial cut, by which the water reaches -a mill situate on the land 
 
 (g) Murgatroyd v. Eobinson, 7 Ell. & BI. 391 ; 26 Law J., Q. B. 233. Holsman ». Boiling 
 Spring, etc., Co., 1 McCarter (N. J.) 335. Carhai-t v. Anbum Gas Light Co., 22 Barb. (N. Y.) 
 237. Wbeatley v. Chrisman, 24 Penn. St. 298. .Lewis v. Stein, 16 Ala. 214. Davis v. Lambert- 
 son, 5B Barb. (N. Y.) 480w See Snow v. Parsons, 28 Vt. 459 ; Jacobs v. Allard, 42 Vt. 303 ; Mer- 
 rifleldc. Lombard, 13 Allen (Mass. 116. See po»*, ch. 4, s. 1. Nuisances. 
 
 (r) See Crossley v. Lightowler, L. R., 3 Eq. Ca. 290 ; 2 Cb. App. 478. 
 
 («) See post, chs. 3,4. ' 
 
 («) Laing V. Whaley, 3 H. & N. 685, affirming Whaley v. Laing, 2 H. & N. 476. It has been 
 held m Illinois, that one who has only a parol license to use a well, cannot maintain an action 
 against one who has rendered the water unfit for use. Ottawa Gas Light Co. v, Thompson, 
 •39 El. 598. 
 
 «) Stockport Waterworks Co. v. Potter, 3 H. & C. 300. 
 
 Ad. Vol. I.— 6 
 
82 ifATURAZ, SERVITUDES.- [Chap. 2. 
 
 of the lower owner, and after turning the mill is then returned into 
 the original channel (»). 
 94 Of the right of landowners to well-water. — The right to the enjoy- 
 ment of the water of a stream flowing in its natural course over the 
 surface of land, and the right to underground water and springs 
 beneath the surface, are not governed by the same rules of law. It has 
 been held that a landowner has a right to sink a well in his own land, 
 and get as much water as he pleases, although he thereby seriously 
 diminishes the supply of water to th% springs and wells in his vicinity, 
 or even drains them dry. The only remedy for the adjoining land- 
 owner consists in .sinking deeper wells, and using pumps and 
 mechanical appliances on his own land, to Enable him to get back 
 the water(w). A landowner who has sunk a well in his own land, 
 and thereby enjoyed the benefit of underground water, has no right 
 of action -against a neighboring proprietor who, in sinking for and 
 getting coals from his soil in the usual and proper manner, causes the 
 well to become dry(a!). 
 
 The use and consumption of the water from wells is not confined to 
 the reasonable wants of the occupiers of the lands in which the well 
 is sunk, nor restrained by any consideration for the wants a,nd neces- 
 sities of others. Where the defendant sunk a well seventy-four feet 
 in depth in his own land, adjoining the source of an important river, 
 which supplied water to various mills and manufactories, and pumped 
 water from this well for the supply of a neighboring town, at the rate 
 of half-a-million of gallons a-day and Tipwards, and by this means 
 obviously interrupted a great deal of water which would have other- 
 wise found its way into the river, and so diminished the volume of 
 water in the river, and prevented the millowners from working their 
 mills full time, it was held that the landowner had not exceeded his 
 natural rights, and that the millowners had no remedy for the injury 
 they had sustained(y). But a landowner will be restrained from 
 
 (o) NnttaU v. Braoewell, L. E. 2 Exoh. 1. ' 
 
 (w) Chasemoi-e v. Eiohards, 7 H. L. C. 349; 26 Law J., Exch. 401. Reg. v. Metrop. Board, 
 etc., 32 Law J., Q. B. 105. Village of Delhi v. Toumans, 45 N. T. 362. Piazier v. Brown, 12 
 Ohio (ST. S.) 294. New Albany & C. K. E. Co. v. Peterson, 14 Ind. 112. Eoath v. DriscoU, 20 
 Conn. 533. Chatfleld ». Wilson, 28 Vt. 358. Greenleaf v. Francis, 18 Pick. 117. Wheatley v. 
 Baugh, 25 Penn. St. 528. Mozier v. Caldwell, 7 Nev. 363. Swett v. Cntts, 50 N. H. 439. As to 
 the limitations on that right, see ante, p. 78, note i. 
 
 (a) Acton ». Blundell, 12 M. & W. 324. So by the Pandects, " Cum eo qui, in suo fodiens, 
 vicini fontem avertit, nihil posse agi ; nee de dole actionem et sane non debet habere ; si non 
 animo Ticini nooendi, sed suum agmm meliorem faciendl id fecit."— Lib. 39, tit. 3, 1. 12. 
 Domat. Liv. 2, tit. 8, 8. 1. See Ellis v. Duncan, 21 Barb. (N. Y.) 230. 
 
 (y) Chasemore v. Eiohards, 7 H. L. C. 349 ; 26 Law J., Exch. 401. But see Bassett V. Sails 
 bury Manufacturing Co., 43 N. H. 569 ; Swett v. Cutts, 50 N. H. 439. 
 
Sec. 1.] RIGHT TO WATER. 83 
 
 • fl 
 
 drawing off the subterranean water in the adjoining land, if in so 
 doing he draws off water which has once flowed in a defined surface 
 channel through such land(2). " If you cannot get at the underground 
 water without touching the water in a defined surface channel, you 
 cannot get at it at all "(a). 
 95 Of the flooding of lands from artificial collections of water. — ^Where 
 the owner of a coal-field excavated his coal, and in so doing left large 
 hallows, which filled with water, and then, when the adjoining land- 
 owner proceeded to work his coal, the subterranean water from the 
 hollows flowed into his workings and flooded them, it was held that he 
 had no right of action for the damage(6). But where the owner of a 
 mine on a higher level pumped up into it water from a lower level 
 (for the purpose of working a lower seam), so that more water flowed 
 into the adjoining mine, which was on a lower level, than would have 
 resulted from the natural gravitation of the water from the higher to 
 the lower level, an action will lie against the owner of the higher 
 mine(c) ; for a person who for his own purposes brings upon his land, 
 and collects and keeps there, anything likely to do mischief if it es- 
 capes, such as water or cattle, is prima facie answerable for all the 
 damage which is the natural consequence of its escape, although he 
 has not been guilty of any negligence(cZ). -The owner of one story of a 
 house, however, is not liable, without negligence, to the owner of the 
 story below for the damage caused by a rat eating into a cistern on the 
 upper floor, and so causing the water to flow into the lower story, the cis- 
 tern being for the mutual benefit of both stories, and the action of the rat 
 being in the nature of vis major. Nor is the occupier of an upper fioor 
 liable, without negligence, to the occupier of a lower for the leakage of 
 water from a water-closet of which he has the exclusive use(e). Nor is the 
 owner of a tree in a boundary fence, the leaves of which are poisonous 
 to cattle, etc., answerable for the clippings being on his neighbor's land, 
 and poisoning his cattle, unless, it seems, he himself put them there(/), 
 
 (s) Grand Junction Canal Co. v. Shugar, L. E., 6 Ch. App. 483. Village of Delhi t>. Tou- 
 mans, 45 N. T. 362 ; Pixley v. Clark, 35 N. Y. 520, 528. 
 
 (a) Per Lord Hatherley, C. S. C. 
 
 (6) Smith V. Kenriok, 1 C. B. 565. 
 
 (c) Baird v. WiUiamaon, 33 Law J., C. P. 101. 
 
 id) Fletcher v. Eylands, L. E., 1 Exch. 265 (Exch. Ch.) ; 3 Engl. & Ir. App. 330. Smith r 
 Fletcher, L. E., 7 Exch. 305. As to the liability of mill owners and others for damage occa 
 sioned hy the bursting of dams and reservoirs, see Gray v. Harris, 107 Mass. 492 ; Lapham e 
 Curtiss, 5 Vt. 371 ; Mayor of New York v. Bailey, 2 Denio, 433 ; Inhabitants of China V. South 
 ■wick, 12 Me. 238 ; Everett v. Hydraulic etc. Co., 23 Cal. 225. 
 
 (e) Caratairs v. Taylor, L. E., 6 Exch. 217. Eoss v. Felden, L. E., 7 Q. B. 661. Moore v. 
 Goedel, 34 N. Y. 527. 
 
 (/) .Wilson V. Newberry, L. E., 7 Q. B. 31. 
 
84 INJURIES TO EEALTT. [Chap. 2 
 
 t 
 
 96 Statutory property and interest of navigation companies in the water of 
 a navigable river. — Acts of Parliament incorporating companies for the 
 purpose of rendering rivers navigable, and purporting to vest in the 
 company the river or stream to be made navigable, vest in the com- 
 pany much more extensive rights over the water of the stream than 
 those which the common law gives to riparian proprietors. They 
 create a new species of statutory property and interest in the water, 
 which renders any abstraction of it unlawful, except it be by a ripa- 
 rian proprietor for his necessary purposes, although no actual damage 
 may be done to the navigation(^). But navigation companies and 
 canal companies have no power of granting any exclusive right of sail- 
 ing upon or navigating a river or canal beyond what is expressly given 
 to them by statute. And, therefore, where a canal company, by deed, 
 granted to the plaintiff " the sole and exclusive right or liberty to put 
 pleasure-boats on the canal, and let them out for hire, for purposes 
 of pleasure only," it was held that the canal company had no power to 
 grant any such exclusive privilege(A). 
 
 SECTION II. 
 
 OF THE REMEDY BT ACTION AND BY INJUNCTION FOR INFRINGEMENTS 
 OF RIGHTS INCIDENT TO THE POSSESSION AND OWNERSHIP OP LAND. 
 
 97 Direct and consequential injuries. — If the injury of which the plaintiff 
 complains has been committed by the defendant upon land in the 
 actual possession and occupation of the plaintiff, arid is consequently 
 the result of a direct act of trespass, the plaintiff should bring his 
 action and frame his proceedings for a trespass upon his land ( post, 
 ch. 6). If the injury results from something done by the defendant 
 on his own land, which is unlawful only in respect of the consequential 
 injury thereby occasioned to the plaintiff, the action must be brought 
 for the consequential injury, and not for a trespass, and proof of actual 
 substantial damage is, in general, essential to the cause of action(M). 
 
 98 Parties to he made plaintiffs — Tenant and reversioner. — The actual 
 occupier of the land is, in general, the proper person to maintain an 
 
 iff) The Medway Co. v. Eai-l ol'Romney, 9 0. B., N. S. 575 ; 30 L. J., C. P. 236. 
 
 (ft) Hill V. Tapper, 2 H. & C. 121. 
 
 (ftft) See note (n), p. SO. Crossley v. Lightowler, ante, p. 81. 
 
Sec. 2.] ACTION FOR DAMAGES — DECLARATION. 85 
 
 action for wrongful acts of a temporary character interfering with the 
 beneficial use and enjoyment of the- property, and diminishing the 
 value of his possessory interest. If the injury is of a permanent 
 nature, causing damage to the inheritance, then the reversioner is 
 also entitled to maintain an action in respect thereof, for although the 
 evil might be remedied before the end of the term, yet in the mean- 
 time, if the reversioner wished to sell his interest, it would be less 
 valuable(i). It is necessary, therefore, in an action by a reversioner 
 to show a permanent injury to the property, lessening its value in the 
 market(^'), or an infringement upon the plaintiff's rights as landlord. 
 If A is seised in fee of the reversion of a close, expectant upon a term 
 for years, and B is possessed of another close adjoining thereto, • 
 through which close there runs a rivulet, and B stops it, pefr quod the 
 close of A is surrounded, so that the timber-trees, etc., become rotten, 
 A, in respect of the prejudice to the reversion, and the termor, in re- 
 spect of the injury to the possession, and the loss of the shade, shelter, 
 etc., of the trees, may each have an action, and satisfaction given to 
 one is no bar to the other(^). 
 
 The person who sues in respect of an injury to the reversion, must 
 be the person in whom the legal estate is vested, and not a person 
 having a mere equitable interest as ceiti qui trust(Z). If several per- 
 sons are entitled to the reversion as joint tenants, or tenants in com- 
 mon, they should all be joined as plaintiffs in an action for an injury 
 to the re version (to). 
 99 Of the parties to be made defendants. — Every person who orders or 
 authorizes an obstruction to the enjoyment of the natural rights inci- 
 dent to the ownership of real property, is responsible for the injury, 
 and for all consequential damages, and so are his servants and agents, 
 who carry into effect the orders he has given ; and when several per- 
 sons have been jointly concerned in the commission of the wrongful 
 act, they may all be made defendants and charged as principals, or 
 the plaintiff may sue one or more of them at his election(w). 
 100 Of the plaintiff's declaration of his cause of action — Venue. — The venue 
 or statement in the margin of the declaration of the name of the countj 
 
 (i) Jesser v. Gifford, 4 Burr. 21il. As to the right of the reversioner to maintain trespass, 
 see Cutting v. Cox, 19 Vt. 517 ; Curtiss v. Hoyt, 19 Conn. 154 ; Davis v. Nash, 32 Me. ill. 
 
 (jl Jackson v. Pesked, 1 M. & S. 234. See Tobias v. Cohn, 36 N. T. 363 ; Wood ».WiUiams- 
 bargh, 46 Barb. 601. 
 
 (7c) Bedingfleld ». Onslow, 3 Lev. 209. And see post, ch. 3, ». 2, and oh. 6. 
 
 [l\ Vallanoe v. Savage, 7 Bing. 599. 
 
 (m) Bac. Abr. Joint Tenants, K. De Puy v. Strong, 37 N. T. 372. Gent v. Lynch, 23 Md. 
 58. And see further, post, ch. 19, as "^o the joinder-of parties to actions ex delicto. 
 
 (n) See post, ch. 19. 
 
86 - INJURIES TO REALTY. [Chap. 2. 
 
 from whence the jury are to be summoned, and where the cause of 
 action is to be tried, is local in all actions for infringements of terri- 
 torial rights annexed to lands or tenements, so that the cause of action 
 must be laid and tried in the county in which it arose, unless a judge's 
 order is obtained for changing the venue and place of trial. The 
 nature of the territorial right must be set forth on the face of the de- 
 claration, and the plaintiff must claim it by reason of his possessioK 
 of a messuage, tenement, or land. If the plaintiff complains of th* 
 diversiop. or fouling of water from a natural watercourse, he must de- 
 clare upon his own possession ef the place through which the water" 
 used to run, and set out the course thereof, and show the mode in 
 which the water has been diverted, or fouled(o). The usual course is 
 to set forth the plaintiff's possession of a messuage, tenement, or land, 
 and aver that by reason of such possession, he had a right to the •en- 
 joyment of an uninterrupted flow of water of a natural stream run- 
 ning in its natural bed, or flowing in its natural purity (as the case 
 may be), into the messuage, tenement, or land of the plaintiff, and 
 that the defendant wrongfully diverted large quantities of the water 
 of the stream, or wrongfully polluted and defiled the water thereof 
 (showing the nature of the diversion or pollution), and alleging that 
 the defendant thereby prevented the plaintiff' from having his accus- 
 tomed and proper supply of water, or deprived him of the beneficial 
 use and .enjoyment of the water (as the case may be), claiming dam- 
 ages(p). 
 
 If the plaintiff complains of an obstruction to the natural flow of 
 the water, he should show the nature of the obstruction and the con- 
 sequential damage in the flooding of the plaintiff's land, the destruc- 
 tion of the grass and produce of the soil, and the deposit of stone, 
 sand, and rubbish upon the land, as the case may be, claiming dam- 
 ages(g'), or, if need be, a writ of injunction against the repetition or 
 continuance of the injury. 
 
 A declaration which alleges that the plaintiff was lawfully in the 
 enjoyment and uae of water flowing through his house and premises 
 in a pure and unpolluted state, and that the defendant wrongfully 
 fouled and defiled the water by pouring into it the refuse of certain 
 
 (o) Brown v. Best, 1 Wils. 174. Parke B., Chasemore v. Eichards, 7 H. L. C. 349. 
 
 (p) Frankum v. Falmoatli (Earl of), 2 A. & E, 432. It is not necessary, in an action for dan>, 
 ages to a mill privilege by a diversion of the water, to allege the manner or the means of the 
 diversion. An allegation of injury to the privilege is sufficient without alleging the existence 
 of the mill. Stein ». Ashby, 24 Ala. 521. It is, however, important that the plaintiJTs right 
 be accurately stated. Wilbur v. Brown, 3 Denio, 356. 
 
 (g) Carlyon v. Lovering, 1 H. & N. 784 ; 26 Law J., Exch. 251. 
 
Sec. 2.] ACTION FOR DAMAGES — INFRINGEMENTS. 87 
 
 chemical works, whereby the plaintiff was deprived of the use of the 
 -water, and his property was deteriorated in value, seems to disclose a 
 good cause of action(r). » 
 
 101 Declarations for infringments of the natural right to support from 
 adjoining land. — If injury has been done to the foundations and 
 walls of a dwelling-house, or of buildings occupied by the plaintiff, 
 by excavations in the soil amounting to direct acts of trespass upon 
 the land in the plaintiff's occupation, the ordinary declaration for a 
 trespass upon realty [post, ch. 6, s. 2), properly describes the true 
 cause of action. If the injury has been done by a tenant in the pos- 
 session and occupation of the buildings and land under a demise from 
 the plaintiff, the proper form of declaration is a declaration for waste 
 {post, ch. 5, s. 2). If the surface and subsoil are held by different 
 persons, and constitute separate freeholds, and' the declaration is 
 founded on an injury to the owtier of the surface by excavations 
 made by the owners of the subsoil, depriving the surface of its 
 natural support {ante, p. 61), it is sufficient to allege that the plaintiff 
 was possessed of the surface of certain land, and the defendant was 
 possessed of the subsoil, mines, and minerals, or of certain beds and 
 strata of stone beneath such surface, and that the defendants exca- 
 vated the subsoil, or dug out the minerals or stone, without leaving 
 sufficient support for the surface, and by reason thereof the surface 
 of the land gave way, and sank into deep holes and hollows, and 
 became useless to the plaintiff, and certain crops growing upon the 
 land were injured or destroyed(s). 
 
 A good cause of action is disclosed on the face of a declaration 
 which alleges, that at the time of the committing of the grievance 
 of which the plaintiff complains, the plaintiff was possessed of 
 certain messuages, belonging to and supporting which messuages 
 were Certain foundations which the plaintiff, by reason of his pos- 
 session of his messuages, ought of right to have enjoyed for the 
 support of such messuages, and that the defendant wrongfully dug 
 out and destroyed the foundations of the messuages, and by reason 
 thereof they gave way and fell to the ground, and the plaintiff was 
 deprived of the use of them(<). A declaration, also, by a rever- 
 sioner, setting forth, that a messuage and land, with the appurte- 
 nances, were in the respective occupations of certain persons as 
 
 (r) Laing V. Whaley, Whaley v. Laing, ante, p. 81. 
 
 («) Bibbey t. Carter, 4 H. & N.jl53. 28 Law J., Exch. 182. Jeffries t>. WiUiams, 6 Exch. 
 792. 
 (t) Rogers v. Taylor, 2 H. & N. 829 ; 27 Law J., Exch. 173. 
 
88 INJURIES TO REALTY. [Chap. 2. 
 
 tenants thereof to the plaintiff, the reversion of the said messuage, 
 land, etc., then and still belonging to the plaintiff, and' that the 
 defendant \frongfully made divers excavations in the said land, 
 under or near to the said messuage, without sufficiently shoring 
 and propping up the said messuage from the effects thereof, whereby 
 the land sank, and the foundations of the messuage, etc., gave way, 
 and the plaintiff was injured in his reversionary estate, discloses a 
 good cause of action(M). 
 102 Pleas iy the defendant — Not guiltyi^. — The plea of not guilty oper- 
 ates as a denial only of the wrongful act alleged to have been com- 
 mitted by the defendant, and not of the facts stated in the induce- 
 ment(2/). If, therefore, the plaintiff's possession of the property alleged 
 to have been injured by the wrongful act of the defendant, or his title 
 thereto, or his estate or interest therein, is intended to be denied, it 
 must be specially traversed. All other pleas in denial must take issue 
 on some particular matter of fact alleged in the declaration, and all 
 matters in justification, and in confession and avoidance of the cause 
 of action, must be specially pleaded(2). If, therefore, the plaintiff 
 claims as riparian proprietor a right to the fiow of the water of a 
 stream through his land (ante, p. 68), and complains that the defend- 
 ant wrongfully diverted or wrongfully obstructed the flow of water, 
 the fact that the defendant as another riparian proprietor on the same 
 stream had a right to use or divert a certain portion of the water for 
 reasonable purposes of his own, and that the diversion or obstruction 
 complained of was an exercise by him of such right, must be made 
 the subject of a plea, and cannot be given in evidence under the plea 
 of not guilty(a). So, if the defendant claims a prescriptive right to 
 divert the water, such prescriptive right must be specially pleaded. 
 So, if the defendant intends to dispute the existence of the right 
 asserted in the declaration, he must expressly deny ihe right by a 
 plea traversing the allegation or assertion of it, in the very words in 
 which it is put forward. Thus, where the declaration states, that the 
 plaintiff' was possessed of a close, and by reason thereof was entitled 
 to have the use and benefit of a certain stream of water, etc., and the 
 defendant intends to dispute the right, he must by his plea assert that 
 
 (M) Bibbey v. Carter, ut sup. 
 
 {X) As to not guilty "by statute," see Eeg. Gen. Hil. Term, 1853. 1 EU. & Bl' App. LxxxiL 
 R.21. 
 (V) Eeg. Gen. Hil. T. 1853. 1 E. & B. App. Ixxxi. K. 16. 
 (z) Eeg. Gen. («* supra) , E. 17. 
 (a) Frankum v. Falmoutlj (Earl of), 2 Ad. & E. 4S2. 
 
Bee. 2.] SEIZIN OF LANDS AND TENEMENTS. 89 
 
 the plaintiff was not, by reason of the possession of the said close, 
 entitled to have the use and benefit of the said water, etc. 
 
 103 Of the plea of leave and license. — If the obstruction to the enjoyment 
 of the right has been authorized by the plaintiff, or if the act com- 
 plained of has been done by his permission, the defendant must plead, 
 that he did what is complained of by the plaintiff's leave(6). This plea 
 Avill be supported by proof, that the plaintiff gave the defendant per- 
 mission to alter the condition of his property in such a way as to 
 interfere with the enjoyment of the right. Under this plea it may be 
 shown, that the plaintiff, having a right to the use of a stream of 
 water which flowed through the land of the defendant, gave the 
 defendant permission to lower the banks of the stream, and erect a 
 weir, and divert a portion of the water which had previously flowed 
 to the plaintiff's mill, and that the banks were cut down, and the weir 
 erected, pursuant to the permission so given(c). Having consented to 
 the act, the plaintiff, and those claiming title through him, are pre- 
 cluded from treating the act as a wrong or injury. 
 
 104 Pleas of a prescriptive right to divert, or obstruct, or foul the water 
 of a stream, must, as we have seen, be placed on the record, when the 
 defendant relies on a prescriptive right in excess of his natural 
 right as riparian proprietor (ante, p. 66). 
 
 105 Evidence at the trial — Proof on the part of the plaintiff. — If the 
 defendant pleads that he is not guilty of the act of which the plaintiff' 
 complains, it must, of course, be proved either that it was done by his 
 own hand, or by his orders or authority, or by his servants or agents 
 in the course of their employment, or in following out his orders and 
 directions((i). If the plaintiff's possession and incidental rights are 
 traversed, the plaintiff must prove the fact of his possession of the 
 lands or tenements to which the right claimed was incident, at the 
 time of the commission by the defendant of the grievance of which 
 the plaintiff complains. This may be established by the plaintiff's 
 own testimony upon the point, or by proof of the exercise of acts of 
 dominion, or by general user and enjoyment, or actual occupa- 
 tion(e). 
 
 106 Proof of seizin of lands and tenements. — An allegation in pleading 
 that a party is seised of a messuage or land, does not necessarily 
 import that such land is in his own occupation. If, therefore, a land- 
 lord pleads seizin in fee, and the seizin is traversed, the traverse is 
 
 (6) 15 & 16 Viot. u. 76, Sched. B., No. Ul. (<J) See post, ch. 20, s. 2. 
 
 (c) Liggins B. Inge, 7 Bing. C82. (e) Page v. Hatchett, 8 Q. B. 593. 
 
90 WHAT DAMAGES RECOVERABLE. [Chap. 2, 
 
 not supported by proof that the land is in the occupation of a tenant 
 to whom the landlord has demised it(/). 
 
 Damages recoverable. — Wherever the exercise and enjoyment of a 
 right naturally incident to the possession of land has been obstructed, 
 substantial damages are recoverable, though no actual perceptible 
 damage has been sustained or proved, whenever the repetition of the 
 wrongful act, if uninterrupted and undisturbed, would lay the foiui- 
 dation of a legal right. A wrongful defilement of a stream is an 
 injury to a right, in respect of . which damages are recoverable, 
 although no actual specific damage can be proved. Thus, where 
 certain manufacturers erected works on the bank of a stream, and' 
 fouled the water with soap-suds, but no actual damage was proved 
 to have been sustained by the plaintiflf, it was held that he was 
 nevertheless entitled to recover damages, as a continuance of the 
 practice vtithout interruption would eventually establish a right on 
 the part of the defendants to the easement of discharging their foul 
 water into the stream(g'). So, where the defendant, a riparian owner 
 on the banks of a stream which fed a spout, the water of which the 
 plaintiff, in common with the other inhabitants of a certain district, 
 was entitled by custom to use for domestic purposes, abstracted the 
 water to such a degree as to render what remained insufiicient for 
 the inhabitants, it was held that the plaintiff might maintain an 
 action, although he had not himself suffered any personal incon- 
 venience(A). 
 107 But when the act of which the plaintiff complains has been done 
 by the defendant on his own land, and the constant repetition of it, 
 however long continued, would establish no prescriptive right against 
 the plaintiff, there is no cause of action until some substantial, per- 
 ceptible damage has been sustained by the plaintifi'. Proof of such 
 damage in such a case is essential to the establishment of a cause of 
 action. Thus, where a landowner digs in his own land, or the owner 
 
 (/I Stott V. Stott, 16 East, 350. 
 
 Ig) Wood V. Waud, 3 Exch. 772. Eoohdale Co. v. King, 14 Q. B. 135, 138. See post, oh. 3, 
 s. 1; and ante, p. 8. For some of the American cases sustaining the principle stateil in the 
 text, see Johns v. Stevens, 3 Vt. 308; Chatfleld v. Wilson, 27 Vt. 670; Parker v. Griswolrl, 17 
 Conn. 288; Welton ». Martin, 7 Mo. 307; Huhne v. Shreve, 3 Green. Ch. 116 ; Thomas e. 
 Brackney, 17 Barb. (ST. T.) 654; Parker v. Toote, 19 Wend. 309, 318; Hastings ». Livei-more, 
 7 Gray 194; EUiott v. Fitchbargh E. E. Co. 10 Cush, 191; BoUvar Manufacturing Co. v. Nepon- 
 6Bt Manufacturing Co. 16 Pick. 241; Butman v. Hussey, 12 Maine, 407; Munroe v. Stickney, 
 48 Me. 462; Hendrickc. Cook, 4 Ga. 241; Plumleigh o. Dawson, 1 Gilm. 644, 652; Stein v. 
 Burden, 24 Ala. 130, 148; Eoundtree v. Brantley, 34 Ala. 553; Graver v. ShoU, 42 Penn. 67; 
 Delaware Canal Co, v. Torrey, 33 Penn. 143; Woodman v. Tufts, 9 N. H. 88; TiUotson V. 
 Smith, 32 N. H. 90. 
 
 (7i) Harrop v. Hirst, L. E., 4 Exch. 43. 
 
Sec. 2.] DISTVBBANCE 01 SERVITUDE. 91 
 
 of the subsoil and minerals excavates his own freehold, there is n(» 
 •wrongful act, and no cause of action until it is proved that the surfaco 
 of the adjoining land has sunk down, or that the walls of a neigh- 
 boring house have cracked, or the foundations thereof have been 
 displaced, or have given way, or that some actual perceptible damage 
 has been done to the adjoining land or tenement(i). 
 
 108 By tenant and reversioner. — ^Whenever the enjoyment of a privilege 
 or right annexed to the ownership or occupation of land has been 
 obstructed by the wrongful act of the defendant, and the land to 
 which the right or privilege is annexed is in the occupation of a 
 lessee, damages are recoverable in respect of the injury to the resi- 
 dential or possessory interest of the latter, and by the landlord or 
 reversioner in respect of the permanent injury to the inheritance(A:). 
 Thus, where the freehold premises are let on lease, and the owners and 
 reversioners stand in the relative positions of tenant for life, remain- 
 derman in tail, and reversioner in fee, and a permanent injury has 
 been done to the beneticial occupation and enjoyment of the property, 
 the damages recoverable by the immediate reversioner the tenant for 
 life, are confined to the injury done to his life-interest(i). But a mere 
 temporary impediment to a drain which is remediable, and does not 
 cause any permanent injury to the property, does not give the rever- 
 sioner any right of action for damages. 
 
 If the constant repetition of the unlawful act would form the foun- 
 dation for the establishment of a prescriptive right which, when once 
 established, would operate to the lasting injury of the inheritance, 
 and permanently diminish the value of the property, the reversioner 
 is, as we have seen, entitled to an action for the recovery of damages. 
 
 109 Injunction to prevent the disturbance of rights naturally incident to the 
 possession and ownership of land. — The Court of Chancery has, from 
 the earliest pericid, interfered by injunction to restrain the owner of 
 land from so dealing with his property as to prejudice or destroy the 
 rights of his neighbor, thereby enforcing the maxim, "8ie utere tuo 
 ut alienum non Imdas.'' The foundation of this jurisdiction is that 
 head of mischief, alluded to by Lord Hardwicke — that sort of mate- 
 rial injury to the comfort and enjoyment of property which requires 
 the application of a power to prevent, as well as remedy — an evil for 
 
 (t) Bonontii v. Backhouse; Backhouse v. Bonomi, ante, p. 75. Fisher v. Beard, 32 Iowa, 357. 
 
 (7j) As to the apportionment of damages between tenants and reversioners, seepost, ch. 
 22, s. 1. 
 
 (!) Evelyn «. Raddieh, Holt. N. P. C. 643. See Wood ». Williamsburgh, 46 Barb. (N. T.) 
 MIX; Tobias v. Cohn, 30 N. X. 363. 
 
H2 DISTURBANCE OF SEBVITUBB. [Chap. 2. 
 
 which damages, more or less, would be given in an action at ]aw(«2). 
 But before the plaintiff can ask for any injunction restraining the de- 
 fendant from using his own land or property in a way in which he 
 would be clearly entitled to use it, but for some dominant right on the 
 part of the plaintiff, the latter must establish such last-named Jight, 
 and show to the satisfaction of the court that it has been infringed, 
 and that he has sustained such injury therefrom as would entitle him 
 to a verdict for substantial damages in an action at law(w). The court 
 will not interfere to protect a dry, strict, legal title, merely because 
 the legal right has been infringed. It must be shown that some ac- 
 tual damage has been done or threatened, in order to lay a ground 
 for equitable relief(o). 
 
 The jurisdiction of the Court of Chancery to prevent the infringe- 
 ment of a legal right by the issue of an injunction is not an original 
 jurisdiction ; it existed, not for the purpose of trying the fact of the 
 existence of the right, but for the purpose of giving effect to the legal 
 title after its existence had been established in a court of law. A, 
 person, therefore, who came before the court in the first instance for 
 an injunction, instead of going before the ordinary legal tribunal, was 
 bound to show some pressing necessity for summary interference, for 
 the court would not try upon conflicting affidavits the fact of the ex- 
 istence or non-existence of the legal title(p) ; nor would it interfere 
 where the legal right was doubtful, and the nature of the alleged 
 injury was such as riot to require immediate prevention(g). But the 
 practice of the court in these respects has been materially modified by 
 the chancery amendment acts, which impose upon the Court of Chan- 
 cery the obligation of adjudicating upon the legal rights of the parties 
 before them, as well as upon their title to equitable relief(?'). 
 
 (m) Att.-(ien. •>. Niohol, 16 Ves, 342. 
 
 (n) Elmhirst v. Spencer, 2 Mao. & G. 51. Dent v. Auction Mart Co., L. E., 2 Eq. Ca. 238 ; 
 post, oh. 3, e. 2 ; ch. 4, b. 3 ; and oh. 23. 
 
 (o) Wandsworth Board of Works v. Lond. and S. W. Bail. Co., 31 Law J., Ch. 855. Se9 
 Lingwood v. Stowmarket Paper Co., L. E., 1 Eq. Ca. 77 ; Crossley V. Lightowler, ante, p. 81; 
 Bassett v. Salisbui-y etc. Co., 47 K. H. 426. See Corning v. Troy Iron and Nail Factory, 40 N. 
 T. lUl, 220 ; Clinton v. Myers, 46 N. Y. 511 ; Hahn v. Thomberry, 7 Bush. 406. 
 
 (p) Semple ». Lond. & Birm. Eail. Co., 1 Rail. Cas. 134. White v. Cohen, 1 Drew, 318. 
 Broadhent v. Imp. Gas Co., 26 Law J., Ch. 276 ; 29 lb. 377. See Washb. on Easem. & Serv. 
 (third ed.), 698. 
 
 (S) Wynstanley v. Lee, 2 Swanst. 335. Eipon (Earl of) v. Hobart 3 Myl. & K. 179. Att.- 
 Gen. V. United King. Eleo. Tel. Co., 31 Law J., Ch. 329. See Jordan ». Woodward, 38 Me- 
 432; Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Eeid ». Gifford, 6 Johns. Ch. 19; Ingraham 
 17. Dunnell, 5 Meto. 118; Dana v. Valentine, id. 8. 
 
 (r) PosS, ch. 23, s. 1. Beardmore «. Tredwell, 31 Law J., Ch. 893. In New York and other 
 States where both legal and equitable jui-iadiction have been vested in the same courts, it is 
 no longer necessary that the existence of a right must be established by the judgment of a 
 
Sec. 2.] INJUNCTION TO RESTRAIN. 93 
 
 110 Injunction to restrain the diversion of water. — ^Wherever a spring rises 
 from the ground in one man's land, and flows therefrom into another's 
 land, and the supply of water from the spring is constant, the court 
 will by injunction prevent a landowner through whose land the water 
 flows, from cutting oif the supply of water to the land lower down, 
 although the spring may flow through boggy land, and not follow any 
 defined channel or watercourse ; but if the supply is casual and inter- 
 mittent, and dependent upon the rainfall, and is mere common sur- 
 face-water, the court will not interfere(s). When a millowner or ripa- 
 rian proprietor is entitled to the benefit of the natural flow of water 
 through a mill-stream, or through a natural watercourse, the Court of 
 Chancery will by injunction restrain the owner of the subsoil or min- 
 erals from excavating or mining beneath the stream so as to endanger 
 the existence of the watercourse or the loss of the water ; but the per- 
 son seeking relief must show that some injury has actually happened, 
 or that it will inevitably result from the prosecution of the mining 
 operations(i). 
 
 111 Injunction to restrain a disturbance of the right to support. — Where 
 there are separate owners of surface and subsoil, and the owner of the 
 subsoil begins to excavate so as to deprive the owner of the surface of 
 his natural right to the support of the subsoil (ante, p. 74), the court 
 
 court of law before an injunction can issue to restrain its violation. Coming v. Troy Iron 
 and Nail Factory, 40 N. Y. 191. 
 
 (8) Ennor v. Barwell, 2 Giff. 424. Eobinson v. M. Byron, 1 Bro. Cli. C. 588. See Arnold ». 
 Foot, 12 Wend. 330. Nor as a general rule -will the court interfere to restrain a land owner 
 from digging on his own land for a justifiable -purpose, although he thereby prevents water 
 from reaching a spring or open i-unning sti-eam on the land of another by intercepting its 
 percolation or underground currents. Village of Delhi v. Toumans, 45 N. Y. 362. And see 
 ante, p. 77, note. 
 
 (f) EUwell V. Crowther, 31 Law J., Ch. 763. That past injuries are no ground for equitable 
 interference for the protection of the rights of a ri]),arian proprietor in the enjoyment of a 
 stream, see Potiers, Bxi'. v. Burden, 38 Ala. 651. , 
 
 An injury to the purity or quality of running water, to the injury of other riparian pro- 
 prietors may be prevented by injunction. Merrifield «. Lombard, 13 Allen 16. Holsman v. 
 BoUing Spring Co. 1 McCart. 342. See Lewis v. Stein, 16 Ala. 214. 
 
 ■\Vhen the right to the use of water is clear, and the stream has been wrongfully diverted, 
 the party injured may have a mandatory injunction to compel the restoration of the stream 
 to its proper channel. Coming v. Troy Iron and Nail Factory, 40 N. Y. 191. 
 
 Where a riparian proprietor so constnicts an embankment along the margin of a stream 
 as to throw the water upon the land of the opposite proprietor, the latter may have his 
 remedy by injunction. Burwell v. Hobson, 12 Gratt. 322, 832. 
 
 A millowner may restrain another from unlawfully obstructing his mill-privilege. Crit- 
 tenden V. Field, S Gray 621. Bemis v. Upham, 13 Pick. 169. BaUou v. Hopkinton, 4 Gray, 
 324. HiU V. Sayles, 12 Cush. 454. See Hall i^. Augsbury, 46 N. Y. 622; Wright v. Moore, 38 
 Ala. 593. Where the application for an injunction is made to a court ndt having concurrent 
 jurisdiction in Jaw and in equity and the rights of the parties are doubtfol, the court may 
 refuse to grant the prayer for an injunction until the question of right has been settled by a 
 court of law. Van Bergen v. Van Bergen, 2 Johns. Ch. 272. Burden v. Stein, 27 -Ala. 104. 
 Bliss V. Kennedy, 43 111. 74. See Simpson v. Justice, 8 Ircd. Eq. 115. 
 
94 REMEDY FOR DISTURBANCE OF SERVITUDE. [Chap. 2. 
 
 will interfere by injunction to prevent any further excavation of the 
 Bubsoil interfering with the use and enjoyment of the surface(M). 
 112 Injunction to prevent obstruction to the repair of 'a watercourse in alieno 
 solo. — ^Where a mill-stream running through the defendant's land to 
 the plaintiff's mill, broke through its banks and made a new channel 
 for itself through the defendant's land, and the defendant would not 
 allow the plaintiff to come on his land to repair the river-bank with- 
 out the payment of a large sum of money, and the mill came to a 
 standstill for want of water, it was held that the plaintiff, being 
 entitled to the Use of the watercourse, was entitled to come on the 
 defendant's land to repair the watercourse and preserve it (post, ch. 3, 
 B. 1), and the defendant was restrained by injunction from preventing 
 the plaintiff, his servants and workmen, from coming on his land and 
 repairing the river-bank, and doing what was necessary to be done to 
 restore the water to its ancient channel(a;). 
 
 («) Hunt r. Peake, 1 Johns. 708. 
 
 (*) M'Swiny v. Haynes, 1 Ir. Eq. Eep. 322. See Eoberts V. Eose, pott, oh. 4, e. 2; Koberts 
 ». Eoberts, 65 N. Y. 2?5. 
 
CHAPTER III. 
 
 OF CONVENTIONAL AND PRESCRIPTIVE SERVITUDES— EASEMENTS 
 AND PROFITS A PRENDRE. 
 
 Sbction I. — Of easements and, profits a pencl/re. — Grants of rights of servitude — 
 Licenses — Reservation of privileges amounting to an express grant — Implied 
 grants of easements — Privileges and services accessorial to a principal thing 
 granted — Ways of necessity — Necessary incidents to a right of way or water- 
 course — Rights of towing — Easement of support from adjoining land — Right 
 to search for minerals under lands weighted with railways and canals — 
 Servitude of support when houses are built together, so as to require mutual 
 support — Separate floors vested in several proprietors — Grants of the free 
 passage of light and air to newly- opened windows — Easements accessbrial to 
 the grant of a dwelling-house — Transfer of easements and profits — Easements 
 and profits in gross — Licenses to search for, and caiTy away, minerals — Ex- 
 clusive licenses — ^Rights claimable by custom — Manorial customs — Common 
 appendant, appurtenant, and in gross — Cow-grasses and cattle-gates — Rights 
 of tinbounders — Inconsistent rights of common — Servitude of maintaiaing 
 and repairing sea-walls, ditches, and sluices — Customary i-ights of fishing — 
 Sea-bathing — Title by prescription — Prescriptive rights founded on the pre- 
 sumption of a grant — The Prescription Act — Profits and easements claimable 
 under it — What sort of enjoyment is essential to the gaining of a prescriptive 
 right — Enjoyment as of right — Enjoyment over land held on lease — Prescrip- 
 tive rights of way, watercourse, and use of water and streams — Prescriptive 
 right to have fences kept up in alieno solo — Prescriptive right to light — Effeot 
 of unity of ownership — Interi'uption of enjoyment — Continuity of enjoyment — 
 Computation of the periods of enjoyment — Rights of revei'sioners — Waiver, 
 extinguishment, and revival of easements — Repair of ways and watercourses. 
 
 Section II. — Remedies for the infringement of incm-poreal rights. — Abatement of 
 obstructions to the enjoyment of easements — Right to distrain beasts tres- 
 passing on commons — Actions for infringements of incorporeal rights — Parties, 
 pleadings, defences, and evidence — Damages recoverable — Remedy by in- 
 junction — Easements granted by parol — Injunction to prevent obstructions 
 to windows and infringements of the right to support from adjoining land — 
 Bill of Peace. 
 
CONVENTIONAL SBBVITVDES. f Chap, 3. 
 
 SECTION I. 
 
 OP CONTENTIONAL AND PRESCRIPTIVE SERVITUDES — EASEMENTS AND 
 PROFITS A PRENDRE. 
 
 113 Easements. — The servitudes naturally incident to the ownership 
 and occupation of land, and the legal restrictions upon the pro- 
 prietary rights of landowners {ante, ch. 2, s. 1), may, within certain 
 limits, be enlarged and extended by express and implied contract, 
 by grant, and in certain cases by custom and prescription(a). 
 Thus, one proprietor may acquire by grant, or from long-continued 
 ajid uninterrupted enjoyment, a right to take water from his neigh- 
 bor's well, or to wash and water cattle at a neighbor's farm(6) ; to 
 hang and dry clothes on lines on a neighbor's land(c) ; to hang and 
 dry nets thereon((i) ; to turn the plough thereon in ploughing(e) ; to 
 discharge water thereon from the roofs and eaves of houses(/) ; or to 
 have the benefit of a neighbor's fence or hedge maintained and 
 repaired at the expense of such(y). A privilege or bene&t of this 
 description, unaccompanied by any profit or interest in the soil itself, 
 is called in our law an easement, and is claimable by custom, grant. 
 or prescription(p'^). 
 
 114 Profits a Prendre. — ^A profit k prendre is a right vested in one man 
 of entering upon the land of another, and taking therefrom a profit of 
 the soil. It is an incorporeal right, clothing .the possessor of it with 
 an interest in land, and is claimable only by grant or by prescrip- 
 tion(^). Such is the right of depasturing cattle on another's land; 
 the right to cut therefrom and carry away turf or wood for burning 
 
 (a) Pitch V. Eawlings, 2 H. Bl. 39^. See Gale on Easements ; Stearns v. Janes, 12 AHen, 
 (Mass.) 5S2 ; WTiite v. Chapin, id. 516 ; Hill v. Lord, 48 Me. 83. 
 (6) Race O.Ward, 4 EU. & Bl. 702; 24 Law J., Q. B. 153. Manning ». Wasdale, 6 Ad. & E. 758. 
 
 (c) DreweU v. Towler, 3 B. & Ad. 735. 
 
 (d) 7 Vin. Abr. p. 183. CnsTOsi, F. pi. 2. 
 
 (e) 7 Vin. Abr. p. 174. • Custom, P. pi. 4 F. pL 1. Jones v. Percival, 5 Pick. 485. 
 
 (/) Thomas v. Thomas, 2 C. M. & R. Ashley v. Ashley, 6 Cush. 70. Neal v. Salye, 47 Barb. 
 316. Carbrey v. Willis, 7 AUen, 370. Swett e. Cutts, 50 N. H. 439. Bloeh r. Ptaff, 101 Mass. 
 B39. 
 
 tg) Boyle v. Tamlin, 6 B. &. C. 338 ; 9 D. & R. 437. Barber o. Whiteley, 34 L. J., Q. B. 212. 
 Rust c. Dow, 6 Mass. 90. Heath p. Ricker, 2 Me. 72. Binney ». Hull, 5 Pick. 503, 605. Thiiyer 
 V. Arnold, 4 Mete. 589. Adams v. Van Alstyne, 25 N. Y. 232. And see Washb. on Easm. & 
 Servt. (3ded.)634. , 
 
 [gg) Big Mountain Improvement Co.'s Appeal, 64 Pcnn. St. 361. Mumford r. Whitney, 15 
 Wend. 380. 
 
 (ft) Huff o. McCauley, .W Penn. St. 209. Clark v. Way, U Rich. Law, 621. HiUv. Lord, 48 
 ,Me. 83. 
 
Sec. l.J PROFITS A PRENDRE — LICENSES. 97 
 
 ■within the dwelling-house ; the right to dig for and carry away stone, 
 slate, coal, and minerals ; the right to shoot and sport over another's 
 land, and carry away and consume the game killed ; or the right to 
 fish in the waters of an estate or of a manor, and carry away and con- 
 sume the fish taken. 
 
 Bracton, in his books of the laws and customs of England, enu- 
 merates the different servitudes with which the estate of one pro- 
 prietor may be burthened for the benefit and convenience of another, 
 such as rights of depasturing cattle, rights of common, of cutting and 
 carrying away turf, or digging for and gathering minerals, stones, or 
 sand, rights of way, right of drawing water from a neighboring well, 
 rights of watercourse, or of a passage for water through another's land," 
 rights of hunting thereon, rights of estover, or of cutting wood for 
 burning in a dwelling-house, or for building, or repairs ; all of which 
 servitudes, he tells us, were originally imposed upon land by the will, 
 or ordering, or consent of the lord, or have grown up, and have become 
 appurtenant to property, without having been expressly constituted, 
 through long-continued, peaceable and uninterrupted enjoyment. 
 
 The long-continued exercise of the privilege on the one side, and 
 the sufferance and endurance of it on the other, must not, he observes, 
 be due to force or intimidation. If it has been exercised and enjoyed 
 by stealth, or if the privilege has been sought for, and has been con- 
 caded, as a kindness and matter of favor, to be enjoyed during the 
 pleasure of the grantor, it will fail to create a servitude(M). 
 115 Unlimited claims in the nature of easements, profits and servitudes. — • 
 There can be no prescriptive right in the nature of an easement or 
 servitude so large as to preclude the ordinary uses of property by the 
 owner of the lands affected by the privilege, and to extinguish or 
 destroy all the profits or produce ordinarily derivable from the soil. 
 Therefore an unlimited claim of a right to go at all times and in all 
 directions over every portion of a close for purposes of recreation and 
 amusement is bad. Such an easement is claimable only by the inhab- 
 itants of particular villages over open and uninclosed village-greens 
 and village play-grounds, which have been immemorially dedicated 
 to the recreation and amusement of the inhabitants of the vi]lage(i). 
 Claims of a right of profit a prendre in alieno solo must in like manner, 
 in order to be valid, be made with some limitation and restriction. 
 
 (AA) Bract, lib. i, fol. 220-222. 
 
 (i) Dyce ». Hay, 1 Maoq. 305. See Jones v. P^erceval, 5 Pick 485 ; Brioe v. Eandall, 7 Gill. 
 & J. S49 ; Holmes v. Seeley, 19 Wend. 507 ; Washb. on Easem. & Serv. (3d ed.) 128. 
 
 Ad. Vol. I.— 7 
 
98 CONVENTIONAL SERVITUDHS. [Chap.?. 
 
 Where, therefore, a defendant claimed a prescriptive right as the 
 occupier of a brick-kiln to dig and carry away from an adjoining close 
 of the plaintiff as much clay as was required for the making of bricks 
 in the brick-kiln, it was held that an unlimited claim and demand of 
 this nature upon the soil of the plaintiff could not be sustained, for it 
 would, as claimed, enable the defendant " to take all the clay, or in 
 other words, to take from the plaintiff the whole close "(A). So, a priv- 
 ilege claimed of taking sand without limit is bad(Z) ; and so is a claim 
 by the customary tenants of a manor having gardens, parcels of their 
 customary tenements, to dig and carry away turf from the waste 
 within the manor, for the improvement of their garden -walks, or for 
 making and repairing banks and mounds of grass on their customary 
 Tenements(TO). But a custom to dig sand and gravel in the waste for the 
 repair of a dwelling-house, when out of repair, may be supported(M). 
 116 Grrants of rights of servitude — Licenses. — A parol license or permission 
 to go upon another man's land will, so long as it has not been counter- 
 manded, justify an entry upon the land ; but it confers no indefeas- 
 ible right at law, and may be recalled at the pleasure of the grantor, 
 unless the license or permission be under seal. A mere parol agree- 
 ment or license for the enjoyment of a right of way over the land of 
 the licensor or promisor may at any time be put an end to by the 
 latter. The locking of a gate across the way is a manifest revocation 
 of the license, and a plain statement to everybody that the way is uo 
 longer to be used. And if the license has been granted by agreement 
 for good consideration, there will be a breach of the agreement and a 
 claim for damages ; but no right to the enjoyment of the way, unless 
 relief can be obtained in equity(o). 
 
 (i) Clayton v. Corby, 5 Q. B. 419, 422. Wilkes v. Broadbent, 1 Wils. 63. 
 
 (i) Blewitt V. Tregonlng, 3 Ad. & E. 554. 
 
 (m) WUlson v. WiUes, 7 East, 121. 
 
 (n) Peppin v. Shakspear, 6 T. R. 748. 
 
 (0) Hyde v. Graham, 32 Law J., Exoh. 27. The doctrine of the common law that a perma- 
 nent interest in land, even by way of easement, cannot be created by or under a parol li- 
 cense, has been adopted in most but not all the States, as will be seen by reference to the 
 following cases : Selden». Delaware and Hudson Canal Co., 29 N. Y. 634; Mumford». Whitney, 
 15 Wend. 380 ; Eggleston v. New Yoyk & Harlem E. E. Co., 35 Barb. 162 ; Foot ». New Haven 
 & Northampton Co., 23 Conn. 214 ; Drake v. Wells, 11 Allen 141 ; Bridges v. Purcell, 1 Dev. 
 & Bat. (Law), 491 ; TrammeU v. TrammeU, 11 Eich. (Law), 471 ; Clinton v. McKenzie, 5 
 Sirobh 36 ; Poster v. Browning, i. E. I. 47 ; Hazleton v. Putnam, 3 Chand. (Wis.) 117 ; French 
 ». Owen, 2 Wis. 250 ; Woodward ». Suly, 11 lU. 157; Carlton «. Eedington, 1 Foster (N. H.) 
 SOS ; 2 Am. Lead Cases, 682-706. These cases hold that the licensee holds the privilege of 
 using or occupying the land of the licensor at the will of the latter, and that it may be re- 
 voked by him at pleasure. A license is not rendered irrevocable by an agreement to pay a 
 consideration for it. Huff v. McAuley, 63 Penn.' St. 206. Dark v. Johnson, 55 Penn. St. 164. 
 
 That expenditures by the licensee, made upon the faith of a parol license, may, in some 
 States, operate as an estoppel to prevent the, licensor from revoking the license.- See note ». 
 post. 
 
Sec. 1.] PROFITS A PRENBRE — LTCENSBS. 99 
 
 "A right of passage for waste water through an artificial drain or 
 watercourse in another man's land, where the party claiming the right 
 has no interest in the land through which the water flows, or ought to 
 flow, is an incorporeal right lying in grant, and is claimable only by 
 deed or by prescription "(p). Therefore a mere parol permission to 
 cut a drain, or make a watercourse, and use it for the passage of water, 
 may be revoked at law, and the drain or watercourse stopped up by 
 the proprietor who has given the permission, and through whose land 
 the water runs(g'). "In the case of a parol license," observes Alderson 
 B., "to come on my land, and there to make a watercourse for water 
 to flow through my land, there is no valid grant of the watercourse. 
 The license remains a, mere license, capable of being revoked ; but if 
 the license were granted by deed, then the question would be on the 
 construction of the deed, whether it amounted to a grant of the water- 
 course ; and if it did, then the license would be irrevocable "(r). But 
 in equity, if a landowner has granted to his neighbor by parol an 
 easement to be enjoyed over his land, and the neighbor incurs ex- 
 pense, with the sanction of the landowner, in constructing permanent 
 works for the enjoyment of the privilege, the landowner will not be 
 allowed to withdraw his consent and prevent the enjoyment of the 
 privilege, without making compensation to the licensee(s). Thus, where 
 persons desirous of supplying a town with water, applied to the de- 
 fendant for permission to make a watercourse through his land, and 
 permission was granted by word of mouth, and the watercourse was 
 made at considerable expense, and was enjoyed for nine years, when 
 disputes arose, and the defendant cut off the water, the Court of 
 Chancery restrained the defendant by injunction from obstructing the 
 flow of water, on compensation being made to him for the use of his 
 
 land(0. 
 
 A license to put goods on the licensor's land cannot be revoked with- 
 
 ip) Hewlinsp. Shippam, 5 B. & C. 229. Mumford v. Whitney, ISWend. 380. Cooks. Stearns, 
 11 Mass. 533. Sampson v. Burnside, IS N. H. 264. 
 
 (?) Cooker v. Cowper, 1 Cr. M. & E. 421. Fentiman v. Smith, 4 East, 108. 
 
 (r) Wood 1). Leadbitter, 13 M. & W. 845. Lee v. Stevenson, E. B. & E. 512 ; 27 Law J., Q. 
 B. 263. Dark v. Johnston, 55 Penn. St. 164. 
 
 (8) Beaufort (Duke of) v. Pati-ick, 17 Beav. 60. Moreland v. Richardson, 22 B'eav. 596. SnoAV- 
 den V. Wilas, 19 Ind. 10. Stephens v. Benson, id. 367. Bartlott v. I'rescott, 41 N. H. 493. Fuhr 
 V. Dean, 26 Mo. 116. Lane v. Miller, 27 Ind. 534. Dark v. Johnston, 55 Penn. St. 164. Rerick 
 V. Kern, 14 Serg. & E. 267. Laoey v Arnett, 33 Penn. St. 169. Wickersham v. Orr, 9 Iowa 260. 
 Beatty v. Gregory, 17 Iowa 114. Hulrae v. Shreve, 3 Green C. R. 116. Veghte v. Raritan 
 Water Power Co., 4 C. E. Green 153. See Hall v. Choffer, 13 Vt. 150, 157. To the contrary, 
 see CoUins ». Marcy, 26 Conn. 239 ; Babcock v. Utter, 1 Keyes (N. Y.) 397, and cases collected 
 under note o, ante. And see post, oh. 23, Injunction. 
 
 («) Devonshire (Duke of) o. Eglin, 14 Beav. 530. 
 
100 CONVENTIONAL SEBVITUDES. [Chap. 3. 
 
 out allowing the licensee a reasonable time iqf the removal of his 
 goods(M). 
 
 " A dispensation or license," observes Vaughan, C.J., " properly 
 passeth no interest, nor alters or transfers property in any thing, but 
 only makes an action lawful, which without it had been unlawful. 
 Tbus a license to hunt in a man's park, and carry away the deor 
 killed' to his own use ; to cut down a tree in a man's ground, and to 
 carry it away the next day after to his own use, are licenses as to the 
 act of hunting and cutting down* the tree; but as to the carrying 
 away of the deer killed and tree cut down, they are grants "(d). 
 
 A mere license of pleasure, such as a license to hunt over a man's 
 land, whether made by deed or simple contract, is revocable ; but a 
 license to hunt and carry away the game killed amounts, if under seal, 
 to a grant, and cannot be revoked(w). Care, however, must be taken 
 to distinguish between a license amounting to a grant of an easement 
 to be exercised and enjoyed by the grantee of such license upon the 
 grantor's land, and a license to the grantee to use his own land in a 
 way which, but for an easement claimed thereon by the grantor, he 
 would have an undoubted right to use it(a;). 
 
 Rights which are part of the ownership of the soil, unless expressly 
 reserved under Inclosure Acts, pass with the soil to the persons to 
 whom allotments are made(2/). Where, therefore, by an Act for the 
 inclosure and allotment of waste lands in a manor, it was provided 
 that nothing in the Act should defeat the right of the lord of the 
 manor to the seigniories and royalties incident to the manor, but that 
 he should hold and enjoy all courts, fairs, markets, etc., with free 
 warren and liberty of hunting, hawking, fishing, and fowling " to the 
 said manor, or to the lord thereof, incident, belonging, or appertain- 
 ing," in as ample a manner as before the Act, it was held that, as his 
 right to sport over the waste before the Act was not a license or liberty 
 " incident to him as lord," but a method of direct enjoyment of his 
 own soil and freehold, the Act did not reserve any such right of sport- 
 
 (M) Cornish v. Stubbs, L. E., 5 C. P. 334. See Drase v. Wbeeler, 22 Mich. 439 ; Heermance 
 V. Vemoy, 6 Johns. 5 ; Blake v. Jerome, 14 Johns. 406 ; Newkirk v. Sabler, 9 Barb. 652. 
 
 [V) Thomas v. Sorrell, Vaughan, 351. 
 
 (Ml) Bro. Abr. Licenses. As to a license to fish, see Mills v. Mayor of Colchester, L. K., 
 2 C. P. 476 ; 3 ib. 575. 
 
 (X) Winter v. Brookwell, Liggins v. Inge, post. Parol Abandonment of Incoeporeal 
 Eights. See Veghte v. Earitan Water Power Co., 4 (J. E. Green, 158 ; Morse v. Copeland, 2 
 Gray, 302 ; Elliott v. Ehett, 5 Eioh. 405 ; Dyer v- Saaford 9 Met. 895 ; Curtis v. Noonan, 10 
 Allen, 406. 
 
 (») Townley v. Gibson, 2 T. E. 701. Doe v. Davidson, 2 M. & S. 175. 
 
Sec. 1.] RESERVATION OF EASEMENTS. 
 
 ing to him, and that his right thereto was gone(z). A fortiori, 
 therefore, where the Act provided that a certain portion of the waste 
 should be allotted to the lord of the manor in satisfaction for his right 
 and interest as such lord (a). The Enclosure Commissioners, however, 
 have power under the 11 & 12 Vict. c. 99, s. 1, to sever the right to 
 take game from the ownership of the soil, if the lord of the manor 
 makes that a condition of his assent to the enclosure (6). Where, there- 
 foi'e, in the reservation of the manorial rights of sporting in the Act 
 other rights not manorial, such as the right of taking coals, minerals, 
 etc., were joined in the reservation, it was held that the right of sport- 
 ing was not lost, but that the terms of the clause, though nominally 
 one of reservation only, were sufficient expressly to create or confer 
 Such a right(c). 
 
 117 Reservation of privileges amounting to an express grant. — ^Where a con- 
 veyance of lands contains words excepting and reserving to the grant- 
 ors, their heirs and assigns, liberty to come upon the land and hunt, 
 hawk, fish, and fowl, the clause will operate as a grant of the privi- 
 lege, by the person to whom the land is conveyed(cZ). Where the 
 owner of a manor and of the demesne lands thereof, granted away 
 the manor and all his estate and interest therein, " except and always 
 reserved " to the grantor, his heirs and assigns, all the coal in any of 
 the said lands, it was held that this reservation gave to the grantor 
 an absolute and perpetual right in fee simple to the coals(e). If a 
 lessor reserve out of a demise "the free running of water and soil 
 coming from any other buildings and lands contiguous to the premises 
 hereby demised,'' the reservation extends only to water in its natural 
 condition, but it includes all water that comes lawfully from the ad- 
 joining premises, whether it arose there or not(/). 
 
 118 Implied reservation or grants of easements. — It does not follow that 
 because the necessity of an easement is apparent upon the face of 
 property which has been sold or granted away, there is an implied 
 
 («) Greathead v. Morley, 3 M. & G. 139. Brace v. HeUiwell, 6 H. & N. 609, aec. 
 (a) Babinson v. Wray, L. E., 1 O. P. 490. 
 (6) MuBgrave v. Forster, L. E., 6 Q. B. 590. 
 
 (c) Ewart v. Graham, 7 H. of L. Ca. 331. Musgraye V. Forster, supra. Leooniield (Lord) v. 
 Dixon, L. E., 2 Exoh. 202 ; 3 ib. 32, aoo. 
 
 (d) Addison on Contracts, 6th ed. pp. 117, 118, But the grant is of a privilege or easement 
 in gross, and is not assignable over. . Post, p, 116. 
 
 (e) Cardigan (Earl of) v. Armitage, 2 B. & C. 197. Whitakerti. Brown, 46 Penn. St. 197. 
 So where a grant of lands is qualified by the words "grass, herbage, feeding and pasturage 
 only excepted," the qualification, if not good as an exception or reservation, is elfectual to 
 create an easement in the grantor to enter and depasture the lands. Eose o. Bunn, 21 N. Y. 
 275. As to the rights of the gi'antor's licensees, see Metcalf v.Westaway, 34 Law J., C. P. 113. 
 
 (/) Chadwick v. Marsden, L. E., 2 Exch. 286. 
 
 ^W L\%!^' 
 
102 CONVENTIONAL SERVITUDES. [Chap. 3. 
 
 reservation of such easement in favor of the vendor or grantor. " If 1 
 purchase from the owner of two adjoining freehold tenements the fee 
 simple of one of thoge tenements, and have it conveyed to me, I am 
 not bound to take notice of the manner in which the adjoining tene- 
 ment is used or enjoyed by the vendor, and to permit all such con- 
 stant 'or occasional invasions of the property conveyed, as may be 
 requisite for the enjoyment of the remaining tenement in the maimer 
 it was used and enjoyed by the vendor at the time of such sale and 
 
 conveyance. "(P')- ■ • 
 
 But on the grant by the owner of an entire heritage of part of that 
 heritage as it is then used and enjoyed, there will pass to the grantee 
 all those continuous and apparent easements, which have been and 
 are, at the time of the grant, used by the owners of the entirety, for 
 the benefit of the parcel granted. If, therefore, a landed proprietor 
 has annexed peculiar qualities and incidents to different parts of his 
 estates, so that one portion of his land becomes visibly dependent upon 
 another for the supply or escape of water, or for means of access, or 
 for beneficial use and occupation, the qualities or incidents thus mani- 
 festly imprinted upon the property pass with the lands to which they 
 are annexed to the grantees, as accessorial to the beneficial use and 
 enjoyment of such lands(A). If one erect a house and build a conduit 
 thereto in another part of his land, and convey water by pipes to the 
 house, and afterwards sell the house with the appurtenances without 
 the land,, or sell the land without the house to another, the conduit 
 and pipes pass with the house, because they are necessary and ap- 
 pendant thereto ; and the purchaser of the house shall have liberty 
 by law to dig in the land for amending the pipes or making them 
 new, as the case may require. So it is if a lessee for years of a house 
 and land erect a conduit upon the land, and, after the term deter- 
 mines, the lessor occupies them together for a time, and afterwards 
 sells the house with the appurtenances to one, and the land to another, 
 the vendee shall have the conduit and the pipes, and libenty to amend 
 them. "But" by Popham, C.J., "if the lessee erect such a conduit, 
 
 (g) The Lord Chancellor, Suffleld v. Brown, 33 Law J., Ch. 2S8. 
 
 (7i) SuHield v. Brown, ut sup. Lampman v. Milts, 21 N. Y. 505. Janes v. Jenkins, 34 Md. 
 1-11. Thompson v. Miner, 30 Iowa 386. New Ipswich Factory r. Batchelder, 3 N. H. 190. 
 Thayer v. Payne, 2 Cush. 327. Simmons v. Cloonan, 4,7 N. T. 3. Lasala ». Holbroc k,'4 Paigo 
 169. But the rule of law which creates an easement on the severance of two tenements or 
 heritages by the sale of one of them is confined to cases wliere an apparent sign of servitude 
 exists on the part of one of them in favor of the other, or as it is expressed by some of the 
 authorities, where the marks of the burden are open and visible. Butterworth v, Crawford, 
 46 N. Y. 319. See Tabor v. Bradley, 18 N. Y. 109. 
 
Sec. 1.] SESBBVATION OF ^EASEMENTS. 103 
 
 and afterwards the lessor during the lease sell the house to one and 
 the land wherein the conduit is to another, and after that the lease 
 determines, he who hath the land wherein the conduit is may disturb 
 the other in the using thereof, and may break it, because it was not 
 erected by one who had a permanent estate or inheritance, nor made 
 one by the occupation or usage of them together by him who had the 
 inheritance. So it is if a disseisor of a house and land erect such a 
 conduit, and the disseisee re-enter, not taking conusance of any such 
 erection, nor using it; but presently after his. re-entry sells it, the 
 house to one and the land to another, he who hath the land is not 
 compellable to suffer the other to enjoy the conduit'XO- 
 
 When two properties are possessed by the same owner, and there 
 has been a severance made of one part from the other, anything which 
 was used and was necessary for the enjoyment of that -part of the 
 property which is granted will be considered to follow from the gr'ant, 
 if there are the usual words of conveyance(A). "Where, therefore, the 
 owner of two or more adjoining houses sells or conveys one of the 
 houses, the purchased of the house is entitled to the benefit of all the 
 drains from his house, and is subject to all' the drains necessarily to be 
 used for the enjoyment of the adjoining hpuse(Z), and that without any 
 express reservation or grant ; if that were not so, it would enable the 
 vendee of any one house to stop up the system of drainage made ior 
 the benefit and necessary occupation of the whole(TO). If a man is pos- 
 sessed of a house, and there is a way necessary for the useful and con- 
 venient occupation of the house(w) manifestly used by the occupiers 
 of the house, a grant or lease of the house with its appurtenances will 
 carry with it the right to use the way(o). But if the way is not neces- 
 
 (i) Nicholls V. Chamberlain, Cro. Jac. 121. Brown v. NichoUs, Moore, 683. Archer v. 
 Bennett, 1 Lev. 131. Hinchliffe v. Earl Kinnoul, 5 Bing. N. C. 23. Canhara v. risk, 2 Cr. & J. 
 126. Wardle v. Brookleharst, 29 Law J., Q. B. 145 ; 1 E. & E. 1058. Watts v. Kelson, L. E., G 
 Ch. App. 166. 
 
 (ft) Ewart V. Cochrane, 4 Macq. 122 ; 7 Jur. N. S. 925. Hall v. Lund, 82 Law J., Exch. 113. 
 Suffield V, Brown, ut sup. 
 
 (I) See, as to this position, Gale on Easements, 4th ed. p. 118 ; Thayer v. Payne, 2 Gush. 
 827 ; Johnson v. Jordan, 2 Met. 234 ; Bandall r. McLaughlin, 10 Allen, 366. Bnt this rule ap- 
 plies only to drains absolutely necessary to the enjoyment of the property conveyed. If the 
 party claiming the right to drain his own premises across the land of another can construct 
 an equally beneficial di'ain on his own land, with reasonable labor and expense, the rule has 
 no application. Id. 
 
 (m) Pyer i>. Carter, 1 H. & N. 91-6 ; 26 Law J., Exch. 268. Hall v. Lund, and Chadwick v. 
 Marsden, supra. See HiUiard on Torts, p. Ill ». 
 
 (n) Mansfield, C.J.. Morris v. Edgingtou, 3 Taunt. 28. Pearson v. Spencer, 1 B. & S. 671. 
 
 (o) Pollock, C.B., Giave v. Harding, 27 Law J., Exch. 292. Simmons v. Sines, 4 Keyes 
 (N. Y.) 163. Smyles v. Hastings, 22 N. Y. 217. Thomas v. Bertram, 4 Bush. (Ky.) 317. Pet- 
 tingiU V. Porter, 8 Allen 1. Bartlett ». Presoott, 41 N. H. 493. MoTavish v. Carroll, 7 Md, 
 352. Collins V. Prentice, 15 Conn. 30. Marshall v. Trumbull, 28 Conn. 183. Brice v. Bandall, 
 7 Gill & J. 349. Kimball v. Cocheco K. E., 7 Fost. 449. 
 
104 CONVENTIONAL SERVITUDES. [Chap. 3. 
 
 sary for the beneficial use and occupation of a tenement, and there are 
 other convenient means of access, a right of way will not pass under 
 the word "appurtenances"(p). And if adjoining houses, held under 
 the same landlord, are sold subject to all subsisting rights of way and 
 water, a mere permissive user of a way or of water .from a well will 
 not thereby be converted into a legal right(5). 
 
 By the French law, if the proprietor of two heritages between which 
 there exists an apparent sign of servitude disposes of one of the herit- 
 ages, without making . any stipulation in the conveyance respecting 
 the servitude, it continues to exist, actively or passively, in favor of 
 the heritage alienated or upon it(r). And by apparent signs of an 
 easement or servitude must be understood not only those which must 
 necessarily be seen, but those which may be seen or known on a care- 
 ful inspection by a person ordinarily conversant with the subject(s). 
 119 Privilegea and servitudes which pass as accessorial to the use and enjoy- 
 ment of the principal thing granted — Omne accessorium sequitur suum 
 prineipale. — In accordance with the maxim, "Quando aliquis aliquid 
 conceditj.concedere videter et id, sine quo res concessa uti non potest," 
 it has been held that by the grant of the use of a pump the grantee 
 has a right to enter upon the grantor's land to repair the pump, 
 although neither the soil itself nor the pump on which it stands be 
 granted to him ; and that if a man gives me a license under seal to 
 lay pipes of lead in his land to convey water to my cistern, I may 
 afterwards enter and dig the land to mend the pipes, though the soil 
 belongs to another, and not to rae{t). If one grants his trees, the 
 grantee may enter upon his land for the cutting down and carrying 
 them away. And if a growing crop of grass is sold to be cut down 
 and made into hay when it arrives at maturity, the purchaser has a 
 right by implication of law to make the grass into hay on the land(M). 
 If a landowner has granted to another a right to dig coal-pits in his 
 
 (p) Pheysey v. Vicary, 16 M. & W. 484. Dodd v. BurchaU, 1 H. & C. 113. 31 Law J., Exoh. 
 364. Wardle v. Brocklehurst, ut sup. McDonald v. liindaU, 3 Eawle 492. Viall v. Carpenter, 
 14 Gray (Mass.) 126. Leonard v. Leonard, 2 Allen (Mass.) 543. Ogden v. Grove, 38 Penn St. 
 487. Seabrook v. King, 1 Nott & McC. 140. Trask v. Patterson, 29 Me. 499. Hall t>. MnLeod, 
 2 Met. (Ky.)98. Gazetty v. Bethune, 14 Mass. 49. Grant v. Chase, 17 Mass. 443. Hyde tf. 
 Jamaica, 27 Vermont, 443. 
 
 (3) Daniel v. Anderson, 31 Law J., Ch. 610. Eussell r. Harford, L. E., 2 Eq. Ca. 507. See 
 French v. Morris, 101 Mass. 68. 
 
 (r) Cod. Civ. art. 694. 
 
 (s) Pyer v. Carter, 1 H. & N. 922. As to this case see 33 Law J., Ch. 269 ; L. E., 6 Eq. Ca. 253. 
 As to the rule in New York see Butterworth e. Crawford, 46 N. Y. 349. 
 
 («) Pomfret v. Ricroft, 1 Saund. 322e, 323. Liford's case, 11 Co. 62a. See Prescott v. White; 
 •il Pick. 341 ; Prescott v. Williams, 5 Met. 429 ; Doane v. Badger, 12 Mass. 65, 70 ; Williams v. 
 Safford,7Barb. {N. Y.)309; GiUis ». Nelson, 16 La. An. 279 ; ITrailey r. Waters, 7 Penn. St. 221. 
 
 \u) 1 KoU. Abr.; Dismes X., pi. 23. 
 
Sec. l.J WAYS OF NECESSITY. 105 
 
 land, and to take and carry away coals, all things necessary for the 
 exercise and enjoyment of the right pass therewith to the grantee. 
 He has a right, therefore, to erect sheds and steam-engines, and fix 
 such machinery as may be necessary to drain the coal-pits, draw up 
 the coals and iron, and work the coal-field, although the grant of the 
 incorporeal right may be silent as to any such erections(a;). 
 
 By the French law, " he to whom a servitude is due has a right to 
 form all the works necessary to make use of and preserve the servi- 
 tude. These works are at his own expense, and not at that of 1;he 
 proprietor of the estate subjected to the servitude, unless the deed 
 establishing the servitude declare the contrary "{y). 
 120 Ways of necessity. — Whenever one man grants land to another to 
 which there is no access but over the land of the grantor, or the land 
 of a stranger, which cannot lawfully be traversed, the grantee has a 
 right of way over the grantor's land, as a way by necessity, and the 
 grantor shall assign the way where he can best spare it{yy)- And if 
 the owner of two closes, having no way to one of them but over the 
 other, parts with the latter without reserving the way, it will be 
 reserved to him by law as a way of necessity(z.) Where one sold 
 land, and afterwards the vendee, by reason thereof, claimed a way 
 to it over part of the plaintiff's land, there being no convenient way 
 adjoining, it was held that he might well justify the using thereof, 
 for otherwise he could not have any profit of his land : and if a man 
 hath four closes lying together, and sells three of them, reserving the 
 middle close, and hath not any way thereto, but through one of those 
 which he sold, although he reserved not any way, yet he shall have 
 
 (») Dond V. Kingsoote, 6 M. & W. 196. 
 
 (y) Cod. Civ. liv. 2, tit. 4, art. 697, 698. 
 
 iyy) Kimball o. Cocheco K. E. Co., 7 Foster (N H.) 448. Wessler v. Hershey, 23 Penn. St. 
 333. Leonard v. Leonard, 2 AJlen (Mass.) 543. Snyder ». Warford, 11 Mo. 513. New York 
 Life Ins. and Trust Co. v. Miller, 1 Barb. Ch. (N. Y.) 353. Collins »'. Prentice, 15 Conn. 39. 
 Holmes v. Seeley, 19 Wend. 507. If the grantor fails to locate the way, the grantee may 
 locate it for himself. Holmes v. Seeley, 19 Wend. 507. 
 
 (a) 2 KoU. Abr.; Gkaunt, Z., pi. 17, 18. Staple v. Heydoy, 6 Mod. 4. Howtonp. Frearson, 
 8 T. R. 50. Morris v. Edgington, 3 Taunt. 30. Pinnington v. Galland, 9 Exoh. 12; 22 Law J., 
 Exch. 349. East. Co. Rail. Co. v. Dorling, 5 C. B., N. S. 821; 22 Law J., C. P. 202. Gayforrt 
 «. Moffatt, L. R., 4 Ch. App. 133. Collins v. Prentice, 15 Conn. 39 Piei-ce,». Selleck, 18 
 Conn. 321. Brigham v. Smith, 4 Gray, 297. Lawton v. Rivers, 2 McCord, 445. Cooper v. 
 Maupin, 6 Mo. 624. Smith „. Kinard, 2 Hill. (S. C.) 624. Alley v. Carleton, 29 Texas, 78. 
 But where land is sold for a specific purpose and conveyed withouti, reservation, the law 
 will not imply a right of way of necessity over such land in favor of the vendor, if the pur- 
 poses for which the land is granted are inconsistent with the object of the purchase. Seeley 
 V. Bishop, 19 Conn. 128. 
 
 And if the owner of land hounded on one side by a highway and on the other side by the 
 lands of other owners, sells that portion of lands wliich is next to the highway, he will have 
 no right of way by necessity, over the land sold if he has a prescriptive right of way over 
 either of the adjoining lota. Leonard v. Leonard, 2 Allen (Mass.) 643. 
 
106 CONVENTIONAL SMRVITVDES. [Chap. 3. 
 
 it as reserved unto Mm by the law(a). A way of necessity, when the 
 nature of it is considered, will be found to be nothing else but a 
 way by grant. It derives its origin from a grant ; for there seems to 
 be no difference where a thing is granted by express words, and 
 ■where by operation of law it passes as incident to the grant. In 
 both cases the grant is the foundation of the title, and it is as 
 necessary to set forth the title to a way of necessity as it is to a way 
 by grant(6). 
 121 Necessary incidents to a grant of a r^lit of way or watercourse. — Every 
 grantee of a right of way, or of the right of passage for waste water 
 through an artificial drain or watercourse, extending from the land ol 
 the grantee through the laud of the grantor, is bound to maintain and 
 repair the way and the watercourse, if he wishes to use them, unless 
 the grantor himself has expressly undertaken the performance of that 
 duty. The grantee, therefore, has a right to go upon the land over 
 which the easement is enjoyed to do the necessary repairs(c). 
 
 Under a general grant of a right of way, with liberty to make and 
 lay causeways, and use the same with wagons and carriages, and 
 carry coals, it was held that the grantee had a right to construct and 
 use framed wagon-ways, if they were reasonably necessary for the 
 profitable conveyance of coals, but that he was not entitled to make a 
 transverse road across the land, for purposes foreign to the conveyance 
 of coals(d). And where there was a grant of a right of way as a foot 
 or carriage way, with all liberties, powers, and authorities necessary 
 to the enjoyment thereof, it was held that the grantee of the way 
 might lay down a flagstone upon the land in front of his house, over 
 which the way passed, if the flagstone was reasonably necessary for 
 his enjoyment of the way, and the laying of it down did not in any 
 wise obstruct the carriage-road, or cause any injury or inconvenience 
 to the grantor(e). • 
 
 By the civil law, every owner who was entitled to a way, or the 
 free passage of running water from his dominant tenement through 
 
 (a) Clarte v. Cogge, Cro. Jao. 170. See Davies o. Stear, L. R., 7 Eq. C. 427; 38 L. J., Ch. 
 845, nom. Davies v. Sear, S. C; Cooper, v. Maupin, 6 Mo. 624. 
 
 (6) 1 Wms. Saund.323a, 323b. Proctor v. Hodgson, 10 Exch. 824 ; Law J., Exch. 195. Mchola 
 V. Luce, 24 Pick. 102. Collins v. Prentice, 15. Conn. 39. Atkins ». Boardman, 2 Meto. 457. 
 Huff V. McAuley, 63 Penn. St. 209. American Co. v. Bradford, 27 Cal. 3(>fl. Washb. on Easem. 
 & Serv. (3ded.)44. 
 
 (c) Taylor v. Whitehead, 2 Doug. 745. M'Swiney v. Haynes, 1 Ir. Eq. E. 322. Prescott t> 
 White, 21 Pick. 341. Holmes v. Seeley, 19 Wend. 507. Wyoktiop «. Burger, 12 Johns. 222. 
 Doane v. Badger, 12 Mass. 66. Atkins v. Bordman, 2 Mete. 467. Prescott v. Williams, 6 Meto. 
 4-29. Jones v. Percival, 5 Pick. 485. MiUer v. Bristol, 12 Pick. 550 ; post. ch. 4. 
 
 (d) Seuhouse v. Christian, 1 T. K. 569. 
 
 (e) Gerrard v. Cooke, 2 B. & P. N. B,. 115 
 
Sec. 1.] IMPLIED EASEMENT OF SUPPORT. 107 
 
 an adjoining servient tenement, was entitled to enter upon the servient 
 lands to repair the way or watercourse when necessary, and bring 
 thereon the materials necessary for the purpose, making compensation 
 to the owner of the servient tenement for all damage done in the 
 progress of the repairs(/). 
 
 122 BAght of kruxing on the hanks of a navigable river. — There is no general 
 common law right of towing along the banks of a navigable river(p') ; 
 but such a right maybe acquired by grant, custom, or prescription(^). 
 
 123 When an easement of support from the adjoining land of the grantor 
 passes as accessorial to a grant of land or of a tenement. — If the land- 
 owner sell a portion of his land avowedly and expressly for building, 
 or for the construction of a road or railway, he impliedly grants ,to the 
 purchaser in the absence of statutory provisions to the contrary, an 
 easement of lateral support from his adjoining land ; and if the vendor 
 reserves to himself the right to the minerals underneath the surface, 
 he nevertheless impliedly grants all such adjacent and subjacent 
 support as is reasonably necessary to enable the purchaser to erect 
 and maintain his buildings, road, or railway ; and neither the vendor, 
 nor those who claim under him, can afterwards excavate so as to 
 endanger the support and derogate from the grant(i). 
 
 How far this adjacent and subjacent support must extend is a 
 question which in each particular case will depend on its own special 
 circumstances. If the surface of the land granted is merely a com- 
 mon meadow, or a ploughed field, the necessity for support will be 
 much less than if it were covered with buildings. All which a grantor 
 of the surface can be reasonably considered to grant or warrant, by 
 implication of law, is such a measure of support, subjacent and adja- 
 cent, as is necessary for the land in its condition at the time of the 
 grant, or to enable the grantee to use it for purposes for which it was 
 known to be required. 
 
 "Thus, if I grant a meadow to another, retaining the minerals 
 under it, and also the adjoining land, I am bound so to work my 
 
 {/) Gale on Easements, 4th ed. 496. 
 
 (g) Ball V. Herbert, 3 T. R. 253. Treat v. Lord, 42 Me. 652. Hooper v. Holson, 57 Me. 273. 
 The doctrine of the civil law that the privilege of towing on the banks of navigable rivers is 
 embraced in the public right of navigation has been partially adopted in certain decisions in 
 Illinois and Tennessee, but this doctrine has not been generally accepted as the law of the 
 United States. Keimold v. Moore, 2 Mich. N. P. 15. 
 
 (A) As to the right to the soil of towing paths, see post^ ch. 6, s. 2. 
 
 (f) North-East Kail Co. v. Crosland, 32 Law J., Ch. 35S. This rule, however, does not neces- 
 sarily apply where lands are talcen under the provisions of an act of parliament, e.g. for 
 constructing a sewer. Met. Board of Works «. Met. Kail. Co., L. E., 3 C. P. 612; 4 ibid. 19S; 
 38 L. J., 0. P. 172. 
 
108 CONVENTIONAL SERVITUDES. [Chap. 3 
 
 mines and to dig my adjoining lands as not to cause the meadow to 
 sink or fall over. But if I do this, and the grantee thinks fit to build 
 a house on the edge of the land he has acquired, he cannot complain 
 of my workings and diggings if by reason of the additional weight 
 he has put on the land they cause his house to fall. If, indeed, the 
 grant is made expressly to enable the grantee to build his house on 
 the land granted, then there is an implied grant and warranty of 
 support, subjacent and adjacent, as if the house had already existed(^). 
 And if the additional weight of the building has in nowise caused the 
 surface to sink, and the land would have sunk if no building had 
 been put upon it, the excavator or miner is responsible for the damage 
 done both to the laud and buildings "(awfe, p. 75). In reserving mines 
 and minerals, therefore, the grantor must be understood to have re- 
 served them so far only as he can work "them consistently with the 
 preservation of the grant of the surface(/;). 
 1 24 Of the right to search for minerals under lands weighted hy railways 
 and canals. — By the Railway Clauses Consolidation Act (8 & 9 Vict. 
 c. 20), it is enacted (s. 77) in the case of the purchase of lands by any 
 company constituted under that Act, that the company shall not be 
 entitled to any mines of coal, ironstone, slate, or other minerals under 
 any land purchased by them, except such part thereof as shall be 
 necessary to be dug, or carried away, or used in the construction of 
 the works, unless the same shall have been expressly purchased, and 
 that all such mines, excepting as aforesaid, shall be deemed to be ex- 
 cepted out of the conveyance of such lands, unless they shall have 
 been expressly named therein and conveyed thereby. And by s. 78 
 it ife enacted, that if the owner, lessee, or occupier of any mines or 
 minerals lying under the railway, or any of the works connected 
 therewith, or within the prescribed distance, or where no distance 
 shall be prescribed, forty yards therefrom, be desirous of working the 
 same, such owner, etc., shall give notice in writing to the company of 
 his intention ; and if it appear to the company that the working of the 
 mines is likely to damage the works of the railway, the company may, 
 by giving compensation in the mode provided by the statute(Z), pre- 
 vent the working of the mines. But if, within thirty days after the 
 
 ( j) Caled. Kail. Co. v. Sprot, 2 Macq. 452. ■ North-East Rail. Co. t>. Elliott, 1 Johns. & Hem. 
 146 ; 29 Law J., Ch. S12 ; 30 Law J., Ch. 164 ; 32 Law J., Ch. 402. North-East. Kail. Co. r. 
 Crosland, 2 Johns. & Hem. 665. Harris v. Eyding, 5 M. & W. 60. Haiues v. Hoberts, 7 EU. & 
 Bl. 625 ; 6 ibid. 643. 
 
 (*) See BeU v. Wilson, L. K., 1 Ch. App. 303. 
 
 (J) Post. oh. 18. 
 
Sec. 1.] IMPLIED EASEMENT OF 8UPP0BT. 109 
 
 receipt of the notice, the company do not state their willingness to 
 treat for the payment of compensation, the owner of the mines may 
 work them in a manner proper and necessary for the beneficial work- 
 ing thereof, and according to the usual manner of working mines in 
 the district, making good damage done to the railway or works by im- 
 proper working. 
 
 Similar provisions have been inserted in various acts of parliament 
 incorporating canal companies, and enabling them to purchase lands, 
 for the formation of a canal, and the effect of them is to deprive the 
 company of the right to support for the railway or canal from coal, 
 ironstone, slate, or minerals lying beneath the surface of the adjoining 
 land, within the purchasing distance, or beneath the land over which 
 the railway or canal is carried, unless they have purchased the slate 
 or minerals, or compensation has been given in the manner prescribed 
 by the statute(m). 
 
 Under statutory provisions of this sort, the company do not in the 
 first instance pay to the landowner more than the value of the surface 
 in the shape of purchase-money, or foj* the injury to the surface, if 
 compensation only is made for damage ; the minerals remain the 
 property of the owner of the soil; but where he is desirous of getting 
 them, the company have the option of purchasing them at a fair 
 price, to be settled, in case of dispute, in the usual way. These pro- 
 visions, it has been observed, are for the benefit of the company, who 
 are relieved from the great expense of buying the minerals along the 
 whole line of an intended railway or canal in the first instance, before 
 it is constructed ; and are enabled to postpone the purchase of them 
 until the time when, from the state of the market in the neighbor- 
 hood, the owners really want to get them. When this happens, the 
 company have an option either to buy, in which case the landowner 
 cannot get the mineral, but is fully compensated for the loss of that 
 right, or not to buy, in which case he receives no compensation at all, 
 but his right to get them remains as complete as if no railway had 
 been made(M). 
 
 (m) Great West. Bail. Co. v. Bennett, L. R., 2 H. of L. Ca. 27. Midland Kail. Co. v. Cheok- 
 ley, L. E,, 4 Eq. Ca. 19. 
 
 (») Dudley Canal Nav. Co. v. Grazebrook, 1 B. & Ad. 72. Stourbridge Canal Co. v. Dudley 
 (Earl of), 30 Law J., Q. B. 108. London & Korth-west Kail. Co. u. Ackroyd, 31 Law J., Ch. 
 588. It has been recently held, however, that in case a canal company refuse after notice 
 from the mine owner, to purchase the_ mines, and the latter works his mines, not negligently, 
 but with full knowledge that the canal water will probably flood his mines, which according- 
 ly happens, the mine owner is not entitled to sue the canal company for a tort, although he 
 may be entitled to compensation under the statute. Dunn v. Birra. Canal Co., L. E., 7 Q. B. 
 244, diss, Hannen, J. 
 
110 CONTENTIONAL SERVITUDES. [Chap. 3. 
 
 These statutory provisions do not exclude the ordinary right of a 
 purchaser to support from adjacent land situate beyond the purchas- 
 ing limits ; and, therefore, where a vendor has sold land to a railway 
 company for the erection of a bridge or a viaduct, he cannot excavate 
 his own adjoining land, situate beyond the purchasing limits, so as 
 to deprive the bridge or viaduct of the necessary adjacent support.{o). 
 
 The 81st section of the 8 Vict. c. 80, enacts " that a railway com- 
 pany shall from time to time pay to the owner, lessee, or occupier of 
 mines extending so as to lie on both sides of the railway, all such 
 additional expenses and losses as shall be incurred by such owner, 
 etc.," by reason of the severance of the surface land, or of the contin- 
 uous working of the mines being interrupted, or by reason of the 
 same being worked so as not to prejudice the railway, and in case 
 of dispute as to the amount " of such losses and expenses," the same 
 shall be settled by arbitration. An arbitrator may, under this section, 
 include damage not actually incurred, but which will be necessarily 
 incurred by the mine-owner, by reason of the severance, and the inter- 
 ruption in the working of his mines, if it be reasonably ascertain- 
 able(p). 
 
 It has been held that clauses in Canal Acts, requiring coal owners to 
 give notice to canal companies of their intention to work their mines 
 within a certain distance of the canal, and giving liberty to the com- 
 pany to inspect the works, and to prohibit the owners, upon compen- 
 sation being made, from working within that distance, were framed 
 for the purpose of enabling the company to purchase out the rights 
 of the coal owners, if they thought their canal works likely to be 
 endangered by the nearer approach of the miners ; that if the com- 
 pany declined the purchase, the coal owners were left to their common 
 law rights, as if no canal had been made, and they might take every 
 part of their coal in the same manner as they might have done before 
 the Act passed, their former rights in that respect not having been 
 taken away by the Act, which has only appropriated the surface of 
 the land, and so much of the soil as was necessary for the cutting and 
 making of the canal, leaving the coal, etc., to the owners, to be 
 enjoyed in the same manner as before(g'.) 
 
 " The difficulty which arose upon the Dudley Canal Act was this, 
 that the wording of the clause there, ' doing no damage,' was coupled 
 
 (0) EUIot V. North-east Bail. Co., 32 Law J., Ch. 402. N. E. K. Co. t>. Crosland, 32 Law J.. 
 Oh. 353. 
 (pi WTiitehouse v. Wolverhampton Bail., L. R., 5 Exch. 6. 
 (S) Wryley Canal Co. ». Bradley, 7 East, 371. 
 
Sec. l.J SUPPORT FROM ONE BOU^E TO ANOTHER. Ill 
 
 ■with the power of the company to purchase, and it seemed, in the 
 judgment of the court, to be a useless and frivolous clause, unless 
 they gave a wider interpretation to the words ' working without doing 
 damage,' because, they said, if it is to be a simple and absolute clause 
 that no damage shall be done, if is a very idle thing to put the 
 company upon the terms of purchasing "(r). But where there is no 
 clause in the Act requiring the railroad or canal proprietors to procure 
 immunity from damage by purchasing the minerals, and authorizing 
 them to make the purchase, the mine-owner cannot work his mine so 
 as to destroy or injure the railroad or canal(s). And the same prin- 
 ciple applies if the works and excavations of the mine-owner, endan- 
 gering a railway structure, are situate beyond the purchasing limits, 
 so that the clause does not apply(i). If a mine-owner, having worked 
 up to the purchasing limits, gives notice to the company, and the 
 company decline' to purchase the minerals, and the mine-owner pro- 
 ceeds with the working of the mine under the railway, and the soil 
 sinks, and the railway drains and drainage works become choked 
 up or destroyed, and the surface-water from the railway percolates 
 through the earth, and floods the mine, the railway company is in 
 general bound by statute to make good the damage and rebuild the 
 drains, and this from time to time, as the earth subsides through the 
 working of the mine(M). 
 125 /Servitude of support from one house to anothefr, where several houses 
 have been built together, so as to require mutual support. — Where a num- 
 ber of houses have been built together by one owner, so as to require 
 and receive mutual support, there is, either by a presumed grant, or 
 by a presumed reservation, a right to such mutual support for their 
 common protection or security, so that if the houses are afterwards 
 sold and conveyed to different individuals, this mutual dependence 
 of one house upon another, and right to mutual support, continues('w) ; 
 and if several adjoining landowners, by common consent and agree- 
 ment, build their houses together, so that the house of one of them 
 rests upon and requires the support of the adjoining house, there 
 would be an implied grant of a right to mutual support ; and this 
 right would continue, notwithstanding alterations in the ownership of 
 
 (r) Wood, V.-C, North-East. Rail. Co. v. Elliott, 29 Law J., Ch. 811. 
 («) Eeg. V. Aire & Calder Nav. Co., 30 Law J., Q. B. 337. 
 
 (<) North-East. Bail. Co. v. Elliott, 2 De G. F. & J. 423; 30 Law J., Ch. 160; 22 Law J., 
 Ch. 402. 
 («) Bagnall v. Lond. & North-West. Kail. Co., 7 H. & N. 423; 31 Law J., Exch. 121. 
 (») See Rogers o. Sinshoimer 50 N. Y. UK; Parti-idge v. Gilbert, 15 N. Y. 601. 
 
112 CONVENTIONAL SERVITUDES. [Chap. 3. 
 
 the houses by sale, mortgage, devise, etc.(a;). But if two houses are 
 built against each other, with separate and independent walls, resting 
 upon separate and independent foundations, so as to stand indepen- 
 dently of each other, one house has no right to an easement of support 
 from the other(2/). 
 1 26 Accessorial servitude of support where the separate floors of a building 
 are granted to several different proprietors. — If the owner of a house con- 
 veys the upper story to a purchaser, there is an implied grant of sup- 
 port from the lower " stories, so that the owner of the latter cannot 
 interfere with the walls and beams upon which the upper story rests, 
 and prevent them from affording proper support(z). And if a man 
 builds a house, and forms each story or flat into a separate dwelling, 
 and sells or lets the different stories of the house to different indi- 
 viduals, there is an implied grant to every purchaser or hirer of the 
 rooms of all such adjacent and subjacent support as may be necessary 
 for the maintenance and enjoyment of each respective dwelling. And 
 when the different floors and flats of the same house are held as 
 separate freeholds by different individuals, the owner of the lower 
 rooms and foundations is in general bound to uphold and maintain 
 the main walls and necessary supports of the rooms above(a). 
 
 " Where I have a chamber below, and another has a chamber above 
 mine, as they have here in London, in this case I may compel him 
 who has the chamber above to cover his chamber for the salvation of 
 the timber of my chamber below ; and in the same manner he may 
 compel me to sustain my chamber below, by the reparation of the 
 principal timber, for the salvation of his chamber above"(6). There is 
 a writ in NiTURA. Bkevium; to a mayor, to command him that has the 
 lower rooms to repair the foundation, and him that has a garret to re- 
 pair the roof; and that is grounded upon a custom(c). 
 
 If the owner of a house grants the upper rooms to, be holden and 
 enjoyed for life or in fee, reserving to himself the lower rooms, he 
 
 (x) Kiohards v. Eose, 9 Exch. 221. See Brooks ». Curtis, 50 N. Y. f)39. As to the rights and 
 liabilities of the several owners of adjoining hnUdings in respect to party walls under the 
 statutes of Pennsylvania, see Dunlop Laws of Penn. (ed. 1S47) ch. 31, p. 39 ; act of 1721 ; 
 Eoberts v. Bye, 30 Penn. St. 376. 
 
 iy) Solomon t>. Vintners Co., 4 H. & N. 598. Peyton e. Mayor of London, 9 B. & C. 736. 
 Kempston ti. Butler, 12 Ir. C. L. B. 516. 
 
 (z) Caledon. Eail. Co. v. Sprot, 2 Macq. 450. 
 
 (ai Eichards v. Eose, 9 Exch. 221 ; 23 Law J., Exch. 3. Humphries t>. Brogden, 12 Q. B. 
 747. McConnel c. Kibbe, 33111. 175. See Rhodes r. M'Cormiek, 4 Iowa, 376. 
 
 (6) Anon. Keilw. 98, pi. 4. Anon. 11 Mod. 8. Graves v. Berdan, 26 N. T. 498, 501. But sea 
 Loring v. Bacon, 4 Mass. 575 ; Cheesebrough v. Green, 10 Conn. 318 ; Ottumwa Lodge ". Lewis, 
 34 Iowa 67. 
 
 (c) Tenant v. Goldwin, 6 Mod. 314 ; 2 Ld. Eaym. 1093 ; Fitz. Nat. Brev. 127. 
 
kSeC. 1.] IMPLIED GRANT OF LIGHT OR AIR. 113 
 
 impliedly undertakes not to do anything which will derogate from his 
 own grant. If, therefore, he were to remove the supports of the 
 upper room he would be liable to an action(c?). And if he conveys the 
 house to another by deed, reserving. a lower story to himself, with 
 powers of enlarging and altering such lower story, those powers must 
 be exercised so as not to interfere with or endanger the necessary sup- 
 port to the rooms above, unless the right of support is expressly re- 
 nounced by the grantee of the upper stories(e). 
 
 By the French law, "when the different stories of a house belong 
 to different proprietors, and the titles to the property do not regulate 
 the mode of reparations and reconstructions, they must be made in 
 the following manner: — The main walls and the roof are at the charge 
 of all the proprietors, each in proportion to the value of the story 
 belonging to him. The proprietor of each story makes the floor 
 belonging thereto ; the proprietor of the first story erects the staircase 
 which conducts to it ; the proprietor of the second story carries the 
 stairs from where the former ends to his apartments ; and so of the 
 rest"(/). 
 
 127 Grants of the privilege of a free passage of light and air to newly- 
 opened windows across the adjoining land of the grantor must be 
 authenticated by deed, or established by implied grant, or by pre- 
 scription. If a parol license or permission is granted to a neighbor to 
 open a window overlooking the adjoining ground of the defendant, 
 the parol license will not prevent the defendant from building a wall 
 on his own land, and thereby shutting out the light and air from the 
 newly-opened window. If, therefore, permission not under seal is 
 given to a defendant, to open a window in his house overlooking the 
 plaintiff's garden, and the plaintiff, after the window has been opened, 
 finding that his privacy has been invaded, builds a wall on his own 
 ground which blocks up the offending window, and the defendant 
 then enters upon the plaintiff's land, and knocks the wall down, he 
 will be responsible in damages for a trespass, and cannot justify his 
 entry upon the plaintiff's land under color of the parol license to open 
 the window(5'). 
 
 128 When the privilege of free passage for light and air across adjoining 
 land passes as accessorial to a grant or conveyance. — If the owner of a 
 house and the surrounding land sells the house without the land, 
 
 (d) Parke, B., 5 M. & W. 71. 
 
 (e) Smart v. Morton, 5 Ell. & Bl. 47. 
 (/) Cod. Civ. liT. 2, tit. i, art. 664. 
 
 , g) Bridges v. Blanohard, 1 Ad. & E . 549. Wood V. Leadbitter. I.ee v. Stevenson, mete, p. 99. 
 
 Ad. Vol. I.— 8 
 
114 CONVENTIONAL SERVITUDES. [Chap. 3. 
 
 free passage for so much light and air as may be reasonably necessary 
 for the beneficial occupation and enjoyment of the house is impliedly 
 granted by the vendor across his own adjoining unsold land, unless 
 the privilege is excluded by the express terms of the conveyance. The 
 vendor, therefore, cannot build on his ovra. adjoining land so as to 
 obstruct the access of light and air to the windows of the house. Hav- 
 ing granted the house, he can do no act in derogation of his own grant. 
 And if he sells and conveys the house to one man, and the adjoining 
 land to another, the purchaser of the adjoining land cannot build so 
 as to darken or obstruct the windows of the house, although such 
 adjoining land may have been described as building-land, and the 
 intention to build thereon may have been known to the purchaser at 
 the time he purchased it(A). But where the owner in fee of an ancient 
 house, and of the land surrounding the house, sold such surrounding 
 land without the house, and the purchaser built thereon, so as to 
 obstruct the access of light and air to the windows of the ancient house, 
 it was held that the owner had no remedy for the injury, and that 
 there was no implied restriction on the right of the purchaser to build 
 as he pleased on his own land(j). 
 
 Where the shell of an unfinished house was sold, vrith openings in 
 the walls for the insertion of windows and doors, it was held that the 
 vendor could not, after the sale and conveyance of the unfinished 
 structure, build on his own adjoining land, so as to obstruct the access 
 of light and air to the spaces left for windows, or place obstacles in the 
 way of the exercise of a right of way to the apertures intended for 
 doors. And when two separate purchasers buy two unfinished houses 
 from the same vendor, and at the time of the purchase the spaces for 
 windows and doors are marked out, this is a sufficient indication to 
 the purchasers of the rights they are respectively to enjoy ; so that 
 they cannot subsequently interfere with each other's enjoyment of the 
 ■windows and doors as marked out and impliedly agreed upon at the 
 time of the sale(^). So if two lessees of houses derive title from the 
 same lessor, the one cannot, by buildings or erections, encroach upon 
 
 (ft) Palmer B. Fletcher, 1 Lev. 122. Bayley, B., Canham». Fisk, 2 Cr. & J. 128. Swansbor- 
 ough V. Coventry, 9 Bin^. 305. Janes v. Jenkins, 34 Md. 1. Story v. Odin, 12 Mass. 157. Hub- 
 bard o. Town, 33 Vt. 295. Lampman v. Milks, 21 N. T. 505. Gerber v. Grubell, 16 ni. 217. 
 Simmons «. Cloonan, 2 Lans. (N. T.) 346, 361. Oregon Iron Co. v. Trnllinger, 3 Oregon, 1, 6. 
 United States v. Appleton, 1 Sumn. 492, 602. Maynard v. Esher, 17 Penn. St. 222, 226. To the 
 conti-ary see MuUin v. Stricken, 19 Ohio St. 523 ; Haverstick v. Sipe, 33 Penn. St. 368; Mor- 
 rison «. Marquardt, 24 Iowa, 36. 
 
 («) White V. Bass, 7 H. & N. 722 ; 31 Law J., Exch. 283. 
 
 (i) Compton v. Eichards, 1 Price, 27. Glave v. ^[s^rdiog, 27 Lsiw J., Exch. 286. 
 
Sec. 1.] IMPLIES GRANT OF LIGHT OR AIR. 115 
 
 the light and air coming to the windows of the house occupied by the 
 other(Z). 
 
 In these cases the right to the free passage of a reasonable quantity 
 of light and air across the adjoining land becomes appurtenant to the 
 house, and passes therewith to all successive owners of the property. 
 
 Upon the same principle, it has been held that a landlord, after he 
 has demised his house, cannot obstruct the lights existing at the time 
 of the demise(ni) ; nor can a lessee darken or obstruct windows- of his 
 own landlord which existed at the time of the demise, whether such 
 windows were ancient or of recent construction(w). But the right of 
 uninterrupted enjoyment is confined to the windows existing at the 
 time of the conveyance, grant, or demise, and does not extend to win- 
 dows subsequently opened, or to new windows varying in size, eleva- 
 tion or position (o). 
 
 The rule is the same where a man sells land on the banks of a 
 stream ; he cannot, in derogation of his own grant, continue to foul 
 the water in front of the land sold, unless he expressly reserve such 
 right(p). 
 129 Of the rule or maxim, of law that no man shall derogate from his own 
 grant. — It is, as we have seen, a principle of law that no man shall 
 derogate from his own grant(g) ; if, therefore, a man has granted to 
 another estovers, or a right to cut and carry away wood for burning, 
 or a right to fish for his own use and consumption, and he destroys all 
 the wood out of which the estovers were to be taken, or draws all the 
 water away from the pond or stream, and destroys the fish, the party 
 grieved shall have his remedy by action ; for these are wilful acts of 
 - the grantor, and it is a misfeasance in him to annul or avoid his own 
 grant(?'). If a man grants lands, reserving to himself the right to the 
 coals and minerals beneath the surface, he cannot excavate them to 
 the injury of the surface, and thereby derogate from his own grant. 
 And if one man grants to another the privilege or easement of making 
 and maintaining a covered sewer or watercourse, of certain specified 
 dimensions, through the land of the grantor, for the purpose of carry- 
 
 ' (i) Coutts ». Gorham, 1 M. & M. 396. Jaoomb ». Knight, 32Law J., Ch. 601. 
 
 (m) Cox V. Matthews, 1 Ventr. 237, 239. Eosewell !i. Pryor, 6 Mod. 116. See Eoyce v. Gug- 
 genheim, 106 Mas8. 201, 205 ; Thurston v. Mink, 32 Md. i87. 
 
 («) Riviere v. Bower, K. & M. 24. 
 
 (o) Blanchard v. Bridges, 4 Ad. & E. 190. 
 
 (i>) Crossley «. Lightowler, L. E., 3 Eq. Ca. 279. 
 
 (g) Ellis V. Mayor, etc. of Bridgnorth, 32 Law J., C. P. 273. See ante, pp. 101,113,114; Story 
 B Odin, 12 Mass. 157 ; and see oases cited under note ft, oMte. 
 
 (r) Twysden, J., Pomi'ret v. Eicrott, 1 Saund. 322. 
 
116 CONVENTIONAL SERVITUDES. [Chap 3. 
 
 ing off waste and refuse water from the land of the grantee, the 
 grantor has no right to use the sewer, and pour water into it, without 
 the license and permission of the grantee(s). If a millowner sells a 
 watermill which is supplied by water from an open sluice on the land 
 of the vendor, the vendor cannot, after he has sold the mill, lawfully 
 close the sluice, as he would, by so doing, derogate from his own grant. 
 Both the vendor, and all persons claiming under him, are bound to 
 keep the sluice open for the benefit of the grantee of the mill(<). 
 1 30 Of the transfer from one person to ^nother of easements and profits a 
 prendre. — Easements and profits a prendre in gross, not appendant or 
 appurtenant to land, cannot be transferred from hand to hand, and 
 kept alive, so as to burthen the land for all time in the hands of sub- 
 sequent purchasers and proprietors; and no easement, privilege, or 
 profit to be enjoyed over, or taken from, land can be made appendant 
 or appurtenant to land, unless it is accessorial to the use and enjoy- 
 ment of landed property(M). There must be a dominant tenement, 
 for whose benefit the right exists, as well as a servient teneraent(a;). 
 Thus, a right of way unconnected with the enjoyment or occupation 
 of land cannot be annexed as an incident to an estate, nor can a way 
 appendant to a house or land be granted away or made a way in 
 gross, for no one can have such a way but he who has the land to 
 which it is appendant. It is not in the power of an owner of land 
 to create rights not connected with the use or enjoyment of land, and 
 annex them to it, nor can he subject the land to a new species of 
 burthen, so as to bind it in the hands of an assignee. "It would 
 be a novel incident annexed to land, that the owner and occupier 
 should, for purposes wholly unconnected with that land, and merely 
 because he is owner and occupier, have a right of way over other 
 land ; and a grant of such a privilege or easement can no more be 
 annexed, so as to pass with the land, than a covenant for any collat- 
 eral matter "(y). 
 
 («) Lee V. Stevenson, E. B. & E. 512 ; 27 Law J., Q. B. 266. See Bliss v. Greeley, 45 N. T. 
 671. 
 
 («) Miner v. Gilmour, 12 Moore's t. C. C. 131. 
 
 («) Ellis V. Mayor, etc. ol Bridgnorth, 32 Law J., C. P. 273. See Post v. PearsaU, 22 Wend. 
 425; Perley v. Langley, 7 N. H. 233; Wagner v. JBanna, 38 Cal. Ill ; Tinicnm Fislving Co. ». 
 Carter, 61 Penn. St. 38; Garrison v. Eudd, 19 lU. 6S8. But see Goodrich v. Burbanlt, 12 Allin, 
 4S9; Owen v. Field, 102 Mass. 100. As to when a right of shooting is an incorporeal right in 
 gross, see Overseers of Hilton v. Overseers of Bowes, L. E., 1 Q. B. 359. 
 
 (a!) Dark v. Johnston, 65 Penn. St. 164. Mabie v. Matteson, 17 Wis. 1. Nemo potest servi- 
 tutem acqnirere, urban! vel mstici prasdil, nisi qui habet prsedinm; nee qnisquam debere nisi 
 qui praedium habet.— Instit. lib. 2, tit. 4, s 3. De Servitutibus. 
 
 (j/) Ackroyd v. Smith, 10 C. B. 188. BaUey V. Stevens, 12 0. B., N. S. 91. Hill v. Tnpper, 
 2 H. & C. 121. 
 
8ec. l.'J TRANSFER OF BASl^MENTS — PR OUTS A PRENDRE. 117 
 
 " Private ways over another man's grounds," observes Blackstone, 
 " may be grounded on a special permission, as when the owner of the 
 land grants to another a liberty of passing over his grounds to go to 
 church, to market, or the like : in which case the gift of grant is 
 particular, and confined to the grantee alone; it dies with the person, 
 and the grantee cannot assign over his right to any other "(z). Thus 
 a license to a man to hunt in my park, or to walk in my orchard, 
 extends but to himself. And a way granted to church over any land 
 extends not to any other but the grantee himse]f(o!), and therefore he 
 may not give or grant this to another(6). But if the incorporeal 
 right is appendant or appurtenant to a house or land, and accessorial 
 to the use and enjoyment thereof it passes with the tenement to 
 which it is annexed to the successive assignees and owners thereof 
 by a grant of the tenement, so that the benefit and the burthen of 
 the exercise and enjoyment of the incorporeal right will accompany 
 the dominant and servient tenements into the hands of the several 
 successive' assignees and owners thereof, so long as such dominant 
 and servient tenements remain vested in the hands of separate pro- 
 prietors(c). 
 
 A claim by one landowner to enter upon his neighbor's land and 
 cut down trees and sell them, is a claim of a profit a prendre in gross, 
 and cannot be made appurtenant to land, as it is in nowise accessorial 
 to the use and enjoyment of an estate, but a claim to cut down thorns 
 and firewood to burn in the dwelling-house of the claimant, is a profit 
 a prendre, accessorial to the use and enjoyment of the dwelling-house, 
 and may be made appendant or appurtenant thereto, so as to give the 
 owners and occupiers thereof for the time being a right to the privi- 
 lege(d). 
 
 By the French civil code, it is declared to be lawful for proprietors 
 to establish over their estates, or in favor of their estates, such servi- 
 tudes as seem good to them, provided the services established be not 
 imposed either on a person, or in favor of a person, but only on an 
 estate, and for the benefit of an estate(e). 
 
 («) 2 Bl. Comm. 35. Garrison v. Eudd, 19 HI. 558. 
 
 (o) Wingate'8 Maxims, 379. 
 
 (6) Sheph. Touch. '239. See Wagner r. Hanna, 38 Cal. HI. 
 
 (c) Lansing r. Wiswall, 5 Denio, 213. Case of a Private Road, 1 Astim. 417. Watson v. 
 Bioven, 1 Serg. & R. 227. Orleans Navigation Co. v. Mayor of New Orleans, 2 Mart. 233. Lewis 
 V. Carstairs, 6 Wliart. 193. GaiTison v. Eudd, 19 111. 658. Brozzart ». Corlett, 27 Iowa, 297. 
 See post, cii. 3, a. 1, as to the merger and extinguishment of easements and profits aprendre 
 by unity of ownership of the dominant and servient tenements. 
 
 (d) Dowglass e, Kendall, Cro. Jao. 256. 
 («) Cod. Civ. No. 686. 
 
118 CONVENTIONAL SERVITUDES. [Clap. 3. 
 
 "By the grant of trees by tenant in fee simple, they are absolutely 
 passed from the grantor and his heirs, and vested in the grantee, and 
 go to his executors or administrators, being, in understanding of law, 
 divided as chattels from the freehold, and the grantee hath power 
 incident and implied from the grant to fell them when he will, with- 
 out any other special license(/) ; and the law gives him power, as 
 incident to the grant, to enter upon the land, and show the trees to 
 those who would have them, for without sight none would buy, and 
 without entry none could see \h.&m{g) ; and he may assign over the 
 property in the trees, and his assigns may enter upon the land, so 
 long as it remains the property of the grantor, and fell the trees and 
 carry them away"(A). 
 
 A grant to a man and his heirs of woods, underwoods, corn, and 
 produce which may hereafter grow on the land of the grantor(i), con- 
 veys to the grantee and his heirs a profit a prendre, exerciseable 
 against the grantor and his heirs, so long as the ownership of the soil 
 remains in them(A) ; but no specific property in anything vests in the 
 grantee until it has been severed from the inheritance, and reduced 
 into possession(?). A grant of this description amounts to a mere 
 personal Contract, operative only between the immediate parties to it, 
 and their heirs, and does not bind the land in the hands of persons to 
 whom the land may be subsequently conveyed, and who were no 
 parties to the deed of grant(»i). 
 
 " Incidents of a novel kind cannot be devised and attached to 
 property at the fancy or caprice of any owner. There can be no 
 harm in allowing the fullest latitude to men in binding themselves 
 and their representatives, that is their assets, real and personal, to 
 answer in damages for breach of their obligations ; but great detri- 
 ment would arise, and much confusion of rights, if parties were allowed 
 to invent new modes of holding and enjoying real property, and to 
 impress upon their lands and tenements a peculiar character, which 
 should follow them into all hands, however remote. Every close, every 
 
 (/) Stukely v. Butler, Hob. 168. Cardigan (Earl of) v. Armitage, 2 B. & C. 210. See War- 
 ren V. Leland, 2 Barb. 613 ; Brock v. Smith, 14 Ai-k. 431 ; Haskin v. Record, 32 Vt. B75 ; Wright 
 «. Barrett, 13 Pick. 44 ; Clap v. Draper, 4 Mass. 266 ; Sawyer v. Hammott, 3 Shepl. 40 ; Putney 
 V. Day, 6 N. H. 430. 
 
 ig) Liford's case, 11 Co. 51b, 52a. 
 
 (A) Palmer's case, 5 Co. 24b. Basset v. Maynard, Cro. Eliz. 819. 
 
 (i) Described as " a fee simple in a profit a prendre,"— " an odd sort of estate." Erie, C. 
 J , 12C. B.,N. S. 103. 
 
 (ft) Barrington's case, 8 Co, 136b. 
 
 {I) Holroydw. Marshall, 30 Law J., Ch. 387. Lunn «. Thornton, 1 C. B. 379. 
 
 (m) Keppel v. Bailey, 2 Myl. & K. 635. Jjd. Wensleydale, Eowbotham v. Wilson, 8 H. t,. C 
 359. Malone v. Harris, 11 Ir. Ch. E. 39. See Drake v. Welle, 11 AUen (Mass.) 141. 
 
Sec. 1.] TRANSFER OF BASEMENTS, ETC. 119 
 
 messuage, might thus be held in a several fashion, and it would hardly 
 be possible to know what right the acquisition of any parcel of land 
 conferred, or what obligation it imposed"(w). 
 
 There are cases, indeed, where the right to the future produce and 
 profits of the soil exists as an assignable and inheritable interest, 
 burthening the land in the hands of subsequent purchasers and pro- 
 prietors : but these are cases where the relationship of landlord and 
 tenant existed between grantor and grantee of the right, and the 
 grant constitutes, or is accompanied by, a covenant which runs with 
 the land, binding upon both the assignee of the reversion and the 
 assignee of the term(o). Thus, where a lessor granted, and covenanted 
 in a lease, that the lessee, his executors and assigns, should take and 
 carry away such corn as should be growing upon the ground at the 
 end of the term, and the lessor sold and conveyed away his reversion, 
 and the executor of the lessee, having sown the corn, sold it, it was 
 held that the property in the growing crop vested in the purchaser, 
 who might enter upon the land and take it, for there was both a cove- 
 nant and a grant, and the covenant ran with the land, and bound 
 both the assignee of the reversion and the assignee of the term(p). 
 And such an interest running with the land, and binding the assignee 
 of the reversion and the assignee of the term, vrill pass under a general 
 assignment of a lessee's "tenant right "(g). 
 
 There are also, as we shall presently see, certain rights of common 
 in gross, and certain customary rights of sole and several pasturage, 
 which exist in various manors as inheritable and transferable estates ; 
 but these are rights vested in the customary tenants of the manor, 
 of depasturing cattle upon open uninclosed downs and moors and 
 waste places belonging to the lord of the manor, and depend upon the 
 custom of the manorj and cannot be relied upon as authorities for 
 ascertaining the rights of persons in ordinary cases. 
 131 Where the grant is of a liberty, license, power or authority to dig, work, 
 mine and search for, raise and carry away, metals and minerals in certain 
 land, and dispose of the ore that should be there found to the use of 
 the grantee and his heirs, and is not a grant or demise of all the ores, 
 metals, or minerals then existing on the land, or existing within cer- 
 tain limits, so as to exclude the grantor himself from searching for 
 minerals in his own land, or within the limits specified, it is nothing 
 
 («) Ld. Brougham, Keppel v. Bailey, ut sup. 
 
 (o) Addison on Contracts, cli. 22, s. 1, 6th ed, 
 
 \p) Qrantham v. Hawley, Hi' j . 132. Martyn o. Williams, 1 H. & N. 827 ; 26 Law J., Exoh. 121. 
 
 (S) Fetch V. Tutin, 17 M. & W. 116. 
 
120 CONVENTIONAL SERVITUDES. [Chap. 3. 
 
 more than a grant of a license (irrevocable on account of its carrying 
 an interest), to search and get ore, with a grant of such of the ore only 
 as can be found and got, the grantor parting with no estate or interest 
 in the rest. In this case the grantee has no estate or property in the 
 land itself, or any particular portion thereof, or in any part of the ore, 
 metals, or minerals ungot therein ; but he has a right of property only 
 in such part thereof as, upon the liberty granted to him, should be dug 
 and got; i.e., no more than a mere right to a personal chattel when 
 obtained in pursuance of incorporeal privileges, granted for the pur- 
 pose of obtaining it(r). A license of this* description, however, granted 
 to a man and his heirs, conveys an inheritable and assignable inter- 
 est(s), so that the grantee may sell and assign the right, and his assignee 
 would have a right to enter and search for, raise and carry away, min- 
 erals as against the grantor and his heirs. But whenever a profit a 
 prendre merely is granted, there is only a license or covenant so long 
 as no specific chattel has been severed from the inheritance, and taken 
 possession of under it (awfe,]-.119) ; and such license or covenant will 
 not bind the land in the hands of subsquent purchasers without no- 
 tice(i) ; for, " if a man grants a license, and then parts with the property 
 over which the privilege is to be exercised, the license is gone(M), for 
 it is an authority only with respect to the soil of the grantor, and if 
 the close ceases to be his soil, the authority is instantly at an end "(«)• 
 If, however, the grant is not merely of a profit a prendre in alieno 
 solo, but a conveyance of the land itself, such as a grant to a man, his 
 heirs and assigns, of all the existing minerals(2/), or a right to search 
 for, raise and carry away, all the minerals to be found within certain 
 prescribed limits, the property in the minerals would then pass to the 
 grantee, and the latter would be the sole owner of them, the grantor 
 continuing the owner of the surface. 
 1 32 Exclusive licenses must be framed with words of an exclusive charac- 
 ter, otherwise the grantor is not precluded from granting the same 
 
 (r) Doe V. Wood, 2 B. & Aid. 738. Chetham v. Williamson, 4. East, 475. Monntjoy'a case, 
 i Leon, 147 ; Godb. 18. Newby v. Harrison, 1 Johns. & Hem. 398. Carr v. Benson, L. R., 3 
 Ch. App. 524. Carnahan v. Brown, 60 Penn. St. 23. Gloninger v. Franklin Coal Co., 55 Penn. 
 St. 9. Johnstown Co. v. Cambria Co., 32 Penn. St. 241. Grover v. Hodges, 56 Penn. St. 604. 
 
 («) Mushett II. Hill, 5 B. N. C. 694. 
 
 it) Ld. Wensleydale, Rowbotham v. Wilson, 8 H. L. C. 359 ; 30 Law J., Q. B. 965. 
 
 («( Pollock, C. B,. Coleman v. Foster, 1 H. & N. 40. Brown v. Metrop. Co., etc.. Ell. & Ell. 
 382. Drake «. Wells, U Allen (Mass.), 141. Houxr. Seat, 26 Mo. (5 Jones), 178. Millers. Au- 
 burn & Syi-acuse R. R., 6 HiU (N. Y.), 61. 
 
 (a;) Parke, B., Wallis v. Harrison, 4 M. & W. 544. Malone o. Hai-ris, ante, p. 118. 
 
 ^y) Cardigan (Earl of) v. Armitage, 2 B. & C. 197. See Caldwell v. Fulton, 31 Penn. 475 ; 
 Zinc Co. V. Franklinite, 13 N. J. 341 ; Grubb v. Bayard, 2 Wallace, jr. 81 ; and see Amerioau 
 cases cited in note r, ante. 
 
Sec. 1.] BIGBTS CLAIMABLE BT CUSTOM. 121 
 
 privilege to other persons(z). A mere licensee of a right of way, or 
 of a right of passage with boats on a canal, who has no interest in the 
 soil over which the privilege is exercised, has no right of action against 
 a wrong-doer who exercises the same privilege, but does not obstruct 
 the licensee in the enjoymeilt of his right(a). 
 
 The Roman law discourages the division or dilution, amongst a 
 number of separate proprietors, of the rights of ownership of an estate. 
 The Romans framed their laws wi]th the view of preserving the free- 
 dom of the right of property for all times and all future persons. 
 They provided that an estate shall have, at one and the same time, 
 only one dominus over it, and that his dominion should constantly 
 remain as little circumscribed as possible, and not be diminished by 
 dividing his powers and prerogatives amongst several persons. " The 
 only true restrictions on property recognized by the Roman lawyers 
 were the servitudes "(6). 
 133 Rights over another's land clavmaMe hy custom. — To give validity to a 
 custom — which has been well described to be a usage obtaining the 
 force of law within a particular district 'Or at a parlicular place, over 
 the persons or thing to which it relates — it must be certain and rea- 
 sonable in itself. It is presumed to have commenced from time 
 immemorial(c), and musj; be proved to have continued without inter- 
 ruption for the time mentioned in the Prescription Act, and in anal- 
 ogy to that Act it must further be shown to have been as of right(cc). 
 A custom, therefore, to demand a license to fish, although upon pay- 
 ment of an ancient and reasonable fee, cannot be supported(cZ). The 
 question whether it is reasonable or not belongs to the judges of the 
 land to determine ; and a custom is not unreasonable merely because 
 it is contrary to a rule or maxim of the common law, nor because it is 
 prejudicial to the interests of a particular individual ; but if it is 
 highly inconvenient in its enjoyment, and the inconvenience is real, 
 -general and extensive, it will be bad, though it has prevailed from 
 time immemorial(e). 
 
 A custom claimed by the inhabitants of a particular district to go 
 upon the soil of another, to take or to use water from a spring, or well, 
 
 (s) Newby v. Harrison, 1 Johns. & Hem. 396. Carr v. Benson, supra. 
 
 (a) Hill V. TapHpr, 2 H. & C. 121. 
 
 (6) Mackeldy's Civil Law, by Kaufman, book 1, ch. 4, s. 298. 
 
 (0) See, as to this presumption, Bryant v. Foot, L. K., 2 Q. B. 161 ; 3 ibid. 497 ; Mills v. May- 
 or of Colchester, infra ; Commonwealth v. Maylor, 57 Penn. St. 291. 
 I (cc) Smith V. Floyd, 18 Barb. (N. Y.) 623. 
 
 (<J) Mills V. Mayor of Colchester, L. K., 2 C. P. 476. i 
 
 (e) Tanistry'8 case, Davys, 31, 32. Co. Litt. 113a. Tyson*. Smith, 9 Ad. & B. 406. 6ib.746. 
 Eogers v. Brenton, 10 Q. B. 26. 
 
122 CONVENTIONAL SERVITUDES. [Chap. 3. 
 
 or to wash and water cattle in a pond, is a good custom(/), and so is a 
 custom claimed by victuallers, coming to a fair holden at stated pe- 
 riods, to enter upon that part of the common or waste of a manor 
 where the fair is held, and there erect booths and stalls, and put down 
 posts, and place tables on the land, making a certain customary pay- 
 ment to the lord of the manor, when demanded(^). A custom for the 
 inhabitants of a village to resorl to village greens, or uninclosed waste 
 land or commons, the property of, the lord of the manor, for village 
 sports, and for the purpose of recreation and amusement, is a good 
 custom(A) ; but a claim by an inhabitant of a town of a right to go at 
 all times over every portion of inclosed cultivated ground, cannot be 
 supported, as it is inconsistent with any beneficial use and enjoy- 
 ment of the inclosure by the owner or occupier(i) ; a fortiori if the 
 claim be upon a place beyond the limits of the parish(^'). 
 
 The inhabitants of a vill or parish cannot as such claim by custom 
 to have a profit a prendre from the soil of another. Therefore, a cus- 
 tom for all the inhabitants occupying lands in a particular district to 
 take drift sand or stones from a close contiguous to the sea-shore(^), 
 for the mending of their roads, cannot be supported, as the sand, when 
 it drifts on the close from the beach, becomes part of the soil of the 
 close(^). Neither can the inhabitants of a parish claim a right by 
 custom to angle and catch fish in another's pond, although the claim 
 be confined to a right to catch them, setting up no right to take them 
 away, for such a right, vested in a multitude of persons, would be 
 
 (/) Kaoe V. Ward, I EU. & Bl. 702. 
 
 ig) Tyson v. Smith, 6 Ad, & E. 745 ; 9 ib, 406, As to unlawful fairs witliin tlie metropolitan 
 police district, see 31 & 33 Vic, c. 106, Fairs may, on a representation by magistrates, or of 
 the owner, and with his consent, be abolished by the Home Secretary ; 84 & 35 Vict, u, 12. 
 
 (7j) Abbot », Weekly, 1 Lev, 170, Fitch v. Eawling, 2 H. Bl, 393. Mounsey v. Ismay, 1 H, & 
 C, 729 ; 32 Law J,, Exch, 94 ; 34 11). 52, See Warrick v. Queen's College, L. E,, 10 Bq. Ca. 105. 
 
 (i) Dyce «!. Hay,.an*e, p. 97., BeU ». Wardell, Willes, 202, Jones t), Percival, 5 Pick, 485. 
 
 {j) So werby v. Coleman, L. R. , 2 Exch. 96, As to squares in London, see Tulk v. Metrop. 
 Board of Works, L, K., 3 Q. B. 94, 682. An immemorial custom to erect stalls upon the high- 
 way at a fair for the sale of commodities, is good (Blwood v. Bullock, 6 Q, B. 383) ; but a 
 statute sessions for the hiring of servants is not such a fair, Simpson v. Wells, L. E,, 7 Q. B. 
 214. 
 
 (ifc) The Board of Trade have power under 64 Geo. 3, o, 159, s. 14, and 25 & 26 Vict, ch. 69, 
 s. 16, to prohibit the taking of shingle from the shores of any port or harbor, where necessary 
 for its protection, 
 
 {D Blewett V. Tregonning, 3 Ad. & E. 554. Att.-Gen. v. Mathias, 4 K. & J. 579, Constable 
 V. Nicholson, 14 C. B., N. S. 230. See Post v. Pearsall, 22 Wend. 425, 432. Iffhas been held in 
 Massachusetts that the inhabitants of a town may acquire an easement to dig stones ftom a 
 parcel of land for the use of such persons as belong to the town ; and that where the proprie- 
 tors of a township voted that " one hundred acres be left common for the use of the town for 
 building purposes," this did not pass the fee, but merely the right to take the stones for 
 building purposes, that interest being in the town as a corporation in trust for individual 
 inhabitants. Worcester v. Green, 2 Pick. 425, Green o, Putnam, 3 Cush. 21. 
 
Sec. 1.] MANORIAL CUSTOMS. 123 
 
 destructive of all the fish(wi). But a claim by the inhabitants of a 
 village to take estovers (see post, p. 106) in a royal forest, if founded 
 on a grant from the crown, is good, for as the crown has power to 
 create corporations, a grant by the crown to a class of persons is valid, 
 and for the purpose of the validity of the grant, such persons will be 
 considered a corporation quoad the grant, for grants by the crown in 
 derogation of its forestal rights are construed liberally for the sub- 
 ject(w). 
 
 The general doctrine, that a right to take a profit in the soil of 
 another catmot by law rest on custom, is founded on the notion that 
 such an interest must, for its existence, have some person in whom it 
 is vested, and that a fluctuating body of persons, which has no en- 
 tirety or permanence, cannot take that interest which by supposition 
 is immemorial and permanent, because such a body, from its nature, 
 cannot prescribe for any thing. Necessity, however, controls this, and 
 creates certain exceptions in the case of rights of common, and the 
 stannary customs of Cornwall, in respect of the right of digging and 
 searching for tin. 
 1 34 When a profit a prendre is claimable by custom. — Manorial customs. — 
 Rights of common, claimable by the copyhold or customary tenants of 
 a manor, in the demesne lands of the lord of the manor(o), illustrate 
 both the rule, that a profit a prendre is not claimable by custom, and 
 the exception to that rule. Thus, the right of common of pasture in 
 itself is an interest in land — the taking of a profit of the .soil, and 
 properly matter of prescription. If the copyholders of one manor 
 will claim it in the wastes of another manor, they must do so by pre- 
 scribing in the name of their lord, who, in the eye of the law, by rea- 
 son of his estate, has such a permanence as enables him to prescribe ; 
 but if they claim it in the lord's wastes, they cannot prescribe in their 
 own names and rights, by reason of the waijt of permanence ; nor can 
 they in their lord's name, for he cannot claim common in his own land ; 
 they are therefore, from necessity, allowed to claim it by custom(^). 
 The necessity grows out of the original compact between the lord and 
 the customary tenants, when they received permission to cultivate for 
 their own benefit, on condition of the render of certain services, cer- 
 tain portions of the lord's land. That compact included the right of 
 
 (m) Bland v. Lipscombe, 4 Ell. & Bl. 713, note (c). 
 (») Willingale v. Maitland, L. E., 3 Eq. Ca. 103. 
 
 (o) Gatewai'd's case, 6 Co. 60a. Grimstead v. Marlow, i T. R. 719. See Smith v. Floyd, 18 
 Barb. (N. Y.) 523. 
 (i)) Foiston B. Craohroode, i Co. 369. Heydou & Smith's case, 13 Co. 67. 
 
124 CTJSTOMART EASEMENTS. [Chap. 3. 
 
 common on the lord's waste, and the law will not suffer that right to 
 want a legal character, and so be without the means of legal enforce- 
 ment, though at the expense of strict legal reasoning(g'); 
 
 A custom in a manor, that the copyholders of inheritance may, 
 without license from the lord of the manor, break the surface of their 
 own copyhold tenements, and dig and get clay therefrom without stint, 
 for the purpose of making and selling bricks, is a good manorial cus- 
 tom. It has been contended that such a custom is bad, as being in- 
 consistent with the right of the lord, who has an interest in the soil, 
 and that the custom extended to taking away the -soil itself, which the 
 copyholder could, even by custom, have no right to do. "We are," 
 however, observes the court, "unable to draw any sound distinction 
 between a custom for copyholders to take all the timber, or trees(r), or 
 all the minerals in their own copyholds, and a custom to take clay. 
 It appears to us, that the cases of profits a prendre, or easements on 
 the waste of the lord, or in alieno solo, have no application to the 
 present question. A copyholder may, by custom, not only have a 
 possessory, but a proprietary, right in the trees and minerals in his 
 own copyhold tenement. In the case of minerals, the taking them 
 is, in effect, a taking of a portion of the corptis of the copyhold 
 tenement. There appears to be no doubt but that a copyholder of 
 inheritance may not only, by custom, work old mines already opened, 
 but that he may also, by custom, dig within his tenement for new 
 ones, and, if successful, work them "(s). And the right may exist, 
 in its most extensive form, to sell the produce for profit, or in a 
 more restricted form to use the coal, etc., for their own private pur- 
 poses only(i). 
 
 But a custom claimed by the lord of a manor, or his tenants, to dig 
 coal-pits in the enclosed freehold lands of the manor, when and as 
 often as they pleased; to lay their coals, when got, on any part of the 
 lands of the customary tenants, near to the coal-pits, at any time of 
 the year they please, and to let them lie on such lands as long as they 
 please, is uncertain and unreasonable, and therefore void, for it might 
 deprive the tenant of the whole benefit of his land(M). 
 
 (g) Rogers v. Brenton, 10 Q. B. 26. 
 
 (r) See Blewett v. Jenkins, 1!8 C. B., N. S. 16. 
 
 («) Salisbury (Marquis of) v. Gladstone, 6 H. & N. 129; 30 Law J., Exoh. 3; 3i ibid., C. P. 
 222 [dub. Lord Wensleydale). See Lingwood v. Gyde, L. E., 2 C. P. 72. 
 
 (<) Portland (Duke of) v. HiU, L. R., 2 Eq. Ca. 765. 
 
 («) Broadbent v. Wilks, WiUes, 363. HUton v. Earl Granville, 6 Q. B. 726. Blackett «. 
 Bradley, 1 B. &. S. 140; 31 Law J., Q. B. m. But see, per L. C. & Lord Chelmsford, in Wake- 
 field V. Duke of Buccleugh, L. R., 4 Bug. & Ir. App. 377. And a grant to that effect would 
 be good; S. C. and Rowbotham v. Wilson, aTUe, p. 76 
 
Sec. 1.] SIGHTS OF COMMON. 125 
 
 A claim on the part of the lord of a manor, founded on tlie custom 
 of the manor, of an unlimited and unrestricted right to enclose and 
 confer in severalty upon any person, from time to time, such portions 
 of the waste as he in his discretion may think fit, cannot be sup- 
 ported, as it is utterly inconsistent with the existence of any right of 
 common, for the lord might enclose the whole of the waste, and so 
 annihilate the rights of the commoners. But the lord has concurrent 
 rights with the commoners. He has himself a right, unless excluded 
 by the custom, to stock the common, and to every benefit to be derived 
 from the soil, not inconsistent with the rights of the commoners. And 
 when it is ascertained that there is more common than is necessary 
 for the cattle which the commoners are entitled to turn on, the lord 
 may take it for his own purposes, and he may then enclosejt leaving 
 sufficiency of common for the commoners('»). . 
 
 Where fences are wrongfully erected upon land, subject to a right 
 of comrdon, the commoner in exercising his right is not restricted to 
 pulling down so much of the fence as it may be necessary for him to 
 remove in order to enter upon the common, but he may remove the 
 whole of the fences, so as to restore to himself the full and unrestricted 
 exercise of his right(w). He may als6 sue a railway company for dis- 
 turbance, if they have made a railway over the common without 
 making him compensation for his rights under the Lands Clauses Act, 
 although they have compensated the lord of the manor and taken a 
 conveyance of the soil from him(a;). 
 
 A right of common is either appendant, appurtenant, or in gross. 
 When it is appendant or appurtenant to a messuage or lan,ds, it passes, 
 as we have seen, by a grant of the messuage or land, to the successive 
 owners and occupiers thereof(2/). 
 135 Common appendant is a right annexed to arable land of depasturing 
 on the lord's waste beasts that serve the plough, such as horses and 
 oxen, or which manure the land, such as kine and sheep. " The 
 reason for common appendant," observes Willes, C. J., "appears to be 
 this, that as the tenant would necessarily have occasion for cattle not 
 only to plough, but likewise to manure his own land, he must have 
 some place to keep such cattle in whilst the corn is growing on his 
 own arable land, and therefore of common right, if the lord had any' 
 waste, he might put his cattle there when they could not go on his 
 
 («) The onus of proving this lies on the lord. Betts ». Thompson, L. R., 6 Ch. App. 7i<2. 
 
 (w) Arlett V. EUiS) 7 B. & C. 346. 
 
 (a) Stoneham v. Loncl. & Brighton Rwy., L. R., 7 Q. B. 1. 
 
 (y) Sachererell v. Porter, l Koll. Abr. 00, pi. 4. 
 
126 MANORIAL CUSTOMS. [Chap. 3 
 
 own arable land. This right is so necessarily incident to, the land, 
 that it cannot be severed therefrom ; and therefore if the land be 
 divided never so often, every little parcel is entitled to common appen 
 dant. But the tenant can only have the right of common for such 
 cattle as are levant and couchant on his estate ; that is, for such and so 
 many as he has occasion for to plough and manure his land, in pro- 
 portion to the quantity thereof. And it is plain that he cannot have 
 the right for cattle which he borrows, unless he make use of them all 
 the year to plough or manure his land"(2). Although this kind of 
 common is regularly appendant only to arable land, yet it may be 
 claimed as appendant to a manor or farm containing pasture, meadow, 
 and wood ; for it shall be presumed to have been all originally arable 
 land, though afterwards converted into meadow, pasture, etc.(a). 
 136 Common appurtenant is a right, derived from the possession or occu- 
 pation of land, of depasturing a limited number of beasts upon the 
 lord's waste, or upon the unenclosed land of an adjoining proprietor, 
 and is claimable by grant or by prescription(&).. The right is limited 
 to beasts levant and couchant upon the land to which the right is 
 appurtenant, so that a claim to a right of common appurtenant " sans 
 number'' is bad. The number of cattle which can be "levant and 
 couchant " upon the estate is the number which the produce of the 
 land is capable of maintaining throughout the winter, if cultivated for 
 that purpose ; it is not necessary that they should, in fact, have been 
 actually so maintained, if the land, properly cultivated for that pur- 
 pose, could have maintained them(c). " If my land to which I claim 
 common belonging can yield me stover to find a hundred cattle in 
 winter, then shall I have common in summer for a hundred cattle in 
 the land out of which I claim common, and so for more or fewer pro- 
 portionably "(d). If the commoner has turned more cattle upon the 
 common than the winter eatage of his ancient tenement, together with 
 the hay and other produce obtained from it during the summer, is 
 capable of maintaining, he has exceeded his legal rights, and is liable 
 to an action(e). 
 
 (2) Bennett v. Reeve, WUles, 231 ; Bac. Abr. Common A. 1. 
 
 (a) Bac. Abr. Co.MMON A. 1. 
 
 (6) Cowlam v. Slack, 15 East, 107. A common appurtenant does not arise from any connec- 
 tion of tenure, and may be created by grant or claimed by prescription ; while a common 
 appendant can arise only from prescription. Watts v. Coifln, 11 Johns. 495. 
 
 (0) Carre. Lambert, 34 L. J., Exch. 66. L. E. 1 Bxcb. 168. If the land had been built upon 
 or turned into a reservoir, g««Ere. S. C, 
 
 (d) Smith V. Bonsall, Golds. 117. Cole ». Foxman, Noy's E. 30. Chee«man v. Hardham, 1 
 B. & Aid. 711. 
 
 (e) Whitelock v. Hutchinson, 2 Mood. & Eob. 205. 
 
Sec. l.J RIGH'IS OF COMMON. 127 
 
 137 Common of shade, observes Bayley, J., " is a right of persons occu- 
 pying arable land, uninclosed to turn out their cattle at certain sea- 
 sons to feed promiscuously over the whole open field. If there were 
 no common right of this sort, every man would be bound to keep his 
 cattle upon his own land, which would be productive of great incon- 
 venience, and in many instances would be inipossible. In order to 
 obviate this, every man's cattle are allowed the full range of the whole 
 field ; but the number which each man is at liberty to turn out is lim- 
 ited to that which the land of each individual is capable of support- 
 
 ing"(/)- 
 
 138 Right of common pur cause de vicinage. — To establish a right of com- 
 mon pur cause de vicinage, it must be proved that the inhabitants have 
 usually inter-commoned with one another ; the beasts of the one stray- 
 ing into the other's fields without any molestation on either side. 
 There must not only be absence of fence, but mutual acquiescence, 
 and an immemorial allowance of the straying of the cattle(g'). 
 
 1 39 Common of turbary, or the liberty or privilege of cutting and carry- 
 iug away turf, is appendant to an ancient dwelling-house, and the 
 right is limited to such a quantity as is sufficient to burn in the 
 ancient chimneys and fire-places of the house(A) ; consequently a claim 
 to cut and carry away turf for sale(i), or to make grass-plots or paths, 
 cannot be supported(^). 
 
 140 Common of estovers, or the liberty or privilege of cutting down and 
 carrying away trees, or loppings of trees, shrubs, and underwood, in 
 another man's woods, coppices, or forests, for burning, building, or 
 enclosing, i-s also appendant to an ancient dwelling-house, and is claim- 
 able by grant or by prescription, except in the case of copyholders, 
 who may, it seems, claim by custom (I). Consequently a claim to cut 
 down and carry away trees for sale cannot be claimed as common ap- 
 pendant(«i). 
 
 The nature and extent of the right, and the periods of the year for 
 the exercise and enjoyment of it, are to a great extent defined and 
 
 (/) Cheesman ». Hardham, 1 B. & Al(3. 711. Sir Miles Corbet's ease, 7 Rep. 57. 
 
 (g) Clarke v. Tinker, 10 Q. B. 618. There can be no inter-comraonage or common because 
 of vicinage, unless there are contiguous townships, the inhabitants of which, seeking to 
 excuse a trespass for that cause, have common rights of pasturage appendant, appurtenant, 
 or in gi'oss in the towns where they reside. Smith v. Floyd, 18 Barb. (N. Y.) 523. 
 
 (ft) 6 Co. .SSb, 37a. Dean, etc., of Ely v. WaiTen, 2 Atk. 1S9. 
 
 (i) Valentine v. Penny, Noy's R. 146. See ante, pp. 103, 104. 
 
 ik) Wilson V. Willes, 7 East. 121. 
 
 (l) Bract, fol. 231. Selby v. Robinson, 2 T. E. 758. See Willingale v. Maitland, ante, p. 102. 
 
 (m) Bailey v. Stevens, 31 Law J., C. 1'. 226 ; 12 C. B., N. S, 113. See Watts v. Colfln, 11 
 Johns. 495. ■ i 
 
128 MANORIAL CUSTOMS. [Chap. 3. 
 
 controlled by manorial or local custom and usage. According to Brac- 
 ton, the right must be exercised with reason and moderation, accord- 
 ing to the size of the wood or waste in which the right is to be exer- 
 eised, and the size of the tenement to which it is annexed(w). The 
 estovers must be expended within or upon the house, and cannot law- 
 fully be sold or exchanged ; nor can the right be enlarged or extended. 
 A tenant having a right to estovers for the repair of his dwelling- 
 house and farm-buildings, cannot " enlarge his house with the timber, 
 nor board the sides of a bam which had muddle walls or the like be- 
 fore "(o). If a man has estovers belonging to his house, and he builds 
 new chimneys where there were no chimneys before, he cannot use the 
 estovers in the new chimneys(^). But if he sets up a new chimney 
 where an old one was before, he shall have his estovers for the new 
 chimney (g). 
 
 " If a man be seised of a house in right of his wife, and another 
 grants to the husband and his heirs to have sufficient estovers to burn 
 in the same house, in that case the estovers are appurtenant to the 
 house, and shall descend to the issue of the husband and wife. So, if 
 one have a house of the part of his mother, and one grants to him that 
 he and his heirs shall have^ competent housebote to be burnt in the 
 same house, this is appurtenant to the house ; and although it be a 
 new purchase, it shall go with the house to the heir of the part of the 
 mother "(r). 
 
 " When copyholders for life, according to the custom, have used to 
 have common in the waste of the lord of the manor, or estovers in his 
 woods, or any other profit a prendre in any part of the manor, and 
 .afterwards the lord aliens the wastes or woods to another in fee, and 
 afterwards grants certain copyhold houses and lands for lives, such 
 grantees shall have common of pasture, or common of estovers, etc., 
 notwithstanding the severance, for the title of the copyholder is para- 
 mount to the severance ; and the custom unites the common or estovers, 
 which are but accessaries or incidents, as long as the house and lands, 
 being principal, are maintained by the custom ; which customary ap- 
 purtenances are not appertaining to the estate of the lord, for he is 
 
 (n) Bract, fol. 231. See Van Eensselaer v. Brice, 4 Paige, 174 
 
 (o) Earl of Pembroke's case, Clayt. 47. 
 
 (p) Luttrell'B case, 4 Cg. 87 a. 
 
 (g) Costard o. Wingfield, 2 Leon. 44. 
 
 (r) Syme's case, 8 Co. 54a. Common of estovers cannot he apportioned, and if tlie person 
 entitled tliereto convey liis land to which it is appurtenant, part to one person and part to 
 another, the right will be extingoislied. Van Eensselaer ». Radoliff, 10 Wend. 639. Livingston 
 r. Ketchum, 1 Barb. 592. 
 
Sec. 1.] EiGsrs of common. 129 
 
 the owner of the freehold and inheritance of all the manor, but they 
 are appertaining to the customary estate of the copyholder, after the 
 grant made unto him ; which profit a prendre, being due by custom 
 to the copyhold tenement (notwithstanding the feofi'ment or fine, etc., 
 of the waste or woods made by the lord), remains, and is preserved by 
 the custom, which is, as hath been said, the title of the copyholder, 
 and is paramount to the severance; but if the copyholder had de- 
 rived his interest from the estate of the lord, then clearly, by the feoff- 
 ment, fine, etc., of the lord, all those who after claim by him shall be 
 barred of any profit a prendre in the same waste or woods"(s). 
 141 Common in gross is a. Tigili oi common of pasture not appertaining 
 to any land, and is claimable by grant or prescription(<). In pre- 
 scribing, therefore, for common in gross, "one does not lay seizin of 
 any land, .but says that he and his ancestors, whose heir he is, etc., 
 from time whereof, etc., have had common in the place where, etc., 
 for all their cattle, without relation to any land, and without saying 
 levant and couchant, because there is no land on which they can be 
 levant and couchant, or to which the common can be appurtenant, 
 wherefore a prescription for common in gross without number is 
 good"(M) Common in gross being a personal privilege, and not a 
 right appendant or appurtenant to land, cannot be granted over so as 
 to burthen the land for all time in the hands of subsequent owners 
 and occupiers of the land over which the right has been granted(aj). 
 
 If a man claim by prescription any manner of common in another 
 man's land, and that the owner of the land shall be excluded to have 
 pasture, estovers, or the like, this is a prescription or custom against 
 the law to exclude the owner of the soil, for it is against the nature of 
 this word common. But a man may prescribe or allege a custom to 
 have and enjoy solam, vesturam terra, from sucTi a day till such a day, 
 and hereby the owner of the soil shall be excluded for the time to 
 pasture or feed there. So, a man may prescribe to have separalem 
 pischariam in such a water, and the owner of the soil shall not fish 
 there(2/). The customary tenants in whom ^ese exclusive rights, ex- 
 erciseable during certain portions of the year, are vested, have merely 
 
 («) Swayne's case, 8 Ecp. 63b. Brown's case, 4 Co. 2Va, Benson v. Chester, 8 T. E. 401. 
 
 (t) Co.'Litt. 122a. 
 
 («) Mellor V. Spateman, 1 Wms. Saund. 346. 
 
 (a) Ante, p. 116. Treby, C.J., Weekly v. Wildman, 1 Ld. Eaym. 407. The grantee in fee of a 
 right of common in gi'oss and without number may alien it, but not in such way as to give 
 the entire right to several persons, to bo enjoyed by them separately. Leynian v. Abeel, 16 
 Johns. 30. 
 
 (J/) Co. Litt. 122b, North v. Cox, 1 Lev. 253. 
 
 Ad. Vol. I.— 9 
 
130 RIGHTS OF PASTURAGE — CATTLM GATES, ETC. [Chap. 3. 
 
 a profit a prendre in alieno solo, and no estate in the soil itself(z), but 
 the interest is capable of transfer by deed of assignment. " Instances 
 of sole pasturage are to be found on the South Downs, in Sussex, and 
 they are frequently transferred in gross ; it is the same with the cattle- 
 gates in the north of England "(a). 
 
 142 Rights of sole and several pasturage. — Cow-grasses and cattle-gates. — 
 In some manors, the customary tenants of the customary tenements of 
 the manor have a right to the sdle and several pasturage for the whole 
 year over the moors and downs and waste places of the manor, to the 
 entire exclusion of the lord of the manor, and may by deed license 
 strangers to put in their cattle(6), and sell and convey away their 
 interest to another. These rights of sole and several pasturage are 
 called cattle-gates and cow-grasses, and are customary estates of 
 inheritance, transferable by deed. The owners of them have no right 
 of property in the soil. They are held of the lord of the manor, ac- 
 cording to the custom of the manor, as customary estates of inheri- 
 tance, by payment of fine and customary rents, and under dues, 
 duties, suits and services, regulated by the custom. They are trans- 
 ferred by customary deeds, followed by admittance at the next lord's 
 court, or out of court by the steward of the manor, and a fine is paya- 
 ble on admittance. These cattle-gates, therefore, are copyhold tene- 
 ments(c). 
 
 143 Rights of tinbound&rs to search for tin in Cornwall are founded on 
 custom. The right seems to have originated in each instance in a 
 virtual contract, as in the case of rights of common. When the lord, 
 or owner of waste uninclosed and uncultivated land, would not search 
 for and work tin himself, or devote his waste exclusively to other pur- 
 poses by inclosure, he lias permitted the tinner to enter on the waste 
 and work for and get tin, on condition of the render to him of a cer- 
 tain portion, fixed by custom, of the produce of the tin mine. Here, 
 as in the instance of a right of common, the thing is in its nature to 
 be claimed by prescription only ; but they who have it, and ought to 
 have it, in justice, cannot prescribe - for it; from necessity, therefore, 
 that the right may not be defeated, they are allowed to claim it by 
 custom(d). If the tinbounders abandon the mine, and the owner re- 
 takes possession, he will be entitled to any easements, such as a right 
 
 (a) Rex V. ChurchUl, 4 B. & C. 750. 
 
 (a) Lcl. Abingcr, Welcome v. Upton, 6 M. & W. 536. 
 
 (fi) Hoskins v. Bobins, 2 Wms. Saund. 323. 
 
 (c) Eigg V. Earl Lonsdale, 1 H. & N. 935. And see EoWnson C.Wray, L. E., 1 C. P. 490. 
 
 id) Eogel-6 V. Brenton, 10 Q. B. 26. 
 
Sec. 1.] SEP AIR OF SEA-WALLS. 131 
 
 to the flow of water, to which the tinbounders had acquired a right 
 by prescription, for although there is no privity of estate between the 
 tinbounders and the owner, yet it must be presumed that the right to 
 the use of the water had been originally acquired by arrangement 
 with the owner as well as the tinbounders(e), 
 
 144 The lord, by his grant of common, gives every thing accessorial to the 
 enjoyment of the right, such as ingress, egress, etc., and thereby 
 authorizes the commoner to remove every obstruction to his cattle 
 grazing the grass there. But the lord still remains owner of the soil, 
 and a commoner who has a. mere right of common of pasture has no 
 power to meddle with the soil, and cannot cut even a trench or a ditch 
 to let the water ofP the common, without first obtaining the license 
 of the lord(/). And if the lord chooses to encourage the growth of 
 beasts of warren, such as hares and rabbits, upon the common, and 
 to make rabbit-burrows, the commoner has no right to destroy either 
 the hares, the rabbits, or the burrows. If they increase so as to 
 destroy the herbage and deprive the commoners of the pasture, this 
 may be a surcharge of the common by the lord ; but the commoner 
 must pursue the appropriate remedy by action, and cannot lawfully 
 kill the conies, for, as long as they are in the lord's own land, the 
 lord hath property in them, but, when they go out, he hath no longer 
 property in tjiem(5'). 
 
 145 Inconsistent rights of common. — ^ Where there are two distinct rights 
 of common claimed by diflferent parties, which encroach on each other 
 in the enjoyment of them, the question is, which of the two rights is 
 subservient to the other ? It may be either the lord's right, which is 
 subservient to the commoners', or the commoners', which is subservient 
 to the lord's. In general, one would say that the lord's is the superior 
 right, because the property of the soil is in him ; but if the custom 
 established by evidence show that it is subservient to the commoners', 
 then he cannot use the common beyond the extent; otherwise he 
 subjects himself to an action for the excess(^). 
 
 146 Of the sernitude of maintaining and repairing sea-walls, ditches, and 
 sluices. — Every person who accepts a grant of land from the crown, 
 accompanied by a command or direction to keep up, repair, and main- 
 tain certain buildings, sea-walls, ditches, and sluices, takes the land 
 
 (c) Ivimey v. Stocter, L. K., 1 Cli. App. 396. 
 (/) Cooper V. Marshall, 1 Burr. 226; 1 Roll. Abr. 406. 
 
 (<?) HadcBcIen v. GrysscU, Cro. Jac. 193. Bellew ». Langdon, Cro. Eliz. 876. Carrill ». 
 Paek, 2 Bulstr. 115. Hoddesdon v. Gresil, Yelv. 104. 
 (A) Buller, J., Bateson v. Green, 5 T. E. 416. 
 
132 FISHING- IN THE SEA OR RIVERS. [Chap. 3. 
 
 sabject to the servitude imposed thereon ; and if any private individual 
 sustains a private and peculiar injury from the non -repair of the sea- 
 walls, etc., he is entitled to an action against the grantee or his assigns, 
 who have failed to fulfil the duty imposed upon him or them(j). All 
 persons enjoying the benefit of a sea-wall are liable at common law 
 to repair and maintain it, in the absence of any custom or contract(^). 
 "Where, therefore, a man buys land below the level of high water, 
 which but for the wall would be covered by the sea, he is put upon 
 inquiry as to whether he is or is not bojind to repair, and cannot be 
 allowed to say he had no notice(/i:). 
 147 Of customary rights of fishing, and driving stakes for nets in the sear 
 shore{l). — Where the public at large had from time immemorial fished 
 in a private non-navigable river, ,and the defendant claimed a right to 
 fish there as one of the public, it was held, that no such right could be 
 acquired by user, however long continued('m) ; but in a navigable 
 river, the soil of which belongs to the crown, the public prima facie 
 have as of common right a right of fishing, and it falls upon a person 
 who disputes this right to show that he has a right of several fish- 
 ery(w). There may be a qualified right of fishery in a non-navigable 
 river. Thus, the riparian owners on a stream may grant to one of 
 them to have a weir for the purpose of taking fish, at such times as 
 the whole volume of water is not wanted for the purpose of a mill ; 
 and such grant, of which enjoyment is evidence, will be good(o). In 
 the case of two proprietors on opposite banks of a stream, each is 
 entitled to fish from his own bank to the centre of the stream(^). 
 
 The land between ordinary high-water mark and low-water mark 
 belongs to the crown, in the absence of proof of a grant of such land 
 
 (?) Henly v. Mayor of Lyme, 5 Bing. 107. 
 
 ( j) Eex V. Commissioners of Sewers of Essex, 1 33. & C. 477. 
 
 (A) Morland v. Coolc, L. E., 6 Eq. Ca. 252. 
 
 (I) As to oyster and mussel flsheries, see 31 & 32 Vict. c. 45, part 3, ss. 27-56 ; 32 & 33 Vict. o. 
 31. Tliat the state has power to regulate public fisheries, see Moulton v. Libbey, 37 Me. 47-'. 
 As to the rights of fishery under the Massachusetts Colony Charter and subsequent statutes, 
 see Commonwealth v. Boxbury, 9 Gray, 451, note. 
 
 (m) Hudson v. M'Kae, 33 JL. J., M. C. 63. 
 
 (m) Eeg. w. Stimpson, 321j. J., M. C. 208. Hooker r. Cummings, 20 Johns. 90. Weston p. 
 S.ampson, 8 Gush. 351. Lalceman v, Burnham, 7 Gray (Mass.) 435. Coolidge v, Williams, 4 
 Mass. 140. Melvin v. Whiting, 7 Pick. 79. Moulton v. Libbey, 37 Me. 485. Delaw.are, etc., 
 E. E. Co. I. Stump, 8 Gill. & J. 510. Preble v. Brown, 47 Me. 284. Parker v. Cutler Mill l>.'im 
 Co., 20 Me. 353. State v. Glen, 7 Jones, Law, (N, C.) 321. Collins v. Benbury, 5 Ired. Uffc 
 Lay V. King, 6 Day 72. Bickel v. Polk, 5 Harring. 325. 
 
 (o) EoUe V. Whyte, L. E., 3 Q. B. 286. 
 
 (p) Zetland (Earl of ) ». Glover Incoi-poration of Perth, L. E.,3 Sc. App. 70, Hooker o. 
 Cummings, 20 Johns. 90. Beekman v, ICi'eamer, 43 m. 447. State v. Glen, 7 Jonos, Law, (N. 
 C.) 321. If an island springs up in the channel of the stream, see Zetland (Earl of) r. Glovfflf 
 Incorporation of Perth, L. E., 2 sc. app. 70. 
 
Sec. 1.] BATHINa ON THE SEA SHORE. 133 
 
 to a lord of a manor or to a private person {post, ch. 6, s. 2) ; but 
 various customary and prescriptive rights and privileges over the sea- 
 shore have grown up and been acquired by the public, and by com- 
 munities and private individuals, by reason of immemorial usage and 
 enjoyment. Where an action of trespass was brought against a de- 
 fendant for digging in the plaintiff's land, and the defendant pleaded 
 that the locus in quo was four acres of land adjoining the sea, and that 
 all the men of Kent, from time immemorial, have used when they have 
 fished in the sea to dig in the land adjoining, and pitch stakes for 
 hanging their nets to dry, it was held that such a custom, confined to 
 the sea-shore, might be good ; for, observes Clarke, C.J., " If I have 
 land adjoining the sea, so that the sea ebbs and flows on my land, 
 when it flows every one may fish in the water which has flowed on my 
 land, for then it is parcel of the sea, and in the sea every one may fish 
 of Common right ; and when the sea has ebbed, then in this land 
 which was flowed before, perad venture he may justify his digging, for 
 this land is of no great profit"(5). 
 148 Customary and prescriptive riffhts of bathing/ on the sea-shore. — It has 
 been held that there is no general common law right of bathing in 
 the sea, and passing over every part of the shore for that purpose^ 
 independently of usage and custom(r) ; but such a right may exist 
 by prescription or custom, and may be gained and retained by the 
 owners and occupiers of houses on the sea-coast, or by the inhabitants 
 of any village, parish, or district, so long as it can be exercised with- 
 out creating any public nuisance(s). The existence and the extent of 
 the right are to be collected in this, as in other instances of customary 
 and prescriptive rights, from the manner in which the particular por- 
 tions of the sea-shore throughout the kingdom have from time imme- 
 morial been used(i;). " The right of bathing in the sea," observes 
 Best, J.(m), " is as beneficial to the public as the right of fishing, and 
 unless I felt myself bound by an authority as strong and clear as an 
 Act of Parliament, I would hold, on principles of public policy — I 
 might say public necessity — that the interruption of free access to the 
 sea is a public nuisance. In the first ages of all countries the sea and 
 
 -»(g' SEclw. 4, 19. Bro. Abr. Customs, 46. Any person who enters upon flat lands adjoining 
 the shore of a navigable stream over which the tide ebbs and flows, and uses the same I'or 
 fishing purposes, driving staltes, mooring his boats, and drawing in seines and nets, is liable 
 to the owner of the soil in an action of trespass. Whittaker v. Burhans, 62 Barb. (N. Y.) 237, 
 
 (?•) BlundoU V. Catterall, 5 B. & Aid. 268. See Hall on Sea Shores, p. 184, et. seq. 
 
 {s) See Rex v. Crunden, 2 Campb. 89. 
 
 («) See Mace v. Philcox, 33 L. J., C. P. 124. 
 
 («) In Blundell v. Catterall, differing, however, fi-om the rest of the Court. 
 
134 TITLE BY prescription: [Chap. 3. 
 
 its shores were left open to public use. In. all countries it has been 
 matter of just complaint, that individuals have encroached on the 
 rights of the people. In England our ancestors put the public rights 
 in rivers under the safeguard of Magna Charta. If the principle of 
 exclusive appropriation be extended so far as to touch the right of 
 walking over the barren sands of the sea-shore, it will take from the 
 people what is essential to their welfare, whilst it will give to individ- 
 Tials only the hateful privilege of vexing their neighbors "(«)• 
 149 Title by prescription is a title acquired by use and time, and allowed 
 by law ; as when a man claims to have a thing because he and his 
 ancestors, or they whose estate he hath, have had or used it from time 
 immemorial(2/), and immemorial enjoyment is presumed from proof 
 going back to the extent of living memory(z). All prescription must 
 be either in a man and his ancestors, or in a man and those whose 
 estate he hath, which last is called prescribing in a que estate. If a man 
 prescribes in a que estate (that is, in himself and those whose estate 
 he holds), nothing is claimable by this prescription but such things as 
 are incident, appendant, or appurtenant to lands ; but if he prescribes 
 in himself and his ancestors, he may prescribe for things in gross. 
 
 A prescription must always be laid in him that is tenant of the fee. 
 A tenant for life, for years, at will, or a- copyholder, cannot prescribe, 
 by reason of the insufficiency of his estate ; for as prescription is usage 
 beyond time of memory, those whose estates commenced within the 
 remembrance of man cannot prescribe ; and therefore the copyholder 
 must prescribe under cover of his lord's estate, and the tenant for life 
 under cover of Jhe tenant in fee simple(zz). 
 
 Estates gained by prescription are not descendible to the heirs- 
 general, but only to the blood of that line of ancestors in whom the 
 party prescribes. But if he prescribes in a que estate, it will follow 
 the nature of that estate in which the prescription is laid, and b^ in- 
 heritable in the same manner, whether that were acquired by descent 
 or purchase(a). 
 
 Nothing but incorporeal hereditaments can be claimed by prescrip- 
 tion, such as rights of way, rights of common, etc. No prescription 
 can give a title to lands, and other corporeal substances, of which more 
 
 (a;) Btandell v. Cattevall, 5 B. & Aid. 287. Ante, pp. 47, 48. 
 
 (y) Praescriptio est titalus ex usu et tempore substantiam oapiens ab authorlt.ite legis, Co. 
 Litt. 113a, 113b. Ellis v. Mayor, etc., of Bridgnorth, ante, p. 17 
 (z) Patterson, J., 3 Q. B. 388. See Miller v. Garlook, 8 Barb. 153. 
 (««) Smith V. Kinard, 3 Hill (S. C.) 642. 
 (o) 3 Bl. Comm. 64. " EoU. Abr. Pkescription B. 
 
See. 1.] TITLE BT PRESCRIPTION— PEWS. 135 
 
 • certain evidence may be had(aa). Thus a grant of a license to get coal 
 or minerals, which does not oust the grantor of his right to dig for coals 
 and minerals in the same land, is, as we have seen, a mere profit k 
 prendre, or iucorporeal right lying in grant(6), and may consequently 
 be claimed by prescription ; but a claim to take all the coal, to the ex- 
 clusion of any right in the owner of the soil to get it, is a claim to a 
 part of the soil itself, and cannot be claimed by prescription(c) 
 
 A prescriptiou by immemorial usage can in general only be for 
 things which may be created by grant, for the law allows prescriptions 
 only to supply the loss of a grant. Ancient grants must often be lost; 
 and it would be hard that no title could be made to things lying in 
 grant, but by showing the grant. Upon immemorial usage, therefore, 
 the law will presume a grant, and allow such usage as evidence of a 
 good title. Therefore, for such things as cannot be created at this 
 day by any manner of grant, or reservation, or deed, a prescription is 
 not good((^). 
 
 1 50 A prescriptive right to a pew in a church, as appurtenant to an ancient 
 messuage, may be established by immemorial use and enjoyment, 
 from which a faculty is presumed, and there is no necessity that the 
 house should be within the parish(e). If, therefore, the plaintiff claims 
 a prescriptive right, and shows the commencement of it in very modern 
 times, his claim will fail(/). Where a pew in a chancel belonged to 
 a person in respect to the ownership of an ancieut house, it was held 
 that the tenant of the owner obtained a sufficient title by occupation 
 to justify an action in the ecclesiastical court for perturbation of a 
 pew($'). 
 
 151 Prescriptive rights founded on the presumption of a grant — Presumption 
 of a grant from long-continued uninterrupted user and enjoyment as of 
 right. — To raise a presumption of a grant oft an easement or profit from 
 long-continued uninterrupted enjoyment of the privilege, the enjoyment 
 
 {aa) FeiTis v. Bi-own, 3 Barl). 105. Caldwell v. Copeland, 37 Peon. 131. SfericMer v. Todd, 10 
 Serg. & E, 69. Davis v. Brigham, 39 Me. 391. Gayety v. Bethune, 14 Mass. 63. Thomas ». 
 Marshfleld, 13 Pick. 240. Pearsall v. Post, 20 Wend. 111. Cortelyou v. Van Brundt, 2 Johns. 
 357. Hill V. Lord, 48 Me. 96. 
 
 (6) Chetham v. Williamson, Doe v. Wood, ante, p. 120. 
 
 (c) Wilkinson v. Proud, 11 M. & W. 33. Clayton v. Corby, ante, p. 9S. Caldwell v. Copeland, 
 S'i Ponn. '181. Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 332. 
 
 (d) Potter V. North, 1 Venti-. 337 ; 3 Cruise's Digest, tit. 31,' ch. 1. Att.-Gen. v. Matthias, 4 
 K. & J. 592 ; 27 Law J., Ch. 761. As a prescription supposes a grant, it cannot e.xist where 
 there can be no grantee. Munson v. Hungerford, 6 Barb. (N. Y.) 265. Curtis v. Keesler, 14 
 id. 511. Perley v. Langley, 7 N. H. 233. 
 
 (e) Lousley v. Hayward, 1 Y. & J. 5S3. 
 {/) Griffith V. Matthews, 5 T. E. 296. 
 
 [g) Parker v. Leach, L. E'., 1 P. C. Ca. 312. See post, oh. 6, b. 2. 
 
136 PRESCRIPTIVE RIGHTS. [Chap. 3. 
 
 must have been open and notorious, and exercised as a matter of right, 
 and not of grace and favor {ante, pp. 96, 97). Where, therefore, the 
 enjoyment can be satisfactorily accounted for, and is consistent with 
 there having been no grant or conveyance, there is no ground for pre- 
 suming one. In the case of the continued enjoyment by one man of a 
 right of common, or profit a prendre in the land of another, and in 
 every user of a way, the original enjoyment must have been unlawful, 
 unless the privilege had been exe];cised with the sanction and authority 
 of the owner of the soil, and can only be accounted for on the suppo- 
 sition that a grant had been made ; ^d when the enjoyment had 
 been long continued, without interruption, a grant was presumed; 
 but when the enjoyment of the privilege is accounted for, and is con- 
 sistent with the fact of there having been no grant, the presuiiiption 
 does not arise(A). 
 
 "When the property is of such a nature that it cannot be easily pro- 
 tected against intrusion, and, if it could, it would not be worth the 
 trouble, proof must be given of constant uninterrupted user and enjoy- 
 ment of the privilege, with the knowledge and acquiescence of the 
 partjr interested in resisting intruders, in order to raise a presumption 
 of a grant(«). According to the ancient law of prescription, the enjoy- 
 ment was not uninterrupted, wherever it was had and exercised in 
 spite of the remonstrance or prohibition of the owner of the fee(A-). 
 And whenever there was evidence to show that the user and enjoy- 
 ment were had and exercised by permission, and grace and favor, 
 there was no user and enjoyment as of right, and no prescriptive title 
 could be gained thereby, however notorious and long continued might 
 have been the user and enjoyment(Z). 
 
 The general principle with regard to prescriptive rights founded 
 on the presumption of a grant is, that a grant will not be presumed 
 
 (h) Doe 11. Reed, 5 B. & Aid, 236. LWett v. Wilson, 3 Bing. 118. Boyle v. Tamlyn, 6 B. & 
 C. 337. 
 
 (t) Att.-Gen. v. Chamljers, 5 Jur. N. S. Ch. 145 ; 4 De G. Mc. & G. 206. Att.-Gen. ». Jones, 
 .33 L. J., Bxch. 249. See American Co. v. Bradford, 27 Cal. 366 ; Ingrahani v. Hough, 1 Jones 
 (N. C), 42 ; School District v. Lynch, 33 Conn. 334 ; Pollard v. Barnes, 2 Cush. 191. 
 
 (S) Smith V. Miller, 11 Gray, 148. PoweU v. Bagg, 8 Gray, 441. Nichols v. Aylor, 7 Leigh, 
 546. "Interrumpi, poterit per denuntiationem et impetrationem diligentem et per talem 
 interruptionem nunquam acquirit possidens ex temjjore liberum tenementum." — Bract, lib. 
 4, fol. 51, cap. 22. 
 
 il) " Si autem precaria fuerit e* de gratia, quse tempestive revooari possit vel intempestiye, 
 ex lougo tempore non acquiritur jus."— Bract, lib. 4, fol. 221. Ante, pp. 80, 81. See Bachel- 
 der «, Wakefield, 8 Cush. 243 ; Pue v. Pue, 4 Md. Ch. Dec. 386 ; Delahonssaye v. Judice, 13 La. 
 An. 687 ; Hall v. McLeod, 2 Mete. (Ky.) 98 ; Ingi-aham v . Hough, 1 Jones (N. C), 39 ; Howard 
 V. O'Neill, 2 Allen, 210 ; Medford v. Pratt, 4 Pick. 222 ; Gayetty v. Bethuue, 14 Mass. 50 ; Kil- 
 burn V. Adams, 7 Mete. 33 ; Polly v. M'CaU, 37 Ala. 20 ; Dodge v. McCliutook, 47 N. H. 387 ; 
 Crounso v. Wemple, 29 N. Y. 542 ; Pierce v. Cloud, 42 Penn. 113. • 
 
Sec. 1.] PRESCRIPTIVE RIGHTS. 137 
 
 against an ignorant man, and, therefore, if an easement or profit S, 
 prendre has been enjoyed on land let on lease, the landlord is not to 
 be prejudiced in his rights, and the inheritance bu'rthened throngh 
 the laches or acquiescence of the tenants in matters affecting the 
 inheritance, without the knowledge, and privity, and sanction of the 
 landlord(m). "The foundation," observes Lord Ellenborough, "of 
 presuming a grant against any party is, that the exercise of the 
 adverse right on which such presumption is founded was against the 
 party capable of making the grant, and that cannot be presumed 
 against him, unless there were some probable means of his knowing 
 what was done against him "{n). But when the user and enjoyment 
 are had and exercised under circumstances of notoriety, a jury may 
 infer the landlord's knowledge and acquiescence in such user and 
 enjoyment. Thus, where the lessees of a fishery had for sixty-four 
 years been in the constant habit of landing their nets openly on a 
 river-bank in the occupation of a tenant, and had from time to time 
 sloped and pared the bank, and exercised various other acts of owner- 
 ship upon the land, it was held that a jury was justified in inferring 
 that the landlord knew of and acquiesced in the enjoyment of the 
 easement(o). And where there had been uninterrupted enjoyment 
 for thirty-eight years of the free access of light and air to windows 
 over and across land held on lease, it was held that the landlord's 
 knowledge of and acquiescence in the enjoyment of the visible and 
 apparent easement was fairly to be presumed, in the absence of evi- 
 dence to the contrary(p). 
 
 If the user and enjoyment have been had and exercised with the 
 sufferance and permission of the tenant, but in spite of the remon- 
 strance, protest, or objection of the owner of the fee, no right_ can be 
 
 (m) Pierre ». Fernald, 26 Me. 436. Eeiraer v. Stuber, 20 Penn. St. 438. Schenley v. Cotn- 
 mon wealth, etc., 36 Penn. St. 29. See the observations of Lord Wynlbrd, Beiiest v. Pipon, 1 
 Knapp, P. C. 70; Davies v. Stephens, 7 C. & P. fi70; Deeble v. Liueham, 12 Ir. C. L. R. 10. 
 •* Si antem fuerit seisina clandestina, scilicet in absentia dominorum vel illis ignorantibns, 
 et, si Bcirent, essent prohibituri, licet hoc fiat de consensu vel dissimulatione ballivorum, 
 valere non debet."— Bract, lib. 4, fol. 221; lib. 2, fol. 52. But see per Hatherley, C, Ladyman 
 V. Grave, L. E., 6 Oh. App. 763. Acquiescence is not presumed against a party who had no 
 choice but to acquiesce; and where private property is taken for public use by the authority 
 of the State, no right by prescription will be acquired. Jessup v. Loucks, 65 Penn. St. 350. 
 No prescriptive rights can be acquired by adverse enjoyment against a feme covert or a 
 minor. Watkins ». Peck, 13 IST. H. 360. Melvin i). Whiting, 13 Pick, 184. Eeimer «. Stuber' 
 20 Penn. St. 458. Nor against any insane person. Edson v. Munsell, 10 Allen, 557. 
 
 (71) Daniel v. North, 11 East, 374. Euncorn v. Cooper, 5 B. & C. 701. 
 
 (o) Gray v. Bond, .') Moore, 534. The maintenance of a mill-dara near the residence of the 
 lo,nd owner is such an act of notoriety as to raise a legal presumption of knowledge on the 
 part of the land owner. Perriu v. Garfield, 37 Vt. 311. 
 
 (i>) Cross V. Lewis, 2 B. & C. 686. 
 
138 PRESORiPTiVE BIGHTS. [Chap. 3. 
 
 gained by such an enjoyment, for there can be no presumption of a 
 grant under such circumstances. 
 
 Proof of immemorial enjoyment of the privilege claimed was, in 
 ancient times, essential to the legal presumption of a grant ; but for 
 a long series of years before the passing of the Prescription Act, 
 judges were in the habit, for the furtherance of justice and the sake 
 of peace, to leave it to juries to presume an ancient grant of an ease- 
 ment or profit d prendre from an interrupted enjoyment of the 
 privilege as of right for twenty years, adopting that period by analogy 
 to the Statute of Limitations. (pp). 
 1 52 Of the Prescription Act. — The uninterrupted enjoyment for twenty 
 years of an incorporeal right, from which juries were allowed to 
 presume an ancient grant, was not a bar or title in itself; for if the 
 commencement of . the enjoyment within what was called the period 
 of legal memoiy could be shown, the presumption of an ancient grant 
 in times long since passed away was rebutted, and the right defeated. 
 To remedy this inconvenience, and make that period of enjoyment 
 of an incorporeal right a bar or title of itself, which was so before only 
 by the intervention and inference of a jury, the statute 2 & 3 Wm. 4, 
 c. 71, was passed in the year 1832, for shortening the time of prescrip- 
 tion in certain cases. 
 
 (pp) In the United States the lapse of time or period of nser or enjoyment necessary te 
 create a prescription or presumptive grant is analogous to the jteriod of limitation fixed by 
 the laws of the beveral States for quieting titles to land. Eicard v. WilliamB, 7 Wheat. 107. 
 American Co. v. Bradford, 27 Cal. 367. Williams v. Xclson, 23 Pick. 144. Serwood v. Barr, 
 4 Day, 244. Polly v. JlcCall, 37 Ala. 29. 
 
 As between individuals, the length of continuous adverse use or enjojTnent necessary to 
 raise the presumption of a grant and give a prescriptive right to a continuance of the enjoy- 
 ment is fixed at twenty years in the States of Xew Yoi'k (Miller r. Garlock, 8 Barb. L^S; 
 Parker ti. Footc, 19 Wend. ?Mi), Massachusetts (Morrison ». Chajjin, 97 Ma'is. 72; Sargent »• 
 BaUard, 9Pick. iM), Ehode Island (Evans «. Dana, 7 R. I. 306), Xew Hampshire (Webber 
 V. Chapman, 42 X. H. 326), Maine (Pierre v. Fernald, 20 3Ie. 436), Kentucky (Mauier v. Myers, 
 4 B. Mon. 514), Xew Jersey (Campbell v. Smith, 3 Ilalst. 140), Xorth Carolina (Felton v. Simp- 
 son, 11 Ired. 84. Griffin v. Foster, 8 Jones, Law, SW), South Carolina, (Cuthbcrt v. Lawton, 3 
 M'Cord 194), JIaryland (Pae v. Pue, 4 Md. Ch. Decis. ?M), Michigan (Uiopellc v. GUlmour, 23 
 Mich. 33), Virginia (Stokes v, Appomatox Co. 3 Leigh, 31^), Tenncesee (Gilchrist v, MGec, 9 
 Terg. 4S5) Indiana (Mitchell v. Parks, 26 Ind. 3.54). 
 
 Fifteen years of adverse enjoyment will establish aprgscriptivc right in the States of Vermotit 
 (Tr.icyc. Atherton, 3*; Vt. 51.5) and Connecticut (Sherwood e. Burr, 4 Day, 244). Ten years' 
 absolute and uninteiTupted adverse enjoyment will give a right to a continuous and apparent 
 servitude by prescription in I.onisiana (Delahoussaye e. Jndicc, 13 La. An. 587), Iowa (Bui'- 
 dick c. Heivly, 2:j Iowa, .511), Alabama ( Wright v. Moore, 38 Ala. .593), and Texas (Haas v 
 Choussard, 17 Texas, 888). In Georgia a right by prescription rnay be acquired in seven 
 years (Harrison », Young, 9 Geo. .359), and in California in five (D.ivis o. Gale, 32 Cal. 26). 
 In Pennsylvania and Ohio an adverse enjoyment may ripen into ■» right by prescription in 
 twenty-one years. Okeson v. Patterson, 29 Penn. St. 22. See Angell on Limit. (4 cd,). Ap- 
 pendix of Statutes. 
 
 As against the United States, no right of easement in pnblic lands can be acquired by nser, 
 and the grantee of such lands takes them free from all prescriptiye claims. Union Mtn r. 
 Ferris, 2 Sawyer, Cire. C. Eep. (Kevada). 
 
'Sec. l.J PRESCRIPTION ACT. 139 
 
 This statute, commonly called " The Prescription Act," recites (s. 1) 
 that the expression " time immemorial, or time whereof the memory 
 of man runneth not to the contrary," was, by the law of England, in 
 many cases considered to include and denote the whole period of time 
 from the reign of King Richard I., whereby the title to matters that 
 had been long enjoyed was sometimes defeated by showing the com- 
 mencement of such enjoyment, which was productive of injustice ; it 
 is therefore .enacted that no claim which may be lawfully made at the 
 common law by custom, prescription, or grant to any right op com- 
 mon, or other profit or benefit, to he taken or enjoyed from or upon any 
 land, except such matters and things as are therein specially provided 
 for ; and except tithes, rent and services, shall, where such right, 
 profit or benefit has been actually taken and enjoyed by any person 
 claiming right thereto without interruption for the full period of thirty 
 years, be defeated or destroyed by showing only that such right, profit, 
 or benefit was first taken and enjoyed within the time of legal mem- 
 ory, but that such claim may be defeated in any other way by which 
 the same was then liable to be defeated ; and when such right, profit, 
 or benefit has been so taken and enjoyed for the full period of sixty 
 years, the right thereto shall be deemed absolute and indefeasible, 
 unless it shall appear that the same was taken and enjoyed by some 
 consent or agreement expressly made or given for that purpose by 
 deed or writing. 
 
 By the same statute (s. 2), it is enacted that no claim which may be 
 lawfully made at common law, by custom, prescription, or grant, to 
 any way or other easement, or to any water course{q), or the use of any water, 
 to be enjoyed upon, over, or from any land or water, when such way 
 or other matter shall have been actually enjoyed by any person claim- 
 ing right thereto without interruption for the full period of twenty 
 years, shall be defeated or destroyed by showing only that such way, 
 water, or other matter was first enjoyed at any time prior, to such 
 period of twenty years, but nevertheless such claim may be defeated 
 in any other way by which the same was then liable to be .defeated ; 
 and when such way or other matter shall have been so enjoyed, as 
 aforesaid, for the full period of forty years, the right thereto shall be 
 deemed absolute and indefeasible, unless it shall appear that the same 
 was enjoyed by some consent or agreement by deed or writing. 
 
 Also (s. 3), that when the access and use of light to and for any 
 
 (s) A claim to have water kept diverted is a claim to a watercourae witliin the section. 
 Mason v. Shrewsbury and Hereford Railway, ante, p. 77. 
 
140 PRESCEIPTIVE EIGHTS. [Chap. ST 
 
 dwelling-house, workshop, or other building, shall have been actually 
 ei;ijoyed therewith for the full period of twenty years without interrup- 
 tion, the right thereto shall be deemed absolute and indefeasible, any 
 local usage or custom to the contrary notwithstanding(r), unless it shall 
 appear l^at the same was enjoyed by some covenant or agreement 
 expressly made or given for that purpose by deed or writing. 
 
 Each of the respective periods named in the Act is to be deemed 
 and taken to be the period next before some suit or action wherein 
 the claim or matter to which such period may relate shall be brought 
 in questi6n(s), and no act or other matter is to be deemed to be an 
 interruption (s. 4), unless the same shall be submitted to or acquiesced 
 in for one year after the party interrupted shall have had notice 
 thereof, and of the person making or authorizing the same to be 
 made. 
 
 And (s. 5) that in all actions upon the case and other pleadings, 
 wherein the. party might then by law allege his right generally, with- 
 out averring the existence of such right from time immemorial, such 
 general allegation shall be deemed sufficient; and if the same shall be 
 denied, all and every the matters in the Act mentioned and provided, 
 which shall be applicable to the case, shall be admissible in evidence 
 to sustain or rebut such allegation ; and that in all pleadings wherein, 
 before the passing of the Act, it would have been necessary to allege 
 the right to have existed from time immemorial, it shall be sufficient 
 to allege the enjoyment thereof as of right, by the occupiers of the 
 tenements, in respect whereof the same is claimed, for and during 
 such of the periods mentioned in the Act as may be applicable to the 
 case, and without claiming in the name or right of the owner of the 
 fee. In the several cases mentioned in and provided for by the Act, 
 no presumption is to be allowed or made (s. 6) in support of any claim, 
 upon proof of the exercise or enjoyment of the right or matter claimed, 
 for any less period of time or number of years than for such period or 
 number mentioned in the Act as may be applicable to the case and 
 the nature of the claim. 
 
 The period during which a party capable of resisting the claim is 
 an infant, idiot, non compos mentis, feme coverte, or tenant for life, or 
 during which any action or suit shall have been pending, and which 
 shall have been diligently prosecuted until abated by the death of 
 any party thereto, is to be excluded (s. 7) in the computation of the 
 
 (r) Salters' Co. v. Jay, 3 Q. B. 109. Tmsoott v. Mercht. Taylors' Co., 11 Exch. 855. 
 (s) Cooper v. Hubbuck, 12 C. B. N. S. 466. 
 
8eC. l.J FBESCBIPTION ACT — 2 S 3 WM. IV. c. 71 141 
 
 periods mentioned, except only in cases where tlie claim is thereby 
 declared to be absolute and indefeasible. 
 
 It is enacted also (s. 8), that when any land or water upon, over, or 
 from which any right of way, or convenient watercourse or use of 
 water, shall have been enjoyed or derived, hath been or shall be held 
 under any term of life, or any term of years exceeding three years 
 from the granting thereof, the time of the enjoyment of any such 
 way, watercourse, or water, during the continuance of such term, shall 
 be excluded in the computation of the said period of forty years, in 
 case the claim shall, within three years next after the determination 
 of such term, be resisted by the reversioner. 
 153 What profits or benefits may he claimed iy user a-nd enjoyment under 
 the Prescription Act. — Easements and profits ^ prendre cannot be 
 claimed by user and enjoyment under the Prescription Act unless the 
 benefit or profit has been used, exercised, and taken for the more 
 beneficial use and enjoyment of some neighboring tenement. Ease- 
 ments and profits in gross {ante, pp. 116, 117), therefore, cannot be 
 claimed by an occupier as such under the Act, because the claim must 
 be "by custom, prescription, or grant," and it must be of such a 
 nature as to be capable of being annexed to land, as being accessorial 
 to the beneficial use, occupation, and enjoyment of landed property(<). 
 A right, therefore, which can be of no benefit to any tenement, such 
 as a right to cut down, and carry away, and sell trees or underwood 
 gi-owing on a neighbor's land, or to search for and raise minerals, and 
 carry them away and dispose of them, or a right to go upon land 
 for recreation and amusement, cannot be prescribed for under the 
 statu te(ti). 
 
 To bring the right within the term easement in the second section 
 of the statute, it must be a right analogous to that of a right of way, 
 or a right of watercourse, and must be a right of utility and benefit, 
 and not of mere amusement('!)). The second section of the statute has 
 been held to include only such easements upon or over the surface of 
 the servient tenement as are capable of being interrupted by the 
 owner thereof, so as to prevent the enjoyment from ripening into a 
 right. An enjoyment, therefore, for twenty years of the free and 
 
 (<) Shuttleworth v. Le Fleming, 34 L. J., C. P. 309. 
 
 (u) Bailey v. Stephens, 12 C. B., N. S. 113 ; 31 Law J., C. P. 228. Mounsey v. Ismay, 1 H. & 
 C. 7-29 ; 34 Law J., Bxch. 52. See Calilwell «. Copeland, 37 Penn. St. 431 ; Stookliriclge Iron 
 Co. V. Hudson Iron Co., 107 Mass. 322 ; Phillips v. Ehodes, 7 Meto. 322 ; HiU v. Lord, 48 Me. 
 96 ; Morse v, Marshall, 97 Mass. 72. 
 
 (») Mounsey v. Ismay, ut sup. 
 
142 PBESCRiPTiVE SIGHTS. [Chap. 3. 
 
 uninterrupted passage of wind to a windmill, does not impose upon 
 the owners of the adjoining land the servitude of keeping their land 
 open and free from buildings, in order that the wind may not be taken 
 out of the miller's sails^a;). 
 
 1 54 In order to gain a prescriptive title from uninterrupted user and enjoy- 
 ment under the first and second section,s of the Presori/ptixie Act, it must 
 he proved that the enjoment has been. " as of right," for that is the form in 
 which, by section 5 of the statute {ante, p. 140), the claim must be 
 pleaded. It must be such an enjoyment as of right, and without inter- 
 ruption, as would under the old law of prescription have raised a pre- 
 sumption of a gTant(2/). " The whole purview of the Prescription Act," - 
 observes Lord Abinger, " shows that it applies only to such rights as 
 would before the Act have been acquired by the presumption of a grant 
 from long user. The Act expressly requires enjoyment for different 
 periods without interruption, and therefore necessarily imports such an 
 user as could be interrupted by some one capable of resisting the claim. 
 It also requires it. to be of right "{z). All circumstances, therefore, 
 tending to rebut the presumption of a grant, and to prove that no grant 
 could ever have existed, or have lawfully been made, are admissible 
 in evidence to show that there was no enjoyment as of right within 
 the meaning of the statute(a). Therefore, when lands are out on lease, 
 an enjoyment by the acquiescence of the tenant, without the knowl- 
 edge and acquiescence of the landlord or reversioner, cannot be made 
 the foundation of a prescriptive right or title under the statute(&). 
 
 1 55 BJnjoyment by consent or agreement. — The proviso in s. 1 of the Pre- 
 scription Act, that the right shall be deemed absolute and indefeasible, 
 unless it shall appear that the same was taken and enjoyed by some 
 consent or agreement expressly made or given for that purpose by deed 
 or writing, supposes that there may be an enjoyment as of right, though 
 by consent or agreement ; but that applies to cases where the title to 
 the dominant and servient tenement is such that the enjoyment could 
 be as of right within the statute, not where from unity of possession 
 or otherwise it necessarily cannot be. The enjoyment must be of right 
 against the land, not against the individual(c). 
 
 (X) Webb V. Bird, 10 C. B., N. S. 2«6 ; 13 ib. 841 ; 30 Law J., C. P. 384 ; 31 ib. C. P. 335. 
 
 (y) "Longus usus neo per Tim, ueo clam neo precario." — Braet. Ub. 4, fol. 222; Co. Lit 
 114. Bright v. Walker, 1 C. M. & B. 219. Ante, p. 14. 
 
 (z) Arkwright v. Gell, 5 M. & W. 234. Sigg v. Lonsdale, 1 H. &. N. 923 ; 23 Law J., Exeh. 
 81. 
 
 («) MiU V. New Forest Co., IS C. B. 60 ; 23 Law J., C. P. 215. 
 
 (5) Ante, p. 115. Deeble v. Lineham, 12 It. C. L. B. 16. 
 
 (0) Warburton v. Parker, 2 H. <S N. 64 ; 26 Law J., Exoh. 299. . 
 
Sec. l.J ENJOYMENT AS OF BIQST, ETC. > 143 
 
 156 User and enjoyment as of right against all persons having an estate m 
 interest in the land. — ^A user and enjoyment which does not give a valid 
 title as against the owner of the inheritance cannot give a title as 
 against the lessee and the persons claiming under him, for no title at- 
 all can be gained by a user and enjoyment which do not give a valid 
 title against all persons having estates in the land over or upon which 
 the easement has been enjoyed((^). 
 
 157 What sort of enjoyment is essential to the gaining of a •prescriptive right 
 of way. — If there be a ten years' enjoyment of a right of way, and then 
 a cessation for ten years under a temporary agreement for a different 
 and substituted way, there may be a sufficient enjoyment of the original 
 right for twenty years to make it indefeasible under the statute(e). 
 
 158 Enjoyment of a way over land out on lease does not give any right of 
 way as against the reversioner, unless the enjoyment has been had 
 with his knowledge and acquiescence, so as to be an enjoyment " as 
 of right." Thus, where a stranger entered on the land of the rever- 
 sioner in the occupation of his lessee, and traversed the land with 
 carts and horses in the exercise of an alleged right of way, it was 
 contended that the trespass, being accompanied with a claim of right, 
 would, if it continued unopposed by the reversioner, be evidence of a 
 right of way as against him at some future period. " But acts of this 
 sort," observes Taunton, J., " cannot operate as evidence of right as 
 against the reversioner of land demised to tenants, because the rever- 
 sioner, during the demise, has no present remedy by which he could 
 obtain redress for such an act. He could not maintain an action of 
 trespass in his own name, because he ' was not in possession of the 
 land^ nor an action on the case for injury to the reversion, because in 
 point of fact there was no such permanent injury as would be neces- 
 sarily prejudicial to it ; as, therefore, he had no remedy by law for 
 the wrongful act done by the defendant, the act done by him, or any 
 other stranger, would be no evidence of right as against the plaintiff, 
 so long as the land was in possession of a lessee. In Wood t).Veal(/), 
 it was held that there could not be a dedication of a way to the public 
 by a tenant for ninety-nine years without consent of the owner of the 
 fee ; andthat permission by such tenant would not bind the landlord 
 after the term expired(p') 
 
 ((i) Bi-ight W.Walker, 1 C. M. & B. 220. Winship v. Hudspeth, 10 -Exoh. 7 ; 23 Law J., Exch. 
 268. Wilson V. Stanley, 12 Ir. C. L. R. 356. 
 
 (c) I'ajTie V. Shedden, 1 Mood. & Eob. 3S3 
 
 (/, 5 B. & Aid. 454. 
 
 (g) Baxter v. Taylor, 4 B. & Ad. 75. See Daniel o. Anderson, 31 Law J., Ch,. 610. How- 
 ever in the case of pnhlic ways, it seems that from long-continued user, going back as far as 
 
144 ■ PRESCRIPTIVE RiGitTS. [Chap. 3. 
 
 159 Mnjoyment of a right of common hy a tenant over land in the possession 
 and occupation of his landlord. — Where a tenant enjoyed a right of 
 common appurtenant to a tenement rented by him over land which 
 was possessed and occupied by his landlord as tenant for life, it was 
 held that, as the landlord could not have an enjoyment as of right 
 against himself, so neither could his tenant. All the tenant's rights 
 were derived from his landlord, and whatever he enjoyed was enjoyed 
 by grant from the latter, and such an enjoyment is not an enjoyment' 
 as of right ijvithin the statute(^). 
 
 1 60 What sort of enjoyment is essential to the graining of a prescriptive right 
 to the use of any watercourse or water — Natural and artificial water- 
 courses. — All persons having lands on the margin of a flowing stream 
 have, ex jure natures, as we have seen (ante, p. 63), certain rights to 
 use the water of that stream, whether they exercise those rights or 
 not ; and they may begin to exercise them whenever they will. By 
 usage, they may acquire a right to use the water in a manner not 
 justified by their natural rights, but such acquired right has no opera- 
 tion against the natural rights of a landowner higher up the stream, 
 tmless the user by which it was acquired affects the use that he him- 
 self has made of the stream, or his power to use it, so as to raise the 
 presumption of a grant, and so render the tenement above a servient 
 tenement(i). 
 
 When a mill has been erected upon a stream, and has stood there 
 and been worked for the period of twenty years, it gives to the mill 
 owner a right that the water shall continue to flow to and from the 
 mill in the manner in which it has been accustomed to flow during all 
 that time. The owner is not bound to use the water in the same pre- 
 cise manner, or to apply it to the same mill(^') ; if he were, that would 
 stop all improvements in machinery. If, indeed, alterations made 
 prejudice the right of a lower mill, the case would be different(/l). 
 
 living memory will extend, over land under lease, a dedication to the public anterior to the 
 lease may be inferred, although no proof of user previous to'the lease be proved. Winter- 
 bottom V. Lord Derby, L. E., 2 Exch. 316. See Washb. on lilasem. & Serv. (3d ed.) I(i4 ; ante, 
 p. 137. 
 
 ill) Warburton v. Parlje, 2 H. & N. 64 ; 26 Law J., Exch. 298. 
 
 (I) Sampson v. Hoddinott, 1 C. B., N. S. 611 ; 26 Law J., Exch. 148, See dissenting opinion 
 of Gould, J., in Xngraham v. Hutchinson, 2 Conn. 684; Parker v. Hotchlviss, 25 Conn. 321; 
 Hall V. Augsbury, 46 H. Y. 622. 
 
 {j) Whittle!' V. Cocheoo Manufacturing Co., 9 N. H. 454. Buddingfcon v. Bradley, 10 Conn. 
 218. Cowell V. Thayer, 6 Mete. 253. 
 
 (/«) Saundei's v. Newman, 1 B. & Aid. 261. Where the owner of a mill makes such a change 
 in the machinery that the water discharged from the wheel is insufllcient to carry the mill 
 of an owner below to advantage, the owner of the upper mill will be liable for the resulting 
 damage. Wentworth v. Poor, 33 Me. 243. 
 
 It will not affect the rights of the parties that the upper mill is an ancient one. Simpson ». 
 
Sec. 1.] WATER — WATERCOURSES. 145 
 
 A custom in a particular country for all persons to use the water in 
 their districts for certain purposes — e.g., mining — will not prevent a 
 man from gaining a prescriptive right to the use of water subject to 
 such custom(Z). 
 
 161 Prescriptive right to pen back water. — If the water of a natural stream 
 is conducted to the plaintiff's land by an artificial cut or channel 
 made through the land of the defendant, and the plaintiff and the 
 former occupiers of the plaintiff's land have for more than twenty 
 years enjoyed this flow of water, and have from time to time during 
 the period gone upon the defendant's land, and repaired the banks of 
 the artificial cut, and cleaned it out, and placed, stones and stakes, and 
 maintained a dam in the natural stream for the purpose of penning 
 back the water, and making it flow through the artificial watercourse, 
 a prescriptive right to the flow of water and to the exercise of these 
 customary acts will be gained(TO). 
 
 1 62 Prescriptive rights to foul the pure water of a stream, and convert a 
 ' natural watercourse into a sewer, may be gained by twenty years' unin- 
 terrupted user and enjoyment of the privilege. " The general rule of 
 law," observes Lord Ellenborough, " as applied to this subject, is. that 
 if a stream be corrupted in quality, as by means of the exercise of 
 •certain noisome trades, yet if the occupation of the stream by the 
 party so taking or using it has existed for so long a time as may raise 
 the presumption of a grant, the other party, whose land is below, must 
 take the stream subject to such adverse right. I take it that twenty 
 years' exclusive enjoyment of the water in any particular manner 
 affords a conclusive presumption of right in the party so enjoying it, 
 derived from grant or Act of Parliament "(w). And where the method 
 of manufacture is varied, e.g., by the substitution of some other mate- 
 
 Seavey, 8 Me. 138. Nor that the owner of the lower mill had so changed his works as to re- 
 quire an increaaed supply of water, or had changed the mode of applying it. Buddington v. 
 Bradley, 10 Conn. 313. Johnson v. Lewis, 13 Conn. 303. 
 
 A riparian owner has no right to erect machinery upon a stream requiring for its o.peration 
 more water than the stream furnishes at an ordinary stage, and operate the machinery by 
 ponds fuU, and discharge the water upon the owners below in such quantities that they are 
 unable to use it. The machinery mast be adapted to the power of the stream at its usual stage. 
 Clinton v. Myers, 46 N. Y. 511. Merritt v. Brinkerhoff, 17 Johns. 306. 
 
 (Z) Gaved v. Martyn, 34 L. J., C. P. 353. 
 
 (m) Beeston v. Weate, 5 Ell. & Bl. 986 ; 25 Law J., Q. B. 115. 
 
 (TC) Bealey ». Shaw, 6 East, 214. Wright v. Williams, 1 M. & W. 77. Carlyon v. Lorering, 
 1 H. & N. 789. That a right to foul or incumber a stream by a person carrying on a noisome 
 business on its banks, may be acquired by prescription is well established. McCaUum w. 
 Gerraantown Water Co., 54 Penn. St. 40. Holman v. BoiUng Spring Co., 1 McCarter, 346. 
 Ingraham v. Hutchinson, 2 Conn. 691. Jones v. Crow, 32 Penn. St. 398. Hayes v. Waldron, 
 44 N. H., 585. But a claim of a right of this nature requires the strictest proof in its support. 
 MeCallum v. Germantown Water Co., 54 Penn. St. 40. 
 
 Ad. Vol. I.— 10 
 
146 PRESCRIPTIVE RIGHTS. [Chap. 3. 
 
 rial for rags in the manufacture of paper, the prescriptive right to foul 
 a stream by pouring into it the refuse from the mill is not destroyed, 
 if the substituted materials be reasonable and proper for the purpose, 
 and. the pollution is not increased(o). 
 163 User and enjoyment of water from artificial drainage, canals, etc. — 
 The circumstances under which a watercourse was originally made, 
 and under which it ' has been subsequently enjoyed, may prove the 
 enjoyment, however long continued, to have been without right or any 
 pretence or claim of right. The artificial nature of an adit or water- 
 course, constructed for the purpose of draining a mine, and a notorious 
 practice in mineral districts for the owners of mines to make water- 
 courses for the purpose of draining their mines, and resume and dis- 
 continue the working of their mines at their own convenience, and 
 according as it suits their interests, may fix all persons with the knowl- 
 edge that those who cleared the mine by the adit notoriously reserved 
 to themselves the right of working the mine at any time, with all the 
 rights of fouling the water flowing from the mine with the dirt and 
 rubbish which usually attend mining operations, so as to prevent par- 
 ties who have taken advantage of the accidental non-user of the mine 
 to use the adit-water from having an enjoyment as of right, and gain- 
 ing a title to the use of the water uncontaminated by mining opera- 
 tions(p), or to its use at all(g'). 
 
 "The proposition that a watercouse, of whatever antiquity, and in 
 whatever degree enjoyed by numerous persons, cannot be enjoyed so 
 as to confer a right to the use of the water, if proved to have been ar- 
 tificial, is quite indefensible(7'), but on the other hand, the general 
 proposition that, under all circumstances, the right to watercourses 
 ■arising from enjoyment is the same, whether they be natural or 
 artificial, cannot possibly be sustained. The right to artificial water- 
 courses, as against the party creating them, depends upon the 
 character of the watercourse, whether it be of a permanent or tem- 
 porary nature, and upon the circumstances under which it is created(s). 
 The flow of water for twenty years from the eaves of a house could 
 
 (o) Baxeudale v. McMarray, L. R. 2 Ch. App. 790. The prescriptive right to foul water 
 must be measured by the enjoyment, and it cannot be used in a difl'erent and more extensive 
 manner. McCallum ». Germantown Water Co.,54Penn. St. 40. Holmanv. Boiling Spring 
 Co., 1 McCarter, 346. 
 
 ip) Magor V. Chadwick, 11 Ad. & E. 585. Prior occupancy of a stream for mining purposes 
 will not give a right to mix mud or other material with the water to the injury of others 
 below. Phoenix Water Co. v. Fletcher, 23 Cal. 487. 
 
 (g) Gaved v. Martyn, tupra. 
 
 (r) Ivimey ». Stocker, L. R., 1 Ch. App. 396, ace. 
 
 («) SutcliiTe e. Booth, 32 Law J., Q. B. 136. Gaved r. Hartyn, supra. 
 
Sec. 1.] SUPPORT TO SmLDINGS, ETC. 147 
 
 not give a right to the neighbor to insist that the house should not be 
 pulled down, or altered so as to diminish the quantity of water 
 flowing from the roof. The flow of water for twenty years from a 
 drain made for agricultural improvements, could not give a right to 
 the neighbor so as to preclude the proprietor from altering the level of 
 his drains for the greater improvement of the land. The state of 
 circumstances in such cases shows that one party never intended to 
 give, nor the other to enjoy, the use of the stream as a matter of 
 right "{t). So the user by one canal company of the surplus water of 
 another canal company for more than forty years will give no right to 
 the last-mentioned company for its continuance, if a grant for that pur- 
 pose by the first-m-entioned company would have been ultra mres{u). 
 
 If a steam-engine or sough is constructed and used by the owner ot 
 a mine to drain it, and the water pumped up by the engine, or 
 collected by the sough, flows in a channel to the estate of the adjoin- 
 ing landowner, and is there used for agricultural purposes for twenty 
 years, no right to the water in perpetuity can be gained from any 
 such user, so as to burthen the owner of the mine and his assigns 
 with the obligation of keeping up the steam-engine or the sough, and 
 pumping or collecting water for the benefit of the adjoining land- 
 owners. In cases of this sort no right is acquired as against the 
 ovmer of the property from which the course of water takes its origin, 
 though as between the first and any subsequent appropriator of the 
 watercourse itself such a right may be acquired(a;). If a farmer, by 
 some system of drainage, draws oS' the rain-fall from his lands, and 
 pours it into the plaintiflF's ditch, and so creates a new and artificial 
 supply of water, and the latter uses the water for more than twenty 
 years, and after that the farmer adopts a new mode of drainage, and 
 in so doing cuts off the artificial supply of water, the plairltiff has no 
 remedy for the loss of the water, the supply being of a temporary 
 character, and the circumstances showing that the one party never 
 intended to give, nor the other to enjoy, the use of the artificial 
 drainage-water, as a matter of vighi^y). 
 1 64 What sort of enjoyment is essential to the gaining of a right of support 
 to buildings from the adjoining land of a neighboring proprietor. — ^When 
 
 (t) Per cur., Wood v. Wand, 3 Exch. 779. Ace. Mason v. Shrewsbury & Hereford Bail., 
 atite, p. 78. 
 
 (») Staffordshire and Worcestershire Canal Co. v. Birmingham Canal Navigations, L. K. 
 1 App. Ca. 254. 
 
 (») Arkwright «. GeU, 5 M. & W. 232. Curtiss t>. Ayrault, 47 N. Y. 73-82. 
 
 (y) Greatrex ». Hayward, 8 Exch. 291. Bawstron v. Taylor, U ib. 369. See HiHiard on 
 Torts, 110, n. 
 
148 PRBsemPTiVM rigbts. [Ch^p. 3 
 
 houses and buildings have been notoriously supported by the adjoining 
 land of a neighboring proprietor for the full period of twenty years, a 
 right to such adjacent support is gained, unless something be shown 
 to displace such right(3). A defendant who has acquiesced for more 
 than twenty years in the enjoyment, by the plaintiflf, of the privilege 
 of lateral suppwt from the defendant's adjoining soil, cannot after- 
 wards lawfully int&rrupt the enjoyment of such privilege(a). 
 
 " There may be some difficulty," observes Lord Campbell, " whence 
 the grant of the easement of support 'to a house is to be presumed, as 
 the owner of the adjoining, land cannot prevent its being built, and 
 may not be able to disturb the enjoyment of it, without serious loss or 
 inconvenience to himself; but the law favors the preservation of enjoy- 
 ments acquired by the labor of one man, and acquiesced in by another 
 who has the power to interrupt them ; and as, on the supposition of a 
 grant, the right to light may be gained from not erecting a wall to 
 obstruct it, the right to support for a new building erected near the 
 extremity of the owner's land may be explained on the same princi- 
 ple "(6) ; but a grant ought not to be inferred from any lapse of time 
 short of twenty years after the neighbor was, or ought to have been, 
 fully aware of the facts. The easement must have been enjoyed for 
 twenty years under a claim of right, " and if neither party was 
 acquainted with the fact that the easement was actually used at all, 
 we should probably," observes Alderson, B., " be of opinion that there 
 was no user of the easement under a claim of right "(c). 
 165 Houses resting against each other. — If two houses are built against 
 each other, with separate and independent walls resting upon sepa- 
 rate and independent foundations, so as to stand independently of 
 .each other, one house has no right to support from the other ; and 
 if the foundations of one of the houses subside; and the house rests 
 upon the adjoining house, and requires the support of the latter, 
 it does not follow that, because it has required and received that sup- 
 port for twenty years, any right to support is thereby acquired. Such 
 a right cannot be claimed as a right by prescription, which supposes a 
 state of things existing before the time of legal memory ; nor is it a 
 right under the Prescription Act, which has been hitherto confined 
 to rights in their nature of a perpetual and permanent character, and 
 
 (a) Parke, B., Hide v. Thoniborongh, 2 C. & K. 2S5. 
 
 (a) Wood, V.-C, Hunt v. Peaks, 1 Johns. 710 ; 29 Law J., Ch. 785. Brown r. Windsor, 1 Cr. 
 & Jerv. 27. Rogers v. Taylor, 2 H. & N. 828 ; 27 Iiaw J., Exch. X76. 
 (6) Hnmphries v. Brogden, 12 Q. B. 749. 
 (c) Partridge v. Scott, 3 M. & W. 230. 
 
8ec. I. J ADJOININS MOUSES — FENCES — WINDOWS. 149 
 
 the ownership of -which is in fee simple ; and it seems contrary to 
 justice and reason that a man, by building a weak house adjoining to 
 the house of his neighbor, can, if the weak house gets" out of the per- 
 pendicular and leans upon the adjoining house, be subjected to the 
 burthen of supporting and propping up the weak house after it has 
 stood for twenty years : an enjoyment of such a privilege is not an 
 enjoyment "as of right" within the Prescription Act(d). 
 
 166 What sort of enjoyment of the lenefit of a boundary fence is requisite to 
 gain a prescriptive right to have the fence kept up at the expanse of one land- 
 owner for the benefit of another. — We have seen that the presumption of 
 legal title by grant to easements and incorporeal rights in the lands of 
 others is founded on adverse enjoyment of such rights from time 
 immemorial. But where the enjoyment can be satisfactorily accounted 
 for, and is consistent with there having been no grant, there is, as we 
 have seen, no ground for presuming one {ante, p. 136). 
 
 In the case, therefore, of proof of enjoyment by one landowner of a 
 fence erected by his neighbor, and repaired, as occasion required, by 
 the latter, there is no proof of such adverse enjoyment, as raises a 
 presumption of a grant of the benefit of the fence by one landowner 
 to the other. Every man is bound by law to take care that his beasts 
 dp not trespass upon the lands of his neighbors. He may prevent 
 their doing so, either by employing servants to keep them within the 
 limits of his own land, or by enclosing his land with fences, so that 
 the cattle cannot escape. The making of a fence, therefore, between 
 his own land and that of his neighbor, does not raise any inference 
 that the fence was intended for the benefit of his neighbor, although 
 the fence prevents his neighbor's beasts from trespassing as well as his 
 own ; for it is for his own benefit to prevent his beasts from trespass- 
 ing upon his neighbor's property(e). 
 
 1 67 What sort of enjoyment is essential to the gaining of a prescriptive right 
 (o the access of light to windows. — The third section of the, Prescription 
 Act provides, as we have seen, that where the access and use of light 
 
 (<J) Solomon v. Vintners' Co. Peyton v. Mayor of London. Kempton o. Butler, an*e,p.ll3. 
 
 (e) Boyle v. Tamlyn, 6 B. & C. 337. That there may be a valid prescription binding the 
 owner of land to maintain perpetually the fence between him and the adjoining proprietor, 
 see Adams v. Van Alstyne, 25 N. Y. 232 ; Bumey v. The Proprietors etc., in Hull, 6 Pick. 
 503 ; Eust V. Low, 6 Mass. 90 ; Heath v. Bicker, 2 Me. 72 ; Thayer v. Arnold, 4 Mete. 589. But 
 no such prescription can be establislied in respect to part of a boundary line by the mainte- 
 nance for any length of time of the fence by one of the adjoining proprietors while the other 
 maintained an equal length on another portion of the boundary, the presumption being that 
 each maintained what had been found by agreement to be his just proportion of the fences in 
 discharge of his own duty and not in exoneration of the other. Adams r. Van Alstyne, 25 
 N. T. 232. Wright v. Wright, 21 Conn. 242. 
 
150 PRESCRIPTIVE RIGHTS. [Chap. 3. 
 
 to and for any dwelling-house, workshop, or other building, shall have 
 been actually enjoyed therewith for the full period of twenty years 
 without interruption, the right 'thereto shall be deemed absolute and 
 indefeasible, any local custom or usage to the contrary notwithstand- 
 ing, unless it shall appear that the same was enjoyed by some consent 
 or agreement, expressly made or given for that purpose, by deed or 
 writing. "Upon this section it is material to observe," says Lord 
 Westbury, "that the right to what is called * an ancient light 'now 
 depends upon positive enactment. It^is matter juris positivi, and does 
 not require, and therefore ought not to be rested on, any presumption 
 of grant or fiction of a license having been obtained from the adjoin- 
 ing proprietor,"(/). 
 
 " This section," observes Parke, B., " is differently worded from the 
 others, and the acquisition of right to light is much favored, as a far 
 less time gives an indefeasible right ; and the proviso in the 7th sec- 
 tion (ante, p. 117-18), which excludes the time when a person, other- 
 wise capable of objecting, is an infant, idiot, non compos, feme cowrte. 
 or tenant for life, from other periods of computation, includes it in 
 this. It also differs from the 2d section, in not requiring that the 
 enjoyment should be by a person ' claiming right ' in express terms. 
 What, then, is tlje clear enjoyment contemplated by the 3rd section ? 
 We think it clear, notwithstanding the absence of the words in the 
 2nd section above referred to, that it converts into a right such an 
 enjoyment only of the access of light over contiguous land as had 
 been had for the whole period of twenty years, in the character of an 
 
 (/) Tapling v. Jones, 34 L. J., C. P. 344. In moBt of the states of the Union the doctrine of 
 gaining a prescriptive right to liglit and air, by mere lengtli of enjoyment, has been' dis- 
 carded. In a leading case in New York it has been held, that " There is no principle upon 
 which the modern English doctrine on the subject of lights can be supported. It is an 
 anomaly in the law. It may do well enough in England, but it cannot be applied in the 
 growing cities and villages of this country without working the most mischievous conse- 
 quences. It has never, I think, l)een deemed a part of our law, nor do I find that it has been 
 adopted in any of the states." Parker v. Poote, 19 Wend. 309. This decision was approved 
 in Myers v. Gemme' (10 Barb. 537), and may be considered the settled rule in New York. 
 See EadcUff 'B Executors v. Mayor, etc., of Brooklyn, 4, N. Y. 195, 200. The English doctrine 
 of prescriptive rights in light and air has been repudiated in Massachusetts, Texas, Ala- 
 bama, Vermont, Pennsylvania, Maryland, Iowa, Sou^h Carolina, Maine, Connecticut and 
 Ohio. Richardson »'. Pond, 15 Sray (Mass.), 387. Eoyoe v. Guggenheim, 106 Mass. 201, 205. 
 Statutes of Mass. 18.52, ch. 144. Klein v. Gehrung, 25 Texas (Supp.), 332. Ward v. Neal, 37 
 Ala. 500. Hubbard v. Town, 33 Vt. 295. Haverstick v. Sipe, 33 Penn. St. 368. Cheery v. 
 Stein, 11 Md. 1. Napier v. Bulwinkle, 5 Eich. 311. Morrison v. Marquardt, 24 Iowa, 35. 
 Ilieatt V. Moi-ris, 10 Ohio St. 523. Mullen v. Strieker, 19 Ohio, 1.35. Pierre ». Pernald, 26 Me. 
 436. Ingi'aham v. Hutchinson, 2 Conn. 584. Statutes of Conn. 1864, tit, 29, ch. 1, o. 18, p. 636. 
 On the other hand, the English doctrine of prescriptive right to light and air seems to pre- 
 vail in New Jersey, Louisiana and Ulinois. Eobeson v. Pittenger, 1 Green Ch. 57, 64, Durel 
 V. Boisblanc, 1 La. An. 407. Gerber v. Grabel, 16 Vl. 217. As to the casement of light and 
 uir under an implied grant, see (vnte, p. 113, note , 
 
Sec. 1.] LIGET — UNITY OF OWNERSHIP. 151 
 
 easement, distinct from the enjoyment of the land itself, and that the 
 statute puts this species of negative easement, as it has been termed, 
 on the same footing, in this respect, as those positive easements pro- 
 vided for by the other sections, all of which, after long enjoyment as 
 easements, are invested with the quality of rights. In the first place, 
 the access of light, under this section, must have been enjoyed foi 
 twenty years without interruption — not in the sense of an uninter- 
 rupted or continuous user, but without such interruption as is men- 
 tioned in the subsequent section — that is, an interruption submitted 
 to for one year after the party shall have had notice thereof, and of 
 the persons making or authorizing the same to be made(^). From 
 this it follows, that the legislature contemplated such an enjoyment as 
 could be interrupted by the adjoining occupier, at least during some 
 some part of the time "{h). 
 
 Where, therefore, the owner in fee of an ancient house, and the 
 land surrounding it, having enjoyed the access of light to his windows 
 across such adjoining land, his own property, for more than twenty 
 years, sells such surrounding land, and the purchaser builds thereon, 
 so as to shut out the light from the ancient house, the owner has no 
 remedy, as his enjoyment being over his own land is not such an 
 enjoyment as is contemplated by the statute(i). 
 
 « If windows have been enjoyed, subject to the payment of a rent, 
 this is an enjoyment by consent or agreement, and therefore confers 
 no right under the statute ; but the payment of the rent is no evidence 
 of any interruption of enjoyment(^'). 
 1 68 Unity of ownership of the dominant and servient tenements preventiitff 
 the acquisition of a prescriptive right to the free access of light. — If the 
 house and windows and the adjoining premises over which light comes 
 are in the possession of the same person, no grant can be presumed 
 from the enjoyment of the light in that condition of the property, and 
 no right to the light can be acquired, as we' have just seen, under the 
 statute by reason of such enjoyment(^). Therefore, where the plain- 
 tiff and his father, whom he succeeded, had occupied a house, of which 
 they were successively seised in fee for more than sixty years, and 
 
 (g) See Flight ».. Thomas, 8 CI. & Fin. 231. 
 
 (ftl Parke, B., Harbidge v. Warwick, 3 Exoh. 556 ; 18 Law J., Exoh. 245. 
 
 (s) White V. Bass, 7 H. & N. 722 ; 31 Law J., Exoh. 283. In support of the principle that no 
 one can prescribe in his own land, see Gayetty v. Bethune, 14 Mass. 49 ; Atkins v. Bordman, 
 2 Mete. 457 ; Eitger v. Parker, 8 Cash. 145. 
 
 [j) Plasterers' Co. v. Parish Clerks' Co., 6 Exch. 630. See Cunningham ». Dorsey, 4 W. 
 Va. 293. 
 
 'il;) White v. Bass, supra. 
 
152 PRESCRIPTIVE BiaHTS. [Chap. 3. 
 
 had also, during the whole period of their occupation of the house, 
 occupied an adjoining garden as tenants from year to year under three 
 successive landlords, of whom the defendant was the last, and the . 
 light came to the windows of the house across this garden, and the 
 defendant, having determined the yearly tenancy, and got possession 
 of the garden, began to raise the garden-wall, and in so doing ob- 
 structed the windows of the plaintiif 's house, it was held that the 
 enjoyment of the light across the garden, during the unity of possession 
 of the house and garden, was not such an enjoyment of light as could 
 be made the foundation of a prescriptive right under the statute, and 
 that the plaintiff consequently could not maintain any action for the 
 obstruction of his windows(Z). The accruing right to the light is sus- 
 pended during the unity of posses8ion(«i). 
 
 Where, on the other hand, the windows and the land across which 
 the light comes are in the occupation of different parties, and there is 
 no unity of possession of the dominant and servient tenements, a pre- 
 scriptive right would be gained by twenty years' uninterrupted enjoy- 
 ment, although the servient land across which the light comes is held 
 on lease(w). It is true, that if a man open a window on adjoining 
 land let on lease, and the landlord or reversioner of that land object to 
 it, the latter may have no means of redress, or power of preventing 
 the right to light being acquired by twenty years' enjoyment, unles% 
 he can induce his tenants to block up the windows, or get an 
 acknowledgment in writing that the right is enjoyed by consent only ; 
 but such want of redress and inability of prevention will, neverthe- 
 less, not prevent the right from being acquired(o). 
 169 Enlargement of windows — Enjoyment of enlarged windows. — ^A person 
 cannot, by enlarging a window, enlarge his right to the enjoyment of 
 light. The enlarged portion of an ancient window constitutes a new 
 window, and doessnot enjoy the same rights and ■privileges as the an- 
 cient aperture. If an ancient window is supplanted by a new window, 
 varying in size, elevation, or position, from the ancient window, the 
 new window may be obstructed by the adjoining landowner, but not 
 the space occupied by the ancient aperture(p). K a window has been 
 
 (l) Hartiil^e v. Warwick, supra. 
 
 (i») Ladyman v. Grave, L. E,, 6 Ch, App. 763. 
 
 (») Cross V, Lewis, 2 B. & C. <i86 ; ante, p. 161. 
 
 (o) Frewen v. Phillips, 11 C. B., N. S. 455 ; 30 Law J., C. P. Wi. 
 
 (p) Blanchard v. Bridges, 4 Ad. & E. 191. Chandler V. Thompson, 3 Campb. 80. Cooper v. 
 Huhboclt, 30 Bear. 160. Davies v. Marshall, 1 Dr. & Sm. 567. Turner v. Spooner, 30 Law 
 J., Ch. 801 ; 1 Drew. & Sm. m. Heath v. Bucknall, 38 L. J., Ch. 872. Ajnd see Extinguish- 
 ment of Easements, post, p. 1 59, 1623. 
 
Sec. l.J A.CQvisrriON of a title by prescription. 153 
 
 enlarged and tlien obstructed, and the window is then reduced to its 
 ancient size, the obstruction becomes unlawful as soon as the window 
 . has been restored to its former state(9'). 
 
 The right to light is prima fade to that amount which would come 
 naturally to the window. A man, therefore, does not lose his right 
 because for a period he may require for the purpose of his business 
 ouly a subdued light(r), nor, on the other hand, can he be entitled to 
 the peculiar kind or an extraordinary quantity of light which may be 
 requisite for certain trades or professions, unless he has enjoyed the 
 light to ihat extent for the prescribed period(s). 
 
 It is not necessary that the house should be occupied, or even that it 
 should be fit for immediate habitation, during the statutory period, 
 provided it is structurally complete(i). 
 170 What interruption in the enjoyment prevents the acquisition of a title hy 
 prescription. — By s. 4 of the Prescription Act, it is enacted, that no act 
 or other matter shall be deemed to be an interruption, unless the same 
 shall have been submitted to or acquiesced in for one year after the 
 party interrupted shall have had notice thereof and of the person 
 making the same, or authorizing the same to be made. Where, there- 
 fore, the use of light and air had been enjoyed for nineteen years and 
 three hundred and thirty days, and was then interrupted by the 
 erection of a building, which interruption continued to the time of the 
 commencement of the action, but the interruption was not submitted 
 to or acquiesced in, as the plaintiff brought his action within a few 
 ijionths thereof, it was held that such erection of a wall was not an 
 interruption preventing the establishment of the right within the 
 terms of the fourth section of the statute(M). But though an inter- 
 ruption must be acquiesced in for a full year before it breaks the pe- 
 riod, where the subject-matter has, previously to the interruption, been 
 enjoyed as of right, interruptions acquiesced in for less than a year 
 may be of great weight as evidence on the question whether there 
 ever was a commencement of an enjoyment as of right. Such inter- 
 ruptions are explanatory of the real nature of the user. If the enjoy- 
 ment has been contentious, it is not of right. Therefore, where a per- 
 
 . (g) Jonea v. Tapling, post, p. 163. 
 
 (r) Yates v. Jack, L. K., 1 Ch. App. 295. 
 
 (s) Lanfranchi v. Mackenzie, L. E. 4 Eq. Ca. 421. An easement aoqnired by prescription 
 is restricted to the extent of the user. Wright o. Moore, 38 Ala. BB3. Holman v. Boiling 
 Spring Co., 1 M'Carter, 346. McCallum v. Germantown Water Co., 64 Penn. St. 40. Bicbard 
 son V. Pond, 15 Gray, 389. Brooks v. Curtiss, 4 Lans. (N. T.) 283. 
 
 («) Courtald v. Legh, L. E., 4 Exch. 126. 
 
 («) Flight V. Thomas, U Ad. & B. 899 ; 8 CI. & Fin. 241. 
 
154 PRESCRIPTIVM RIGHTS. [Chap. B. 
 
 son had been summoned, and convicted, and fined, for drawing off 
 "water from a watercourse, it was held that the conviction and fine, and 
 payment of the fine, were proper and most material evidence of the 
 user and enjoyment not having been of right(»). Nor does it follow 
 that an interruption is acquiesced in because an action has not been 
 brought. Where the lord has attempted to stop the user of a common, 
 the fact that some of the tenants have yielded to such attempts is not 
 an interruption of the right within the meaning of the Act, so as to 
 bar the freeholders as a body, who have never yielded to or acquiesced 
 in the lord's claim(a;). It is in general for a jury to determine whether 
 or not there has been acquiescence(2'). 
 171 Of the necessity of a continuous enjoyment at of right and without inter- 
 ruption. — The enjoyment of the profit a prendre, or easement, under 
 the statute, must be an enjoyment for a continuous period, without 
 such interruption as is defined in the fourth section of the statute. 
 The enjoyment of the privilege must be continuous(0), but the exercise 
 of the right need not be continuous. Formerly it was thought that 
 some act of user must take place within each year(a), but this has since 
 been held not to be necessary ; for where proof was given of the enjoy- 
 ment of a profit k prendre at the time of the commencement of 
 an action, and for thirty years before, but enjoyment during the whole 
 of the intermediate period could not be proved, it was held to be 
 a question for a jury, whether at that time the right had ceased, or was 
 still substantially enjoyed. Thus, where there was an actual enjoy- 
 ment of common of pasture for forty years next before the commence- 
 ment of an action, with the exception of an interval of two years out 
 of the forty, when the claimant ceased to use the common, because he 
 had no commonable cattle to depasture, and not in consequence of any 
 obstruction to his exercise of the right, it was held that the jury were 
 
 (v) Eaton v. Swansea Water Co., 17 Q. B. 267. 
 
 (a) Warwicke. Queen's College, L. E., 10 Eq. Ca. 105 ; 6 Ch. App. 716. If at any time before 
 the expiration of the time necessary to create a prescriptive right, the owner of the land in 
 which an easement is claimed, has by any verbal act resisted the exercise of the right 
 or denied its existence, the presumption of a grant will be rebutted, and the acquiescence of 
 the owner disproved. PoweU v. Bagg, 8 Gray, 441. Nichols v. Aylor, 7 Leigh, 646, 665. Smith 
 D. Miller, 11 Gray, 148. See Ingraham v. Hough, 1 Jones (N. C), 39 ; Tracy v. Allerton, 38 Vt. 
 514. One of the essentials of a valid prescription is that it must have a continued and peace- 
 able usage and enjoyment. Rhodes ». Whitehead, 27 Texas, 304. And when an uninter- 
 rupted user has existed for the time requisite to establish a prescriptive right acquiescence 
 (viU not be presumed if the owner of the land has had no choice but to acquiesce. Jessup v. 
 Loucks, 55 Penn. St. 360. 
 
 (y) Bennisou v. Cartwright, 33 Law J., Q. B. 137. See Bradley's Fish Co. r. Dudley, 37 
 Conn. 136. 
 
 (z) Onley ». Gardiner, 4 M. & W. 500. Ward v. Eobins, 16 M. & W. 242. PoUard v. Barnes, 
 2 Cush. 191. Carlisle ». Cooper, 4 C. E. Green, 261. 
 
 (a) Lowe v. Carpenter, 6 Exch. 831. See Cathbert v. Lawton, 3 McCord, 195. 
 
Sec. 1.1 CONTINUOUS ENJOYMENT AS OF BIGBT. 155 
 
 justified in finding a continued enjoyment of the right during the two 
 years in which it was not exercised(6). " It has been ingeniously 
 argued," observes Lord Denman, " that a thirty years' enjoyment can- 
 not have taken place where there has been two years' intermission ; 
 but the words of s. 1 are ' without interruption,' not ' without inter- 
 mission,' and the intermission must be a matter open in every case to 
 explanation ; and where actual enjoyment is shown before and after 
 the period of intermission, it may be inferred from evidence that the 
 right continued during the whole time." " Interruption," further 
 observes Patteson, J., " must clearly mean an obstruction by the act of 
 some other person than the claimant, not a cessation by him of his own 
 accord." "No necessary inference of interruption in the enjoyment 
 arises," further observes Williams, J., " from a cesser of enjoyment dur- 
 ing two, three, or seven years." And " if there is proof to the satisfaction 
 of a jury of a long enjoyment of the alleged privilege, they ought not to 
 negative it merely because there was a time during which there was no 
 enjoyment "(c). Where, on the other hand, an artificial impediment in 
 the shape of a stang or rail had been erected, which prevented the access 
 of cattle from the plaintiff's farm to the land over which the right of com- 
 mon was claimed, and this stang was removed by agreement, and then 
 the plaintiff's cattle depastured on the land, and continued so to do for 
 twenty-eight years continuously after the removal of the stang, down 
 to the time of the commencement of the action, it was held that an en- 
 joyment for thirty years could not be presumed from this evidence(d). 
 
 (6) Carr v. Foster, 3 Q. B. 581 ; post, 16i. So where the owner of buildings which had stood 
 more than twenty years, claimed as an easement the right to carry on an offensive trade 
 therein, and it was shown that he had carried on such business therein for eighteen years 
 uninterruptedly, it was lield that the mere suspension of the business for two years, where 
 there had been no interference with the enjoyment of the right, was not such an interruption 
 as would defeat the right in tiie absence of an intent to abandon the business and not resume 
 it, Dana v. Valentine, 5 Mete. 8, But see Carlisle v. Cooper, 4 C. E. Green, 2til. So where 
 the owner of a dam claimed as an easement the right to flow land, It was held that the sus- 
 pension of the flowing during the time the owner was repairing the same, was not such 
 an interruption of the continuity of the user and enjoyment as to defeat the right. Wood v. 
 Kelley, 30 Me. 47. Gevanger v. Summers, 2 Ired. 229. Continuous adverse use of a way may 
 be established without direct evidence of actual use during each year. Bodfish v. Bodfish, 
 105 Mass. 317. And in general the requisite continuity of enjoyment which will establish a 
 prescriptive right to an easement, depends upon the character and nature of the right 
 claimed. Id. 
 
 (c) WiUes, J., Darling v. Clue, 4 F. & F. 334. The term " interruption " within the mean- 
 ing of the Massachusetts statutes is applicable to whatever brealis the continuity of the 
 possession and enjoyment of the easement claimed, whether by cessation of enjoj-ment on 
 the part of the claimant, or by some act of the owner of the tenement in which the right is 
 claimed. Pollard v. Barnes, 2 Cush. 191. Thus where a person claimed the right to pile 
 boards on the land of another on the ground that the right had been exercised from 1822 to 
 1846, except fi'om the years 1829 to 1834, it was held that there was a voluntary interruption 
 which destroyed the continued enjoyment of the right. Id. 
 
 (d) Bailey v. Appleyard, 8 Ad. & E. 165. See Plympton v. Converse, 42 Vt. 712. 
 
156. PRESCRIPTIVE RiGBTS. [Chap-. 3. 
 
 172 What hreaJcs the conUnuity of the enjoyment — Asking lemei — "The 
 asking leave from time to time breaks the continuity of the enjoyment 
 as of right, because each asking of leave is an admission that, at that 
 time, the asker had no right; and, therefore, the evidence of such 
 asking within the period is admissible under a general traverse of the 
 enjoyment for forty or twenty years as of right"(e). 
 
 173 Of the necessity of a continuous enjoyment down to the period of the com- 
 mencement of the action. — The Prescription Act expressly requires (ss. 
 1, 2) enjoyment " without interruption for the full periods therein 
 mentioned." Section 6 enacts, that no presumption shall be allowed 
 in support of any claim on proof of enjoyment for any less period or 
 number of years ; and by s. 4 it'is enacted, that each of the respective 
 periods of years thereinbefore mentioned shall be deemed and taken 
 to be the period next before some suit or action wherein the claim or 
 matter to which such period may relate shall have been, or shall be, 
 brought in question ; and it was formerly held that the enjoyment, in 
 order to give a right under the statute, must be up to the time of the 
 commencement of the suit(/). Bat when a prescriptive righthas once 
 been gained by twenty or thirty years' uninterrupted enjoyment as of 
 right, it is not lost again by mere non-user, for it does not follow that 
 a man has lost his right merely because he has not thought fit to 
 exercise it [ante, p. 154). An exercise of the right once a year down 
 to the time of the commencement of the action is not, therefore, essential 
 to the proof of a prescriptive title under the statute. " The intention," 
 observes Willes, J., " was to give enjoyment under the Act tne same 
 eflfect as the evidence which would sustain a prescriptive claim before 
 the Act, except that the terminus of the statutory enjoyment must be 
 a suit or action which discloses the nature of the claim, and gives an 
 opportunity of litigating it. The evidence, therefore, to sustain a 
 prescriptive claim need not come down to the commencement of the 
 suit, nor to any definite period "{g). 
 
 174 Exclusion from the computation of the thirty and twenty years' enjoy- 
 ment of those periods during which parties othenoise capable of resisting the 
 claim were infants, idiots, feme covertes, or tenants for life. — The seventh 
 
 (e) TicMe v. Brown, i Ad. & E. 382. Bright v. Walker, 1 Cr. M. & E. 219. Monmouth 
 C*nal Co. V. Harford, id. 631. But after an easement has been onoe actually acquired, 
 asking permission to continue its use will not affect the right, although it may be considered 
 in determining whether the prior use has been adverse or permissive. Perrin v. Garflela, 
 37 Vt. 310. 
 
 (/) Ward V. Robins, 15 M. & W. 242. Battishill «. Eeed, 18 C. B. 705 ; 25 Law J., C. P. 290. 
 Parker v. Mitchell, 11 Ad. & E. 788. 
 
 (g) Cooper v. Hubbuck, 12 C. B., N. S; 470. See Ward v. Ward, post, pp. 160, 164. 
 
Sec. 1.] TENANTS FOB LIFE — MINORS, ETC. 157 
 
 section of the Prescription Act provides, as we have seen, that th« 
 time during which any person otherwise capable of resisting the claim 
 shall be an infant, non compos mentis, feme cmerte, or tenant for life, 
 shall be excluded from the computation of the respective periods, except 
 where the claim is thereby declared to be absolute and indefeasible(g'p'.) 
 The claim is by the statute declared to be absolute and indefeasible in 
 those cases where there has been an enjoyment as of right and with- 
 out such interruption as is mentioned in s. 4 of a way, watercourse, or 
 use of water, or other easement, for the term of forty years, and of a 
 profit d prendre for the term of sixty years, and of the access and use 
 of light and air to any dwelling-house, work-shop, or other building 
 for twenty years, unless it shall appear that the same was enjoyed by 
 some consent or agreement expressly given or made for that purpose 
 by deed or writing. 
 
 Where a defendant claiming a prescriptive right to the enjoyment 
 of a profit £l prendre in the soil of the plaintiff showed an uninterrupted 
 enjoyment for twenty years before a life estate, and during its con- 
 tinuance, and for six years after its determination up to the commence- 
 ment of the action, and the question was whether that enjoyment was 
 sufiicient, or whether the thirty years must be the actual thirty next 
 before, the commencement of the action, it was held that the two sec- 
 tions of the statute,- — viz. s. 4, enacting that the respective periods of 
 enjoyment should be deemed and taken to be the period next before 
 some suit or action, and s. 7, providing that the time during which 
 any person capable of resisting the claim was tenant for life, etc., 
 should be excluded in the computation, — must be read together, so 
 that the period is thirty years next before the action, excluding in the 
 computation of those thirty years any tenancy for life(A). 
 
 [gg) TSo prescrip-tive rights can be acquired by adverse enjoyment as against a minor, feme 
 covert or an insane person. Watkins v. Peck, 13 N. H. SfiO. Melvin v. Whiting, 13 Pick. 184. 
 lleiner v, Stuber, 20 Peun. St. 458. Edson v. Munsell, 10 Allen, 557. It has been held in 
 Maasaohusetts and South Carolina, that where the ancestor dies before the lapse of time requi- 
 site to establish a prescriptive right, and the estate descends to a minor heir, the prescrip- 
 tion is suspended during the minority. JMelvin v. Whiting, 13 Pick. 184. Lamb e. Crossland, 
 4 Rich. 636. But in Vermont, North Carolina and New Hampshire, it is held that the prescrip- 
 tion in such cases is not suspended during the minority of the heir. Tracy v. Atherton, 30 
 Vt. 503. Wallace ». Fletcher, 10 Foster, 434. Mebane ». Patrick, 1 Jones (N. C.) 26. These 
 decisions being based upon different theories are irreconcilable. But whichever rale is 
 adopted, it is settled that if the enjoyment begun during the lifetime of the ancestor is con- 
 tinued after the majority of the heir, the two periods of adverse user may be taken together 
 to make the requisite period of prescription. Watkins v. Peck, 13 N. H. 360. In Pennsyl- 
 vania it is held that a second disability added to one which existed when the adverse enjoy- 
 ment first began is to be disregarded. Thus a coverture which took place during infancy is 
 not taken into account after the infancy has ended. Reinerj). Stuber, 20 Penn. St. 458. Sohen- 
 ley V. Commonwealth, etc., SH Penn. St. 29. ; 
 
 (ft) Clayton v. Corby, 2 Q. B. 824. No prescriptive rights can be acquired in respect to lands 
 while in the possession of a tenant for life, or for years, as against the remaindei-man or 
 
158 PRESCRIPTIVE RIGHTS. [Chap. 3. 
 
 175 Of the right of reversioners to exclude _ from the computation of the forty 
 years the periods of the enjoyment of a way or watercourse, and use of water, 
 over lands demised for life or years. — By s. 8 of the Prescription Act 
 (ante, p. 141), it is expressly enacted, that when any land or water 
 upon, over, or from which any right of way or convenient watercourse, 
 or use of water, shall have been enjoyed or derived, hath been or shall 
 be held under any term of life, or any term of years exceeding three 
 years from the granting thereof, the time of the enjoyment of any such 
 way, watercourse, or water, during the* continuance of such term, shall 
 be excluded in the computation of the said period forty years, in case 
 the claim shall within three years next after the determination of such 
 term be resisted by the reversioner. 
 
 By the ancient law of prescription, whenever it appeared that the 
 land over or upon which an easement of this sort had been enjoyed 
 was in the occupation of a tenant for life, or tenant for term of years, 
 during the whole period of the enjoyment of the privilege, the pre- 
 sumption of a grant was rebutted and the easement extinguished, 
 however long and notorious might have been the user and enjoyment, 
 and although the owner of the fee was fully aware of all that had 
 been done upon the land(i), and had made no protest against, or ob- 
 jection to, the enjoyment of the privilege. But since the Prescription 
 Act, if the privilege has been enjoyed without such interruption for 
 forty years, or as far back as living memory will go, the right cannot 
 be defeated merely by showing that the land was on lease during the 
 whole period of enjoyment ; for the jury, under such circumstances, 
 may infer a dedication previous to the lease(A:). It must be shown 
 either that the enjoyment was had without the knowledge of the 
 reversioner {ante, pp. 136, 137), or that the reversioner, within three 
 years after the determination of the particular estate, resisted the 
 claim to the easement(Z). 
 
 " The period during which the land over which the right is claimed 
 has been leased for a term exceeding three years is not, under s. 8, 
 to be excluded from the comprftation of a twenty years' enjoyment. 
 Section 7 excludes certain times, including that of a tenancy for life, 
 but not that of a tenancy for years, from the computation of the 
 
 reversioner. Parkers. Parmingham, 8 Mete. 260. Pierre «. Fernalrl, 26 Me. 438. But a valid 
 easement may be acquired by adverse user as against the tenant for life, or for years, and 
 those who hold his estate during its continuance. Wallace v. Fletcher, 10 Foster, 453. 
 
 (t) Bradbury «;. Grinsell, 3 Saund. 176, (i) in notls. Barker v. Bichardson, 4 B. & Aid. 681. 
 Wood o. Veal, 5 ib. 466. 
 
 (it) Winterbottom v. Lord Derby, L. E., 2 Exch. 316. 
 
 (I) Wright V. WiUiams, 1 M. & W. 100. Wilson v. Stanley, 12 Ir. Com. Law Eep. 367. 
 
Sec. l.j WAIVEB AND EXTINGUISHMENT OF EASEMENTS. 159 
 
 ' periods ' thereinbefore mentioned ; and a twenty years' enjoyment 
 is one of those periods. But section 8 provides for the exclusion of 
 certain other times, among which is a tenancy for more than three 
 years, not from the periods thereinbefore mentioned, but from one 
 particular period only, expressly mentioned, namely, that of an enjoy- 
 ment for forty years "(wi). 
 176 Waiver and extinguishment of easements. — A title once gained by pre- 
 scription or cijstom cannot be lost by interruption of the possession or 
 enjoyment for ten or twenty years, but it may be lost by interruption 
 in the right, as if a man have a rent or common by prescription, unity 
 of possession of as high dnd perdurable estate in the land is an inter- 
 ruption in the right(w), for when there is once a title by prescription 
 vested, it cannot be taken away by a cesser of user of the right of late 
 time, but it will be destroyed by unity of ownership of the dominant 
 and servient tenements(o). Thus, where a modus decimandi was 
 alleged by prescription time out of mind for tithes of lambs ; and there- 
 upon issue was joined, and the jury found that before twenty years 
 then last past there was such a prescription, and that for these twenty 
 years he (the plaintifi') had paid tithe lamb in specie ; and it was 
 objected : 1. That the issue was found against the plaintiff, for that 
 the prescription was general for all the time of prescription, and 
 twenty years fail thereof. 2. That the party, by the payment of 
 tithes in specie had waived the prescription or custom. But it was 
 adjudged for the plaintiff in the prohibition, for albeit the modus 
 decimandi had not been paid by the space of twenty years, yet, the 
 prescription being found, the substance of the issue is found for the 
 plaintiff. 
 
 And if a man hath a common by prescription, and taketh a lease 
 of the land for twenty years, whereby the common is suspended, after 
 
 (m) Ld. Campbell, Palk v. Skinner, 18 Q. B. 674 ; 22 Law J., Q. B. 27. 
 
 (71) Co. Litt. 114b. 
 
 (0) Onley v. Gardiner, 4 M. & W. 500. Battishill t). Reed, 18 C. B. 607. Miller v. Lapham, 
 44 Vt. 416. Grant v. Chase, 17 Mass. 443. Gayetty v. Bethune, 14 Mass. 53. Hancock k. 
 Wentworth, 5 Mete. 446. Keiffer v. ImlioOT, 26 Penn. St. 438. Coleman's Appeal, 63 Penn. 
 274. Plympton v. Converse, 42 Vt. 712. But where an owner holds the scn'ient estate by a 
 defective title, and has an easement in the same land under a valid title, the easement will 
 not be extinguished by the unity of possession. Tyler v. Hammond, 11 Pick. 193. So where 
 the owner of the servient estate is also a joint owner of the dominant estate, the unity of 
 ownership is not of-such a character as to extinguish the easement. Bradley's Fish Co. t,. 
 Dudley, 37 Conn. 136. And where both the dominant and servient estates were vested in the 
 same person as mortgagee, under separate mortgages, it was hold that the easement existing 
 between the estates was not extinguished until both mortgages were foreclosed. Eitger v. 
 Parker, 8 Cush. 145. ■ It will be observed that the cases make a wide distinction between the 
 effect of the union of an absolute title to and possession of both the dominant and servient 
 estate in the same person, and the union of estates not permanent but conditional and deter- 
 minable, and liable to be again disjoined by operation of law. See post, p. 170. 
 
160 PRESCRIPTIVE RIGHTS. [Chap. 3. 
 
 the years ended, he may claim the common generally hy prescription, 
 for that the suspension was but to the possession and not to the right, 
 and the inheritance of the common did always remain ; and when a 
 prescription or custom doth make a title of inheritance (as Littleton 
 speaketh), the party cannot alter or waive the same in pais{p). 
 
 In an action against the defendant for a trespass upon the plain- 
 tiff's land, the defendant justified in the exercise of a right of way 
 which' he claimed by reason of his possession of a clo«, the owners 
 and occupiers of which had enjojT^d the right from time immemorial, 
 though it had not been exercised for thirty-seven years prior to the 
 commencement of the action, mainly because one of the tenants had 
 other land of his own adjoining, over which he had a shorter and 
 more convenient way, and in the argument of the case a dictum of 
 Littledale, J., was cited, to the effect that if a party, who has acquired 
 a right by immemorial usage, ceases for a long period of time to make 
 use of the privilege, it may thence be presumed that he has released 
 the right(g'); but per Alderson, B. : "The presumption of abandon- 
 ment cannot be made from the mere fact of non-user. The non-user 
 must be the consequence of something which is adverse to the user ; " 
 and per Pollock, C.B. : " The only inference that could reasonably be 
 drawn from the non-user is that the party had no occasion for the 
 user "(r), 
 177 Parol abandonment of incorporeal rights. — ^Where an easement is 
 granted for a particular purpose, or arises as accessorial to a thing 
 granted {ante, p. 86), and the purpose can no longer be accomplished, 
 or the thing granted ceases to exist, so that the easement can no 
 longer be applied to the object for which it was originally granted, 
 
 (p) Coke's Institutes. 8. 170. 
 
 (g) Moore e. Rawson, 3 B. & C. 332. 
 
 (r) Ward v. Wartl, 7 Exch. 838. Sec Cook V. Mayor of Bath, L. E., 6 Eq. Ca. 177 ; Corning 
 V. Gould, 16 Wend. 631 ; Wilder v. St. Paul, 12 Minn. 208. An easement acquired by prescrip- 
 tion may be lost by non-user, but mere non-user can never extinguish an easement acquired 
 by deed. Wiggins v. McCleary, 49 N. Y. 346. Smyles v. Hastings, 22 N. Y. 217. Jewett v. 
 Jewett, 16 Barb. (N. Y.) 1.50. Arnold v. Stevens, 24 Pick. 106. As a general rale, the aban- 
 donment of an easement acquired by prescription will not be presunujd unless the non-user 
 has existed for the same length of time necessary to create the original presumption of the 
 grant. Corning v. Gould, 16 Wend. 531. Townsend ti. McDonald, 12 N. Y. 381. Bannon v. 
 Angler, 2 Allen (Mass.), 128. Hatch ». Dwight, 17 Mass. 289. Williams v. Nelson, 23 Pick. 141. 
 PiUsbury v. Moore, 44 Me. 164. Dyer v. Depuy, 5 Whart. B^t. Perkins v. Dunham, 3 Sti'obh. 
 224. Farrar v. Cooper, 34 Me. 394. Wilder v. St. Paul, 12 Minn. 192. But this rule is not 
 without exceptions ; and the presumption of the abandonment of an easement may arise 
 from non-user for a period of time much less than it will take to acquire it. Ehodes t). White- 
 head, 27 Texas, 304. Louisville, etc., E. K. j3o. v. Covington, 2 Bush (Ky.), 526. It will be 
 seen from an examination of the authorities that non-user of an easement for the period 
 I'equired to create it, is mere evidence of an intent to abandon it, and not a conclusive pre 
 sumption. 
 
Sec. l.J ABANDONMENT OF INCORPOREAL RIOHTS. 161 
 
 the easement is at an end(s). A mere parol license or agreement wil! 
 suffice for the destruction, although it is insufficient for the creation 
 of an easement(ss). Thus, if a person possessed of an easement ovei 
 the land of the adjoining landowner verbally authorizes the latter to 
 do an act of notoriety upon his own land which, when done, will be 
 inconsistent with the continued enjoyment of the easement, and the 
 lic^se or authority is acted upon, and the thing done, the authority 
 so given and acted upon cannot be revoked, and the easement conse- 
 quently is extinguished(f). Where the plaintiff, for example, having 
 a right to the uninterrupted access of light and air across the defend- 
 ant's area, had given the defendant a parol license or permission to 
 put a skylight over his area, and the skylight was erected by the 
 defendant on his own land, and, when built, was found to impede the 
 passage of the air and light, and to obstruct the plaintiff's easement, 
 it was held that, as the parol license or permission had been acted 
 upon and executed, and the skylight built, the license was irrevocable, 
 and the easement was extinguished(tt). 
 
 So where the plaintiff, having a right to the use of a stream of 
 water which flowed through the land of the defendant, gave the de- 
 fendant a parol license or permission to lower the banks of the river, 
 and erect a weir, and divert a portion of the water which had pre- 
 viously flowed to the plaintiff's mill, it was held that the plaintiff, 
 after he had so given up his right to the water that had been diverted, 
 and suffered the defendant to act upon the faith of such relinquish- 
 ment, and incur expense in doing on his own land the very thing 
 that was authorized by the plaintiff to be done, could not then law- 
 fully retract such consent, and throw on the defendant the burthen of 
 restoring things to their former condition(M). 
 
 The same rule prevails in the civil law. In the "Digest," for 
 example, it is laid down, that " if I have a right of discharging my 
 eaves'-droppings into your area, and I authorize you to build in this 
 
 (s) National Guaranteed Manure Co. v. Donald, 4 H. & N. 8 ; 28 Law J., Exch. 185. Han- 
 cock V. Wentworth, 5 Mete. 446. Gayetty v. Bethune, 14 Mass. 49. Chase v. Sutton Manuf. 
 Co. , 4 Cush. 152. McDonald v. Lindall, 3 Eawle, 492. 
 
 (ss) The proposition as stated in the text is not strictly true. An easement cannot be ex- 
 tinguished or renounced by a mere parol agreement between the owner of the dominant and 
 servient tenement. Dyer v. Sandford, 9 Mete. 395. Pue v. Pue, 4 Md. Ch. Decis. 336. But if 
 a license is given by the owner of the dominant tenement to the owner of the servient tene- 
 ment to obstruct an easement, and the license is executed, the license is not revocable, and it 
 may operate as an abandonment of the easement to the extent of the license. 
 
 l«) Morse v. Copeland, 2 Gray (Mass.), 302. Dyer v. Sandford, 9 Mete. 395. 
 
 («) Winter v. Brooltwell, 8 East, 309. See Dyer v. Sandford,''9 Mete. 395. 
 
 (u) Liggins v. Inge, 7 Bing. 682. Blood v. Keller, 11 Ir. Com. Law. Rep. 130. Morse ». 
 Copeland, 2 Gray (Mass.), 302. 
 
 Ad. Vol. I.— 11 
 
162 PRESCRIPTIVE RIGHTS. [Chap. 3. 
 
 area, I lose my right of discharge ; and so, if I have a right of way 
 over your property, and I authorize you to do anything in the place 
 over which my right of way exists, I lose my right of way"('»), 
 178 Wavoer and extinguishment of an easement of light and air. — If a 
 person entitled to an easement of light and air does any act of noto- 
 riety showing that he abandons the benefit of the light and air he 
 enjoyed, he may lose his right in a much less period of time than 
 would sufiBce to enable him to gain it. Where the owner of a building 
 with ancient windows overlooking the defendant's premises pulled 
 down the building, and erected anoflier with a blank wall without 
 any windows, and fifteen years afterwards the defendant erected a 
 building next this blank wall, and the plaintiff then opened windows 
 in the blank wall in the place where his ancient windows formerly 
 stood, and then brought an action against the defendant for the ob- 
 struction to the light and air caused by the defendant's new building, 
 it was held that the windows thus opened could not claim the privi- 
 leges of the ancient windows which had formerly existed on the same 
 spot ; that thoSe privileges had been lost by manifest disuse, and that 
 the action was not maintainable {x). 
 
 If a window has been bricked up for twenty years, it is, when re- 
 opened, prima facie, a new window(2^). But if the facts show that the 
 windows were only temporarily disused, that the frames and sashes 
 were kept in, or the spaces filled with a temporary boarding, which 
 could readily be removed, the owner of the window-spaces will not 
 lose his right to the easement of light and air by the disuse of the 
 windows for any period short of twenty years, unless the adjoining 
 landowner has been permitted to build against them, and to incur 
 expense, in the reasonable belief that the windows have been perma- 
 nently abandoned, in which case the owner of the windows cannot then 
 insist upon his ancient right, and claim damages for an injury which 
 has been brought about by his own negligence and want of care(z). 
 
 If a tenant stops up any of the windows of a house that has been 
 denied to him, he is responsible in damages to his ]andlord(a). 
 
 \p) " Si stillicidii immittendi jus habeam in aream tuam, et pei-misero jus tibi in eS area 
 aedilicandi, stillicidii immittendi jus araitto. Et similiter si per tuum fandum via mihi debea- 
 tur, et permisero tibi, in eo loco, per quern via mihi debetur, aliquid facere, amitto jus viae." 
 —Dig. lib. 9, tit. 6, 1. 8. See Pue v. Pue, 4 Md. Ch. Decis. 386. 
 
 [x) Moore v. RawBon, 3 B. & C. 833. Dyer v. Sanford, 9 Mete. 395 ; and see Ballard v. 
 Butler, 30 Me. 94. 
 
 (y) Lawrence v. Obee, 3 Campb. 514. 
 
 (a) Stokoe o. Singers, 8 EU. ii Bl. 39 ; 26 Law J., Q. B. 257. Ace. in case of water ; Crossley 
 V. Lightowler, L. K., 3 Eq. Ca. 279 ; 2 Ch. App. 478 ; and of a door. Cook v. Mayor of Bath, 
 L. K., 6 Eq. Ca. 171. 
 
 (o) Thomlinsoji v. Brown, Sayer, 215, 
 
Sec. 1.] ABANDONMENT OF EASEMENTS. 163 
 
 1 79 Extinguishment of an easement of light by alterations in windaws and 
 buildings. — A person naay so alter ancient windows and apertures 
 through which light has been admitted into the interior of a building 
 as to lose his right altogether. He may so change the course and di- 
 rection of the light, and so alter the position of his windows, as to en- 
 title the owner of the adjoining land to block them up altogether(6). 
 If windows have been allowed to be opened, with blinds attached to 
 them sloping upwards, so as to admit the light but obstruct the view 
 over the adjoining land, the right to light which these windows may 
 have acquired by user cannot be enlarged by removal of the blinds. 
 If the blinds are removed, the view from the windows may be ob- 
 structed, provided the obstruction causes no greater impediment to 
 the light than was caused by the old blinds(c). However, a person 
 possessed of ancient windows has a right to the full benefit of all the 
 light he can get through the ancient aperture by any change he can 
 
 . eflfect in the form and character of the window. If it is an ancient 
 window, with heavy mouldings, and small diamond panes glazed in 
 lead, he may remove them, and substitute a large pane of plate glass, 
 without giving the occupier of the servient tenement a right to block 
 up the window, on the ground that the ancient right has been enlarged, 
 and a new easement created, for this is only an alteration in the mode 
 of enjoying the light within the house, and does not vary the size of 
 the external aperture ; and if ancient windows have been painted on 
 the inside, and so used, and the paint is rubbed off, this will not en- 
 title the occupier of the servient tenement to block up the unpainted 
 windows(d). And it has been laid down in the House of Lords, that 
 as the right is declared by the Prescription Act to be absolute and in- 
 defeasible after twenty years' enjoyment, without interruption, it can- 
 not be lost or defeated by a subsequent temporary intermission of en- 
 joyment, not amounting to abandonment, and cannot be prejudiced 
 by any attempt to extend the excess or use of light(e), for the mere 
 attempt to increase the servitude, which is a lawful act, will not work a 
 forfeiture of the right(/). So if new or enlarged windows cannot be 
 obstructed without at the same time obstructing ancient, unaltered win- 
 dows, an obstruction to such last-named windows cannot be justified; 
 
 (6) G-arritt v. Sharp, 3 Ad. & E. 330. 
 
 (c) CottereU v. Griffiths, 4 Esp. 69. 
 
 {d) Kindersley, T.-C, Turner v. Spooner, 1 Drew. & Sra. 467 ; 30 Law T., Ch. Sns. 
 
 (e) Tapling v. Jones, 34 Law J., C. P. (H. L.) 342, overruling Kenshaw v. Beau, and Hut- 
 chinson «. Copestake. See Weatherby v. Boss, 32 Law J., Ch. 123. 
 
 (/) Erie, C. J. and WiUiams, J., Jones v. Tapling, 11 C. B., N. S. 289 ; 3i Law J., C. P. 119- 
 121 ; ib. 342. 
 
164 PRESCRIPTIVE BIOHTS. [Chap. 3. 
 
 neither can an obstruction to a lower window be justified merely on 
 the ground that an upper window has been enlarged, or a new garret 
 window has been thrown out(p'). Nor will the right be prejudiced by 
 any proposed decrease of light caused by buildings erected by the 
 owner of the dominant tenement himfeelf(^), nor by any increase of 
 light caused by clearances effected in the neighborhood, unless amount- 
 ing to so much light that no one could reasonably want more(i). 
 180 Disuse of right of way. — The presumption of abandonment of a right 
 of way does not arise from the mere fact of non-user, when nothing 
 has been done adverse to the user, and no obstruction has been offered 
 to the enjoyment of the right(M). Thus, where an immemorial right 
 of way had been enjoyed by the defendant from the defendant's close 
 across the adjoining land of the plaintiff to the high road, and the de- 
 fendant had demised his close to the plaintiff, and after that to several 
 other tenants, who obtained by leave and license of the plaintiff and 
 others a more easy and convenient access to and from the property, 
 and the old prescriptive way was consequently disused for a great 
 many years, it was held that, the prescriptive right was not extin- 
 guished by the non-user(^'). The use of the new track may be con- 
 sidered as an exercise of the old right, and evidence of the continued 
 enjoyment of it(A). When, therefore, a new way has been substituted 
 by agreement of the parties in lieu of an old prescriptive way, and the 
 new way is stopped, the old prescriptive right of passage revives(Z). 
 
 If the jury find the right of way once well commenced, it must be 
 shown that it has subsequently been released, abandoned, or destroyed. 
 An express release of the easement would of cburse destroy it any mo- 
 ment ; so the cesser of use, coupled with any act clearly indicative of 
 an intention to abandon the right, would have the same effect without 
 any reference to time. It is not so much the duration of the cesser of 
 enjoyment as the nature of the act done by the grantee of the ease- 
 ment, or of the adverse act acquiesced in by him and the intention in 
 him which either the one or the other indicates. The period of time 
 is only material as one element from which the grantee's intention to 
 retain or abandon his easement may be inferred ag;ainst him ; and 
 
 (ff) Biuckes o. Paah, n C. B., N. S. 342 ; 31 Law J., C. P. 121 ; lb. C. P. 347, 350. 
 
 (A) Staight ». Bum, L. B., 8 Ch. App. 163. 
 
 (i) Dyers' Co. «. King, L. R., 9 Eq. Ca. 438. 
 
 (ii) Bannon v. Angier, 2 Allen (Mass.), 128. Smyles «. Hastings, 22 N. T. 271. Miller v. Gar- 
 lock, 8 Barb. 153. 
 
 (j) Ward V. Ward, 7 Exch. 838. See Hamilton v. Wbite, 5 N. T. 9 ; Cronnse v. Wemple, 29 
 N. Y. 540. 
 
 (*) Payne v. Shedden, 1 M. & Rob. 338. 
 
 (f) Lovell V. Smith, 3 C. B., N. S. 120. 
 
Sec. l.J DISUSE OR ABANDONMENT OF BIGBT. 165 
 
 what period may be sufficient in any particular case must depend on 
 all the accompanying circumstances(TO). 
 
 A private right of way is not extinguished by the subsequent dedi- 
 cation of the way to the pnblic(w). 
 
 181 Extinguishment of ways of necessity. — A way by necessity is com- 
 mensurate only with the existence of such necessity, so that when the 
 necessity ceases the right of way also ceases(wre). "Where, therefore, a 
 person who has a waytif necessity over the lands of another is able 
 to approach the land for which the way was used by passing over his 
 own soil, the right of way is extinguished. "When, by a subsequent 
 purchase, he is enabled to reach his house, farm • or field, without 
 touching the land of his neighbor, the necessity of going upon the 
 land of the latter ceases, and, the necessity ceasing, the right founded 
 upon such necessity ceases also "(o). But the easement revives again 
 when the necessity for it revives(p). 
 
 182 Suspension and forfeiture of rights of way and watercourse by the rumr 
 performance of conditions annexed to the grant. — If a right of way is 
 granted to another, he contributing and paying his rateable share 
 and proportion of the expense of repairing the way, and repairs 
 become necessary, and the way is repaired by the grantor, and the 
 grantee refuses to pay his rateable proportion of the expense, his 
 right of way will become forfeited, or will be suspended, until the 
 accomplishment of the condition annexed to the grant ; but the 
 grantee has the right to use the way without paying anything until 
 repairs become necessary, and the cost of them has been ascertained, > 
 and the grantee has refused to pay his share of the cost(g). If 
 
 (m) Eeg. V. Chorley, 12 Q. B. 519. Williams v. Eyton, 27 Law J., Exch. 176; 2 H. & N. 771. 
 Corning v. Gould, 16 Wend. 631. Grain v. Fox, 16 Barb. (ST. Y.) 184. 
 
 («) Abbott V. Stewartstown, 47 N. H. 228. New York Life luaurauoe and Trus tCo. v. 
 Miluor, 1 Barb. Cli. 363. 
 
 [nn) Duncan v. Loucli, 6 Q. B. 904. 
 
 (0) Holmes v. Goring, 2 Bing. 76. ViaU v. Carpenter, U Gray (Mass.) 126, New York Jjfe 
 Insurance and Trust Co. o. Miluer, 1 Barb. Cli. 353. Pierce v. Selleck, 18 Conn. 321. Holmes 
 V. Seeley, 19 Wend. 505. Collins v. Prentice, 15 Conn. 39. Lawton v. Rivers, 2 M'Cord, 415. 
 Soriven v. Gregorie, 8 Eioh. (Law.) 158. Nichols v. Luce, 24 Pick. 102. Seeley v. Bishop, 10 
 Conn. 128. Gayetty v. Bethune, 14 Mass. 49. Alley v. Carleton, 29 Texas, 78. 
 
 (p) Pearson v. Spencer, 1 B. & S. 584. Where the owner of a right of way by necessity 
 has put an end to tMe right 'by acquiring another right of way over his own land to the same 
 highway, he cannot again revive it by conveying away that land. Baker v. Crosby, 9 Gray 
 IMass.) 421. When the title to the dominant and servient estates unite in a common own«r 
 easements of necessity ivre merged .ind lost; and on separate conveyances of the estates by 
 tlie common owner, such easements are not revived, nor deemed to have! existed during the 
 time the two est.ates wore held by the same person, but are re-created by the conveyance 
 of the estate separately, on the principle that whoever grants a thing impliedly grants what- 
 ever may be necessary for its beneficial enjoyment. Miller v. Lapham, 44 Vt. 416. Grant v. 
 Chase, 17 Mass. 443,448. Po««, p. 170. 
 
 (g) Duncan v. Louch, 6 Q. B. 904. 
 
166 PRESCRIPTIVE RIGHTS. [Chap. 3. 
 
 a right of ■watercourse is granted, with certain limitations and 
 restrictions, and the grantee exceeds his limited right, and refuses 
 to conform to the restrictive conditions, he loses his right altogether, 
 until he makes his enjoyment of it conformable to the conditions of 
 grant(r). 
 
 1 83 Disuse of light to water. — A person who has a prescriptive right to a 
 flow of water to a pond or well does not lose his right merely because 
 he has ceased to use his pond or well, and 'has allowed it to become 
 choked with weeds(s). But, if having a right to foul water he lies 
 by, and allows other persons to incur expense, which would be 
 useless, if his right to foul the water continued, he must be taken to 
 have bandoned \\,{t). 
 
 184 Merger and extinguishment of easements and sei'mtudes by a unity 
 of ownership of the dominant and servient tenements. — Easements, profits 
 a prendre, and servitudes, may become merged and extinguished in 
 the general rights of property, when the land benefited by, and the 
 land burthened with, the easement, profit, or servitude, pass into the 
 hands of one common proprietor, or when the person possessed of the 
 incorporeal right becomes the owner of the land over or upon which 
 the right is exercised, for a man cannot, strictly speaking, have an 
 easement in his own land(M). Thus, if one man erects on tis own 
 land a building which wrongfully darkens the windows of the adjoin- 
 ing proprietor, and afterwards purchases the house with the darkened 
 windows, the tort is thenceforth purged by the unity of ownership, 
 and the easement or privilege of enjoying the unobstructed access of 
 light and air annexed to the darkened windows is extinguished, for, 
 both houses being in the hand of one person, he may deal with them 
 as it seemeth best to him. If, therefore, he afterwards grant or con- 
 veys the house with the darkened windows, the grantee cannot law- 
 fully complain of the nuisance, and has no remedy for its abatement. 
 If one of two houses, which belonged to two dilFerent proprietors, has 
 been built so as wrongfully to overhang the other, and they after- 
 wards come into one hand, the wrong is now purged ; so that if the 
 houses come afterwards again into several hands, yet neither party 
 can complain of the wrong done before(a;). 
 
 The obligation imposed in certain cases by custom, prescription, or 
 
 (r) Cawkwell v. Russell, 26 Law J., Exoh. 34. 
 (s) Hale V. Oldroyd, 14 M. & W. 792; Co. Litt. 114 b, ante, p. 159. 
 («) Crossley v. Lightowler, L. E., 3 Eq. Ca. 279; 2 Ch. App. 478. 
 («) Ante, p. 159-60. 
 
 (y^ PobinB v. Barnes, Hob. 131 ; Eolle'a Abr. Customs (D.), pi. 7. Battishlll v. Reed, 18 
 C. B. B96 
 
Sec. 1.] VNITT OF OWNERSHIP. 167 
 
 contract, upon the owner of an estate to maintain a fence for the ben- 
 efit of the owner or occupier of the adjoining land, is an obligation in 
 the nature of a servitude. Where, therefore, adjoining lands, which 
 have once belonged to different persons, one of whom is bound to re- 
 pair the fences between the two, afterwards becomes the property of 
 the same person, the pre-existing obligation to repair the fences is de- 
 stroyed by the unity of ownership. And where the person who has 
 so become the owner of the entirety afterwards parts with one of the 
 two closes, the obligation to repair the fences will not revive unless 
 express words be introduced into the deed of conveyance for that 
 purpose (y). 
 
 If a man who has a right of common appurtenant {ante, p. 1 ) 
 becomes himself the owner of the land over which the right of common 
 extends, the incorporeal right is merged in the legal ownership, and 
 the land is discharged, for a man cannot have common in his own 
 land(2) ; and if the owner afterwards grants the land to which, before 
 the extinguishment, the right of common was attached, with all ease- 
 ments and profits thereunto "appertaining" or "belonging," these 
 words will not be sufiicient to revive or re-create the right(a). 
 
 However, if a copyhold tenement, to which a right of common is 
 annexeci, becomes vested in the lord by forfeiture, the right of common 
 is not extinguished ; it remains by custom annexed to the customary 
 tenement ; and though the right is in abeyance whilst the estate re- 
 mains in the lord, it is re-created or revived by a re-grant of the 
 estate as a copyhold tenement cum pertinentiis. If, indeed, the lord 
 grants the fee to a copyholder, the estate can never again becomfe a 
 copyhold estate, and the right of common is extinguished, "for the 
 common first used was gained by custom, and annexed to the estate, 
 and is lost with it"(6). 
 185 What sort of unity of ownership is essential to the extinguishment of 
 easements. — For the extinguishment of a prescriptive right by unity 
 of ownership and possession "it is requisite that the party should 
 have an estate in the lands a qud, and in the lands in guA, equal in 
 duration, quaiity, and all other circumstances"(c). "If," observes 
 Alderson, B., "I am seized of freehold premises, and possessed of 
 
 (y) Bayley, J., Boyle v, Tamlyti, 6 B. & C. 337. 
 
 (s) Nelson's case, 3 Leon. 128. Saunders o. Oliffe, Moore, 467. Tyringham's case, 4 Kep. 38a 
 
 («) Clements v. Lambert, 1 Taunt. 204. Grymes v. Peacock, 1 Bulstr. 17. 
 
 (6) Badger v. Ford, 3 B. & Aid. 15o. Massam v. Hunter, Yelv. 189. 
 
 (c) Eex V. Hermitage, Carth. 241. See Ivimey v. Stooker, L. E., 1 Ch. App. 470-8; Co. Litt 
 114 b, ante, p. 169-60; Tyler ». Hammond, 11 Pick. 193 ; Bradley's Fish Co. v. Dudley, 37 Conn. 
 136 ; Eitger v. Parker, 8 Cusli. 146. 
 
168 PRESCRIPTIVE RIGHTS. [Chap. 3. 
 
 leasehold premises adjoining, and there has formerly been an easement 
 enjoyed by the occupiers of the one as against the occupiers of the 
 other, while the premises are in my hands the easement is necessarily 
 suspended, but it is not extinguished, because there is no unity of 
 seizin ; and if I part with the premises, the right, not being extin- 
 guished, will revive "{d). If a lessor of the dominant tenement takes 
 a week's tenaiicy of the servient tenement^ he does not lose all the 
 servitudes: he would only lose the statutory mode of establishing 
 them ; and he would only lose that, when it could be said that at the 
 time of granting the lease he could grant the servitude(e). 
 
 Easements of necessity are not extinguished by unity of ownership, 
 and therefore, a necessary way over land continues, notwithstanding 
 a unity of ownership of the dominant and servient tenements, and a 
 subsequent conveyance of such tenements to separate proprietors(/) ; 
 but this is not the case with regard to mere easements of convenience, 
 which are used from time to time only, such as the right of taking 
 water from a pump(g'). 
 186 Reeival and re-creation of easements and servitvdes which haw been 
 extinguished or suspended by unity of ownership. — When an easement 
 or servitude has become extinct by reason of the ownership of the 
 dominant and servient estates having become centred in the same per- 
 son, and he again conveys away that estate to which the easement 
 or servitude has belonged, the general rule is, that if he merely grants 
 such estate with the appurtenances, the easement is not revived, 
 unless it is a visible apparent easement, manifestly necessary for the 
 commodious occupation and enjoyment of the property which is con- 
 veyed(/%) ;^ but if he grants it with all easements, etc., therewith used 
 and enjoyed, that operates as a revival ; and any other words clearly 
 intended to have such an eflFect will operate in the same manner(j). 
 If aright of way has become extinguished by unity of ownership of 
 the dominant and servient tenements, and the messuage for which the 
 right of way was anciently used is subsequently severed from the land 
 over wtich the way passed, and is conveyed " with all ways, roads, 
 rights of road, paths, and passages thereto belonging; or in anywise 
 
 (d) Thomas v. Thomas, 2 C. M. & K. 41. 
 
 (e) Bramwell, B., Warburton v. Parke, 26 Law J., Exch., 298 ; 2 H. & N. 64. 
 
 (/) Packer v. Wellatead, 2 Sid. 111. Pearson v. Spencer, 1 B. & S. 584. Sf e howcTer, 
 Baker v. Crosby, 9 Gray (Mass.) 421 ; MiUer v. Lapham, 44 Vt. 416 ; Grant ». Chase, 17 Mass 
 US, 448 ; Du Val v. Du Val, 21 Md. 149. 
 
 [g) Polden n. Bastard, 32 L. J., Q. B. 372; L. E., 1 Q. B. 156. 
 
 (A) Suffleld V. Brown, ante, p. 102. 
 
 (») See per Kelly, C. B., in Langley v. Hammond, L. B., 3 Exch. 168. 
 
Sec. l.J EEVIVAL OR RE-CRMATION OF EASEMENTS. 169 
 
 appertaining," the eictinct right of way is not revived, and does not 
 pass by the conveyance of the house, unless it is a way of necessity(i) ; 
 "for nothing is more clear than that, un^er the word ' appurtenances,' 
 according to its legal sense, an easement which has become extinct, or 
 which does not exist in point of law by reason of unity of ownership, 
 does not pass. If the grantor wishes to revive or create such a right, 
 he must do it by express words, or introduce the terms ' therewith 
 used and enjoyed,' in which case easements existing in point of fact, 
 though not existing in point of law, would be transferred to the 
 grantee"(Z). If, therefore, the occupiers of farm A have a right 
 of way, not being a way of necessity, over farm B, and both farms 
 come into the hands of one and the same owner, and afterwards the 
 two farms are again severed and granted to two different grantees, 
 the extinct right of way will not be revived and re-created unless the 
 grantor uses language to show that he intended to create the ease- 
 ment de novo{m). Nor will the use of the words " therewith used and 
 enjoyed " operate to pass a way, which was previously only used by 
 the grantor for the more convenient occupation pf both tenements, and 
 which therefore never became attached to either(«). 
 ^But there is a distinction between what are termed discontinuous 
 easements, such as rights of way, and continuous easements, such as 
 drains and watercourses ; for if the owner of a mill, who has a right 
 of passage for water to his mill through the land of the adjoining land- 
 owner, purchases such adjoining land, and becomes the owner both of 
 the mill and of the land over which his watercourse extends, and after- 
 wards alienes the mill, the watercourse and incorporeal right to the 
 free passage of the water to the mill are not extinguished, but pass 
 with the mill as appendant and appurtenant thereto. So if a man 
 hath a dye-house, and there is water running thereto, and afterwards 
 he purchaseth the land upon which the stream runs, and subsequently 
 re-sells such land, his original right to the watercourse remains(o). 
 But if a man liath a stream of water which runneth in a leaden pipe 
 through the adjoining land, and he buys the land where the pipe is, 
 and cuts the pipe and destroys it, the watercourse is thenceforth ex- 
 
 (4) Barlow v. Rhodes, 1 Cr. & M. 488 ; Wardle v. Brooklehurst, ante, p. 103. But see Watts 
 V. Kelson, L. E., 6 Ch. App. 166. 
 
 (i) Plant V. James, 5 B. & Ad. 794. James v. Plant, i Ad. & E. 764. Bradshaw v. Eyre, 
 Cro. Ellz. 570. Wardle v. Brocklehurst, ante, p. 104. Baird v. Tortune, 4 Macq. 127. 
 
 (m) Worthington v. Girasou, 29 Law J., Q. B. 117. Daniel v. Anderson, 31 Law J., Ch. 610. 
 Pearson v Spencer, 1 B. & S. 571. Pheysey v. Vicary ; Dodd v. Buvohall, ante, p. 104. 
 
 in) Langley v. Hammond, L. E.., 3 Exch. 161. See Gaylord ». Moffat, L. K., 4 Ch. App. 133. 
 
 (o) Sury V. Pigot, Poph. 172 ; Palm. 444. 
 
170 PBESCBIPTIVE RIGHTS. [Chap. 3. 
 
 tinct, because ne thereby declares his intention that the watercourse 
 and the laud shall no longer be enjoyed together(^). 
 
 Where a way has been extinguished by the unity of seizin of two 
 estates, by the partition of the two the way is revived. Thus it has 
 become laid down as law, " that a way extinguished by unity of pos- 
 session is revivable afterwards upon a descent to two daughters, where 
 the land through which the way passed is allotted to one, and the 
 other land, to which the way belonged, is allotted to the other sister ; 
 and this allotment, without specialty, to have the way anciently used, 
 is sufficient to revive it "(§■). 
 
 In the Roman law, when the servitude was a non-apparent servitude, 
 it was merged and extinguished by unity of ownership of the domi- 
 nant and servient tenements ; but when it was an apparent continuing 
 servitude, such as a window enjoying light and air, or lands having 
 drains or watercourses, or manifest ways running through them, the 
 servitude was not extinguished ; so that if the tenements were subse- 
 quently severed, they would be respectively benefited and burdened 
 with their ancient, manifest, and continuing privileges and obliga- 
 tion s(r). 
 
 By the French law, " servitudes cease when things are in such a 
 state that it is impossible any longer to make use of them." They 
 revive, if things are re-established in such a manner that they can be 
 made use of, unless a sufficient space of time has already elapsed to 
 raise a presumption that the servitude has been extinguished. Every 
 servitude is extinguished when the estate to which it is due, and that 
 which owes it, are united in the same hands. Servitude is extin- 
 guished also by non-usage during thirty years(s). 
 187 Effect of the destruction or alteration of the dominant tenement. — When 
 mills or houses which have watercourses, or estovers, or other things 
 appendant or appurtenant to them, be overthrown by the wind, or 
 burned by fire, or fall by any other act of God, if the owner rebuilds 
 them in the same manner as they stood before, they shall have the 
 same ancient rights appendant and appurtenant to the new structure. 
 And although the house or mill falls by the act or default of the 
 owner, or by the wrong of another, yet forasmuch as the dui-able 
 materials remain, he may rebuild it without the loss of anything 
 
 (p) Popham, C. J., Lady Brown's case, cited Palm. 448. 
 (9) 1 Jenk. Cent. Ca. 37. Bro. Abr. Extinguishment, 15. 
 (r) Dig. lib. 8, tit. 2, 3. 
 («) Cod. Oiy. art. 703-706. 
 
Sec. 1.] REPAIR OF WAYS, WATERCOURSES, ETC. 171 
 
 appendant or appurtenant to it; but it oughfr to be reconstructed 
 upon the old foundations of the ancient house(<). 
 188 Of the maintenance and repairs of ways and watercourses. — Every 
 grantee of a right of way or watercourse, to be exercised and enjoyed 
 over or through the land of the grantor, must himself repair the way, 
 if he desires to have, it repaired and kept in repair for his use, or if 
 repairs are necessary to prevent the enjoyment of the right becoming 
 an annoyance and nuisance to the owner of the servient tenement(tt.). 
 " If I grant a way over my land I- shall not be bound to repair it. 
 If I stop it, an action lies against me for the misfeasance, but for the 
 bare nonfeasance, viz., in not repairing it, when it is out of repair, no 
 action at all lies(M). So if I grant a right to a watercourse through 
 my land, the grantee is bound to keep the watercourse in proper 
 order and repair ; and if it becomes ruinous and obstructed, so that 
 the water floods my land, the grantee will be responsible for the 
 nuisance "(a;). Where a landowner is under an obligation to repair 
 a road rations tenures, it is doubtful whether an action can be main- 
 tained against him by a person who has sustained damage by reason 
 of the road being out of repair ; but an action has been held main- 
 tainable by a lord of a manor, who relied on a prescription that he 
 and all who had his estate had a right to have a bridge kept in 
 repair by the owner of a mi\](y). In executing the repairs, the person 
 entitled to the right of way is not justified in doing anything to 
 increase the burthen upon the servient tenement, or to enlarge or 
 alter the nature of the easement. He must use the way as it has 
 always previously been used. If it was a soft way over a ploughed 
 field he has no right to lay down gravel, and if it was a gravelled 
 path he has no right to lay down stones and make a hard macad- 
 amized road, without the consent of the owner of the servient tene- 
 ment. 
 
 («) 4. Co. 86, b, 88, a. See Sherred v. Cisco, 4 Sandf. (N. T.) 480; Partridge v. Gilbert, 15 
 N. Y. 601, 615; Campbell v. Mesier, 4 Johns. Ch. 334; Hancock v. Wentworth, 5 Mete. 446, 461 
 
 (tt) Walker v. Pierce, 38 Vt. 95. Doane v. Badger, 12 Mass. 65. Holmes v. Seeley, 19 Wend. 
 507. Wynkoop v. Burger, 12 Johns. 222. Atkins v. Boardman, 2 Mete. 457. 
 
 («) Pomtret v. Eicroft, 1 Wms. Saund. 322, ante, pp. 93, 104. 
 
 [X) Ld. Egrcmont v. Pulman, ,M. & M. 104; cited 1 Q. B. 775. M'Swiney e. Haynes, 4 Ir. 
 Eq. E. Z22,post ch. 4; ante, p 94. So in the civil law: " In omnibus servitatibus refectio ad 
 enm pertinet qui sibi servitutem adserit, non ad eum cujus res servit." Gale on Easements, 
 4th ed., p. 472. 
 
 (y) 11 Hen. 4, o. 28, p. 83. Young o. Davis, 31 Law J., Bxcb. 254; 7 H. & H. 760. 
 
1/2 INFRINQEMENT OF RIQHTS OF SERVITUDE. [Chap. 3 
 
 SECTION II. 
 
 I^MEDT FOR THE INFRINGEMENT OF INCORPOREAL RIGHTS. 
 
 1 89 Abatement of obstructions to the enjoyment of easements and profits a 
 prend/re. — An obstruction to the enjoyment of a right of common, or 
 of a private right of way, may be abated as a nuisance (z). 
 
 190 Of the right to distrain beasts wrongfMly put upon a common. — Where 
 there is a color of right to put beasts upon a common, one commoner 
 cannot distrain the cattle of another. If there is no color of right he 
 may, and therefore he may distrain the beasts of a stranger. In the 
 €ase of levancy and couchancy, one commoner cannot distrain another's 
 cattle for a surcharge, but must try by a jury the ntimber accommo- 
 dated to the land. And where any admeasurement lies between 
 commoners to ascertain what quantity of land the commoner has, one 
 cannot distrain the cattle of the other(a). But this general rule may 
 be superseded, and a right to distrain given by an agreenient between 
 commoners to restrain the exercise of their privilege to certain speci- 
 fied portions of the common field(6). 
 
 191 Of actions for the infringement of incorporeal rights. — An injury to a 
 right imports a damage, though it does not cost the party one farth- 
 ing(c). " Whenever," observes Parke, B., " an act done would be evi- 
 dence against the existence of a right, that is an injury to the right, 
 and the party injured may bring an action in respect of it "{d). " It 
 is a vain thing to imagine a right without a remedy, for want of right 
 and want of remedy are reciprocal "(e). 
 
 19<i Actions for taking manure from commons. — ^A commoner may main- 
 tain an action for an injury done to the common by taking away from 
 thence the manure which was dropped on it by the cattle, though his 
 
 (s) Post, oh. 4, a. 2. 
 
 (a) HaU V. Harding, 1 W. Bl. 674. 
 
 (6) Wh^teman v. King, 2 H. Bl. 4. i 
 
 (0) Holt, C.J., Ashby o. White, 2 Ld. Eaym. 955. Bower v. Hill, 1 So. 526. Woodman v. 
 Tufls, 9 N. H. 88. Elliot v. Fitchburg R. K. Co., 10 Cush. 191. Hastings v. Livermore, 7 Gray, 
 194. Grant ». Lyman, 4 Mete. 470. Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 241. 
 Newhall v. Ireson, 8 Cash. 595. Butman v. Hussey, 12 Me. 407. Parker v. Foote, 19 Wend. 
 309. Hendriok v. Cook, 4 Ga. 241. • Stein v. Burden, 24 Ala. 130. Graver v. Sholl, 42 Penn. 
 67. Chatfield v. Wilson, 27 Vt. 670. Parker v. Griswold, 17 Conn. 288. Welton v. Martin. 7 
 Mo. 307. Plumleigh v. Dawson, 1 Gilm. 544. Whipple v. Cumberland Manuf. Co., 2 Story, 
 661. Connel v. Kibbe, 33 111. 175. Tutlle v. Walker, 46 Me. 280. Dudley v. Tilton, 14 La. An. 
 283. Delaware & Hudson Canal Co. v. Torrey, 33 Penn. St. 143. 
 
 (d) Nioklin v. Williams, lOExch. 227. 
 
 (e) Holt, C.J.,2Ld. Ilaym. 963. 
 
Sec. 2.] OBSTRUCTIONS TO PRIVATE RIGHT OF WAT. 173 
 
 proportion of the damage may be ihappreciable, for the repetition of 
 a tortious act of this liind might eventually be made the foundation 
 of a right, to the serious injury of the other commoners. The action 
 may be brought by the lord, or by any one of the commoners, and all 
 the commoners may maintain separate actions for the wrong(/). 
 
 193 Actions for surcharging of oommons. — If one commoner puts more 
 cattle on the common than he is entitled to do, he is liable to be sued 
 by all or any one of the other commoners who have a right to depas- 
 ture beasts upon the same common ; and it is no answer to the action 
 that the plaintiff has himself surcharged the common, or that the 
 damage is insigiiifieant, for the wrong-doer might, by repeated torts 
 of this sort, eventually enlarge his right. But if the beasts have been 
 put upon the common by the lord of the manor, or with his license and 
 permission, the commoner cannot maintain an action, unless he has 
 sustained actual damage, and can show that there was not a sufficiency 
 of pasture for his beasts(^). Any act that totally destroys the herb- 
 age, as feeding innumerable rabbits on a common, will support an action 
 against the lord(A). 
 
 194 Actions for obstructions to the enjoyment of a private right of way. — 
 Every person who sustains injury from an unknown and dangerous ob- 
 struction to the enjoyment of a private right of way is entitled to an 
 action for damages, whether the obstruction be caused by the owner of the 
 land over which the way exists or by a stranger, and whether the way 
 be claimed by prescription or grant, or be enjoyed only under a parol 
 license or permission, which has not been revoked ; for if a landowner 
 gives his neighbor permission to use a beaten track or path across the 
 land of such landowner, and the latter places a dangerous obstruction 
 in the path, which causes injury to the licensee, he will be responsible 
 in damages to the latter, if he has failed to give him timely notice and 
 warning of the obstruction ; and, a fortiori, therefore, a stranger will, 
 although he may have created the obstruction with the permission of 
 the landowner(i). A continuing obstruction to- the exercise and enjoy- 
 ment of an incorporeal right is a continuing nuisance ; so that if an 
 
 (/) Pindar v. Wadsworth, 2 East, 159. 
 
 {g) Hopson v. Todd, 4 T. E. 73. Smith o. Feverell, 2 Mod. 7. Greenhow *. Ilsley, Willes, 
 619. 
 
 (ft) Wells V. WatUng, 2 W. Bl. 133.S. 
 
 (j) Oorby v. Hill, 4 C. B., N. S. 656 ; 27 Law J., C. P. 318. Where a private way has been 
 obstructed by the grantor the gi'antee may remove the obstruction and maintain an action 
 against the grantor for placing it there. But he cannot lawfully go oat of the way upon the 
 grantor's land to avoid the obsti-uction. Williams v. Safford, 7 Barb. 309. Boyce v. Brown, 
 7 Barb. 80. 
 
174 INFRINGEMENT OF RIGHTS OF SERVITUDE. [Chap. 3. 
 
 action has heen brought, and damages recovered for the injury, and 
 the nuisance is not then abated, the continuance of the obstruction con- 
 stitutes a fresh injury, for which another action may be brought, and 
 BO totles qieoties, until the obstion is removed(A). 
 195 Of the parties to be made plaintiffs — Tenant ana reversioner. — The 
 action foi^ an injury to real property resulting from obstructions to the 
 enjoyment of profits i prendre, or easements appurtenant to messuages 
 or tenements, may be brought by the occupier in respect of the imme- 
 diate injury to his possessory interest, and by the reversioner in respect 
 of the deterioration in the marketable value of the property, when 
 the damage done is of a permanent character(A;A:). 
 
 An obstruction to the exercise of a private right of way appurtenant 
 to lands or tenements which, if allowed to continue unopposed, would 
 be evidence against the enjoyment of the right, is, of course, an injury 
 to the reversioner, in respect of which an action for damages is main- 
 tainable(Z). " The erection of a wall," observes Maule, J., " across 
 a way — assuming, of course, that there was no contract as between 
 the tenant and the defendant — would be an injury to the reversion, 
 although such wall might be pulled down before the plaintiff became 
 entitled to the actual possession of the land ; and there might be such 
 a locking and chaining of a gate as would amount to as permanent an 
 injury to the plaintiff's reversionary interest as the building of a 
 waU"(»i). But a reversioner cannot maintain an action against a 
 stranger for merely entering upon his land held by a tenant on lease, 
 though the entry be made in the exercise of an alleged right of way, 
 such an act during the existence of the tenancy not being necessarily 
 injurious to the reversion. Neither can he maintain an action in re- 
 spect of an obstruction of a public way leading to his property, unless 
 he can show, either that the obstruction is of a permanent character, 
 
 (k) Shadwell v. Hatchinson, iC.&P. 333. Beckwith ». Griswold, 29 Barb. 201, post, ch. 4. 
 
 (k!e) Tinsman o. Belvidere, etc. E. K Co., 1 Dutch. (N. J.) 265. Hastings «. Livermorfe, 7 
 Gray, 194. Brown ». Boweu, 30 N. Y. 519. Richardson o. Bigelow, 15 Gray, 154. Thus the 
 owner of land leased at will for purposes of pasturage may maintain an action for the ob 
 struction of a right to drain land through an ancient watercourse, 'and recover for the injurj 
 tliereby occasioned to the reversion. Hastings ti. Livermore, 7 Gray (Mass.), 194. And the 
 tenant would also have a cause of action against the same person for injuries sustained b> 
 him resulting from the same wrongful act. See Foley v. Wyeth, 2 Alien, 135. So the oc.cu 
 pant of premises injured by the setting back of Avater upon laud may recover damages againsi 
 the wrong-doer to an amount sufficient to indemnify him for the injury to such interest as ht 
 had in the premises : and an action will also lie by the reversioner for the injury done to th( 
 inheritance. Browne. Bowen, 30 N. T. 519. See Ashley e. Ashley , 4 Gray (Mass.), 197 ; Noye' 
 V. Stillman, 24 Conn. 16. ^ 
 
 {I) Battishill v. Eeed, 18 C. B. 696. See Hastings v. Livermore, 7 Gray (Mass.), 194 ; Folt i 
 ». Wyettc, 2 AUen, 136. 
 
 •m) KidgiU V. Moor, 9 C. B. 378. TtuBman v. Belvidere etc. E. K. Co., 1 Dutch. (N. J.) 2.52. 
 
Sec. 2.] ACTIONS lOB DAMAGES — PLEABINOS. 175 
 
 or that it would afford evidence against the existence of the right, if 
 it was allowed to continue unopposed. For the public injury the 
 landlord has a remedy, as one of the public, by indictment, and he is 
 not himself personally damnified merely by his tenant's being tem- 
 porarily prevented from enjoying his house in so ample a manner as 
 he might otherwise have doile. But if the obstruction appears to be 
 of a permanent character, or professes, either by notice affixed, or in 
 any other way, to deny the public right, and so lead to an opinion 
 that no road was there, the value of the house might be lowered in 
 public estimation, and pecuniary loss might follow, for which an action 
 might be maintained by the reversioner(w). 
 
 An action is also maintainable by the reversioner of a mill demised 
 to a tenant, for diversion by a stranger of water from the mill-head ; 
 for if the diversion was allowed to continue with the knowledge of the 
 reversioner, and without interruption from him or his tenant, it might 
 eventually be made the foundation of a legal right to divert the water, 
 to the serious injury of the inheritance. Where permanent damage 
 has been done to property let on lease by the erection of a wall or 
 hoarding obstructing ancient lights, and lessening the value of the 
 property in the market, there is an injury to the reversion, in respect 
 of which the reversioner is entitled to maintain an action(o), as well 
 as an injury to the possession, in respect of which the occupier may 
 sue. A wooden hoarding of an unsubstantial character may cause 
 permanent injury to the property, by the obstruction it offers to the 
 passage of light and air, and may be an injury to the reversioner(p). 
 
 If the windows of a house occupied by the servant of the owner 
 have been unlawfully darkened or obstructed, the owner may sue for 
 the immediate injury as the occupier of the house, the occupation of 
 the ser\^ant being the occupation of the master(g) : but if the house is 
 in the possession of a lessee paying rent, the action should be brought 
 in respect of the injury to the reversion ; and if there is a lease in 
 writing, it must be produced(r). 
 196 Parties to he made defendants. — If a man erects on his own land an 
 obstruction to the access of light and air to his neighbor's ancient 
 windows, and then demises the land with the obstruction upon it, an 
 
 (7!) Dobson V. Blackmore, 9 Q. B. 1004 ; 16 Law J., Q. B. 233. Hopwood v. Schofleld, 2 M. 
 & Rob. 34. Kidgill v. Moor, 9 C. B. 379. Mumford v. Oxford etc. E. E. Co., 30 Eng. Law & 
 Eq. 580. Tinsman v. Belvidere R. 11. Co., 1 Dutch. (N. J.) 255. 
 
 (o) Je38er v. Gifford, 4 Burr. 2141 ; 3 Leon. 209. Shadwell v. Hutchinson, M. & M. 350. 
 
 (p) Metrop. Association v. Fetch, 5 C. B., N. S. 504 ; 27 Law J., C. P. 332. 
 
 (gl Bertie v. Beaumont, 16 East, 33. 
 
 (r) CotteriU v. Hobby, 4 B. & C. 465. 
 
176 DISTURBANCE OF EASEMENTS. [Chap. 3. 
 
 action will lie both against him and his tenant for the continuance ol 
 the obstruction(s). And so it will lie against the landlord for a perma- 
 nent nuisance, although the nuisance was created before the reversion 
 came to him, i.e., if he knew of it, and might have determined the 
 tenancy before the injury happened, as in the case of a tenancy from 
 year to year(^). A clerk who has superintended the erection of a build- 
 ing by which ancient lights were darkened, and who alone directed 
 the workmen, may be joined as a co-defendant with the contractor 
 who appointed him to superintend the j)rogress of the building(M). 
 The actual occupier of lands burthened with the servitude of keep- 
 
 . ing up a boundary-fence for the benefit of the adjoining occupier or 
 landowner is the proper party to be made defendant in an action for 
 neglecting to maintain and repair the fence, for it is the duty of the 
 actual occupier, and not of the landlord, to keep up the fences(a;). If 
 the occupier of a house or land, having control over all workmen upon 
 his premises, suffers such workmen to bring stone and dirt therefrom, 
 and place them in a highway adjoining the house, he will be respon- 
 sible for any damage that may be caused to third parties by the ob- 
 Btruction(2^) ; and so also will the workman who actually placed the 
 obstruction in the thoroughfare. 
 
 197 Of the plaintiff 's declaration — Vemie — Statement of the cause of action. 
 — The venue in declarations for obstructions to the enjoyment of profits 
 k prendre and easements is local, and the cause of action must be laid 
 in the county in which it arose. When the easement is claimed by 
 grant, it is not necessary to mention or refer to the deed of grant in 
 
 (s) Kosewell v. Prior, 2 Salk. 460 ; 12 Mod. 636. ' A landlord who leases premises which are 
 already a nuisaace, or must become so from user, and receives rent therefor, is liable lor in- 
 juries resulting: from the nuisance, whether he is in or out. of possession. Owings v. Jones, 
 9 Md. 108. Pickard v. Collins, 23 Barb. (N. Y.)444. Hut a tenant for years is not liable for 
 merely continuing a nuisance as it existed at the commencement of his tenancy, if he has 
 done no new act which of itself was a nuisance, and has not been requested to remove it. 
 Hubbard v. Kussell, 24 Barb. (N. Y.) 404. Bravers v. Trimmer, 1 Dutch. (N. J.) 97. McDon- 
 ough o. Gilman, 3 Allen (Mass.) 264. And see Thornton v. Smith, 11 Minn. 15 ; Pillsbury v. 
 Moore, 44 Me. 154 ; Cronimelin v. Cox, 30 Ala. 318 ; Kay v. Sellers, 1 Duval (Ky.) 254 ; Morris 
 Canal and Banking Co. v. Eyerson, 3 Dutch. (N. J.) 457. 
 
 (f) Gandy v. Jubber, 33 L. J., Q, B. 151. Saxby v. Manchester Ewy. 38 L. J., C. P. 154 ; L. 
 E., 4 C. P. 198. Where demised property is not a nuisance at the time of the demise, but 
 becomes so solely from an act of the tenant while in possession, during which time an injury 
 results therefrom, the landlord cannot be held liable. Owings v. Jones, 9 Md. 108. Pickard 
 V. Collins, 23 Barb. (N. Y.) 444. 
 
 («) Wilson V. Peto, 6 Moore, 47. And see post, ch. 20. 
 
 (K) Cheetham v. Haippton, 4 T. E. 318. BuUer, J., Eider v. Smith, 3 T. E. 768. Eooth v. 
 Wilson, 1 B. & Aid. 59. 
 
 (y) Burgess v. Gray, 1 C. B. 591. Palmer v. Silverthom, 32 Penn. St. 65. The rule would 
 be otherwise if the owner had no control over the workmen or property in the material 
 forming the obstruction. Hilliard ». Richardson, 3 Gray, 349. Earle v. Hall, 2 Met. 353. 
 Scammon v. Chicago, 25 HI. 424 ; post, ch. 4, s. 2. 
 
Sec. 2. J ACTIONS FOR DAMAGES — PLEADINGS. 177 
 
 the declaration. It is enough for the plaintiff to allege that he is 
 entitled, to it by reason of his possession of a particular messuage or 
 land(z). But the plaintiff's right to the enjoyment of the easement 
 should in all cases be asserted on the face of the declaratiou(a). In 
 all actions for the disturbance of an easement or privilege, the obstruc- 
 tion ought to be charged on the pleadings in the thing itself in which 
 the party has a right. Thus, if the declaration complains that the 
 plaintiff's right of common was obstructed by the locking of a gate, 
 or his right to take water from a cistern by the blocking up of a way 
 or passage leading to the cistern, the declaration should assert and set 
 forth the plaintiff's right of common, or right of taking water from 
 the cistern, by reason of his possession of a messuage, tenement, or 
 land, and allege that the plaintiff had a right to go through the door 
 with his cattle to enjoy his right of common, or along the way or pas- 
 sage in order to take water from the cistern(&). 
 
 The plaintiff must show how his right arises ; but it is sufBcient 
 for the plaintiff to declare on his possession of a right of way, or a 
 right of common, or other profit or easement, by describing it, and 
 clainiing it by reason of his possession of the land. His possession 
 is enough; and it is unnecessary in an action for an ifijury to it to 
 show whether it arises from grant or prescription. So, in the case 
 of an injury to a market or a ferry. In the case of an injury to the 
 plaintiff's mill, where the plaintiff has a right to have the grain of 
 others ground there by tenure, prescription, or custom, it is enough 
 to allege the plaintiff's possession and the defendant's obligation to 
 grind; which is, indeed, part of the plaintiff's right in a general 
 form, as by reason of the possession of a house, or tliat all the inhabi- 
 tants ought to grind there, and that the defendant is an inhabitant, 
 which is a description of the right by tenure in the one case, and by 
 custom in another. 
 
 " There is another class of cases, in which an obligation is cast on 
 the defendant to repair a way to a close of the plaintiff over the 
 defendant's land, to repair fences against the plaintiff's land, or to 
 repair a wall adjoining the plaintiff's house. In these cases, it is 
 enough to state in a general way the defendant's obligation by reason 
 of his possession of his land, or wall, or an equivalent averment. 
 One reason given is, that in such cases a charge is laid upon the 
 
 (z) Northam v. Hurley, 22 Law J., Q. B. 185; 1 Ell. & Bl. 665 
 
 («) Whaley v. Laing, 2 H. & N. 476; 27 Law J., Exch. 422. Laing v. Whaley, 28 ib. 685. 
 
 <b) Tebbutt v. Selby, 6 Ad. & E. 786. 
 
 Ad. Vol. L— 12 
 
178 DISTURBANCE OF EASEMENTS. [Chap. 3. 
 
 right of another, which, it may be, the plaintiff cannot particularly 
 know "(c). In a declaration by a plaintiff for an injury sustained by 
 him from an obstruction placed in a private W£ty, which the plaintiff 
 was authorized to use by the parol permission of the owner of the 
 soil, it is enough for the plaintiff to describe the road, and assert that 
 he had, by the permission of the owner and occupier of the soil, a 
 right to use the road, and that the defendant wrongfully placed an 
 obstruction in the road, per quod, the plaintiff was injured(d). 
 
 "Where a declaration by a reversioner alleged that the plaintiff was 
 entitled to a right of way for his tenants over a certain close of the 
 defendant, and that the defendant wrongfully chained and fastened 
 a certain gate standing in and across the way, and wrongfully kept 
 the same fastened, and so obstructed the way, whereby the plaintiff 
 was injured in his reversionary estate, it was held that the declaration 
 set forth a sufficient cause of action, and that the plaintiff's rever- 
 sionary interest might be injured by the acts complained of(e). 
 
 If the declaration is for the obstruction of a flow of water through a 
 drain, it should set forth the right of the plaintiff to the flow of water 
 through the drain, and that the defendant wrongfully obstructed it, 
 stating the nature of the obstruction, and showing that the lands of 
 the plaintiff became flooded and injured, and his crops damaged and 
 destroyed, and that he was put to expense in draining off the water, 
 , and restoring his land to a state of good cultivation, claiming dam- 
 ages(/). 
 
 A declaration setting forth the plaintiff's possession of a house, and 
 alleging that the defendant wrongfully excavated beneath, or contig- 
 uous to, the foundations of the house, without leaving proper support 
 for the said foundations, and thereby caused the house to fall ; or that 
 he wrongfully pulled down and destroyed the foundations of the 
 
 (c) r.irke, B., Metcall'e v. Ilolherington, 11 Exch. 271; 24 Law J., Exch. 319. See Hartnall 
 V. Ryde Commissionei-ji, 33 L. J., Q. li. 30 
 
 (d) Corby ». Hill, 4 C. B., N. S. 556; 27 Law J., C. P. 318. And sec further, avie, pp. 71, 145. 
 I-Iolford V. Hankinson, 5 Q. B. 581. In an aotion to recover damages lor injuries arising fi-om 
 the obstTuction of a private way, the w.ay should be described as e.xtendingr fiom one place 
 to .inolher, otherwise the declaration will be insullicient. Lamphior v. Worcester & Nashua 
 E.B. Co.,33X. n. 41)3. And in an action lor disturbinj,' a way of necessity, while the plaintiff 
 need not set out the origin of his title, still if he does so, he must aver it according to the 
 tiutli. Wissler ». Hershey, 33 Penn. St. 333. 
 
 (e) Kidgill v. Moor, 9 C. B. 378. In an .iction by a reversioner for an injui-y to the rever- 
 sion, the plaintiff must either set forth an injury of a pennanent nature which must neces- 
 sarily be injurious to the reversion, or must explicitly allege that the act-complained of was 
 done to the injury of the reversion. Beavers v. Trimmer, 1 Dutch. (N. J.) 97. Tinsman v. 
 Belvidere R. R. Co., id. 255. Mumford e. Oxl'ord, etc., 14. R. Co., 36 Eng. Law & Eq. 580. 
 See Noyes v. Stillman, 24 Conn. 15. 
 
 (/) Ilewlins v. Shippam, S B. & C. 221. 
 
bee. 2.J ACTIONS FOB DAMAGES — PLEADINGS. 179 
 
 house ; or that he dug beneath the house and undermined it, so that 
 the walls cracked, and the plaintiff was obliged to remove with his 
 ■family, and hire another house, discloses a good cause of action(^). 
 If it appears on the lace of the declaration that the alleged wrongful 
 act was done on the adjoining land, the declaration is not now demur- 
 rable, because it does not show any right to support from the adjoin- 
 ing land, unless it appears upon the face of the declaration that the 
 alleged wrongful act was done by the defendant himself on his own 
 land. If the defendant does not appear upon the face of the declara- 
 tion to be the owner of the adjoining land, he is, prima facia, a wrong- 
 doer ; for, if a house is de facto supported by the soil of a neighbor, 
 this is a sufficient title to the support against any one but that neigh- 
 bor, or one claiming under him. A man who should prop his house 
 up by a shore, resting on his neighbor's ground, would have a right 
 of action against a stranger who, by removing it, should cause the 
 house to fall, though he could have no action against his neighbor 
 if the latter took it away and caused the same damage(^). 
 
 If the damaged buildings are in the possession of tenants to whom 
 they have been demised, and the plaintiff claims compensation for 
 damage done to his reversion, the declaration should set forth that the 
 buildings are in the occupation of certain tenants of the plaintiff, that 
 the reversion of the buildings is vested in the plaintiff, and that the 
 plaintiff, by reason of his reversionary interest iu them, is of right 
 entitled to have the buildings supported laterally by the adjoining 
 land of the defendant, and showing; that by the wrongful withdrawal 
 of the necessary support, the buildings became uninhabitable, and the 
 plaintiff was injured in his reversionary estate(j). 
 198 Declarations for an obstruction to the plaintiff's lights or privileged win- 
 dmes should set forth the plaintiff"s possession of a dwelling-house, 
 describing it by name and situation, and of certain windows belonging 
 to the dwelling-house, and that the plaintiff had a right to the free 
 passage for light across the defendant's land to the windows, and that 
 the defendant wrongfully erected a wall or building so near to the 
 windows that the light was prevented from passing to the windows, 
 whereby they became darkened. "When the declaration is for an 
 injury to the plaintiff's reversionary estate, it should allege that the 
 
 (g) Uogere v. Taylor, 2 H. & N. 829 ; 27 Law J., Ex. 175. Bonoml r. Backhouse, ante, p. 68, 
 9 H. Ii. C. 603. 
 
 (ft) Jeffries v. Williams, 5 Exch. 800 ; 20 Law J., Exch. 14. 
 
 (t) Botiomi V. Backhouse, Ell. Bl. & Ell. 033 ; 28 Law J., Q. B. 378. Backhouse V. Bonomi, 
 9 H. L. C. 603. Bibby v. Carter, 4 II. & N. 153 ; 28 Law J., Exch. 183. 
 
180 DISTURBANCE OF EASEMENTS. [Chap. 3. 
 
 plaintiff was entitled to the reversion of the dwelling-house, and that, 
 by means of the obstruction to the free passage of light caused by the 
 defendant, the plaintiff was injured ih his reversionary estate(i-). 
 
 199 'What may he given in evidence under the plea of not guilty. — In actions 
 for obstructions to the enjoyment of easements and profits a prendre, 
 the plea of not guilty operates as a denial only of the obstruction, and 
 not of the plaintiff's right; and no other defence than such denial is 
 admissible under that plea. All other pleas in denial must take issue 
 on some particialar matter of fact alleged in the declaration. If the 
 facts stated in the indictment are not intended to be admitted, they 
 must be expressly traversed and denied(Z). 
 
 200 Not guilty hy statute. — When the act complained of has been done in 
 the exercise of some statutory authority, enabling the defendant to 
 give the special circumstances of justification in evidence under the 
 plea of not guilty, the defendant's right to do the act, in the exercise 
 of the powers conferred upon him by statute, may be given in evi- 
 dence under the plea of not guilty, provided he has inserted " by 
 statute " in the margin of his plea(OT). 
 
 .201 Traverse of the right.^1 the defendant denies the existence of the 
 right claimed by the plaintiff, he must, as we have seen, traverse it in 
 the very words in which it is asserted in the declaration {ante, p. 88). 
 Under a traverse of the right, the defendant may show that the right ' 
 ■was granted by a mere parol license or agreement, pot under seal, and 
 that the defendant, finding the exercise and enjoyment of the right 
 troublesome and inconvenient, had revoked the license, or refused to 
 perform the agreement, and had prevented any further exercise and 
 enjoyment of the privilege(w). 
 
 802 Plea of leave and license. — Under a plea of leave and license it may 
 be shown that the plaintiff, having an easement of light and air to his 
 ancient windows across the defendant's area, gave the defendant a 
 parol license or permission to put a skylight over his area, and that 
 the license had been acted upon and executed by the defendant, and 
 the skylight built, and that the building of the skylight caused the 
 injury of which the plaintiff complains(o). 
 203 Tlie evidence at the trial will, of course, depend upon the pleas upon 
 
 (*) Metrop. Association v. Fetch, 5 C. B., N. S. 504 ; 27 Law J., C. P. 330. 
 (J) Eeg. Gen. Hil. Term, 16 Vict. 1 EU. & Bl., App. Lxxxi. 
 (m) Ante, p. SS, n. ; Rwlpoat, ch. 21. 
 
 (») Hewlina v. Sliippam, 5 B. & C. 221. Cocker t^ Cowper, 1 C. M. & E. 418. Wood*. 
 Leadbitter, 13 M. & AV. S38. 
 (o) Winter v. Brockwell, antt, p. 161. Waterlow v. Bacon, post, p. 189. 
 
Sec. 2.j EVIDENCE — PROOF OF RIGHT OF WAT. 181 
 
 the record. Under the plea of not guilty, the plaintiff must prove 
 that the injurious act was done by the defendant, or hy his procure- 
 ment(jp). If the existence of the incorporeal right is denied by the 
 pleadings, the plaintiff must establish his title by proof of a grant, 
 express or implied, or by proof of immemorial enjoyment {ante, p. 101), 
 or of uninterrupted user and enjoyment as of right (ante, pp. 135-159), 
 for the full period required by the Prescription Act. 
 
 204 Proof of enjoyment so as to gain a prescriptive title at common law, or 
 under the Prescription Act, must be given in the mode previously pointed 
 out. If all the acts of user and enjoyment have taken place during 
 the occupation of the land by tenants, their submitting to them will 
 not, as we have seen, bind the owner of the land, without proof of his 
 being also aware of them ; but if the acts of user have been open and 
 notorious, and have gone on for a great length of time, a jury may 
 presume therefrom that the owner knew of them(5'). All circumstances 
 tending to show that no grant could' have ever existed, or have law- 
 fully been made, are, as we have seen, admissible in evidence, to show 
 that there was no. enjoyment as of right within the meaning of the 
 statute {ante, pp. 136, 142). "When the plaintiff rests his claim to an 
 easement upon the defendant's land, upon a prescriptive title from 
 twenty years' enjoyment as of right, and without interruption, the 
 claim may be answered by proof of a license, written or parol, for a 
 limited period, falling short:of the twenty years relied upon(g'g) ; for 
 every time that leave is asked for and obtained there is, as we have 
 seen, a break in the continuance of the enjoyment {ante, p. 156). 
 
 If the plaintiff proves a larger and more extended right than he 
 claims in his declaration, the proof is not objectionable on the ground 
 of variance, provided the right claimed is included in the more 
 extended right proved, and is not inconsistent with it(r). 
 
 205 Proof of right of way. — Proof that a person, has used a way for vari- 
 ous purposes, whenever he required it, for twenty years, is prima facie 
 evidence of a right of way for all purposes, from which a jury may 
 infer a general right ; but proof of user for one purpose, or for partic- 
 ular purposes, will not raise an inference of a general right(s). Proof 
 
 (p) Ante, p. 89 ; post, ch. 20, s. I. 
 
 (3) Davies v. Stepliens, 7 C. & P. 570 ; ante, p. 137. 
 
 [qq) Where there has been such a oontinuetl user of an easement injurious to the land of 
 anotlier, as to authorize the presumption of a gi-ant, it is for the party submitting to the user 
 to show that it Avas by license or permission, and not for the party exercising it to prove an 
 express claim of right iu order to characterize the user as adverse. Hammond v. Zehner, 21 
 N. T. 118. Sec Blake v. Everett, 1 Allen (Mass.), 'US ; Steffy v. Carpenter, 37 Penn. St. 41. 
 
 (r) Duncan v. Lonch, G Q. B. 914. 
 
 («) Cowling V. Higginson, 4 M. & W. 255. See Eichardson v. Pond, Id Gray, 387. 
 
182 DISTURBANCE OF EASEMENTS. [Chap. 'A. 
 
 of the exercise of a right of way for twelve years for all purposes, and 
 for twenty years for the only purposes for which the person using it 
 required it, is sufficient to establish the existence of a general right(i). 
 When the right depends upon express grant, the nature and extent 
 of the right are defined by the express terms of the grant(M). When 
 it rests upon user and enjoyment, the extent of the right is defined 
 and limited by the extent of the user and enjoyment(MM) ; and it is, 
 then, in general, a question for the jury in each pai-ticular case as to 
 whether the evidence of user shows », general right.of way, both for 
 horses and carriages, and for all reasonable and necessary purposes, 
 or only a restricted and limited right for a particular purpose(v). If 
 the plaintiff has a right to go backwards and forwards with carts and 
 carriages, and it is reasonable that he should have room to turn round, 
 he will have a right to go on the adjoining land, if the road is not wide 
 enough for the purpose ; but what is a reasonable exercise of a right 
 of way is a question for a jury(w) ; and therefore, where the jury found 
 that the carting by A over another person's land of hay, grown partly 
 on land to which it was admitted there was a right of way over such 
 ther person's land, and also partly on land beyond, to which no such 
 ight was appurtenant, was a reasonable bond fide exercise of right by 
 A, the court refused to interfere (»). 
 206 Proof of a right to the free access of light. — The right to the free ac- 
 cess of light across the adjoining land of a neighboring proprietor 
 may be established, as we have seen {ante, pp. 149, 150), by proof of 
 uninterrupted user and enjoyment for twenty years. But a right to 
 the free access of light from uninterrupted user and enjoyment does 
 not extend to open spaces of ground and yards or gardens(2/). Thus, 
 where a saw-pit and timber-yard had been placed close to the edge of 
 the adjoining property, it was held that the pit and yard might be 
 darkened at any time, and the access of light thereto impeded, by the 
 erection of buildings by the adjoining landowner(z). So a right to the 
 free passage of air over vacant land to a mill cannot, as we have seen, 
 
 {t) Dare v, Heathoote, 25 Law J., Exch. 245. Holt v. Sargent, 15 Gray (Mass.), 97. 
 
 (u) See Cousens v. Hall, h. E. , 12 Eq. Ca. 366 ; Espley v. Wilkes, L. R. , 7 Exch. 298 ; Erench 
 *. Marstin, 4 Eoster, 440, 449 ; Bakcman v. Talbot, 31 N. Y. 386 ; Kuler v. Beaman, 49 Me. 208; 
 Atkins t. Bordman, 2 Meto. 467; Comstock ». Van Densen, 5 Pick. 1G3. 
 
 (««) Brooks o. Curtiss, 4 Lans. (N. Y.) 63. Wright v. Moore, 38 Ala. 593. Richardson V 
 Pond, 15 Gray, 387. 
 
 Id) Ballard v. Dyson, 1 Taunt. 287. Bower v. Hill, 2 Sc. 535. Brunton v. Hall, 1 G. & D 
 207. 
 
 (to) Hawkins v. Carbines, 27 Law J., Exch. 44. 
 
 [X) Williams v. James, L. R., 2 C. P. 577. 
 
 [y) Potts V. Smith, L. R., 6 Eq. Ca. 311. 
 
 (») Roberts v. Maoord, 1 M. & Rob. 230. 
 
Sec. 2.] ACTIONS FOR DAMAGES — EVIDENCE. 183 
 
 be acquired by mere enjoyment, however long continued, as the owner 
 of the land has no means of interrupting the free current of air, and 
 the law raises no presumption of a grant from enjoyment had under 
 such circumstances(a). 
 
 207 Proof of obstmction to a right of way — Erection of gates. — If agate is 
 erec/ed "across a private footway by the owner of the soil, so as to 
 afford no actual obstruction to the use of the way by the grantee, an 
 action would not be maintainable against the landowner so erecting 
 the gate ; but in the case of a grant of a way for horses and carriages, 
 and the use of the way by the grantee free from gates, a gate could 
 not afterwards be lawfully placed across the way(6). 
 
 208 Proof of obstructions to the access of light. — To establish a cause of 
 action for an obstruction to the access of light to the plaintiff's ancient 
 windows, the plaintiff must prove a substantial privation of light, suffi- 
 cient to render the occupation of his house comparatively uncomfort- 
 able(c), or to prevent him from carrying on his business as beneficially 
 and profitably as he had formerly done. The mere diminution of a 
 ray or two of light will not suffice for the maintenance of an action (d). 
 When the action is brought by a reversioner in respect of an injury to 
 his reversionary estate, it must be shown that the obstruction is of 
 such a nature as to cause a permanent injury to the property(e). The 
 Metropolitan Building Act, 18 & 19 Vict. c. 122, which by s. 83 gives 
 a right to the building owner to raise any structure, etc., upon condi- 
 tion of making good all damage occasioned thereby to the adjoining 
 premises, does not authorize the erecting of such a structure as will 
 obstruct ancient lights in the adjoining premises(/)., 
 
 209 Proof of the right to an ancient weir and fishery in a navigable river. — 
 The right to have a weir in the channel of a navigable river for the 
 purpose of catching fish is, as we have seen, a right founded on grant 
 or prescription ; and the right to ancient weirs has in some instances 
 been legalized by statute, although they totally obstruct the naviga- 
 tion of the river(5'). A severa:l fishery in a tidal river, the waters of 
 
 (a) Webb v. Bird, ante, p. 142. 
 
 (6) James v. Hayward, W. Jones, 221 ; Cro. Car. 1S4. Sec Maxi;\-oll v. MoAtee, 9 B. Mon. 
 120. 
 
 (c) See Kelk v. Pearson, I... K., 6 Ch. App. 809. 
 
 (d) Back V. Stacey, 2 C. & P. 406. Parker v. Smith, 5 ib. 438. Pringle ». Weniham, 7 C. & 
 P. 378. Wells V. Ody, ib. 410. 
 
 (c) Metrop. Association v. Petch, 5 C. B., X. S. .504. Fifty Associates v. Tudor, 6 Gray, 255. 
 Biddle v. Ash, 2 Ashm. 211, 222. Durell v. Boisblanc, 1 La. Ann. 407. 6regon Iron Co. v 
 Trulliriger, 3 Oregon, 1, 6. See ante, p. 175. 
 
 (/) Crofts V. Haldane, L. R,, 2 Q. B. 194. 
 
 iSl) Williams v. Wilcox, 8 Ad. & E. 336. See post, ch. 4, sect. 2. 
 
184 niSTVRBANCE OF EASEMENTS. [Chap. ?{. 
 
 ■which have permanently receded from one channel and flow in another, 
 cannot be followed from the old to the new channel(A). 
 
 210 Proof of the servitude of maintaining and repairing fences. — ^The mere 
 fact of an owner or occupier having repaired a fence does not, as we 
 have seen, afford any ground for presuming that his land was bur- 
 thened with the servitude of keeping up the fence for the benefit of 
 his neighbor ; because it is for his own benefit to keep up a fence for 
 the purpose of preventing his own cattle from straying from his land, 
 and committing trespasses upon the adjoining laud. If it be proved 
 that the defendant had been threatened with legal proceedings if he 
 did not repair the fences, or that, if he did not repair, and the plaintiff 
 became damnified in consequence of his cattle trespassing upon the 
 lands of other persons, the plaintiff would look to him for compensa- 
 tion, and that the defendant then repaired, this would be some evidence 
 of the defendant's being under a legal obligation to maintain and 
 repair the fence. 
 
 An allegation in a declaration that the defendant, by reason of his 
 possession of a particular close, was bound to repair a fence dividing 
 such close from the adjoining land, is proved by the production of a 
 deed whereby the defendant has undertaken the performance of that 
 duty(i). 
 
 211 Inadmissibility incidence of statements and declarations hy a tenant in 
 derogation of the title of his landlord. — " You cannot," observes Lord 
 Campbell, " admit in evidence the declarations of a tenant which 
 derogate from the title of the reversioner. It would be very mis- 
 chievous if it were in the power of a tenant to destroy a profit a pren- 
 dre belonging to the land which he occupies, or to impose a servitude 
 upon it. There is no difference in this respect between destroying an 
 easement and creating one. If the tenant might say that the land 
 enjoyed no right of way, he might also say that it was liable to an 
 easement for taking water, or to a profit a prendre, turbary, or other 
 common, and create evidence of servitude against the reversioner. 
 The acquiescence of a tenant cannot prejudice his landlord(^), and a 
 fortiori, his declarations cannot "(i). 
 
 212 0/ the damages recoverable in actions for the infringement of incorporeal 
 rightsQ). — Wherever the exercise or enjoyment of an incorporeal right 
 
 ih) Mayor, etc., of Carlisle v. Graham, L. E., i Exch. 361 ; 38 L. J., Esch. 226. 
 
 (t) Boyle V. Tamlyn, 6 B. & C. 338. 
 
 ij) Daniel v. North, 11 East, 372. 
 
 (S) Papendick v. Bridgwater, 5 Ell. & Bl. 177. Vrooman v. King, 36 N. T. 477. 
 
 (I) As to damages in general, sec post, ch. 22, b. 1. 
 
Sec. 2.] DANA6ES BECOVEEABLK 185 
 
 has been obstructed, damages are, as we have seen, recoverable, 
 though no actual or specific damage in point of fact can be proved : 
 for every unresisted obstruction to the enjoyment of the right would 
 be evidence against the existence of the right, and therefore highly 
 injurious to the person claiming it. Therefore, an action may be 
 maintained by a commoner for an injury done to his common, without 
 proving actual damage. And whenever there has been an obstruction 
 to the exercise of a right of way, which, if acquiesced in for twenty 
 years, would be evidence against the existence of the right, there is an 
 injury, in resjDect of which damages are recoverable, although there is 
 no proof of actual pecuniary damage(m). 
 
 Where the occupier of a field, who had a right to have a fence sepa- 
 rating his field from the adjoining land repaired at .the expense of the 
 adjoining occupier, took in the horse of a neighbor for the night, and 
 the horse got through the boundary fence into the servient tenement, 
 and fell into a ditch and was killed, it was held that the occupier of 
 the dominant tenement was entitled to .recover the full value of the 
 horse(«). And where the plaintiff brought an action against the 
 defendant for the non-repair of the fences of the latter, whereby the 
 plaintiff's horses escaped into the defendant's close and were there 
 killed by the falling of a hay-stack, it was held that the damage was 
 not too remote, and that there is no distinction between the smother- 
 ing of cattle by the accidental falling of a hay-stack, and their being 
 drowned by tumbling into a ditch(o). 
 
 In all cases of nuisance from obstructions to the free access of light 
 and air to ancient windows {post ch. 4), damages are recoverable by 
 the reversioner, because the injury is an injury to a right; and if the 
 reversioner were to be prevented from bringing his action during the 
 existence of the Jease, the testimony of the witnesses who could speak 
 to the windows being ancient windows might be lost(p). 
 
 When an action is brought by a. reversioner for an injury to his 
 reversionary interest, from a temporary obstruction of a right of way 
 theretofore used by the tenants and occupiers of his land, nominal 
 damages only are, in general, recovered in the first instance, as the 
 defendant is liable to another action every day that he continues the 
 obstruction ; and it is to be presumed that he will immediately remove 
 
 (m) Bower v. HiU, 1 Sc. 633 ; 1 B. K. C. 549 ; ante, pp. 10, 11 ; post, ch. 22. 
 (n) Booth V. Wilson, 1 B. & Aid. 69 ; ante, p. 149. 
 (0) PoweU V. Salisbury, 2 Y. & J. 391. 
 
 i,p) Ld. Tenterden, C.J., ShadireU v. Hutohinson, M. & M. 362. Jesser v. GifTord, 4 Burr 
 2141. 
 
186 DISTURBANCE OF EASEMENTS. [Chap. 3. 
 
 it ; but jf he persists in continuing the ohstruction, and a second action 
 is brought for the continuance of the nuisance, exemplary damages will 
 be given, in order to compel him to abate it(g'). 
 213 Injunction to prevent the disturbance of easements granted by parol. — 
 If a landowner verbally agrees to allow an adjoining proprietor a 
 right of way, or a right to the passage of water through his land, 
 and the enjoyment of the privilege involves the outlay of money, and 
 the consenting landowner allows the licensee or person to whom the 
 privilege has been granted to expen^ money in making a road or 
 laying down a railway, or constructing a watercourse, or erecting 
 buildings, the Court of Chancery will interfere by injunction to 
 prevent such consenting landowner from disturbing the enjoyment of 
 the way or watercourse, or easement, so verbally granted(r). And 
 where works involving expense are made on land belonging to an 
 incorporated company, on a spot where the company may be con- 
 sidered personally present, where their premises are situated ' aijd 
 their operations carried on, the company, though an incorporated 
 body, must be considered, for all purposes of knowledge and acqui- 
 escence, to be in the same position as a private individual, and. will 
 be bound in the same way(s). In cases of this sort, where a person 
 has obtained an equitable right to the enjoyment of an easement or 
 privilege by reason of the expenditure of his money on the faith of a 
 verbal promise or understanding, but has no legal title to any incor- 
 poreal right over the land of another, his equitable claim may, in 
 general, be got rid of by tendering him the amount of his expendi- 
 ture before the privilege is withdrawn or the enjoyment of it has been 
 interrupted. 
 
 If a tramway is made across land with the consent of the owner of 
 the fee, and is used for a number of years on payment of rent, the 
 Court of Chancery will interfere to prevent an arbitrary increase of 
 the rent, and prevent the licensee from being deprived of the use of 
 the tramway on proper compensation being paid to the owner of the 
 soil for the enjoyment of the way(i). 
 
 ig) Hopwood V. Schofleld, 2 M. & Rob. 35. Battishill ». Bead, 18 C. E. 715 ; 25 Law J., C. P. 
 290. See Smiles v. Hastings, 24, Barb. (N. Y.) 44 ; post, ch. 4, s. 2. 
 
 (r) 2 Eq. Cas. Abr. 522, pi. 3. Jackson v. Cator, 5 Ves. 689. Powell ii. Thomas, 6 Hare, 
 300. Mold ». Vnieatcroft, 27 Beav. 510. Duke of Devonshire e. Elgin, ■20 Law J., Ch. 495. 
 East Ind. Co. v. Vincent, 2 Atk. 82. Davies v. Marshall, 10 C. B., N. S. 697. See Baukart v. 
 Tennent, L. K., 10 Eq. Ca. 141; Vcighte v. Earitau Water Power Co. 4 C. E. Greene, 153; and 
 see ante, p. note. 
 
 (») Laird v. Birkenhead Bail. Co. 1 Johns. 500; 29 Law J., Ch. 218. 
 
 («) Mold V. Wheatcroft, 27 Beav. 510 
 
Sec. 2.] REMEDY BY INJUNCTION. 187 
 
 If the owner in fee of land stands by and allows another person to 
 erect a building upon his land, and afterwards agrees with him as to 
 the rent to be paid for it, neither he nor any person claiming under 
 him can deprive the person who has so laid out his money of the use 
 of the building(M). And if an adjoining landowner assents to the 
 rebuilding of a house upon a certain plan, with an increased elevation, 
 or with an enlargement of ancient windows, or the opening of new 
 windows, and the house is accordingly rebuilt on the approved plan, 
 the landowner cannot afterwards object to the alterations(D). 
 
 Where an easement has been bargained for and sold by parol, and 
 been enjoyed for years by the purchaser thereof, the court will re- 
 strain the vendor and any person claiming under him (not being a 
 purchaser of the land for value without notice), from disturbing or in- 
 terrupting the enjoyment of the privilege. Thus, where A sold to his 
 neighbor B the right of using two chimneys in A's wall for a certain 
 consideration, which was paid, and the chimneys used for several 
 years, and C purchased A^a house without notice of the right, the court 
 held that, there being fourteen chimney-pots on the wall, and only 
 twelve flues in A^s house, C was put on inquiry, that he had construc- 
 tive notice of the right, and an injunction was granted to restrain him 
 from stopping up the two chimneys leading to the extra chimney-pots(a;). 
 
 Whenever a licensee has enjoyed an easement for several years, the 
 court will not allow such enjoyment to be summarily interfered with 
 and the licensee put to great immediate inconvenience, but will by in- 
 junction prevent the disturbance of the privilege and put the question 
 in dispute between the parties in a proper course of investigation(2/). 
 214 Injunction to prevent obstructions to the free access of light to windows. 
 — If a building has been commenced which, when carried up and 
 finished, will cause a serious(2) obstruction to the passage of light and 
 air to ancient windows, the owner of the windows may obtain an in- 
 junction to restrain the erection of the building(a), and there is no 
 distinction in this respect between houses in town and in the country(6). 
 But the court will not, upon an ex parte application for an injunction, 
 order a building which is in course of erection to be pulled down, as 
 
 («) Dann v. Spurrier, 7 Ves. 236. 
 
 (o) Cotching V. Basset, 32 Law J., Ch. 286. 
 
 (a:) kervey v. Smith, 22 Beav. 299 ; 1 K. & J. 392. 
 
 (2/) Hervey v. Smith, ut eup. See London and Northwestern Rail. v. Lancashire and York- 
 shire Kail., L. R., 4 Eq. Ca. 174. 
 
 (z) See Lanfranchi v. Macltenzie, L. B., 4 Eq. Ca. 421. 
 
 (rt) Arcedeckne v. Kelk, 2 Giff. 683. Back v. Stacy, 2 Kuss. 121. Sutton v. Ld. Montfort, 4 
 Sim. 659. 
 
 (6) Martin v. Headon, L. E., 2 Eq. C.I. 425. 
 
188 BISTURBANCE OF EASEMENTS. [Chap. 3. 
 
 that might do irreparable injury to tlte person erecting it, if on tlie 
 final hearing of the matter it should be found that the right was with 
 him. The proper order will be for the building not to be further pro- 
 ceeded with, until the rights of the parties have been decided by the 
 proper tribunal(c). 
 
 " Whenever it is shown that the comfort or enjoyment of a man or 
 his family in the occupation of his house is seriously interfered with(cZ), 
 and still more where he is prevented from carrying on his business 
 with the same degree of convenience and advantage as theretofore, 
 there is sufficient ground for the interference of the court "(e). And 
 there is no rule which prevents the court from interfering on the 
 ground that the injury sought to be restrained has been completed 
 before the filing of the bill(/). It depends, however, upon all the 
 circumstances of the case whether the court will grant a mandatory 
 injunction, or only order an inquiry as to damages under 21 & 22 
 Vict. c. 27 (Cairns's Act)(p'). And it has been held that the court will 
 not, as a rule, grant an injunction against the erection of a building 
 the height of which above an ancient light is not greater than its 
 distance from the light(^). 
 
 If ancient windows looking over or upon the land of another have 
 been enlarged, and then totally obstructed by the adjoining land- 
 owner, a court of equity will, on the windows being restored to their 
 ancient dimensions, grant an injunction to restrain such adjoining 
 landowner from continuing the obstruction to the restored windows(i). 
 And if a person possessed of an ancient diamond-paned, or stone- 
 mullioned, or Gothic window, or a window painted on the inside, 
 puts in a modern sash with plate glass, or rubs off the paint and so 
 increases the amount of light inside his house, and his neighbor blocks 
 up the window, or builds immediately before it, the court will by in- 
 junction compel him to remove the obstruction, on the ground that 
 there has been no enlargement of the external aperture(^). 
 
 A person does not lose his right to an injunction merely because he 
 has himself erected buildings which deprive him of a certain amount 
 
 (c) Uyder v, Bentham, 1 Ves. Sen. 543. Wynstanley V. Lee, 2 Swanst. 333. 
 
 (rf) Kelk V. Pearson, L. E., 6 Ch. App. 809. 
 
 (c) I'er Kindersley, V.-C, in Martin v. Headon, L. K., 2 Eq. Ca. 434. See Clarke ». Clark, 
 L. E., 1 Ch. App. 16 ; Durell v. Pritcliard, infra. 
 
 (/VDurell o. Pritchard, L. E., 1 Ch. App. 244. 
 
 (j/) Senior v. Pawson, L. E., 3 Eq. Ca. 330. 
 
 (ft) Beadelw. Perry, L. E.,3Eq. Ca. 465. 
 
 (i) Cooper v. Hubback, 35 Beav. 160 ; 31 Law J., Ch. 123. Weatherley v. Boss, 32 ib. 128. 
 See Jones ». Tapling, ante, pp. 150, 163. 
 
 (j) Turner v. Spooner, ante, p . 163. 
 
Sec. 2.] BILL OF PEACE. 189 
 
 of light and air(A;), nor because he happens to be then carrying on a 
 business which, as a matter of fact, requires a subdued light(^). If 
 the defendant, in an action for obstructing the plaintiffs ancient 
 lights, pleads an equitable plea that he was to be allowed to obstruct 
 such lights on certain terms, this will not prevent him from also 
 applying for an injunction to restrain the action, if the Court of Law 
 cannot give such relief as the Court of Equity would give(m). 
 
 215 Injunction to present the working of mines and quarries so as to deprive 
 the adjoining or superjacent land of its necessary support. — If a tenant in 
 fee-simple grants a portion of his land for building purposes, he 
 impliedly grants, as we have seen, an easement of lateral support 
 for the buildings from his adjoining land; and if he, or those who 
 claim under him, attempt to derogate from the grant by excavating so 
 as to endanger the buildings, the court will grant an injunction to 
 prevent the threatened mischief. And where a landowner has sold his 
 land to a railway company under the compulsory powers of an Act of 
 Parliament, the court will interfere by injunction to prevent him from 
 working mines in his adjoining land, so as to endanger the stability 
 of the railway, unless the legislature has given the company the 
 power of purchasing such adjoining land, and has provided that they 
 shall protect themselves by purchasing so much of it as may be required 
 to give their railway and works the requisite amount of lateral sup- 
 port(w). Where land had been allotted under a local enclosure Act, 
 the effect of which was to vest the surface in the allottee, and the min- 
 erals in the lord of the manor, it was held, under the words of the Act, 
 that the latter could not be restrained from working the mines, although 
 by so doing he let down the surface, even to the extent of destroying 
 it, and that there was no difference for this purpose between lands 
 allotted under the General Enclosure Act (41 Geo. 3 c. 109, s. 32), and 
 lands sold to pay the expenses of the enclosure(o). 
 
 216 Bill of peace. — In addition to the remedy by action or injunction, 
 there are certain cases in which what is termed a bill of peace may be 
 filed for the purpose of quieting a person in the enjoyment of his legal 
 rights and preventing the interference with them by others(p). "It 
 
 (7c) Arcedeokne v. Kelt, 2 Giff. 683. 
 
 (J) Yates V. Jack, L. E., 1 CIi. App. 295. See ante, p. 153, Lanfi-anchi v. Mackenzie. 
 (m) Waterloo v. Bacon, L. E., 2 Eq. Ca. 514. 
 (ra) North-East. Eail. Co. «. Elliott, ante, pp. 110, 111. 
 
 (o) Wakefield v. Duke of Buccleuch, 36 L. J., Ch. 763 ; L. E., 4 Eq. Ca. 613 ; 4 Eng. & Ir. 
 App. 377. 
 
 B. 
 
 .pp. All. 
 
 (p) Spence'sEq. Jur., pp. 656,657. See Sheffield Waterworks i>. Teomans, L. K., 2Ch. App. 
 Peak V. Hayden, 8 Bush. (Ky.) 125. Low v. Staples, 2 Nev. 209. 
 
190 DISTURBANCE OF EASEMENTS. [Chap. 3. 
 
 is certain," says Lord Hardwicke, " that where a man sets up a gen- 
 eral and exclusive right, and where the persons who controvert it are 
 very numerous, and he cannot by one or two actions at law quiet that 
 right, he may come to this court first, which is called a bill of peace, 
 and the court will direct an issue to determine the right, as in disputes 
 between lords of manors and their tenants, and between tenants of one 
 manor and another, for in these cases there would be no end of bring- 
 ing actions of trespass, since each action would determine only the par- 
 ticular right in question between th©> plaintiff and defendant "{q). 
 Thus, a bill may be filed by one copyholder on behalf of himself and 
 the other copyholders against the lord(r), or by the lord against the 
 commouers(s), to have their respective rights of common ascertained. 
 So by the freehold tenants of a manor against the lord, to establish 
 their rights to common of pasture' and turbary, and to dig gravel and 
 sand in the lord's waste(<), or by a freeholder and copyholder jointly, 
 on behalf of themselves and all other copyhold and freehold tenants 
 of the manor(M), if their rights are co-extensive(a;). So to establish a 
 right to a fishery, where the persons disputing the right are very nu- 
 merous(y). But, although a court of equity will thus protect the pri- 
 vate rights of those who are comprehended under one common capa- 
 city, as the inhabitants of a parish or the tenants of a manor, it will 
 not establish a right in contradiction of a public right, as a right to a 
 highway or a common navigable river, for that would be to enjoin all the 
 people of England(z). 
 
 (9) Tenliam v. Herbert, 2 Atk. 483. 
 
 (r) PhilUiJS V. Hudson, L. It., 2 Ch. App. 243. 
 
 (8) Ai'thingtoQ V. Fawkes, 2 Vern. 3oG. 
 
 (t) See Warrick v. Queen's College, L. E., 4 Eq. Ca., 254 ; 10 ibid., 105 ; 6 Ch. App. 716. Mi- 
 net V. Morgan, L. R., 11 Eq. Ca. 2S4. 
 
 («) Smith V. Brownlow (Earl), L. E., 9 Eq. Cases, 241. See Peek v. Spencer, L. E., 5 Ch, 
 App. 548 ; Commissionei'S of Sewers v. Glassc, L. B., 7 Ch. App. 156. 
 
 (X) Betts «. Thompson, L. K., 6 Ch. App. 732. 
 
 (y) York (Mayor of) v. Pilkington, 1 Atk. 282. As to somewhat similar proceedings by the 
 Crown, see Att.-Gen. v. Barker, L. R., 7 Exch. 177. 
 
 (e) Mitf. Ch. Plead. 147. See Fauconbci-g v. Piers, 2 Eq. Ca. Abr. 171. 
 
CHAPTER IV. 
 
 OP NUISANCES AND INJURIES FROM THE NEGLIGENT USE AND 
 
 MANAGEMENT OP REAL PROPERTY, AND PROM KEEPING 
 
 PEROCIOUS ANIMALS. 
 
 Section I. — Of nuisances. — Nuisances from sewers, drains, brick-burning', noisome 
 trades, chimneys and manufactories — Defilement of springs and streams — 
 Noisy nuisances — Collection of crowds — Injuries from spring gmis, dog-traps, 
 etc. — Unguarded wells, mining shafts, areas and cellars — Dangers and 
 obstructions in priv.ite and public ways and navigable i-ivei'S — Locomotive 
 steam-engines — Dedication of highway, subject to certain dangers and risks 
 — Injuries to land from groins and defences against tides and currents — Inju- 
 ries from overloading warehouses and from the tall of ruinous buildings — 
 Negligence in pulling down houses and making excavations — Ruinous party- 
 walls — Ruinous and defective fences — Railway fences — Negligent manage- 
 ment of stations — Ruinous and insecure railway-bridges, viaducts and em- 
 bankments — Negligent management of I'ailway-gates, docks, canals, baths, 
 and steam machinery — Injuries to sei-vants and guests from dangerous prem- 
 ises, defective hoisting tackle in mines, and insecure scaffolding and laddei'S 
 — Conti-ibutory negligence on the part of the plaintiff — Where the plaintiff's 
 right to recover is not defeated by his being a trespasser — Inj uries from 
 ferocious animals and mad dogs. 
 
 Section II. — Abatement of nuisances — Statutory remedies aiid penalties — Actions. 
 — Abatement of nuisances — Statutory I'emedies and penalties in respect of 
 nuisances from gas-works and the fouling of wells and pumps — Actions for 
 nuisances — Notice before action — Continuing nuisances — Parties to be made 
 plaintiffs and defendants — Pleadings, defences, evidence, and damages. 
 
 Section III. — Prevention of nuisances by injunction, prohibition, and indictment. 
 — Injunction — ^Acquiescence precluding equitable relief — Prevention of pub- 
 lic nuisance by prohibition and by indictment — Nuisances in public highways 
 — Proof of dedication of way to the public — Proof of animus dedicandi — Who 
 may dedicate — Limited dedication — Highway of necessity — Proof of highway 
 by proof of parish repairs — Indictable obstructions in highways and naviga- 
 ble rivers — Repair of highways. 
 
192 NUISANCES. [Chap. 4. 
 
 SECTION I. 
 
 OP NUISANCES AND INJURIES PB,OM THE NEGLIGENT USB AND MANAGEMENT 
 OP REAL PROPERTY, AND FROM KEEPING PEROCIOUS ANIMALS. 
 
 217 Of nuisances. — The term nuisance, derived from the French word 
 nuire, to do hurt or to annoy, is applied in the English law indiscrim- 
 inately to infringements upon the enjoyment of proprietary and per- 
 sonal rights. A man may become responsible for a nuisance by erect- 
 ing a building which overhangs the house or land of his neighbor, or 
 by constructing a cornice, or fixing a spout, or any projection which 
 causes, or has a tendency to cause, an unnatural quantity of rain- 
 water to descend on his neighbor's house and land(a) ; also by erect- 
 ing and working a noisy smith's forge, or noisy workshops(5), or a 
 stinking tallow-f^urnace, smelting-house, dye-house, lime-kiln, tan- 
 pit, privy, or hog-sty(c), or making a cesspool, the filth of which per- 
 colates through the soil and contaminates the water of his neighbor's 
 well or spring((i), or burning lime or bricks, or erecting a glass-house 
 or brew-house so near to a dwelling-house that the smoke and smell 
 thereof enter the house and render it unfit for habitation(e), or setting 
 up a lime-pit for cleaning skins, or a dye-house, and letting the drain- 
 age therefrom run into a watercourse or pond, and corrupt the water, 
 or destroy or injure the fish and the fishing(/), or disturbing a decoy- 
 pond by the firing of guns in the neighborhood of the pond(p'), or 
 stopping or diverting water that used to run to another's mill(A). 
 
 (a) Penniddoek's case, 5 Co. 205. Baton's case, ib. 98. Eej-nolds v. Clark, Fort. 212. Fay 
 c. Prentice, 1 C. B. 828. Aiken v. Benedict, 39 Barb. 400. 
 
 (6) Bradley c. Gill, Lutw. 69. Eliotson ». Feetham, 2 B. N. C. 134. McKcon ». See, 4 Bob. 
 (N. Y.) +49. Pi.sh ». Dodge, 4 Dcnio, 311. 
 
 (c) Poynton t>. Gill, Morlcy ». PragnoU, Cro. Car. 510. Jones v. Powell, Hutt. 135. Bliss v. 
 Hall, 4 B. N. C. 183. Dubois v. Budlong, 10 Bosw. (N. Y.) 700. Smith v. McConathy, 11 Mo. 
 B17. Howell V. M'Coy, 3 Rawle, 256. Allen v. State, 34 Texas, 230. Cropsey v: Murphy, 1 
 Hilt. {X. Y.) 126. Brady v. Weeks, 3 Barb. 157. 
 
 (d) Norton v. Scholefield, 9 M. & W. 665. State v. Taylor, 29 Ind. ,517. So he may become 
 liable for negligently leaving noxious substances on his laud which are washed by rain into 
 a neighbor's well. Brown v. lUius, 27 Conn. 84. Woodwai-d v. Aborn, 35 Me. 271. 
 
 (e) Walter v. Sell'e, 4 De G. & Sm. 321 ; 20 Law J., Ch. 433. Jones v. Powell, Palm. 539. 
 Whalen e. Keith, 35 Mo. 87. Ross v. Butler, 4 Green (N. J.), 294. Mulligan ». Elias, 12 Abb. 
 (N. Y.)Pr., N. S. 259. 
 
 (/) Aldred's case, 9 Co. B9a. Hodgkinson v. Ennor, 4 B. & S. 229. Lewis v. Stein, 10 Ala. 
 214. 
 
 (g) Keble v. Hickeringill, 11 Mod. 74, 130 ; 3 Salk. 9 ; Holt, 14. Carrington v. Taylor, 11 
 East, 571. See Ibbotson v. Peat, ante, p. 13. 
 
 (ft) F. N. B. 184. A Uvery stable located in a populous part of a city may be both a public 
 and a private nuisance. Coker v. Birge, 9 Geo. 425. Kirkman v. Handy, 11 Humph. 406. 
 Monis V. Brower, Anth. N. P. (N. S.) 368. 
 
Sec. 1.] NON-BEPAIB OF SEWERS, BRAINS, ETC. 193 
 
 318 Nuisances from the non-repair of, or from neglecting to cleanse, sewers, 
 drains, and watercourses. — Every occupier is bound to prevent the tilth 
 from, his drains or cesspools from filtering through the ground into his 
 neighbor's house or land. It is a charge or duty laid on him of com- 
 mon right, for neglect of whicjh he is answera]Dle(i). Every grantee 
 also of an artificial drain or watercourse constructed for the passage 
 of water through the land of the grantor, for the use and benefit of 
 the grantee, is bound to maintain and repair the drain and water- 
 course and keep it in proper order ; and if he neglects so to do, and 
 the watercourse becomes obstnicted so that the grantee's surplus water 
 floods the land of the grantor, the latter is entitled to compensation in 
 damages for the nuisance(^'). 
 
 The grantee of a right of passage for waste water from his messuage 
 or tenement, through a drain or watercourse in the land of the grantor, 
 is guilty of a nuisance if he allows the foul water and filth from privies 
 or water-closets to enter the drain ; and the grantor of the • easement 
 or the owner of the land through which the right of watercourse ex- 
 tends may stop up the watercourse for the purpose of abating the nuis- 
 ance(A). Every landowner who constructs a sewer on his own land, 
 and uses it for the purpose of draining his own premises, is bound to 
 keep the filth from his sewer from becoming a nuisance to the adjoin- 
 ing occupiers ; and if, by reason of an original faulty construction of 
 the sewer, the filth therefrom percolates through the soil and floods 
 the cellars of the adjoining occupiers, the landowner will be responsi- 
 ble for the nuisance, although such occupiers are his own tenants(Z). 
 But a landlord who builds houses, and constructs a sewer through his 
 own land for the purpose of draining them, and makes drains from 
 each house into the sewer, does not thereby render himself responsible 
 ■to his own tenants for the repair of the sewer, or for injuries that may 
 be occasioned to them from overflowings of the sewer ; for the grantor 
 of a right of watercourse or passage for water through his land is not, 
 
 (i) Tenant v. Goldiing, 1 Salk. 21. Hawkesworth v. Thompson, 98 Mass. 77. A municipal 
 corporation is liable for injuries arising from the negligent construction of its sewers. Mont- 
 gomery V. Gilmer, 33 Ala. 116. 
 
 (j) Ld. Egrem^t v. Pulman, M. & M. 404, cited in BeU v. Twentyman, 1 Q. B. 775. Hoare 
 V. Dickenson, 2 Ld. Eaym. 1668. Ante, pp. 171, 172. As to the repair of ditches on the side 
 of a turnpike road, see Merivale v. Trustees of Exeter Turnpike Eoad, L. E., 3 Q. B. 149. 
 
 (K) Cawkwell r. Eussell, 26Law J.,Exch. 35. 
 
 (I) Alston V. Grant, 3 BU. & Bl. 128. A party in possession, though without title may main- 
 tain an action for damages caused by the accumulation of rain-water in an open cellar and its 
 percolation through the earth into the plaintiff's cellar on an adjoining lot. Crommelin v. 
 Ooxe, 30 Ala. 318. And an action may be maintained against one obstructing a gutter with 
 building materials, to recover the damages caused by the overflow of water into the plaintitf 's 
 cellar. Ball v. Armstrong, 10 Ind. 181 
 
 Ad. Vol. I.— 13 
 
194 NUISANCES. [Chap. 4. 
 
 as we have seen, bound to keep the watercourse in repair for the 
 benefit of the grantee, unless he has by express contract taken that 
 duty upon himself. It is the grantee of the easement who is bound to 
 keep the drain or watercourse in proper order and prevent it from 
 becoming a nuisance (cinte, p. 171). 
 219 Offensive smells and noisome trades (m). — A man may, without being 
 liable to an action, exercise a lawful trade, as that of a butcher, brewer, 
 or the like, notwithstanding it be carried on so near the house of 
 another as to be an annoyance to him, in rendering his residence less 
 delectable or agreeable : provided the trade be so conducted that it 
 does not cause what amounts in point of law to a nuisance to the neigh- 
 boring house. But if a nuisance is created, it is no answer to an 
 action for damages to show that the place where the trade is carried 
 on is a fit and convenient place for such a trade, and that the exercise 
 of the trade there is only a reasonable use by the defendant of his own 
 land. The spot may be very convenient for the defendant or for the 
 public at large, but very inconvenient to a particular individual, who 
 chances to occupy the adjoining land; and proof of the benefit to the 
 public from the exercise of a particular trade in a particular locality 
 can be no ground for depriving any individual of his right to compen- 
 sation in respect of the particular injury he has sustained from it{n). 
 When, therefore, it is said that " a tan-house is necessary, for all men 
 wear shoes," yet this may be pulled down if it is erected so as to cause 
 a nuisance to another : so of a glass-house, for they ought to be erected 
 in places convenient for them(o) : what is meant is, that they must be 
 erected in a place where they will not cause a nuisance to anybody. 
 There is, however, it seems, a distinction ia this respect between a 
 
 {m) As to keeping piga in the metropolis, see Chelsea Vestry v. King, 34 Law J., M. C. 9 ; 
 the trade of cattle slaughtering, Liverpool New Cattle Market Co. v. Hodson, L. R., 2 Q. B. 
 131 ; Anthony v. Brecon Markets Co., L. R., 2 Exch. 167; the consumption of smoke in Birm- 
 ingham, Cooper V. WooUey, L, R., 2 Exch. 88. 
 
 (7!) Bamford v. Tnrnley, 31 Law J., Q. B. 286. Cavey v. Lidbetter, ib. 290 n. , 13 C. B,, N. 
 S. 470, overruling Hole v. Barlow, 4 C. B., N. S. 335. See Hegingbotham v. Eastern and Con- 
 tinental Steam Packet Co., 8 C. B. 337. A blacksmith's shop in a small village is not per se a 
 nuisance. Ray v. Lynes, 10 Ala. 63. And a livery stable in a town or city is not of necessity 
 in itself a nuisance. Kirkman ti. Handy, 11 Humph. 406. Dargan ». Waddill, 9 li-ed. 244. But 
 both may be so conducted or constructed as to become so. Id. Ray v. Lynes, 10 Ala. 63. Coker 
 V. Birze, 9 Geo. 425. MorrisB. Brower, Anth, N. P. (N. Y.) 368. Burditti). Swenson, 17 Texas, 
 489. The attachment of steam power to works already ooustruoted may become a nuisance, 
 by causing such a vibration of the adjoining premises, creating such a noise as to depreciate 
 their value for rent. MoKeon v. See, 4 Rob. (N. Y.) 449. Noises that occasion physical dis- 
 ti'ess and annoyance and may alTect health are nuisances ; and the fact that the persons 
 creating the nuisance are the owners of the land is no justification. Sparhawk v. Union etc 
 R. R. Co. 64 Penn. St. 401. , 
 
 (0) Jones V. Powell, Palm. 536. 
 
Sec. 1.] OFFENSIVE TRADES, ETC. 195 
 
 trade that injuriously affects property, and one that causes only a 
 certain amount of personal discomfort(p). 
 
 It is not necessary to prove that the smell is unwholesome. The 
 smell of stied hogs, melting tallow, and other smells, may not be posi- 
 tively noxious, but they may be very noisome and sickening, keeping 
 all who inhale them in a state of chronic discomfort, though they may 
 not injure or destroy health(g'). Trades are no doubt carried on for 
 the benefit of the public, but the primary object is the benefit of the 
 particular manufacturer who realizes the profit of the business ; and it 
 is no answer to a private individual, who is prejudiced or injured by 
 the exercise of the trade in such a way as to be a nuisance, to say that 
 others are benefited by it(r). 
 220 Brick-hwning. — Brick-burning is not in itself a noxious trade(s), for 
 bricks may be burned, by the selection and combination of proper 
 substances for burning, without the emission of smoke or disagreeable 
 smells ; but if, by the use of coals or impure ashes and animal sub- 
 stances, smoke, and vapor, and noisome gases are communicated to 
 the air which' surrounds and enters the plaintiff's house, so as to cause 
 inconvenience to the occupiers thereof, and render the house mani- 
 festly less comfortable, the brick-burning will be a nuisance, though 
 the pollution of the air may not be carried to the extent of rendering 
 it noxious to animal or vegetable health. But the inconvenience or 
 discomfort must go to the extent of materially interfering with the 
 ordinary physical comfort of human existence, not merely according 
 to elegant or dainty modes and habits of living, but according to plain, 
 sober, and simple notions amongst English people(i;). 
 
 In cases where a man is not carrying on the trade of brick-making, 
 but is merely digging out the soil from his own land for the building 
 of a house thereon, and when the nuisance consequently is of a 
 temporary nature, and is also of a trifling character, the court will not 
 
 (p) St. Helen's Smelting Co. ». Tipping, 35 Law J., Q. B. 66. 
 
 (2) Walters v. Selfe, 4 De G. & Sm. 323. Ashbrook v. Commonwealth, 1 Bush (Ky.), 139. 
 state V. Wetherall, 5 Harring. (Del.) 487. Dargan v. Waddill, 9 Ired. 244. Malligan v. Ellas, 
 12 Abb. (N. Y.) N. S. 269. A tallow factory, erected in a town, city or thiclsly settled 
 neighborhood, or on a public highway is a nuisance. Allen v. State, 34 Texas, 230. If a dis- 
 tillery has connected with it sties in which large numbers ol' hogs are kept, the offal from 
 which pollutes a watercourse, and the stench renders the neighboring houses unhabitable, it 
 is a nuisance. Smith ». McConathy, H Mo. 617. So the occupation of buildings for tiie 
 business of yarding and slaughtering hogs, and for boiling their fat and offals, and for burn- 
 ing their bristles, is prima faxie a nuisance. Dubois v. Budlong, 10 Bosw. 700. 
 
 (r) Stockport Waterworks Co. v. Potter, 31 Law J., Bxch. 9 ; 7 H. & N. 160. 
 
 (») Wanstead Local Board, etc., v. HiU, 13 C. B., N. S. 479 ; 32 Law J., M. C. 135. 
 
 (<) Knight-Bruce, V.-C, Walter ». Selfe, 4 De G. & Sm. 323. Pollock v. Lester, 11 Hare 
 266. Beardmorei). TredweU, 31Law J., Ch. 893. Bamford ». Tuinley, «Mpra. 
 
196 NUiSANCBS. [Chap. 4. 
 
 interfere by injunction, for a man must have a house to live in ; and it 
 is reasonable that he should make his own bricks out of his own land 
 at a slight temporary inconvenience to his neighbors(M). 
 
 221 0/ preseriptive rights to tfie exercise of a noisome trade. — If the trade is 
 proved to be a noisome trade the defendant may, nevertheless, estab- 
 lish a prescriptive right to the exercise of the trade on the particular 
 spot, by showing that he has exercised it without molestation or inter- 
 ruption for the period of twenty years('w). " It used to be thought, 
 that if a man knew there was a nuisance, and went and lived near it, 
 he could not recover, because, it was said, it is he that goes to the 
 nuisance, and not the nuisance to him. That, however, is not the law 
 now"(a;). 
 
 222 Nuisances from primes, chimneys, and manufactories — Liability of the 
 landlord and occupier, — If a nuisance be created on premises, and a 
 man purchase the premises with the nuisance upon them, though 
 there be a demise for a term at the time of the purchase, so that the 
 purchaser has no opportunity of removing the nuisance, yet, by pur- 
 chasing the reversion with the existing nuisance; he makes himself 
 liable for the continuance of the nuisance. But if, after the reversion 
 is purchased, the nuisapce be erected by the occupier, the reversioner 
 incurs no liability ; yet, in such a case, if there were only a tenancy 
 from year to year, or any short period, and the landlord chose to renew 
 the tenancy after the tenant had erected the nuisance, and Re knew of 
 it, that would make the landlord liable. He is not to let the land with 
 the nuisance upon ii{y). 
 
 A landowner who creates a nuisance upon his land, or purchases 
 
 land with an existing nuisance upon it, cannot, by granting or con- 
 
 , -veying the land to another, get rid of his responsibility on the ground 
 
 that he has no longer any control over the nuisance. " Before his 
 
 (M) Att.-Gen. v. Cleaver, 18 Ves»219. Cleeve v. Mahany, 9. W. B. 882. Cavey v. Ledbitter, 
 13 C. B., N. S. 470 ; 32 Law J., C. P. 105. 
 
 (■!)) EUiotson V. Feetham, 2 B. N. C. 134. Bliss e. Hall, 5 Sc. 504. Carrying on an offensive 
 business for twenty or even thirty years in a place removed from dwellings and public roads 
 will not give a prescriptive right to continue it after houses have been built and roads Laid 
 out in the vicinity, il' it is then found to be a nuisance to the inhabitants or passers-by. Com- 
 monwealth V. Upton, 6 Gray (Mass.), 473. Ashbrook v. Commonwealth, 1 Bush (Ky.), 139. 
 There can be no such thing as a right, whether by prescription or othewrise, to maintain a 
 public nuisance. Philadelphia, etc., R. R. Co. v. State, 20 Md. 167. See House v. Metcalf, 27 
 Conn. 631 ; Lewis v. Stein, 16 Ala. 214. 
 
 (X) Byles, J., in Hole v. Barlow, 4 C. B., N. S. 336 ; 27 Law J., C. P. 208. And see Tipping 
 B. St. Helen's Smelting Co., L. R., 1 Ch. App. 66. 
 
 (y) Littledale, J., in R. v. Pedly, 1 Ad. & E. 827. Gandy v. Jubber, 33 Law J., Q. B. 151. 
 Saxby v. Manchester Rail., 38 L. J., C. P. 154 ; L. B., 4 C. P. 198. See Owings v. Jones, 9 Md. 
 108; Pickard v. Collins, 23 Barb. (N. T.) 444; Pillabury w. Moore, 44 Me. 154;'Crommelin ». 
 Cox, 30 Ala. 318 ; Ray v. Sellers, 1 Duval (Ky.), 254. 
 
Sec. 1.] LIABILITY OF LANDLORD AND OCCUPIER. 197 
 
 assignment over he was liable for all consequential damages ; and it 
 is not in his power to discharge himself by granting it over ; more 
 especially where he grants it over reserving rent, whereby he agree* 
 with the grantee that the nuisance should continue, and has a recom- 
 pense, viz., the rent, for the same : for, surely, when one erects a nui- 
 sance, and grants it over in that manner, he is a continuor with a 
 witness. Suppose the lessor or assignor had been seized in fee, and 
 had erected this nuisance, and then infeoffed another over, he had 
 conveyed this as a nuisance, and causa oauscB est causa causati. And i/ 
 a wrong-doer conveys his wrong over to another, whereby he puts if 
 out of his power to redress it, he ought to answer for it. And it is a 
 fundamental principle of law and reason, that he that does the first 
 wrong shall answer for all consequential damages ; and the original 
 erection does influence the continuance, and it remains a continuance 
 from the very erection, and by the erection till it be abated "(z). 
 
 If a landlord erect privies in such a situation that the use of them 
 must necessarily create a nuisance, and the privies are demised to ten- 
 ants who use them and create a nuisance, the landlord will be respon- 
 sible for the erection and continuance of the nuisance(a). And when- 
 ever the very existence of the thing demised constitutes a nuisance, 
 the landlord is responsible. (aa) This has been held to be the case 
 where the thing demised consisted of a wall erected so as to imped'* 
 the access to a public market(6), or to obstruct the access of light and 
 air to ancient windows(c) ; a dam or mound of earth stopping up the 
 channel of a river or watercourse, or keeping a mill-pond at an undue 
 elevation(d) ; a dangerous excavation made by order of the landlord, 
 and left unguarded and unfenced, by the side of a public thorough- 
 fare(e). But if the landlord demises tenements and premises which 
 
 (2) Per Cur. , Koswell v. Prior, 12 Mod. 639. Thompson v. Gibson, 7 M. & W. 462. 
 
 (a) Eex V. Pedley, 1 Arl. & E. 822. Tlie liability of the landlord has been carried still far- 
 ther. Thus, where the owner of a building rented the several floors to different tenants, and 
 the goods of the tenant on the lower floor were damaged by the overflow of a water closet on 
 an upper floor, to which all the tenants had access, it was held that the landlord was liable 
 for the damage, although the closet was properly constructed, and had become out of order 
 by reason of the negligence of the tenants. Marshall v. Cohen, 44 Ga. 489. 
 
 (aa) Durant v. Palmer, 5 Dutch. (N. J.) 644. Owings v. Jones, 9 Md. 108. Pickard ii. CoUius, 
 23 Barb. (N. T.)154. 
 
 (6) Thompson ».«Gib3on, 7 M. & W. 456. 
 
 (c) Eoswell V. Prior, ante, p. 176. t 
 
 (d) Roll's Abr. Nijisance, K. 2. 
 
 (e) Leslie v. Pound, 4 Taunt. 649. Bishop v. Trustees of Bedford Charity, 28 Law J., Q. B. 
 as ; 1 Ell. & EU. 697. Durant v. Palmer, 6 Dutch. (K. J.) 544. So it has been held that where 
 the o-rt-ner of land erects a barn thereon in such a manner that in its ordinary use it would be 
 iujuriius and ofl'ensive to the adjoining proprietor, and cast unwholesome odors into his 
 house, the landlord was liable for the nuisance, although caused by tenants to whom he had 
 leased the vremises. Pickard ». Collins, 23 Barb. (N. Y.) 444. 
 
198 NUISANCES. [Chap. 4. 
 
 are not in themselves a nuisance, but may or may not become a nui- 
 sance, according to the mode in which they are used by the tenant, 
 the landlord cannot be made responsible for a nuisance created upon 
 them by the tenant. He is not responsible for enabling the tenant to 
 commit a nuisance, if he pleases(ee). Therefore, where the landowner 
 erected a cofifee-shop with a low chimney under the plaintiff's win- 
 dows, and let the coffee-shop to a tenant who lighted a fire in 
 the chimney, and created a great smoke, which penetrated the plain- 
 tiff's dwelling house, and caused a nuisance, it was held that the land- 
 lord was not responsible for this nuisance, as the tenant could have 
 burnt coke or charcoal in the chimney, and have used the chimney 
 without necessarily creating a great smoke, or might have abstained 
 from making fires at all when the wind was in such a direction as to 
 carry the smoke to the plaintiff's house(/). An occupier who uses 
 premises demised to him so as to create a nuisance, is, of course, 
 always responsible for the consequences of his wrongful act {ante, 
 p. 162). 
 
 223 Defilement of springs and running streains(g). — We have already seen 
 that the right to have a stream flow in its natural state is an incident 
 to the property in the land through which it passes, and that all may 
 reasonably use the water who have a right of access to it. Every per- 
 son, therefore, who throws dirt and rubbish into the stream so as to 
 block up the channel, or defiles the water with gas refuse and filth, 
 and prevents the riparian proprietors and others from having the 
 beneficial use of the water they have been accustomed to have, is 
 guilty of a nuisance, and may be made responsible in damages(^), 
 unless he has gained a prescriptive right to carry on an offensive 
 trade on the river-bank„ and corrupt the water(j). 
 
 224 Noisy nuisances. — Quietness and freedom from noise are indispen- 
 sable to the full and free enjoyment of a dwelling-house. Every 
 person, therefore, who blows a horn in the night-time in the neigh- 
 borhood of a dwelling-house, so as to disturb the repose of the inmates, 
 
 (ee) Dnrant v. Palmer, 5 Dutch. (N. J.) 544. Owings r. Jones, 9 Md. 108. Beavers v. Trim, 
 mer, 1 Dutch. (N. J.) 97. ■ 
 
 (/) Eich V. Basterfleld, 4 C. B. 805. See Brown v. BueseU, L. R., 3 Q. B.fBBl. 
 
 (g) As to the powerSfOf sewer authorities to prevent the pollution of streams within their 
 district, see 28 & 29 Vict. o. 75, s. 10. 
 
 (ft) Murgatroyd v. Kobinson, 7 EU. & Bl. ,'i91; 26 L.aw J., Q. B. 233. Hodgkinson v. Ennor, 
 32 Law J., Q. B. 231; 4 B. & S. 229. Stockport Water, etc., Co. v. Potter, 31 1.. J., Exch^g; 
 7 H. & N. 160. See Sherman o. Fall Eiver, etc., Co., 2 Allen (Mass.), 524; Pottstown Gas Co. 
 V. Murphy, 39 Penn. St. 257; Lewis v. Stein, 16 Ala. 214. 
 
 (i) Ante, p. 196. Bealey v. Shaw, 6 East, 214. This right can be supported only by the 
 strictest proof. McCallum ». Germautown Water Co., 64 Penn. St. 40. 
 
Sec. 1.] COLLECTION OF CROWDS. 199 
 
 is guilty of a nuisance, and is responsible in damages, unless he can 
 show some justification for the making of a noise(^'). Every person, 
 also, who erects a mill or a smith's forge, or any noisy machine, or 
 carries on any noisy trade or manufacture adjoining a dwelling-house, 
 whereby the comfort and quiet of the house are destroyed, and the 
 rest of the inmates disturbed at night, is guilty of a nuisance, and is 
 liable to an action for damages, unless he can show that he has gained 
 a prescriptive right to make the noise by twenty years' user and 
 enjoyment(A.) 
 225 Collection of crowds. — It is an old principle of law, that if a person 
 collects together a crowd of people to the annoyance of his neighbors, 
 that is a nuisance for which he is answerable. Therefore where the 
 defendant was in the habit of inviting persons into his own grounds 
 to shoot pigeons, and the effect of that was that idle persons collected 
 near the spot, trod down the grass of the neighboring meadows, 
 destroyed the fences, and created alarm and disturbance amongst 
 the women and children in the adjoining thoroughfares, it was held 
 that the defendant was guilty of a nuisance(Z). So, where the 
 defendant descended in a balloon into the plaintiff's garden, and 
 a number of persons rushed into the garden to render help and 
 gratify their curiosity, and destroyed the plaintiff's hedges and 
 crops, it was held that the defendant who had set the balloon in 
 motion and caused the mischief was responsible for the injury(?w). 
 But the keeping of a large school is not, necessarily at all events, a 
 nuisance(w). 
 
 (i) Eex V. Smith, 2 Str. 703. See State v. Haines, 30 Me. 65. 
 
 (*) Brarlloy v. Gill, 1 Lutw. 69. Elliotson v. Feetham, 2 B. N. C. 134; 2 Sc. 174. Ante, p. 
 196. SoLtau w.^De Held, 2 Sim. N. S. 133. The business of finishing steam boilers in a popu- 
 lous part of a city may be a nuisance to the occupants of adjoining dwellings. Fish v. Dodge, 
 4 Denio, 311. And an action may be maintained against a stable keeper on account of the 
 stamping of horses in the night. Dargan v. WaddeU, 9 Ired. 244. A tinsmith and sheetirou 
 worl£er was, in one case, enjoined from carrying on his business at unseasbnable hours. 
 Dennis v. Eckardt (Penn.), Law. Reg. Jan. 1863, p. 166. And a dog which barks and howls 
 day and night may be lawfully killed as a nuisance, by one whose peace and quiet is thereby 
 disturbed if there is no other way of preventing the nuisance. BriU d. Flagler, 23 Wend. 
 354. 
 
 [I) Kex V. Moore, 3 B. &. Ad: 188. Walker v. Brewster, L. E., 5 Bq. Ca. 25 aco. A person 
 who by violent and indecent language addi-essed to persons passing along the highway, 
 collects together a large crowd and thereby obstructs the free passage of the street is guilty 
 of a nuisance. Barker v. Commonwealth, 19 Penn. 412. So is a distiller who delivers his 
 slops in the public street to any one who may call for them, thereby calling together a 
 wrangling crowd of teamsters who obstruct the street. People v. Cunningham, 1 Denio, 
 524. A dram shop may bo a public nuisance and the keeper indictable. State v. Bertheol, 
 6 Blackf. 474. 
 
 (ire) Gnille v. Swan, 19 Johns. 381. 
 
 (n) Harrison v. Good, L. E. 11 Eq. Ca. 338. 
 
200 NUISANCES. [Chap. 4. 
 
 226 Injuries from spring-ffuns, mart-traps, dog-spears, engines, and machines 
 placed on land. — By 24 & 25 Vict. c. 100, s. 31 (re-enacting the 7 & 8 
 Geo. 4, c. 18), it is provided, that whoever shall place or cause to be 
 placed, or shall knowingly and wilfully continue, any spring-gun, 
 man- trap, or other engine calculated to destroy human life, or inflict 
 grievous bodily harm, with the intent that the same, or whereby the 
 same, may destroy or inflict grievous bodily harm upon a trespasser, 
 or other person coming in contact therewith, shall be guilty of a mis- 
 demeanor ; but the setting of any gun or trap, such as is usually ^et 
 with intent to destroy vermin, is not to be thereby rendered illegal ; 
 nor the setting of a spring-gun, man-trap, or other engine in a 
 dwelling-house, for the protection thereof in the night-time(o). 
 
 The setting dog-spears on land is not in itself an illegal act, nor is 
 it rendered such by the above Act, if it appears that the dog-spears 
 were set in a wood for the mere purpose of destroying dogs trespass^ 
 ing in pursuit of game, and not with intent to destroy human life, or 
 inflict grievous bodily harm on any human being. The owner of a 
 dog, therefore, passing with his dog through a wood, has no right of 
 action against the owner of the wood for the death, of, or for an inj ary 
 to, his dog, who, by reason of his own natural instinct, and against 
 the will of his master, runs off the path against one of the dog-spears, 
 and is killed or injured(25). 
 
 227 Injuries to animals from dog-traps. — Every man must be taken to 
 contemplate the probable consequences of the act he does, and, there- 
 fore where the defendant caused traps scented with the strongest 
 meats to be placed on his own land, so near to the plaintiff's house as 
 to influence the instinct of the plaintiff''s dogs and cats, and draw 
 them irresistibly to their destruction, it was held that the defendant 
 was responsible to the plaintiff for the injuries he sustained, although 
 he had no intention of injuring the plaintiff, and meant only to catch 
 foxes and .vermin. It was held also, that the defendant would be 
 responsible for injuries sustained by any dogs tempted from the 
 highway, or a public path, to the traps on the defendant's land, as he 
 had no right to invite them there for the purpose of destroying 
 them(g'). 
 
 228 Injuries from unguarded wells, mining-shafts, areas, and cellars. — 
 Where the surface of land is in the possession of one man, and the 
 
 (o) See Bird v. HoUroot, 4 Bing. 628 ; Deane V. Clayton, 7 Taunt. 489 ; Hott v. Wilkes, 3 B, 
 & Ad. 304; State v. Moore, 31 Conn. 479. 
 (i)) Jordin v. Crump, 8 M. & W. 787. 
 (5) Townsend v. Wathen, 9 East, 277. 
 
Wee. l.J VNOUARDED WELLS, MININ6-SBAl!TS, ETC. 201 
 
 subsoil and minerals in the possession of another, and the mineral 
 owner sinks a mining shaft to enable him to work the minerals, it is 
 his duty to fence the shaft so as to prevent injury to the cattle and 
 sheep depasturing npon the surface(r). If a man hires a meadow, 
 and turns his cattle therein, and they fall down the disused shaft of a 
 mine, the person to whom the shaft belongs, and who has the do- 
 minion and control over it, will be responsible for the damage done(s). 
 Every occupier of land who allows wells or mining-shafts to remain on 
 his land unguarded and unprotected, is responsible in damages to all 
 persons who sustain injury from falling into them, provided they were 
 lawfully traversing the land on which the shaft or well existed, and 
 fell into it without any negligence or misconduct on their part ; but 
 if they were at the time trespassers on the land, and the well or shaft 
 was more than twenty-five yards from a public carriage-way {post, p. 
 171), they will not be entitled to maintain an action(i). Where the 
 defendants were owners of waste land which was bounded by two 
 highways, and the defendants worked a quarry in the waste, and the 
 plaintiflF, not knowing of the quarry, passed over the waste in the dark 
 and fell into the quarry and broke his leg, and then brought an action 
 for damages, it was held that the action could not be maintained, as 
 there was no legal obligation on the defendant to fence the quarry for 
 the benefit of the plaintiff, who was a mere trespasser upon the land(M). 
 But if the hole is so near a highway that a person lawfully using it 
 may, if he slips on the highway, fall into the hole, the occupier will 
 be liable('B), even though the obligation to fence may be on some othei 
 person(iE). 
 
 If a man gets upon strange premises when it is dark, so that he 
 cannot see, he should keep a good look-out, and has only himself to 
 blame if he sustains injuries from running against objects, or falling 
 down places, which might have been avoided by the exercise of ordi- 
 nary care and caution(2^) ; but if a person, being upon the premises 
 of another on lawful business, without any fault or negligence of his 
 own falls through a hole on such premises, the occupier will be respon- 
 
 (r) WiUiams v. Groncott, 4 B. & S. 149. 
 
 (s) Sybray v. White, 1 M. & W. 435. 
 
 it) Hardcastle v. Soutli York, etc., Rail. Co., 4 H. & N. 67 ; 23 Law J., Exch. 139. Bishop 
 ». Trustees of Bedford Charity, 1 BU. & EU. 697. Picltard v. Smith, 10 C. B., N. S. 470. 
 
 (M) Hounseli v. Smyth, 7 C. B., N. S. 731 ; 29 Law J., C. P. 203. Binks v. South York & 
 Eiver Dun Co., 32 Law J., Q. B. 26 ; 3 B. & S. 244. 
 
 (») Hadley v. Taylor, L. R., 1 C. P. 53. As to who is an occupier, see 5. C. Vale «. Bliss, 
 60 Barb. 358. 
 
 (X) Wettor V. Dunk, 4 T. & E. 298. Norwich v. Breed, 60 Conn. 635. 
 
 (y) Wilkinson v. Pairrie, 32 Law J., Ex. 173. 
 
202 NUISANCES. [Chap. 4. 
 
 sible, although the hole be necessary for carrying on 'ihe business 
 of the occupier, and there is no duty upon such occupier as between 
 himself and his servants to keep the hole fenced(3). 
 
 Every occupier of a house adjoining a highway is respgnsible for 
 injuries to passengers arising from things falling from the Ijouse into 
 the street, unless he can show that the fall arose from storn^ or tem- 
 pest, or some inevitable accident(a). He is bound also to secure his 
 shutters, and swing-doors, and things placed against his house, so 
 that they cannot be readily throvra. down on passengers by 'idle or 
 mischievous persons. Thus, where the cellar-door of a tradesman was 
 opened and thrown back against his house, and some little boys\ play- 
 ing with the door threw- it over upon the plaiiitifF and broke his; leg, 
 it was held that the tradesman was responsible for the injury, as he 
 had provided no fastening to keep the door back. " A tradesman 
 under such circumstances is not bound to adopt the strictest nieans 
 for preventing accidents, but he is bound to use reasonable precau»tion, 
 such as might be expected from a careful man"(&). But if the dowtr 
 is a door of great weight, and so thrown back that it could not be 
 pushed forward into the street without the exercise of great force and 
 strength, the remedy would be against the wilful wrong-doer and not 
 against the tradesman, who reasonably supposed a fastening to be, 
 under such circumstances, unnecessary(6&). Whether proper care has 
 been taken to prevent the door from falling forward is a question for 
 the jury. 
 229 Injuries from the dangerous state of private ways. — If landowners 
 have given an express or implied permission to strangers to use a 
 private way leading across their lands, or if they suffer a particular 
 pathway to be used as an ordinary means of access to their dwelling- 
 houses, it is not competent to them to do any act whereby injury may 
 arise to persons using the way, without giving them timely notice of 
 what has been done, or revoking the license or permission to come 
 
 (s) Indermanr v. Dames, I,. E., 1 C. P. 274 ; 2 ibid. 3U. 
 
 (a) Bryne v. Boadle, 33Law J., Exch. 13. Domat. liv. 2, tit. 8, ss. 1, 10, 11. See Scott v. 
 London Dock Co., 34 L. J., Exch. 17 ; ibid. 220. But see Welfare v. Brighton Rail., L. E., 
 4 Q. B. 693 ; 38 L. J., Q. B. 241. Salisbury v. Herchenroder, 106 Mass. 458. And where a 
 building is so constructed that the snow and ice falling or forming on the roof must, in the 
 natural course of things, fall down upon the sidewalk of a public street, the owner will be 
 liable for injuries to passengers sustained thereby, although the rooms in the building are 
 occupied by tenants, if he has access to and control or the roof. Shipley v. Fifty Associates, 
 106 Mass. 194. 
 
 (6) Tindal, C. J., Daniels v. Potter, 4 C. & P. 262. Proctor «. Harris, ib. 337. 
 
 (66)"But the rule stated in the text would not apply if the maintenance of the cellar-uoor 
 was in itself a direct invasion of the highway, and a wrongful act. See Congreve v. Morgan, 
 18 N. T. 84. 
 
Sec. 1.] STEAM BNQINJES, ETC., NEAR HIGHWAYS. 203 
 
 upon the land. And as the owners themselves are not justified in 
 placing any unknown dangers in the way of persons using the private 
 way, so neither can they authorize anybody else to do so(c). If the 
 landowner takes toll for the use of the way, and invites people to use 
 it, it is his duty to keep it in a safe state, and fit for use ; and if he 
 is cognizant of some hidden danger, he ought to remove it, or close 
 the way to the public(cZ). Every occupier of a house who makes or 
 permits the continuance or use of a pathway to the house, may fairly 
 be deemed to hold out an invitation to all persons who have any rea- 
 sonable ground for coming to the house to pass along his pathway ; 
 and he is responsible for neglecting to fence off dangerous places, in 
 the same way that a shopkeeper, who invites the' public to his shop, is 
 liable for leaving a trap-door open without any protection, by which 
 his customers suffer injury(e). But a person who strays. from the ordi- 
 nary approaches to the house, and trespasses upon the adjoining land, 
 where there is no path, has no remedy for an injury he may sustain 
 from falling into unguarded wells or pits, as the injury is the result of 
 his own carelessness and misconduct(/). If A gives B permission to 
 cross his yard, across which there are a dozen different routes, and A 
 has dug a hole in the yard which he usually keeps covered, but one 
 night he uncovers it, and B, crossing as usual, and not expecting any 
 danger, falls in and is injured, A is liable for the injury. But if the 
 hole has always been uncovered, and B walks into it in broad daylight, 
 he has no cause of action against A{g). 
 230 Nuisances adjoining highways — Dangerous pits and excavations — Steam- 
 engines and windmills. — By the General Highway Act, 5 & 6 Wm. 4, 
 c. 4, s. 70, it is enacted, that it shall not be lawful for any person to 
 sink any pit or shaft, or to erect or cause to be erected any steam-en- 
 gine, gin, or other like machine, or any machinery attached thereto, 
 within the distance of twenty-five yards, nor any windmill within 
 fifty yards from any part of any carriage-way or cart-way(^), unless 
 
 (0) Corby v. Hill, 4 C. B. , N. S. 556 ; 27 Law J. , C. P. 320, Gallagher v. Humphrey, 10 W. 
 E. 664 ; 6 L. T. E., N. S. 684. Cockburn, C.J., Hodman v. West Midi. Eail. Co., 33 L. J., Q. 
 B. 240. See iK)S«, p. 173. 
 
 (d) Gibbs V. Trustees of Liv. Docks, 3 H. & N. 164 ; 27 Law J., Exch. 321. 
 
 (e) Tindal, C. J., Lancaster Canal Co. v. Parnaby, 11 Ad. & E. 243. Barnes v. Ward, 9 C. B. 
 420 • 19 Law J., C. P. 200. Jarvis v. Dean, 11 Moore, 354. Indermaur v. Dames, onfe,,p. 202. 
 
 (/) Wilde, B., Boloh v. Smith, 7 H. & N. 736 ; 31 Law J., Exch. 203. See Howland v. Vin- 
 cent, 10 Meto. 371. 
 
 („) Biythe ». Topham, 1 EoU. Abr. S8 ; Cro. Jac. 158. Stone ». Jackson, 16 C. B. 204. Hard- 
 castle V. South Yorkshire Ewy., etc., 4 H. & N. 74, Gaudret v. Bgerton, L. E,, 2 C. P. 371. 
 
 (ft) This is extended to turnpike roads by 27 and 28 "Vict. o. 76. Steam-ploughing machines 
 are excepted by 28 & 29 Vict. o. 83, 8. 6 (continued by 34 & 35 Vict. c. 95), provided certain pre- 
 cautions are taken whUe they are in use. Ibid. Independent of any statute a person may be- 
 
204 NUISANCES. [Cliap. 4. 
 
 such pit, or shaft, or steam-engine, giu, or other like engine or ma- 
 chinery, shall be within some house or other building, ,or behind some 
 wall or fence, sufficient to conceal or screen the same from the said 
 carriage-way or cart-way, so that the same may not be dangerous to 
 passengers, horses, or cattle(i) ; also, that it shall not be lawful for any 
 person to make or cause to be made any fire for calcining or burning 
 of iTonstone, limestone, bricks, or clay, or the making of coke, within 
 fifteen yards from any part of the said carriage-way or cart-way, un- 
 less the same shall be within some house or other building ; or behind 
 some wall or fence sufficient to screen the same from such carriage- 
 way or cart-way. Penalties are imposed upon persons offending 
 against the statute for each and every day that any such pit, shaft, 
 wind-mill, steam-engine, gin, machine, or fire, shall be permitted to 
 continue contrary to the provisions of the Act. 
 
 Penalties are also imposed (s. 72) upon persons playing at gardes on 
 highways, to the annoyance of passengers, or making fires {k), or let- 
 ting oif fireworks, pistols or guns, within fifty feet of the centre of the 
 way, or laying things ori the highway, to the interruption of persons 
 travelling thereon, or suffering filth or any offensive matter to flow 
 upon the highway from the adjoining premises, or in anyway wilfully 
 obstructing the passage of the highway. • Provision is also made (s. 73) 
 for the removal and abatement of all nuisances upon the highway(M). 
 
 231 The use of locomotive steam-engines on highways is authorized by 24 & 
 25 Vict. c. 70, provided they are used (s. 13) so as not to create a 
 nuisance(Z). This Act has been amended by the 28 & 29 Vict. c. 83, 
 which prescribes the rules subject to which such locomotive engines 
 may be used (s. 3), limits the speed at which they may travel (s. 4), 
 and makes special regulations as to their passage through towns (s. 8). 
 The last-mentioned Act (which is a temporary one) has been continued 
 to the 1st September, 1872, and the end of the then next session by 34 
 & 35 Vict. c. 95. 
 
 232 Dangerous excavations adjoining highways. — ^As persons are prohibited 
 
 come liable for the improper use of macliinery operated Ijy steam wltMn sncti a distance of 
 the highway as to endanger the lives or property of others lawfully using the way. Thus a 
 person who erects upon his own laud, but within iifty feet of the highway, a steam whistle of 
 such size and construction as to produce a startling and terrific noise, and so uses the same as 
 to frighten horses of ordinary gentleness when passing along the highway, will be liable for 
 the resulting damages. Knight v. Goodyear's India Rubber Glove Manufacturing Co., 38 
 Conn. 438. 
 
 (») As to nuisances from steam-thresliing machines, see Smith v. Stokes, 4 S. & S. 8^ 
 
 (4) See Stinson v. Browning, L. E., 1 C. P. 321. 
 
 (i-A) See Simpson v. Wells, L. E., 7 Q. B. 2U. 
 
 (D Watkins v. Beddin, 2 F. & F. 269. 
 
Sec. l.J LIMITED DEDICATION OF BIG SWAYS. 205 
 
 from sinking pits or shafts within the distance of twenty-five yards 
 from any part of a carriage-way or cart-way, being a highway, it fol- 
 lows that any person who has sustained injury from the doing of the 
 prohibited act is entitled to an action to recover compensation in dam- 
 ages from the wrong-doer ; and it is no answer to such an action to 
 show that he had deviated from the highway, and was a trespasser 
 upon the adjoining land, at the time he sustained the injury ; but 
 when the excavation is made beyond the distance of twenty-five yards 
 from the carriage-way, and does not immediately adjoin any foot-path 
 or public place of passage where all persons have a right to go, and 
 there is no obligation imposed upon the landowner on whose land the 
 excavation has been made to fence it off', and the person falling into it 
 would be a trespasser upon the intervening land before he reached the 
 excavation, no action would be maintainable by the injured party(TO). 
 The negligent quarrying of stone near a highway is an indictable 
 oflfence at common law(w). 
 
 When the occupier of a dangerous area adjoining a highway sets up 
 as a defence that the premises had been exactly in the same condition 
 as far back as could be remembered, and many years before he took 
 possession of them(o), Lord Ellenborough held that, however long the 
 premises might have been in a dangerous state, the defendant, as soon 
 as he took possession of them, was bound to guard against the danger 
 to which the public had been before exposed ; and that he was liable 
 for the consequences of having neglected to do so, in the same manner 
 as if he himself had originated the nuisance ; that the area belonged 
 to the house, and the law cast upon the occupier the duty of rendering 
 it secure(p). No question was raised in this case, however, as to 
 whether the highway existed before the area was made ; for if the 
 area had been made, and tlie road afterwards dedicated to the public 
 with the unfenced area beside it, the public would take the right of 
 way subject to the danger and inconvenience of the unfenced area(g). 
 233 Dedication of a highway to the public subject to certain risks and incon- 
 veniences. — When a highway is dedicated to the public by the owner 
 
 (m) Hardcastle v. South York, etc., Eail Co., 4 H. & N. 74 ; 28 Law J., Exch. 139. Blyth v. 
 Topham, Cro. Jac. 159. Hounsel v. Smith, Binks v. South York and Eirer Dun Co., ante, p. 
 i!01. See Vale v. Bliss, HO Barb. (N. Y.) 358 ; Norwich v. Breed, 30 Conn. 635. 
 
 («) Beg. V. Mutters; 34 L. J., M. C. 22. As to the liability ol' persons engaged in blasting, 
 for injuries to persons crossing a quarry by a foot path under license from the owner, see 
 DriscoU o. Newark and Eosendale Lime and Cement Co., 37 N. Y. 637. 
 
 (o) See Barnes v. Ward, 9 C. B. 420 ; 19 Law J,, C. P. 200 ; Jarvis v. Dean, 11 Moore, 354. 
 
 ip) Conpland v. Hardingham, 3 Campb. 398. Bishop v. Trustee8_ of Bedford Charity, Pick- 
 ard V. Smith, ante, p. 201. Irwin v. Sprigg, 6 Gill. 200. 
 
 (g) Blackburn, J., Fisher v. Prowse, 31 Law J., Q. B. 219. 
 
206 NUISANCES. [Chap. 4. 
 
 of the soil, the public can take no larger or more extensive right than 
 the owner of the fee thinks fit to grant or ai&owlpost, s, 3). If, there- 
 fore, the right of passage has been granted subject to a right vested 
 in the adjoining landowners of depositing goods on the soil of the 
 way, the public must take the right subject thereto(r). So if the high- 
 way has been dedicated subject to the right to have door-steps or 
 cellar-flaps projecting into it, the public must take the road as it i? 
 given to them, subject to those inconveniences and obstructions(s). 
 So the owner of a field may dedicate a footpath to the public over 
 it subject to his right to plough it up in due course of husbandry, 
 although that, for the time, destroys all traces of the path(<). 
 
 Where an ancient unfenced tidal ditch ran alongside a public high- 
 way, and the commissioners of sewers took possession of the ditch 
 under the powers of an Act of Parliament, for the purpose of their 
 sewerage, and the plaintiff, on a dark night, tumbled into the ditch 
 with his horse and carriage, it was held that the commissioners of 
 sewers were not responsible for the injury, as the highway and the 
 ditch had immemorially existed in the same state, and the commis- 
 sioners were under no obligation to fence it off from the road. " The 
 road," observes Parke, B., '■ was dedicated to the public with a ditch 
 beside it. This is an ancient sewer, -Which has existed with the high- 
 way time out of mind, and therefore the public have only a right to 
 the highway subject to the sewer "(m). But whenever a highway has 
 been dedicated to the public, subject to certain obstructions left in it 
 for the convenience and accommodation of the occupiers of the adjoin- 
 ing houses, the obstruction or inconvenience to the public must not be 
 increased by any act of commission or omission. Cellar-doors or cellar- 
 flaps must not be left open or unfastened, so as to expose the public 
 to any unusual, unexpected, or unforeseen danger. And all things 
 accessorial to the beneficial use and occupation of the adjoining dwell- 
 ings must be kept in a proper and safe state, either by the occupiers 
 of the houses or by those upon whom the law casts the burthen and 
 duty of repairs('B). 
 234 Obstructions in public thoroughfares. — " If a man hangs a gate upon 
 a post, and shuts it with a catch upon another post across a highway 
 
 (r) Morant v. Chamberlain, 6 H. & N. 5il ; 30 Law J., Exch. 299. Le Neve v. Mile End, 
 etc.,Vestry, 8 Ell. & Bl. 1063. 
 
 («) Fisher p. Prowse, 31 Law J., Q. B. 213 Bobbins o. Jones, 33 L. J., C. P. 1. 
 
 (t) Mercer v. Woodgate, L. R., 5 Q B. 26. Arnold v. Blaker, L. R., 6 Q. B. 443. 
 
 (M) Cornwall ». Metrop. Com. of Sewers, 10 Exch. 771. Blackburn, J., Fisher p. Prowse, 
 supra. 
 
 (V) Daniels v. Potter, Proctor ». Harris, ante, p. 202. 
 
Sec. 1.] OBSTRUCTIONS IN HWHWATS. 207 
 
 used for horses and carriages, so that men on horseback or in carriages 
 cannot pass without opening the gate, this is a common nuisance," for 
 a man has no right to put such an impediment in the road where none 
 before existed. But gates which have been in highways time out of 
 mind are not any nuisance, because it may be intended that they 
 began by composition with the owner of the land when he consented 
 to the way(TO). 
 
 Whenever one man wilfully interferes with the free right of passage 
 (if another along a public highway, there is an injury to a right, and 
 an action for damages is maintainable. And whenever a private 
 injury has been sustained from an unauthorized obstruction in a 
 public thoroughfare, the injured party is entitled to compensation in 
 damages. If one person wilfully and intentionally runs his carriage 
 before another person's carriage in a public thoroughfare, stopping 
 when he stops, and going ahead of him when he goes on, and crossing 
 his path, so as to prevent him from having the free and uninterrupted 
 use of the highway, and oblige him to pull up or slacken speed, for 
 fear of a collision, the person so obstructing the public thoroughfare 
 will be guilty of a nuisance, and responsible in damages to the party 
 whose free right of passage has been wilfully and unlawfully ob- 
 structed. There is, in such a case, an injury to a right, and substan- 
 tial damages are recoverable. Where, therefore, the drivers of an 
 omnibus company headed and tailed the omnibus of a private indi- 
 vidual with the company's omnibuses, and obstructed the highway 
 with their vehicles, so as to create a nuisance, and interrupt the free 
 passage of the thoroughfare, it was held that the omnibus company 
 was responsible in damages to the private omnibus proprietor, who 
 had been wilfully delayed and impeded in the exercise of his right to 
 pass along the public highway(a;). 
 
 If a man builds a house or a bridge, so as to obstruct a public 
 thoroughfare, he cannot escape from liability by saying that it was 
 the fault of the builder or contractor, in not constructing it in some 
 different manner(2/). If the occupier of a house or building adjoining 
 a highway directs certain repairs to be done to his house, and it 
 becomes necessary to excavate the earth, and remove stone, timber, 
 and materials from the premises, and the excavated earth and materi- 
 als are placed in the high-road in front of the house, with the knowl- 
 
 (w) Vin. Abr. Nuisance, C. James v. Hayward, Cro. Car. 184 ; W. Jones, 221. 
 (X) Green v. Loiid. Gen. Omnib. Co., 7 C. B., N. S. 290 ; 29 Law J., C. P. 13. 
 (y) Hole », Sitlingbourne, etc.. Rail. Co., 6 H. & N. 500; 30 Law J„ Exoh. SI. Gray*. 
 PnUen, 34 L. J. , Q. B. 265. 
 
208 NUISANCES. [Ohap. 4. 
 
 edge and sanction of the occupier of the house, the latter will be respon- 
 sible for the obstruction, although it was placed there by the servants 
 or workmen of a builder or contractor. If, seeing the obstruction, and 
 the danger of it, and having control over everybody working upon his 
 own land, and bringing materials out of his own house, he does nothing 
 to prevent or abate the nuisance, if he silently acquiesces in the con- 
 version of the highway into a place of deposit for materials brought 
 from his own premises, there will be evidence to go to a jury of the 
 things having ^een placed in the high\Bay by his authority(z). 
 
 So, by the civil law, every occupier of a house, whether he was the 
 proprietor of it or a lessee, was held liable for damage caused by any- 
 thing thrown out of the house, or the premises belonging to it, into a 
 street or public thoroughfare, or any other place. And the occupier 
 was held responsible for the damage, if the thing was done by any of 
 his family or domestics in his absence, or without his knowledge(a). 
 235 Obstructions in navigable rivers. — The right of soil in arms of the sea 
 and public navigable rivers, which is prima facie vested in the Crown, 
 independently of any ownership in the adjoining lands, must in all 
 cases be considered as subject to the public right of passage, however 
 acquired, and any grantee of the Crown must, of course, take subjecl 
 to such right. If, therefore, he places any obstruction in the bed oi 
 the river, which deprives another of his right of free passage along it, 
 he is liable to an action for the private and particular injury to the 
 individuals). But if the obstruction has not deprived any particular 
 individual of his right of passage along the stream, or caused him any 
 personal damage different from, and independent of, that which is 
 sustained by the rest of the public, an action for damages is not main- 
 tainable, but the public remedy, by way of indictment, must be pur- 
 sued(e). And it is to be observed that an indictment in such a case, 
 — viz., where an action would lie, if the complainant had sustained 
 damage different from that of the public, — being substantially a civil 
 and not a criminal proceeding, the rule that a master is responsible 
 for the wrongful act of his servant, though he does not himself per- 
 
 ■(a) 'Burgess v. Gray, 1 C. B. 591. Bush v. Steinman, 1 B. & P. 408. Ellis v. Sheff. Gas Co. 
 23 Law J., Q. B. 42 ; post, s. 2. Jones v. Chantry, 4 Sup. Ct. (N. Y.) G3, 65. 
 
 (o) Domat. Droit. Civ. liv. 2,tit. 8, 8. 1. Pandect, lib. 9, tit. 3. Instit. lib. 4, tit. 5, s. 1. Byrne 
 ti Boadle, ante, p. 202. Corrigan v. Union Sugar Eeflnery, 98 Mass. 567. 
 
 (6) Rose V. Groves, 6 So. N. E. 653 ; post, a. 2. Selman v. Wolfe, 27 Texas, 68. Gerrish v. 
 Brovrn, 51 Me. 256. Barnes v. City of Eaeine, 4 Wis. 464. South Carolina B. K. Co. «. Moore, 
 28 Geo. 398. 
 
 (c) Dimes v. Petley, 15 Q. B. 283. Port Plain Bridge Co. o. Smith, 30 N. Y. 44. See Brown 
 V. Perkins, 12 Gray (Mass.), 89 ; Blano v. Eumpke 29 Cal. 156 ; Griffith ». McCuUum, 46 Barb. 
 661. 
 
Sec. 1.] • OBSTRUCTIONS — FREE NAVIGATION. 209 
 
 sonally interfere, and the wrongful act is contrary to Ms general orders 
 and without his knowledge, will app]y(d). If an obstruction has been 
 placed in a navigable river for the more convenient use and occupation 
 of a wharf, those who placed the obstruction in the river, and the 
 occupiers of the wharf who continue it there for the use of the wharf, 
 will be responsible for injuries caused by it to persons lawfully using 
 the wharf who had no knowledge of the obstruction, or (semble) to any 
 person navigating the river(e). However, if oysters and oysterbrood 
 are so placed in a navigable creek or river, and in such masses, as 
 unlawfully to diminish the depth of water and obstruct the navigation, 
 a shipowner or shipmaster is not, by reason thereof, justified in 
 negligently or wilfully running his vessel upon the oyster-beds, and 
 destroying the oysters, if there was abundance of room and water for 
 the vessel to have passed up the river without going upon the beds(/). 
 
 236 Obstructions from sunken vessels, anchors, telegraph wires, etc. — The 
 owner of a ship sunk in a navigable river by accident, without his 
 default or misconduct, is not bound to remove the nuisance, if the 
 vessel is totally submerged, and he has no longer the possession of it ; 
 but if he has possession of the vessel, and exercises the dominion and 
 control of an owner over it, he is bound to take all reasonable and 
 proper care to prevent accidents to other vessels navigating the river, 
 and must remove the obstruction with all reasonable diligence. This 
 duty attaches to the ownership of the vessel for the time being, and 
 will be transferred to a purchaser of the sunken vessel, who takes the 
 wreck into his possession, and under his management and control(^). 
 And so, conversely, a person navigating the high seas will be liable 
 for injury caused by his negligence in navigation to a telegraph cable 
 lying at the bottom of the sea(A). The principal above mentioned has 
 been held to apply to the case of piles left in the bed of a river by a 
 contractor, which were no obstruction when the works for which the 
 piles were used were completed by the contractor and handed over to 
 the Admiralty, but which subsequently became so by the soil around 
 the piles being washed away(i). 
 
 237 Where the public right of free navigation is taken away, and the power 
 of removing obstructions is vested in the hands of conservators of the river 
 
 ((J) Eeg. V. Stephens, L. R., 1 Q. B. 702. 
 (e) White v. PhillipB, 33 Law J., C. P. 33. 
 
 (/) Mayor of Colchester v. Brooke, 7 Q. B. 377. See, as to oyster fisheries, 31 & 32 Vict. o. 
 45, SB. 27, ^1 ; Ibid. c. 53 ; Ibid. c. 53 ; 32 & 33 Vict. c. 31. 
 (g) White ». Crisp, 10 Exch. 312 ; 23 Law J., Exch. 317. 
 (fc) Submarine Telegraph Co. v. Diclison, 3S L. J., C. P. 139. 
 (i) Bartlett v. Baker, 34 L. J. , Exch. 8. Hyams v. Webster, L. E., 2 Q. B. 264, aoc. 
 
 A o. Vol. I.— 14 
 
210 NUISANCES. * [Chap. 4. 
 
 by Act of Parliament, there can be no redress by way of action on 
 account of any disturbance of the individual right. The individual 
 grievance is only accessory, and, the principal being taken away, the 
 accessory follows( j). There is a distinction in this respect between 
 duties imposed by statute on trustees or commissioners for the purpose 
 of rendering a river navigable and nothing more, and who have no 
 interest in the soil of the river(A), and duties imposed for other pur- 
 poses also, e.g., of drainage(Z). An Act of Parliament empowering a 
 corporation to remove obstructions in a navigable river, giving com- 
 pensation to the owners of the soil where the obstructions are situate, 
 does not constitute them conservators of the river(wi). 
 
 S38 Injuries to land from the erection of grains, sea-walls, and defences 
 against tides and currents. — Every proprietor of land exposed to the in- 
 roads of the sea may erect on his own land groins, or other reasonable 
 defences, for the protection of his land from the inroads of the sea, 
 although, by so doing, he may cause the sea to flow with greater vio- 
 lence against the land of his neighbor, and render it necessary for the 
 latter to protect himself by the erection of similar sea-defences. "Each 
 landowner has a right to protect himself, but not to be protected by 
 others, against the common enemy." But a man has no right to do 
 more than is necessary for his defence, and to make imprpvements at 
 the expense of his neighbor(w). 
 
 239 Negligent overloading of the floors of warehouses and buildings. — If one 
 man overloads the floor of a warehouse with merchandise, so that the 
 floor breaks and crushes the goods of another man in the floor under- 
 neath, the latter is entitled to an action for damages against the former. 
 If the floor is ruinous, the occupier must take good care that he does 
 not put upon such ruinous floor more than it can well bear ; and if it 
 will not bear anything, he ought not to put anything upon it to the 
 prejudice "of another. Where the defendant, who was the lessee and 
 occupier of a warehouse, underlet a cellar beneath the warehouse to 
 the plaintiff', and the defendant so overburthened the floor of the ware- 
 house with merchandise that the floor gave away, and crushed the 
 plaintiffs wine in the cellar, it was held that the defendant was respon- 
 
 (i) Keams v. Cordwainers' Co., 6 C. B., K. S. 388 ; 28 Law J., C. P. 285. See The Thames 
 Conservancy Act, 18S6, 29 & 30 Vict. c. 89. 
 
 (fc) Cracknell v. Mayor of Thetford, L. R., 4 C. P. 629. 
 
 (I) Parrett Navigation Co. v. Robins, 10 M. & W. 593. See Holtc. Corporation of Rochdale, 
 L. R.,10Eq. Ca. 354. 
 
 (m) Exeter (Corporation of) v. Devon (Earl of), L. R., 10 Eq. Ca. 232. 
 
 (n) Bex V. Pagham Commissioners, etc., ante, p. 3. Adams ». Fiothingham, 3 Mass. 352. 
 Jonest). Soulard, 24 How. (U. S.) 41. Bixs. Johnson, 5 N. H. 520. Gerrish v. Clough, 48 N. H. 9. 
 
Sec. l.J NON-BEPAIB OF RUINOUS BOUSES, ETC. 211 
 
 sible for the injury, and that it was no answer to the action to say that 
 the floor was ruinous, and that the defendant was not bound to repair 
 it ; " for he who takes a ruinous house ought to mind well what^weight 
 he put into it at his peril, that it be not so much that another shall 
 take any damage by it. But if the floor had fallen of itself, without - 
 any weight upon it, or by tiie default only of the posts in the cellar 
 which support it, with which the defendant had nothing to do, there 
 the defendant shall be excused"(o). 
 240 Non-Repair of ruinous houses — Liability of the landlord and occupier, 
 — As between the landlord and occupier of a house, or the landlord 
 and tenant, there is no obligation upon the landlord to keep the 
 house in repair, in the absence of an express contract to that efFect(oo). 
 If, therefore, the chimney of a house demised to a tenant becomes 
 ruinous, and falls through the roof of the house, and injures the 
 furniture aild family of the tenant, the latter has no remedy against 
 his landlord for the injury(p). But the landlord is responsible to 
 the public, and to the occupiers and proprietors of the adjoining 
 property, if he demises houses which are in a ruinous state and 
 dangerous to the neighborhood, either from original faulty construc- 
 tion, or from want of proper and timely repair(g'). But if the houses 
 or buildings are in good repair and condition at the time of the 
 demise, and subsequently become ruinous and dangerous to the 
 neighborhood, the landlord is not responsible for the nuisance, unless 
 he has taken upon himself the burthen of repairing and maintaining 
 the premises during the existence of the lease(r), or has renewed the 
 lease after the houses had become ruinous and in danger of falling, 
 for an owner of a^ house is not as such liable for want of repair(s) {ante, 
 pp. 196, 197). The occupier is also responsible for the nuisance ; and 
 it is no answer for him to say that he is a mere tenant-at-will or upon 
 sufferance, or has only a temporary or precarious interest in the prem- 
 ises, and is under no obligation to maintain and repair them ; for if 
 
 (o) Edwarda v. Halinder, Poph. 46. If the lessee of a house for the storage of furniture vio- 
 lates his contract by storing therein other heavy articles, and thereby occasions the destruc- 
 tion of the building, he will be liable to the lessor for the injury. Brooks v. Clifton, 22 Ark. 54. 
 
 (oo) Witty V. Mathews, 52 N. Y. 512. Doupe v. Geniu, 45 N. Y. 119. Kahu v. Lovez, 3 
 Oregon, 206. Brewster v. De Fremery, 33 Cal. 341. Estep v. Estep, 22 Ind. 114. 
 
 (p) Gott V. Gandy, 2 Ell. & Bl. 847; 23 Law J., Q. B. 1. 
 
 (g) Todd V. Flight, 9 C. B., N, S. 377; 30 Law J., C. P. 21; ante, pp. 196, 197. Eex v. Pedly, 
 1 Ad. & E. 822. Bensen v. Suarez, 43 Barb. (N. Y.) 408. See Vincent v. Cook, 6 Sup. Ct. (N. 
 Y.) 562; Whalen v. Gloucester, 6 Sup. Ct. (N. Y.) 136. 
 
 (r) Payne v. Rogers, 2 H. & Bl. 349. Leslie v. Pounds, 4 Taunt. 648. Bishop v. Trustees 
 of Bedford Charity, 1 EU. & EU. 697. Bobbins v. Jones, 33 L. J., C. P. 1. Clancy v. Byrne, 
 B6 N. Y. 129. See Fisher v. Thirkell, 21 Mich. 1. 
 
 («) Chauntler ». Kobinson, infra. 
 
212 NUISANCES. [Chap. 4. 
 
 he chooses to take the benefit of the occupation of premises, he must 
 take them with the accompanying burthen of preventing them from 
 becoming a source of danger to others. 
 
 Thus, where the defendant was indicted for not repairing a ruinous 
 house abutting upon a highway, and the indictment charged that 
 the house was likely to fall down, and that the defendant occupied 
 it, and ought to repair it, anA the jury found that the house was 
 ruinous and likely to fall, and that the defendant occupied it, but 
 was only tenant-at-will, the court held that he was nevertheless 
 answerable to the public for its dangerous condition(i). But the 
 liability of a mere tenant-at-will, in this respect, ought in reason to 
 be confined to cases where he knew or ought to have known that 
 the house was in a dangerous state, and chose to become and continue 
 the occupier of it, with knowledge of its dangerous condition. AU 
 that the occupier is bound to do, in any case, is to shore up the 
 building so as to prevent it from falling. He is not bound, as 
 between himself and the public or the neighbors, to put it into a 
 state of repair. 
 
 By the civil law, wherever anything hung out from a house happened 
 to fall and injure another, the occupier of the house was held respon- 
 sible in damages for the injury ; but if tiles fell from the roof from the 
 effect of a storm, and the roof was in good repair, the occupier was not 
 answerable for the accident. If the roof was out of repair, then the 
 person bound to keep it in repair was guilty of a breach of duty, and 
 was answerable for the damage to the person injured(M). 
 241 Negligence in pulling down houses — Negligent excavations. — It is the 
 duty of all persons to use due care and skill, and take due, reasonable, 
 and proper precautions in pulling down houses and walls which rest 
 against, or are in contact with, an adjoining house or wall ; and if an 
 injury is sustained from a neglect to exercise such care, skill, and pre- 
 caution, a wrong is done, and the wrong-doer is responsible for the 
 damage(«) ; and it is no answer to an action for damage done to set 
 forth that the damage was repaired by the defendant before action, 
 but the fact must be given in evidence in reduction of damages(w). If 
 a man negligently and carelessly excavates his own land close to the 
 
 i«) Keg. 0. Watts, 1 Salk. 357. 
 
 (M) Domat. liv. 2, tit. S, ss. 1, 10, 11. Byrne v. Boadle, ante, p. 169. Robbins r. Jones, supra. 
 
 (V) Trower ti. Chadwick, 3 So. 722 ; 3 B. N. C. 334 ; 8 So. 19. Walters v. Pfiel, M. & M. 365. 
 Davies ». Lend. & Bl. Bail. Co., 2 So. N. K. 74 ; 1 M. & Gr. 799. And see anU, pp. 73-77, 111, 
 148, 149. 
 
 (») Taylor r. Stendall,7 Q. B. 634. 
 
Sec. 1.] BUINODS PARTY WALLS. 213 
 
 foundation of his neighbor's house without giving the latter any warn- 
 ing, or given him an opportuijity of shoring up or protecting his house, 
 the careless excavator will be responsible for the damage he occa- 
 sions(a;), and the penalty which the Metropolitan Building Act (18 & 19 
 Vict. c. 122), by s. 94, imposes upon any building-owner who fails to 
 make good the damage done to an adjoining owner by the execution 
 of any work authorized by him, is cumulative upon the remedy by 
 action(y). But the duty of taking care does not arise where the exca- 
 vator is ignorant of the existence of the thing which may be injured 
 by the want of care. Thus, where a landowner excavated in his own 
 land close to a cellar of his neighbor's, not knowing of the existence 
 of the cellar, it was held that he could not be made responsible for an 
 injury to the cellar(z) ; no right to support having been gained by long 
 enjoyment {ante, p. 148). There is no duty imposed by the Metropoli- 
 tan Building Act upon a building-owner, who pulls down a party-wall 
 under its authority, of protecting by a boarding or otherwise the rooms 
 of the adjoining owner which are left exposed to the weather while 
 the wall is being re-built(a). 
 242 Ruinous party walls. — If injury results from the non-repair of a party 
 wall, of which the plaintiff and defendant are tenants in common, and 
 there has been a neglect of the duty to repair on the part of the plain- 
 tiff, as well as on the part of the defendant, the plaintiff cannot recover 
 damages(6). 
 
 In Fitzherbert's Abridgment we read, " that where there are three 
 tenants in common, or joint tenants of a mill or house which falls to 
 decay, and one will repair, but the others will not repair the same, he 
 shall have a writ de reparatione facienda, against them, and the writ is 
 such, etc. And so, if a man have a house adjoining to my house, and 
 and he suffers his house to lie in decay to the annoyance of my house, 
 I shall have a writ against him to repair his house in such form : ' Com- 
 mand A that, etc. he cause to be repaired his certain house in N, 
 which threatens destruction to the nuisance of the freehold of B, in the 
 same town, which he ought and hath been used to repair ' "(c). 
 
 (») Dodd V. Holme, 1 Ad. & E. 50G. Bradbee «. Christ's Hosp., 4 M. & Gr. 758. Massey ». 
 Goyder, 4 C. & P. 165. Jones v. Bird, 5 B. & Aid. 837. Austin v. Hudson Eiver K. E. Co., 25 
 N. Y. 334. Moody v. McClelland, 39 Ala. 45. Lasala v. Holbrook, 4 Paige, 169. 
 
 (2/) Williams v. Golding, L. E., 1 C. P. 69. 
 
 (a) Chadwick v. Trower, 8 So. 20 ; 6 B. N. C. 1. See Meteher v. Eylands, ante, p. 83 ; ShrievB 
 ■ti. stokes, 8 B. Mon. 453. 
 
 (a) Thompson v. HiU, L. E., 5 C. P. 564. 
 
 (6) See Chauntler v. Eohinson, 4 Exoh. 163. 
 
 (c) Fitz. Nat. Brey. 127 ; Co. Litt. 56b. This writ was abolished by S & 4 Wm. 4, c. 27, 8. 38. 
 
214 NViSANCJES. ' [Chap. 4. 
 
 243 Insecure fences, hedges, and gates. — ^When lands are burthened by- 
 grant or prescription with the servitude of maintaining a wall, fence, 
 hedge or gate for the benefit of the adjoining land [ante, p. 125), the 
 occupier of the seryiient tenement will, as we have seen, be responsible 
 in damages to the occupier of the dominant tenement if he allows the 
 wall, fence, etc., to be ruinous and defective, so that cattle and sheep 
 break through the fence and stray from one tenement to the other. 
 The occupier of the dominant tenement is entitled to the benefit of his 
 field for turning in other peoples' cattl© as well as his own stock ; and 
 if he takes in another man's horse, and the horse gets through a ruin- 
 ous fence, which the adjoining occupier ought to have repaired, and 
 falls into a pit on the adjoining land and is killed, the occupier who 
 ought to have repaired the fence, is, we have seen, responsible for the 
 full value of the horse to the occupier of the field from which the horse 
 strayed(d). 
 
 244 Rail/may fences — Statutory servitude imposed upon railway companies 
 of keeping up and maintaining fences. — The General Railway Act, 8 & 
 9 Vict. c. 20, which enacts (s. 68) that railway companies shall make 
 and maintain fences for separating the land taken for the use of the 
 railway from the adjoining lands, and for preventing the cattle of the 
 owners or occupiers thereof from straying thereout by reason of the 
 railway, applies only to adjoining land of other persons(e), and does 
 not impose upon railway companies any greater liability in respect of 
 the maintenance of fences than is imposed by the common law upon 
 occupiers who are bound to maintain and repair fences for the benefit 
 of the adjoining occupiers(/). Railway companies, therefore, are not 
 bound to fence against trespassers upon the adjoining lands, and per- 
 sons who are neither the owners nor occupiers thereof(/'). Where the 
 
 (d) Booth V. Wilson, 1 B. & Aid. 59 ; ante p. 185. 
 
 (e) Marfell v. South Wales Rail. Co., 8 C. B., N. S. 225 ; 29 Law J., C. P. 315. The servitude 
 Imposed upon railroad companies of keeping up and maintaining fences along the line 
 of their track, has, in this country, been limited and defined by the statutes of the various 
 States through which the road is maintained. It is obviously impracticable to give, in a 
 mere note, even an absti-act of these statutes. For the statutory rule in the State of New 
 York, see Laws of New York, 1850, ch. 140, s. 44 ; Laws of 1864, oh. 582, s. 2 ; 2 E. S., (6th ed.) 
 689, 690, ss. 55, 56. See, also, Corwin v. New York'te Erie E. E. Co., 13 N. Y. 42 ; Shepard v. 
 Buffalo, New York & E. E. E. Co., 36 N. Y. 641 ; TaUman v. Syracuse, Binghamton & New 
 York E. E. Co., 4 Keyes, 128 ; Murray v. New York Central E. E. Co., id. 274. 
 
 (/) Madch. Sheff. & Line. Bail. Co. v. Wallis, 14 C. B. 224 ; 23 Law J., C. P. 85. Buxton v. 
 North East Ewy., L. E., 3 Q. B. 549. See ante, p. 176. See, however, Bessant v. Gt. West. 
 Eail. Co., 8 C. B., N. S. 368. 
 
 (ff) Bemis v. Connecticut & Passurapsic Rivers R. R. Co. , 42 Vt. 375. Mayberry v. Con- 
 cord R. E. Co., 47 N. H. 391. Eames v. Salem, etc., R. E. Co., 98 Mass. 660. Morse v. Rutland 
 & Burlington E, E. Co., 1 Will. (Vt.) 49. Cornwall v. Sullivan E. E., 8 Post. (N. H.) 161. Jack- 
 son V. Rutland & Burlington E. E. Co., 25 Vt. (2 Deane,) 150. And see CecU v. Pacific R. K. 
 
Seel.] RAILWAY FENCMS, STATIONS, ETC. 215 
 
 plaintiff's sheep escaped from his own land into the adjoining close, and 
 were trespassing there, and then passed on to the defendant's railway, 
 from defect of fences, and were killed by a train, it was held that the 
 defendan|;s were not responsible for the injury ; for the plaintiff was 
 not the owner or occupier of land adjoining the railway, and the com- 
 pany consequently, was not bound to fence against him(p'). And 
 where cattle strayed into a high-road adjoining a railway, and through 
 defect of fences got upon the railway and were killed, it was held that 
 the company was not responsible for the injury, as the cattle were 
 trespassers on the highway, and the owners of the cattle were not 
 occupying the road with their cattle at the time they strayed from the 
 road on to the railway(A). 
 
 Co., 47 Mo. 246 ; Toledo R. E. Co. ». Wickery, U HI. 76 ^ Chicago & Alt. E. E. Co. v. Utiey, 38 
 111. 410. The rule is otherwise in New York, Indiana and Alab.T,ma. Corw^in v. New York & 
 Brie E. E. Co., 13 N. Y. 42. Duffy v. New York, etc., E. E. Co., 2 Hilt. (N. Y. C. P.) 496. New 
 Albany, etc., E. E. Co. i>, Aston, 13 Ind. 545. Now Albany, etc., E. E. Co., ii. Bishop, 13 id. 
 566. Indianapolis, etc., E. R. Co. v. Townsend, 10 id. 38. Jeffersonville E. E. Co. v. Apple- 
 gate, id. 49. Indianapolis, etc., E. E. Co. i). Meek, id. 502. Jeffersonville E. E. Co. v. Dough- 
 erty, id. 549. Nashville & Chattanooga E E, Co. v-. Peacock, 25 Ala. 229. 
 
 {g) Eicketts v. East & West India Docks, etc., Eail. Co., 12 C. B. 174. Eames v. Salem, etc., 
 E. E. Co., 98 Mass. 560. 
 
 (ft) Manch. Sheff. & Line. Bail. Co. v. Wallis, 14 C. B. 224; 33 Law J., C. P. 85. Price v. 
 New Jersey E. E. Co., 3 Vroom (N. J.), 19. Galpin v. Chicago, etc., E. E. Co., 19 Wis. 604. 
 Chapin v. Sullivan E. E., 39 N. II. 53, 564. Woolson v Northern E. B., 19 id. 267. 
 
 To the contrary see Hanibal & St. Joseph's E. E. Co. -c. Kenney, 41 Mo. 271 ; Indianapolis, 
 etc., E. E. Co. V. Guard, 24 lud. 222 ; Indianapolis, etc., B. E. Co. v. McKinney, id. 283. In 
 the Ibllowing cases, among others, it has been held that a railroad corporation, which has 
 neglected to fence its road and maintain cattle guards as required by statute, is liable for 
 injuries to cattle sti-aying on tlie track of the company, although the owner permitted them 
 to mn at large. Browne ». Providence, etc., E. B. Co., 12 Gray (Mass.), 55. Macon, etc., E. 
 E. Co. V. Lester, 30 Ga. 911. Indianapolis, etc., E. B. Co. ». Guard, 24 Ind. 222. Indianapolis, 
 etc., E. E Co. o. McKinney, 24 id. 283. Munch ». New York Central E. E. Co., 29 Barb. 647. 
 Tarwater!). Hanibal, etc., B. B. Co , 42 Mo. 193. Jeffersonville, etc., E. E. Co. v. Dunlap, 29 
 Ind. 426. Spenoe v. Chicago, etc., E. E. Co., 26 Iowa, 139. Brown v. Milwaukie, etc.,B. E. 
 Co., 21 Wis. 39. Whitbeck v. Dubuque, etc., E. E. Co., 21 Iowa, 102. MeCall v. Chamberlain, 
 13 Wis. 637. Laws v. North Carolina E. B. Co., 7 Jones (N. C), 468. And see Chicago, etc., E. 
 E. Co. V. Cauffman, 38 Ul. 424 ; Williams v. New Albany, etc., B. E. Co., 5 Ind. 111. 
 
 ■In other cases it has been held that a railroad company is not liable for cattle killed while 
 straying upon the railroad track, even though they escaped &ora a properly enclosed field 
 ■without knowledge of the owner, and were on the highway at the time of the accident. 
 North Penn. E. E. Co. v. Eehman, 49 Penn. St. 101. 
 
 Unless the accident occurred through the negligence of the company or its agents. Galpin 
 c. Chicago, etc., B. E. Co., 19 Wis. 604. Jackson v. Butland & Burlington B. E. Co., 28 Vt. 
 (2 Deane,) 150. Kerwhacker v. Cleveland, Columbus & Cincinnati E. B. Co., 3 Ohio (N. S.), 
 172. New York & Erie E. E. Co. i). Skinner, 19 Penn. (7 Harris,) 298. Chicago, etc., B. E. Co. 
 V. Barrie, 55 lU. 528. • 
 
 There is no law in Ohio requiring a railroad company to fence their road. Kerwhacker v. 
 Cleveland, Columbus & Cincinnati E. E. Co., 3 Ohio (N. S.), 172. Nor is there such a statute 
 in Pennsylvania. New York & Erie Br E. Co. v. Skinner, 19 JPenn. (7 Harris,) 298. 
 
 But where a railroad corporation is legally bound to fence their line, an adjoining owner 
 is not guilty of negligence in turning his cattle into a field traversed by the track, although he 
 knew at the time that there was no fence. McCoy v. California E. E. Co., 40 Cal. 532. Shep- 
 hard v. Buffalo, New York & Erie E. E. Co., 35 N. Y. 641. See Vicksburg & Jackson E. E. 
 Co. V. Patton, 31 Miss. (2 George,) 150 ; Macon, etc., E. B. Co. v. Baber, 42 Ga. 300. 
 
 But if a railroad corporation have fenced their road to the extent and in the manner 
 
216 NUISANCES. [Chap. 4. 
 
 But if cattle are passing along a highway under the care of the ser- 
 vants of the owner, the latter is lawfully using the way, and is deemed 
 to be a temporary occupier of the highway, and, consequently, an oc- 
 cupier of land adjoining the railway within the words of the statute, 
 so as to render it incumbent upon the company to maintain fences for 
 tlie safety of his cattle so traversing the highway. Where a colt 
 strayed from a field on to a public road, and the servants of the owner 
 of the colt went in pursuit of it, headed it, and drove it back along 
 the highway towards the field from which it had escaped, and the colt 
 turned through an open gate into a coal-yard abutting upon a railway, 
 and not fenced therefrom, and passed on to the railway, and was 
 killed by a passing train, it was held that the railway company was 
 responsible for the accident, as the owner's servants were in the act of 
 driving the colt home at the time it escaped through the open gate, 
 and the colt was not then trespassing upon the highway(i). But there 
 
 required by statute, the corporation will be liable for injuries to stock trespassing on their 
 track only on the ground of negligence or wilful misconduct ; and in an action by the owner 
 of the cattle to recover for such injuries, the owner will be charged with negligence in per 
 mitting them to escape. Fisher v. Fanner's Loan, etc., Co., 21 Wis. 73. Hance v. Cayuga & 
 Susquehanna R. E. Co., 26 N. T. 428. Indianapolis, etc., K. E. Co. v. Irish, 26 Ind. 268. Toledo, 
 etc., R. B. Co. V. Fowler, 22 Ind. 316. Toledo, etc., E. E. Co. v. Thomas, 18 Ind. 215. But see 
 IsbeU V. New York, etc., E. E. Co., 27 Conn. 393 ; BuUdey v. New York, etc., E. E. Co., id. 
 479. See Chicago, etc., E. E. Co. -o. Harris, 54 lU. 528. 
 
 And w^jere a company is not required by law to fence its road, it is only liable for such 
 injuries to animals as result from wantonness or gross negligence. IlUnois, etc., E. E. Co. v. 
 Phelps, 29 111. 447. Indianapolis, etc., E. E. Co. v. Oestel, 20 Ind. 231. Knight v. New Orleans, 
 etc., E. E. Co., 15 La. An. 105. Great Western R. E. Co. v. Morthland, 30 111. 451. Galena, etc., 
 E. E. Co. V. GrifSn, 31 111. 303. Meyer v. North Missouri E. E. Co., 35 Mo. 352. Indianapolis, 
 etc., E. E. Co. V. McClure, 26 Ind. 370. St. Louis, etc., R. E. Co. v. Linder, 39 111. 433. Davis 
 V. Burlington, etc., E. R. Co., 26 Iowa, 549. Alger v. Mississippi, etc., E. E. Co., 10 Iowa 
 (2 With.), 268. Louisville, etc., E. R. Co. v. Ballard, 2 Met. (Ky.) 177. Northern Indiana E. 
 E. Co. ». Martin, 10 Ind. 460. New York & Brie E. E. Co. ». Skinner, 19 Penn. (7 Harris,) 298. 
 Kenvhacker v. Cleveland, Columbus & Cincinnati E. E. Co., 3 Ohio (N. S.), 172. 
 
 As to what wiU be a sufficient fence to comply with the requirements of the statutes of the 
 various states. See Enright v. San Francisco, etc., R. E. Co., 33 Cal. 230 ; Toledo, etc., E. E. 
 Co. V. Thomas, 18 Ind. 215; Fames v. Salem, etc., E. E. Co., 98 Mass. 560; Chicago, etc., E. 
 R. Co. V. Utley, 38 lU. 410 ; Tallman v. Syracuse, Binghamton & N. Y. E. E. Co., 4 Keyes (N. 
 Y.), 128. 
 
 Where the statue of a state makes it the duty of railroad companies to fence their roads and 
 keep their fences in repair, and also declares that such companies shall be liable for all 
 injuries to animals arising from a neglect to perfoi-m this dufy, the company will not be liable 
 for such injuries, notwithstanding the phraseology of the statute, if such fences become out 
 of repair through some accident or event beyond the control of the company, and i-epairs Ave 
 made with reasonable diligence. Antisdel v Chi<fcgo & Northwestern R. R. Co., 26 Wis. 145. 
 Murray ». New York Central R.R. Co., 4 Keyes (N. Y.), 274.- Chicago, etc.,E. E. Co.«. Barrie, 
 55 111. 220. Lemmon v. Chicago, etc., R. R. Co., 32 Iowa, 151. IllinoiB, etc., E. R. Co. v. Swear- 
 ingen, 33 lU. 289. Toledo, etc., R. R. Co. v. Daniels, 21 Ind. 256. Toledo, etc., E. E. Co. v. 
 Fowler, 22 Ind. 316. Illinois, etc., E. R. Co. v. Diokerson, 27 HI. 55. 
 
 As to the liability of a railroad company for injuries to animals which have sti-ayed upon 
 the track by reason of the cattle guard_8 being negligently permitted to become filled with 
 snow. See Hance v. Cayuga & Susquehanna E. R. Co., 26 N. Y. 428 ; Dunnigan v. Chicago, 
 etc.E. R. Co.,18Wis. 28. 
 
 ({) Mid. Rail. Co. v. Daykin, 17 C. B. 129. 
 
Sec. 1.] BAILWAT STATIONS, LIGHTS AND GUARDS. 217 
 
 is no duty imposed by statute or by the common law upon railway 
 companies to fence off from their railway their own yards and enclos- 
 ures around their stations(u) ; and if cattle left in their yards stray 
 therefrom, from the want of such fences, and get on the railway, and 
 losses arise, the company is not responsible for such losses, unless it 
 be shown that the cattle were under the care of the company's ser- 
 vants, or that the delivery of them was proceeding(^), and that they 
 had failed to take proper means to prevent the cattle from straying(^-). 
 245 Negligent use and management of railway stations — Insufficient lights 
 and gua/rds. — It is not sufficient for the lights at the station of a rail- 
 way company to be quite sufficient for the company and their own 
 servants, who know the premises, and are perfectly conversant with 
 the approaches. They must be enough to guide and direct strangers 
 who are wholly unacquainted with the locality. A degree of light 
 which will enable a person who is familiar with a place to see all 
 about him, and understand where he is, may not be sufficient to enable 
 a person who is unacquainted with, or has an imperfect knowledge of, 
 the locality, to find his way or to guard against danger. " Railway 
 companies are to light their railway," observes Maule, J., ''not for 
 their own servants alone, but for persons who have never been there 
 before, and who may be in a great hurry to reach |;he train ; and they 
 are to light it so as to enable them to see their way. . . If they 
 choose to allow people to cross the line at the last moment, they should 
 have a person to point out to passengers who are in a hurry the right 
 course for them to take ; or if they have not a man, they might have 
 a board pointing to the direction : for they are bound to do what is 
 needful for the safety of their passengers." Where, therefore, the 
 plaintiff, being on his return-journey with a return-ticket, and, having 
 got to the wrong side of the railway, crossed the line to get to the 
 return-train at a place where there was no proper crossing, there 
 
 (it) Davis v. Burlington, etc., K. E. Co., 26 Iowa, 549. Blair v. Milwaukee K. K. Co., 20 Wis. 
 25J,. Bennett v. Chicago, etc., E. E. Co., 19 Wis. 145. Galena, etc., E. E. Co. v. Griffin, 31 
 m. 303. Indianapolis, etc., E. R. Co. v. Oestel, 20 Ind. 231. But where a statute requires 
 that cattle guards shall be constructed at all road crossings, the fact that the crossing is at or 
 near a depot, and that to make such cattle guard there would inconvenience the company, 
 will nut excuse them from complying with the statute. Bradley ». Buffalo, New York & Erie 
 E. E. Co., 24 N. Y. 427. Tracy v. Troy & Boston E. R. Co., 38 N. Y. 433. The statue applies 
 to streets m a city or village. Bruce f.N. Y., etc.,E. E. Co.,27N. Y. 269. See Chicago, etc., R. 
 E. Co. V. EieJ, 'Jt Ul. 144. A portion of a railroad is not excepted from the requirements of the 
 statute as to fences, merely because it is within city limits. Indianapolis, etc. , E. E. Co. v. 
 Parker, 29 Ind. 471. 
 
 U) Rooth V. North East. Rwy., L. E., 2 Exch. 173. 
 
 (A) Roberts!). Gt. '(Vest. Eail. Co., 4 C. B. 606; 27 Law J., C. P. 266. Marfell v. South 
 Wales Bail. Co., 8 C. B., N. S. 534. 
 
218 NUISANCES. [Chap. 4. 
 
 being no person to point out to him the proper crossing, and fell over 
 a switch-handle, which he could not see for want of light, it was held 
 that the company was responsible for the injury he sustained(Z). And 
 so where the plaintiff, not being able to cross to the exit side of the 
 station, by reason of the train by which he ha4 just arrived blocking 
 up the proper crossing for ten minutes or a quarter of an hour, crossed 
 behind the train, and fell over a hamper(jn). 
 
 But, in order to make out a case of negligence or of neglect of duty 
 on the part of the company, it mugt be shown that they used or 
 managed their property in such a way as to render it likely-to be a 
 source of danger to their passengers, and persons lawfully using the 
 station(re). It is not enough to show that they have doors opening 
 upon the platform, and steps leading from those doors, and that the 
 plaintiff tumbled down the steps, without showing that the steps are 
 more than ordinarily dangerous(o). There is no obligation on them, 
 for instance, to provide hand-rails, and the steps may be tipped with 
 brass, though possibly a different metal might be safer(p). Nor is it 
 enough to show that the company had a weighing-machine on the 
 platform, and that the plaintiff tumbled over it. In these cases it is 
 always a question whether the mischief could reasonably have been 
 foreseen, and whether precautions ought not to have been taken to 
 guard against it(g'). Where rules are promulgated by a railway com- 
 pany for the management of a station, and injuries are caused by the 
 servants of the company endeavoring to carry these rules into effect, 
 the company is responsible in damages, unless the injured party 
 brought the mischief upon himself by his own negligence(r). 
 
 (I) Martin v. Gt. Northern Eail. Co., 16 C. B. 180 ; 24 Law J., C. P. 209. Birket V. White- 
 haven June, 4 H. & N. 730 ; 28 Law J., Exch. 348. 
 
 (i») Nicholson v. Lano. & Yorkshire Rail. Co., 34 L. J., Exoh. 84. And see Holmesp. North 
 East. Ewy., 38 L. J., Exch. 161. 
 
 (n) Burgess v. Gt. West., 32 Law T. R. 76. Railway companies are bound to keep in a safe 
 condition all portions of their platforms and approaches thereto, to which the public do or 
 would naturally resort, and all portions of their station grounds reasonably near" to the plat- 
 forms, where passengers, or those who liave purchased tickets, with a view to take passage 
 on their cars, would naturally or ordinarily be likely to go. McDonald v. Chicago & North- 
 western R. R. Co., 26 Iowa, 124. Knight v. Portland, Saco & Portland li. R. Co., 66 Me. 505. 
 So railroad corporations are bound, not merely to keep their platforms safe for their passen- 
 gers, but for all who have rightful occasion to use them. Thus where a hackman while 
 carrying a passenger to a railroad depot stepped into a cavity in a platform, negligently lelt 
 by the company in defective condition, and was injured, it was held that the company "nraa 
 liable, notwithstanding the platform was within the limits of the highway. Tobin v. Portland, 
 Saco & Portland R. E. Co., 59 Me. 183. 
 
 (0) Tooney v. Lond. & Br. Rail. Co., 3 C. B., N. S. 146 ; 27 Law J., C. P. 39. 
 
 {p) Crafter v. Metrop. Rwy., L. R., 1 C. P. 300. 
 
 [q) Cornman «. East. Co. Rail. Co., 4 H. & N. 785 ; 29 Law J., Exch. 94. 
 
 (r) Vose V. Lane. & York. Rail. Co., 2 H. & N. 728 ; 27 Law J., Exch. 249 ; post, ch. 5. As 
 ' to the duty of railroad corporations to protect the persons and property of shippers of freight 
 
Sec. l.J RAILWAY BRIDGES, EMBANKMENTS, ETC. 219 
 
 246 Ruinous and insecure railway bridges, viaducts and embankments. — 
 Every railway company in the actual possession and occupation of its 
 line of railway is responsible for the maintenance and preservation in 
 a good state of repair of all its bridges, viaducts, and embankments, 
 so that if any injuries are sustained either by persons traveling along 
 a highway under a bridge or viaduct, or by passengers traveling along 
 the line, from the ruinous and insecure state of siich bridge or viaduct, 
 the railway company will be responsible for the injury, whether it 
 arose from their own neglect in not providing needful reparations, or 
 from original faulty construction of the fabric by their engineer or 
 contractor(s). If a railway embankment has been injured by some 
 wholly unexpected and extraordinary flood, and the rails give way, 
 and the passengers are injured without any neglect or default on the 
 part of the company, the company is not responsible for the injuries 
 that may be sustained by the passengers(i) ; but every railway com- 
 pany is bound to construct and maintain its embankments and earth- 
 works in such a manner as to be capable of resisting all the violence 
 of the weather, which may be expected at some time or another, 
 though rarely, to occur, and if it fails in this duty it will be responsi- 
 ble in damages for negligence(M). 
 247 Neglect of railway companies to erect and maintain bridges over high- 
 ways. — ^By 8 & 9 Vict. c. 20, s. 46, it is enacted, that if the line of rail- 
 way cross any turnpike road or public highway, then (except where 
 otherwise provided by the special Act) either such road shall be car- 
 ried over the railway, or the railway shall be carried over such road, 
 by means of a bridge, such bridge to be maintained " with the imme- 
 diate approaches," at the expense of the company ; but it is provided 
 that, with the consent of two or more justices in petty sessions, it shall 
 be lawful for the company to carry the railway across any highway 
 other than a public carriage-road on the level(?)). Under this sec- 
 tion the railway company is bound to keep in repair the immediate 
 
 while loading or unloading the same at or near a depot, see Newson v. New York Central R. 
 E. Co, 29 N. Y. 383 ; Stinson v. New Yorlc Central II. E. Co., 32 N. Y. 333. 
 
 («) .4»ite, pp. 201-203. Chester w. Holyhead Rail. Co., 2 Exch. 251. As to bridges at stations 
 for passengers to cross by, see Longmore v. Gt. West. Ewy., 35 L. J., C. P. 135. As to how 
 far his liability extends to injuries to employees, see Warner v. Erie E. E. Co., 39 N. Y. 468. 
 
 (<) Withers V. North Kent Eail. Co., 27 Law J., Exch. 417. 
 
 («) Gt. West. Eail. Co. ol' Canada v. Pawcett, 1 Moore's P. C. C, N. S. 120. As to the lia 
 bility of railroad corporations for injuries caused by the negligent and unskillful construction 
 of a culvert, see Pittsburg, etc., E. E. Co. v. Gilleland, 56 Penn. St. 445 ; Judson v. New York, 
 etc., R. R. Co., 29 Conn. 434. 
 
 (V) As to the statutes of Maine, in relation to the constraction of railroads across high- 
 ways and streets in cities and towns, see Veazie v. Mayo, 45 Me. 560 ; Statutes of 1853, ch 41, 
 8. 3 ; E. S. 1857, ch. 51, s. 15. 
 
220 NUISANCES. [Chap. 4. 
 
 . approaches to the road where the road is carried over the railway(a;), 
 but not where it is carried under ii{y). The railway company is also 
 liable, under s. 58, to make good the damage 4oiie to any road during 
 the construction of the works by carts, etc., passing along it, although 
 such carts are not theirs, but belong to the contractor wlio has engaged 
 to make the rail way (z). 
 
 248 Negligent management of railway-gates placed across public carriage- 
 roads.— When a railway crosses any turnpike-road, or public carriage- 
 road on a level, the company must,»unles8 otherwise authorized by 
 their special Act, erect and at all times maintain good and suificient 
 gates across such road, on each side of the railway where the same 
 shall communicate therewith, and employ proper persons to open and 
 
 • shut such gates, and keep them constantly closed across the road on 
 both sides of the railway, except during the time when horses, cattle, 
 carts, or carriages passing along the road shall have to cross the rail- 
 way ; and the gates must be of such dimensions and so constructed as, 
 when closed, to fence in the railway, and prevent cattle or horses 
 passing along the road from entering upon the railway (s. 47). This 
 section does not authorize a person passing along the highway to open 
 the gates himself, although after waiting a reasonable time no servant 
 of the company appears to do so, and if owing to his opening the 
 gates he sustains an injury, the company is not responsible(a). 
 
 "Wherever this section of the statute, or one of a similar import, is iu 
 force, it imposes upon the railway company governed by it the duty 
 of closing the gates across public carriage-roads carefully against 
 everything passing lawfully or unlawfully along the high-road. Where, 
 therefore, the plaintiff's horses strayed from his field into the high- 
 road, and passed from thence through an open gate, and got upon a 
 railway, and were killed by a passing train, it^was held that the rail- 
 way company was responsible for the loss, as the obligation to keep 
 the gates closed imposed upon them the duty of closing them carefully 
 against everything passing lawfully or unlawfully along the high- 
 road (6). 
 
 249 Negligent management of gates placed across tramways. — ^Where a 
 railway company were the owners of a tramway which crossed their 
 railway on a level, and which tramway they allowed the public to use 
 
 (a;) Leech v. North Staff. Ewy., 29 L. J., M. C. 160. 
 
 (y) Lond. & North West. Ewy. v. Skerton, 33 L. J., M. C. 158. 
 
 (a) West EicUng Kwy. v. Wakefield Board of Health, 3? i. J., M. C. 174. 
 
 (a) Wyatt v. Gt. West. Ewy., 34 L. J., Q. B. 204 (diss. Blackburn, J.). 
 
 (6) I'awcett v. York & North Mid. Eail Co., 16 Q. B. 618. 
 
Sec. l.J RAILWAY OATES — CANALS, ETC. 221 
 
 on payment of toll, it was held that the law imposed upon the railway 
 company the duty of taking all reasonable precautions for the protec- 
 tion of the public using the tramway, and where fences and gates are 
 put up for the protection of the public, the company is responsible for 
 the consequences resulting from their negligently leaving the gates 
 open(c). 
 
 250 Leaving open accommodation gates. — By s. 75 it is further enacted, 
 that if any person omit to shut and fasten any gate set up at either 
 side of the railway for the accommodation of the owners or occupiers 
 of the adjoining lands, as soon as he, and the carriage, cattle, or other 
 animals under his care have passed through the same, he shall forfeit 
 for every such oifence a sum not exceeding forty shillings. 
 
 No duty is imposed upon railway companies to watch and keep 
 closed gates put up for the accommodation of an adjoining landed pro- 
 prietor, whose land extends along both sides of a railway. And where 
 a railway company provides the adjoining landowners with keys for 
 the gates, the company is not responsible for the destruction of cattle 
 straying upon the line in consequence of the gates being left open(d) 
 or insecurely fastened. And if the plaintiff had the means of making 
 the gate secure, and neglected them, his own neglect in the matter 
 wUl be a bar to the maintenance of an action against the railway com- 
 pany for the injury he has thereby sustained(e). 
 
 251 Dangerous Canals. — Every canal company, so long as it keeps its 
 canal open for the public use of all who may choose to navigate it, is 
 bound to take reasonable care that they may navigate it without dan- 
 ger to their lives or property(/). Every canal company is bound also 
 to take all reasonable and proper precautions for the protection of the 
 public, where the canal intersects public thoroughfares. In such cases 
 
 (c) MarfeU v. South Wales Rail. Co., 8 C. B., N. S. 535. 
 
 (d) Ellis V. Lend. & S. W. Rail. Co., 2 H. & N. 429 ; 26 Law J., Exoh., 349. See Antisdel v. 
 Chicago & North-Western R. R. Co., 26 Wisconsin. 145 ; Murray v. New York Central E. R. 
 Co., 4 Keyes (N. T ), 274 ; Chicago, etc. R. R. Co. n. Barrie, 65 HI. 226 ; Lemmon v. Chicago, 
 etc. R. R. Co. , 32 Iowa, 161 ; niinois, etc. E. R. Co. v. Swearingen, 33 111. 289 ; Toledo, etc. R, E. 
 Co. V. Daniels, 21 Ind. 256 ; Toledo, etc. R. R. Co. v. Fowler, 22 Ind. 316 ; Illinois, etc. E. E. 
 Co. V. Dickinson, 27 lU. 55. 
 
 (e) Haigh v. Lend. & North- W^st. Rail. Co., S. W. E. 6. Illinois, etc. E. R. Co. ». McKee, 
 43111.119. 
 
 (/) Lane. Canal Co. v. Parnaby, 11 Ad. & E. 243. Gibhs v. Trustees LIt. Dock, 27 Law J., 
 Exch. 321 ; 3 H. & N. 164 ; 35 Law J., Exch. 225 ; L. R., 1 App. Ca. 93. The same obligation 
 rests upon a conti-actor employed by the State, pursuant to law, to keep a portion of the 
 canals in proper condition and repair. Robinson v. Chamberlain, 34 N. Y. 389. Fulton Fire 
 Ins. Co. V. Baldwin, 37 N. Y. 648. But a canal company are bound only to take reasonable 
 care that the canal maintained by them may be navigated without danger, and are not respon- 
 sible for accidents which do not arise from the want of this reasonable care. They are not, 
 like common carriers, responsible as insurers. Exchange Fire Insurance Co. v, Delaware & 
 Hudson Canal Co., 10 Bosw. (N. Y.) 180. 
 
222 NUISANCES. [Chap. 4. 
 
 there is a common-law obligation on the company to make and main- 
 tain sufficient bridges with proper rails and lights, such as all persons 
 passing along the highway can safely use(jf ). When the high-road 
 traverses the canal by a swing-bridge, and the bridge is opened for 
 the passage of boats and vessels, the company is bound to provide 
 sufficient lights, or persons to watch and warn passengers, or to have 
 some apparatus attached to the bridge itself, to protect passengers 
 when the bridge is open, and prevent them from falling into the 
 water(^). But if the canal has beeil demised to a lessee, who is in 
 the actual possession and occupation of it, and who receives the toll 
 for the use of it, it is not then the duty of the proprietors of the canal 
 to maintain and repair the canal, unless the particular statute under 
 which they are incorporated expressly imposes that duty upon them(A). 
 A canal company is not bound, however, to fence off its canal from an 
 adjoining thoroughfare, unless it is " so near thereto as to be dangerous 
 to persons using the road in the line of the road "(»)• 
 253 Negligent management of docks and wharfs. — A duty is cast upon 
 trustees and commissioners and other persons who have the receipts of 
 the tolls and the possession and management of a dock or wharf 
 vested in them, to keep the entrance to the dock or wharf free from 
 dangerous shoals and obstructions, and to forbear from having the 
 dock or wharf open for public use when they know it cannot be 
 navigated or used without danger^ whether the tolls are received by 
 them for their own use or in a fiduciary character ; and if they keep 
 the dock or wharf open, and allow the danger to continue, and invite 
 vessels into peril, they will be personally responsible for any damage 
 that may be sustained(A-). So if a person who has lawful business on 
 
 \ff) If a canal company under the authority of their charter, build a bridge over their canal, 
 and at the time of its construction it'is rotten or unsafe, or subsequently becomes so, it is a 
 public nuisance, and a traveler who has in passing over it suffered a direct spepial injury from 
 its defective condition is entitled to recover damages from the company. Pennsylvania 
 & Ohio Canal Co. v. Graham, 63 Penn. St. 290. Baxter v. Winoski Turnpike Co. 23 Vt. 133. 
 
 The same liability attaches to those maintaining a private canal crossed by a highway. 
 Inhabitants of Woburn v, Henshaw, 101 Mass. 193. 
 
 If a canal is constructed across a private road the owner can compel the canal owners to 
 bridge it. Habershamf. Savannah, etc. Canal Co., 26 Geo. 665. Wliere a canal company are 
 bound to keep in repair a private bridge crossing the canal, they will not be relieved from 
 the obligation from the fact that a raih-oad company have built a road on the banks of the 
 canal where the bridge crossed, and so altered it as to increase the cost of keeping it in re- 
 pair. Ammermau e. Wyoming, etc. Co., 40 Penn. St. 266. 
 
 (g) Manley v. St. Hel. Can. & Rail. Co., 2 H. & N. 840 ; 27 Law J., Bxch. 164. 
 
 (ft) Walker v. Goe, 4 Exoh. 350 ; 27 Law J., Exch. 427. As to the conimon law duty of the 
 actual occupier to keep his premises in such a state as not to be a source of annoyance to his 
 neighbors, see ante, p. 193. ., 
 
 (t) Sinks o. South York & River Duo, etc., 3 B. & S. 244. 
 
 (fc) Gibbs V. Trust. Liv. Dock, 27 Law J., Exch. 331 ; 3 H. & N. 164 ; 35 L. J., Exch. 225 ; L. 
 E., 1 App. Ca. 93. And see Thompson v. North East. Rail. Co., 2 B. & S. 108 ; 31 Law J., Q. 
 
Sec. l.J DANGEROUS MAVHINERT— INJURIES TO SERVANTS. 223 
 
 board a ship lying in dock is injured by the insuflB^ciency of a gang- 
 way provided by and under the control of the dock company for the 
 purpose of affording access to the ships lying in the dock, the company 
 will be liable for such injury(Z). 
 
 253 Dangerous machinery. — If a corporation causes baths and wash- 
 houses, and wringing machinery, to be erected and used for hire, it 
 is bound to take all reasonable care to prevent the machinery from 
 being a source of danger to those who use ii{in). 
 
 254 Injuries to servants from dangerous premises or employment. — Every 
 master who employs servants and workmen to work upon his land, 
 house, or premises, is bound to take all reasonable precautions for 
 their safety, and if hidden and secret dangers exist upon his premises, 
 known to him and unknown to his workmen, it is his duty to disclose 
 them to the latter, that they may take precautions against them(w). 
 If a master was to order his servant to take a lighted candle amongst 
 packages known by him, but not known to the servant, to contain gun- 
 powder, the master would be responsible for any injury sustained by 
 the latter from the unknown danger and unexpected risk to which he 
 had been exposed. So if a servant be employed to cut up diseased 
 cattle(o). It is otherwise if the servant accepts of the employment 
 
 B. 194 ; 30 ib. 67 ; Mersey Docks, etc. v. Penhallow, 7 H. & N. 329 ; post, ch. 16, sect. 1. A 
 city, being in possession of a public wharf within its limits, exercising exclusive supervision 
 and control over it, and receiving toUs for its use, is bound to keep it in proper condition, 
 and is liable for special injury sustained by an individual in consequence of its neglect to 
 keep the wharf in repair. Pittsburg City v. (irier, 10 Harris, 54. Jeffersonville v. Louisville, 
 etc. Perry Co., 27 Ind. 100. Seaman v. N«w York, 3 Daly (ST. Y.), 147. When the right of the 
 city to collect wharfage is transferred to another party, he assumes with Qie rights, all the 
 duties and liabilities of the assignor. Kadway v. Briggs, 37 N. Y. 266. 
 
 (I) Smith ». Lond. Dock Co., L. R., 3 C. P. 336. A person entitled to receive wharfage is 
 liable for the value of a horse, cart and load of merchandise which for wajnt of a suitable 
 guard has been lost by backing off a wharf into a river. Eadway v. Briggs, 37 N. Y. 256. 
 
 (ot) Cowley ».. Mayor, etc., of Sunderland, 6 H. & N. 565 ; 30 Law J., Etcch. 127. White ». 
 Phillips, ante, p. 209. Where shafting with cog-wheels upon it was allowed to project 
 through a wall within two feet of the ground and in an open space near the street, and to 
 remain entirely uncovered, so that a child at play was drawn between the wheels and injured, 
 it was held that the owner of the mill was liable for the negligence. Whiriey v. Wliiteman, 
 1 Head (Tenn.), 610. See Hayden v. Smithville, etc., Co , 29 Conn. 548. 
 
 (n) WiUiams v. Clough, 3 H. & N. 258 ; 27 Law J., Bxch 3?6. Meliors v. Shaw, 1 B. & S. 
 444. Ashworths. Stanwix, 30 Law J., Q. B. 183. Perry v. Marsh, 25 Ala. 659. Buzzell v. 
 Lacouia etc. Co., 48 Me. 113. 
 
 (o) Davies v. England, 33 L. J., Q. B. 321. So if a ship builder employs one who is neither 
 a ship carpenter, joiner, or mechanic of any kind, and directs him to remove rubbish from 
 beneath a scaffold upon which so great a weight of lumber is piled as to cause it to give way, 
 the employer will be responsible for the injuries to the servant, on the ground of the presumed 
 ignorance of the servant, and his right to rely upon the superior knowledge of his employer. 
 ConoUy v. Poillon, 41 Barb. (N. Y.) 366. So where a depot master directs a laborer, employed 
 to load and unload freight cars, to couple cars, and the laborer is injured through the negli- 
 gent management of the engine while obeying such orders, the railroad cori)oration will be 
 liable. Lalor v. Chicago, Burlington & Quincy E. R. Co., 62 lU^ 401. So where a brakeraan, 
 while in the performance of his duties, is struck and injured by an awning projecting from a 
 
224 NursANCEs. [Chap. 4. 
 
 knowing of the risk he runs (see infra). If the danger is unknown to 
 the master, and their is no negligence on his part, he cannot be made 
 responsible in damages(ij) ; as where a floor of a warehouse gave way 
 and injured a workman who was thereon(g'). So if a railway company 
 employs workmen upon its tunnels, sidings, or stations, it is guilty of 
 negligence if it conducts its traffic so as to expose the workmen to un- 
 expected and unforeseen dangers, which they had no means of guard- 
 ing against('?"). 
 255 Exemption of the master from liability when the danger is known to the 
 servant. — But the master is not responsible for the dangerous state of 
 his premises, if those dangers are known to the servant, and the latter 
 has accepted the employment knowing of the attendant risks, and 
 having an opportunity of guarding against them by his own vigilance 
 and care(rr). Where the plaintiff alleged that he had been hired by 
 the defendant to perform at the, defendant's theatre, and that on part 
 of the stage there was a hole in the floor, along which the plaintifl" had 
 to pass in the discharge of his duty as a performer, and that it was 
 the duty of the defendant to light the floor sufficiently, So as to pre- 
 vent accidents to those who passed along it, it was held that no such 
 duty was cast upon the defendant. "A person," observes Erie, J., 
 "must make his own choice whether he will accept employment upon 
 premises in this condition ; and if he do accept such employment, he 
 must also make his own choice whether he will pass along the floor in 
 the dark, or carry a light. If he sustain an injury in consequence of 
 the premises not being lighted, he has no right of action against the 
 master, who has not contracted that the floor shall be lighted." If the 
 servant wishes the premises to be kept in any particular state with 
 respect to lighting and fencing, he must provide for it by express con- 
 tract(s). ' 
 
 station-house, the railroad oompanywill be liable if theyhad notice of the dangerons position 
 of the awning, and the brakeman was ignorant of the danger. Illinois Central R. R. Co. v. 
 Welch, 52 m. 183. So a factory girl injured by the fall of a privy attached in an insecure and 
 dangerous manner to the factory in which she was employed, may recover damages from her 
 employer, on the gi-ound that the latter knew, or ought to have known, of the danger to 
 which the fonner was ignorantly exposed, and, knowing, negligently failed to provide against 
 it. Kyan e. Fowler. 24 N. Y. ilO. 
 
 ip) rotts V. Port Carlisle etc. Co., 2 LawT. E., N. 8. 283 ; 8 W. K. 624. See Wright v. New 
 York Central E. E. Co., 25 N. Y. 562 ; Hayden v. Smith ville Manufacturing Co., 29 Conn. 548 ; 
 Keegan v. Western R. E. Co., 8 N. Y. 175. 
 
 (g) Brown v. Acorington Cotton Co., 34 L. J,, Exch. 208. 
 
 (r) Vose V. Lane. & York. EaQ. Co., 2 H. & N. 728 ; 27 Law J., Exch. 249. 
 
 (rr) McOlynn v. Brodle, 31 Cal. 376. 
 
 (8) Seymour v. Maddox, 16 Q. B. 332. Bolch v. Smith, 7 H. & N. 736 ; 31 Law J.. Q. B. 201. 
 Robertson v. Adamson, 24 So. Sess. Caa. 1231. Potts v. Plunkett, 9 Ir. 0. L. E. 290. But soo 
 Eyan e. Fowler, 24 N. Y. 410. 
 
Sec. 1.] INJURIES TO SERVANTS. " 225 
 
 256 Where the workman is employed in the use of dangerous machinery fur- 
 nished by the employer, and is, or professes to be, acquainted with 
 the use of the machinery, and the care necessary to be taken to guard 
 against accident, and, notwithstanding this, sustains injury from his 
 own want of care and caution in the use of it, he has, of course, no 
 ground of action against the employer(i). But if an Act of Parlia- 
 
 Kt) Dj-nen v. Leach, 26 Law J., Exch. 221. Barton's Hill Coal Co. «. Reid, 3 Macq. 294. 
 See Watling v. Oastler, L. E., 6 Exch. 73. The master is liable to his servant for an injury 
 happening to him from the misconduct or personal negligence of the master ; and this negli- 
 gence may consist in the employment of unfit and incompetent servants and agents, or in 
 the furnishing for the work to be done, or for the use of the servant, machinery or otlier im- 
 plements and facilities improper and unsafe for the i^urpose to Avhich they are to be applied. 
 Hayden v. Sniithville Uanuf. Co., 29 Conn. ofS. Wright v. New York Central E. B. Co. 25 N. 
 T. 662. Eyan u. Fowler, 24 id. 410. Koeganu.Western E. E. Co.,8 id. 17S. Roberts «. Smith, 
 2 Hen. & jviunf. 213. Williams v. Clough, 3 id. 257. ' Griffiths v. God.sou, id. 618. 
 
 The employer does not undertake with each or any of his employees for the sufficiency 
 and safety of the materials and implements furnished for the work ; and if an injury to a 
 servant arises from a defect or insufficiency in uiie machinery or implements furnished to the 
 servant by the master, knowledge of the defect or insufficiency must be brought home to the 
 master, or proof given that he was ignorant of the same through liis own negUgenoe and 
 want of proper cai-e ; or in other words, that he either knew or ought to have knoivn the 
 defects which caused the injury. Wright v. New York Central R. R. Co., 25 N. Y. 562. Hay- 
 den «, Smithville Manuf. Co., 29 Conn. 548. Roberts!). Smith, .2 Hen. & Munf. 213. Keegan 
 V. Western E. E. Co., 8 N. Y. 175. Eyan v. Fowler, 24 id. 410. Wonder v. Baltimore & Ohio 
 E. E. Co., 32 Md. 411. Xoyes v. Smith, 28 Vt. 59. 
 
 If the ser\ant sustaining an injury through defects in the machinery or conveniences fur- 
 nished by his employer, has the same knowledge or means of knowledge of the defects as 
 his employer, he cannot sustain an action for the injury, but will be held to have voluntarily 
 assumed aU the risks of the employment incurred through the defects in the machinery used 
 in the woi"k. Wright v. New York Central R. R. Co., 25 N. Y. 562. Hayden v. ymithville 
 Manuf. Co., 29 Conn. 548. Griffiths v. Godson, 3 Hen. & JMunf. 213. WaUiaras u. Clough, id. 
 257. Keegan v. Western E. R. Co., 8 N. Y. 175. Prazer v. Pennsylvania R, E. Co., 38 Penn. 
 St. 104. Mad River, etc., E. E. Co, v. Barber, 5 Ohio St, 5fl, 563. Buzzell v. Laconia Manuf. 
 Co., 48 Me. 117. Kroy v. Chicago, etc., R. R. Co., 33 Iowa, 367. McGlynn v. Brodie, 31 Cal. 
 376. Combs v. New Bedford Cordage Co., 103 Mass. 573. 
 
 And to charge the master for injuries to his servant on the ground that the materials, ini 
 plements or machinery furnished by the master to the servant were defective or insufficient, 
 unsafe and unfit for the purpose used, the injury must have resulted from this cause. And 
 if it was occasioned notwithstanding these defects, by the negligence of a fellow-servant, 
 the master is not responsible. Hayes o. Western E. R. Co., 3 Cush. 270. Wright v. New Yol'k 
 Central E. E. Co., 25 N. Y. 562. Warner v. Erie E. E. Co., 39 id. 468, Wonder v. Baltimore & 
 Ohio E. R. Co., 32 Md. 411. If, howe\'er, the injury in no way resulted fi-om the negligence 
 of the fellow-servant in the management of the machinery, but was due solely to the negli- 
 gence of the master in the selection of the materials, the master will be liable. Perry v. 
 Eicketts, 55 111. 234. And see Chicago v. Railway Co., id. 493. 
 
 In Mad River & Erie E. R. Co. «. Barber, 5 Ohio St. 541, a railroad company was held to be 
 liable for injuries to an employee where the defects which caused the injury were actually 
 unknown to the company and conductor, and were not discoverable by due anfl ordinary 
 care and inspection, but were such as resulted from a neglect of reasonable and ordinary 
 care and diligence on their part either in procuring or continuing to use cars and machinery 
 beyond the time when they could be safely used. 
 
 In Keegan «. Western R. R. Co., 8 N, Y. 175, a railroad company which continued in use a 
 defective and dangerous locomotive engine, after notice of its dangerous condition, was held 
 liable to one of its servants engaged in running such engine for an injury sustained Ijy him 
 (without negligence on his part,) in consequence of such defects. And in many well consid- 
 ered cases it has been held that a servant may maintain an action against his master for an 
 injury caused by defective machinery, when the employer knew or ought to have known of 
 the defect and the servant did not know it, and had not equal means of knowledge. Hayden 
 
 Ad. Vol. I —15 
 
226 NUISANCES.- [Chap. 4. 
 
 ment requires machinery to be fenced, and it is left unfenced, and 
 the servant complains, and the master induces him to continue his 
 work by telling him that proper protection shall be afforded, the master 
 takes upon himself the responsibility of any accident that may occur(w). 
 257 Injuries to workmen from defective hoisting-taokle in mines and insecure 
 scaffolding and ladders. — It has been held, in a Scotch case in the 
 House of Lords, that the owner of a mine is bound to exercise ordi- 
 nary care and vigilance to keep the shaft of the mine in a safe state, 
 and the machinery for lifting people* from the mine, and lowering 
 them into it, in secure condition (a;). And it is in all cases the master's 
 duty to be careful that his workman be not induced to work under 
 the notion that the tackle, scaffolding, or rope with which he works is 
 secure, when the master knows, or has reasonable ground for believ- 
 ing, that it is unsafe and dangerous. If he interferes in the conduct 
 and management of the work himself, he is bound to select sound and 
 safe materials ; and if he knowingly allows rotten timber, rotten poles, 
 or rotten ropes to be used in the construction of a scaffold, and injury 
 is sustained therefrom by his servants or workmen, he will be responsi- 
 ble in damages(y). But if he does not in any way interfere himself, 
 and employs a competent foreman to superintend the work, and select 
 
 V. SmithviUe Manuf. Co., 29 Conn. 548. Wright v. New York Central E. E. Co., 25 N. Y. 665. 
 Gibson V. Pac.Wic R. E. Co., 46 Mo. 163. Chicago & Xorth-Western E. E. Co. v, Jackson, 55 
 111. 492. McGartrick v. Wason, 4 Ohio St. 666. Illinois Central E. E. Co. v. Welcli, 62 111. 183. 
 Chicago & North- Western E. E. Co. v. Swott, 15 id. 201. Nashville, etc., E. E. Co. v. Elliott, 
 1 Cold. (Tenn.) 611. 
 
 (u) Holmes v. Clarke, 30 Law J., Excli. 133 ; 31 ih. 356. Wcems v. Itlatliieson, 4 Macq. H. L. 
 C. 215. A fortiori, therelore, if he enters on tlic employment without a lull knowledge of 
 the risk lie runs, Brittton v. Great Western Cotton Co., L. E., 7 Exch. 130. Where an action 
 ■was brought against his emploj'ex's by a boy fourteen > ears old to recover damages for inju- 
 ries received, on the second day of his employment, wliile standing in his pi-opor place tend- 
 ing a drawing machine, by accidentally allowing his lingers to be caught in the cogs of a 
 similar machine standing in dangerous ])roximity, it was held, tliat tlie jury should be 
 instructed that the defendants had a right to mn their macliincry witliout fencing or boxing 
 it, unless by so doing they exposed persons in their omi)loyment, or other persons who came 
 upon their premises by their procurement or invitation, to danger of which they gave no 
 sullicient notice ; that if, by the fact the cogs were in sight, and the danger from tiicm appa- 
 rent, the jury should be satisfied that the plaintifl' had reasonable notice of the peril to which 
 he was exposed, and understanding it, chose to undertake the employment which exposed 
 him to it, ho cannot recover ; but that if, on the otlier hand, they should be satisfied that the 
 defendant knew, or had reason to know, the peril to which he would be exposed, and did 
 not give him any sufficient or reasonable notice of it, and if he without any negligence on 
 his part, from inexperience or reliance on the directions given him, failed to perceive or 
 appreciate the risk, and was injured in consequence, that the defendants would be liable. 
 Combs V. New Bedford Cordage Co., 102 Mass. 572. As to liability of owners of threshing 
 machines under Iowa Laws, 1S66, ch. 135, requiring tumbling rods of threshing machines to 
 be boxed, see Reynolds v. Hindman, 82 Iowa, 146. 
 
 (X) JSrydon v. Stewart, 2 Macq. 34. 
 
 [y) Roberts!;. Smith, 26Law J., B.^ch. 319; 2H. & N. 213. Senior ». Ward, 28 Law J. , Q. B. 
 139. Mellors v. Shaw, 1 B. & S. 444. ConoUy p. Poillon, 41 Barb. (N. Y.) 366. Buzzell v. La- 
 eonia Manuf. Co., 48 Me. 113. 
 
Sec. l.J COKTRIBUTOBT NEGLIGENCE. 227 
 
 the materials, and the foreman selects unsound and unsafe materials, 
 or knows that those he has selected have become unsafe, which cause 
 injury to the workmen working under the foreman's directions, -the 
 master is not responsible, as the default is not in him, but in the 
 foreman and fellow-servant of the injured workman, and the case then 
 ranges itself with that class of cases where it has been held, that the 
 master is not responsible for injuries to one fellow-servant caused by 
 the negligence of another fellow-servant in his employ(z). 
 
 258 Injuries to gicests from the dangerous state of the premises of their host. 
 — A man who invites and receives visitors at his house is under the 
 same obligation and liability as regards them, in respect of unusual 
 and unsuspected dangers on his premises, as he is towards his own 
 servants and members of his family, and is not responsible for injuries 
 arising from doors badly hung, and which are dangerous and unfit to 
 be opened, unless he was himself aware of the dangerous state of the 
 door, and the guest was wholly ignorant of it(a). If the dangers are 
 patent and visible, the visitor who comes to, and is received within, 
 the house, must share those dangers in common with the other mem- 
 bers of the family(6). But there is a distinction between a visitor who 
 is a bare licensee, and a person coming on lawful business, as to a shop, 
 warehouse, railway, or ship, who may recover for injuries that a visitor 
 would not be entitled to recover for(c). 
 
 259 Contributory negligence on the part of the plaintiff — If the negligence 
 of the plaintiff himself or of his servants has been the proximate cause of 
 the injury of which he complains, he has no ground of action((i). If, 
 therefore, the plaintiff does not take due and proper care to keep his 
 cattle within bounds ; if he or his servants leave gates open which 
 they ought to have closed ; or if he allows cattle to be driven across a 
 railway by little boys who are unable or unlikely to exercise proper 
 care and forethought, and in consequence thereof cattle stray on the 
 line and get killed, he cannot recover compensation from the railway 
 company for the loss(e). "Where a railway crossed an occupation-way 
 
 (2) Wigmore v. Jay, 5 Exch., S58 ; post, ch. 5. Williams c. Clougli, 3 H. & N. 268 ; 27 Law 
 J., Exoh. 32S. Griflitlis v. Gidlow, id. 404. Farwell v. Boston, etc., Eail. Co. 3 Macq. 316, 
 Oniiond c. Holland, EU. Bl. & Ell. 105. Scott v. Craig, 24 Se. Sess. Ca. 789. Searle v. Lind- 
 say, 11 C. B., ST. S. 429 ; 31 Law J., C. P. 106. GaUagher v. Piper, 33 Law J., C. P. 329. Telt- 
 liam V. England, L. E., 2 Q. B. 33. See Forsytli e. Hooper, 11 Allen (Mass.), 419 ; Hunt v. 
 runiisj-lvania E. R. Co., 51 Penn. St. 475 ; Mercer v. Jaekson, 54 111. 397. 
 
 [a] And see CoUis v. Selden, L. K.. 3 C. P. 495. 
 
 (6) Southeote c. Stanley, 1 H. & N. 247. 
 
 (c) Indermaur v. Dames, L. K., 1 C. P. 274 ; 2 ib. 311. Holmer o. North-East Eail. 38 L. J., 
 Kxcli. 161 ; L. K. 4 Exeh. 254 ; 6 ib. 123. John v. Bacon, L. E., 6 C. P. 437. 
 
 (d) Ante, pp. at-28 ; post, ch. 10, s. 1. 
 
 («) Haigh ». Load. & North- West. Bail. Co., 8 W. E. 6. 
 
228 NUISANCES. [Chap. 4. 
 
 for horses and cattle, along which there was also a public foot-path, 
 and the company, not being aware of the public foot-path, neglected 
 to apply for the consent of justices for crossing the cattle-way on a 
 level, but made their railway, and erected lofty gates on each side of 
 the railway where it crossed the occupation-way, and gave keys of the 
 gates to each of the adjoining occupiers who were entitled to use the 
 occupation-road, and the servant of the plaintiff, one of the occupiers, 
 who was in the habit of driving the plaintiff's cows daily backwards 
 and forwards across the line, received a key from the company, and 
 lost it, and after that fastened the gate by thrusting a piece of wood 
 through the staple, and the gate being left open, two colts of the plain- 
 tiff's strayed from his field along the occupation-way, through the open 
 gate, upon the line of railway, and were killed by the passing train, 
 it was held to be a question for the jury whether the negligence of the 
 plaintiff had contributed to the accident ; and they being of opin- 
 ion that it had, it was held that the defendant was entitled to a 
 verdict(/). 
 260 Where the plaintiff's right to recover is not defeated hy his being a tres- 
 passei-. — If the plaintiff has sustained injury from man-traps or 
 spring-guns placed on the defendant's land, or from falling into an 
 nnfenced and unguarded pit or well sunk within twenty-five yards 
 of any public carriage-way, it is no answer to the plaintiff's claim 
 for damages to say that he was trespassing on the defendant's land, 
 and that the injury was caused by his own misconduct (ante, pp. 
 167, 171). If the defendant has, by putting strong-smelling meats 
 into traps on his land, tempted the plaintiff's dogs or cats to the 
 traps to their destruction, it is no answer to say that the animals 
 were trespassing on the defendant's land at the time they came to 
 grief (ante, p. 168). 
 
 If the defendant makes a path to his house, and places unseen and 
 unexpected dangers in or closely adjoining to the path, it is no answer 
 to injured parties claiming compensation to say that they had no 
 business to come upon the land {ante, p. 202). So, if the defendant 
 negligently leaves a vault or area unfenced and unguarded, so close 
 to a street or public highway as to be dangerous to passengers, it is 
 no answer to a claim for damages by persons who have fallen into the 
 vault whilst endeavoring to keep to the high-road, to show that there 
 was a harrow intervening strip of the defendant's land extending 
 between the highway and the area, on which the plaintiff was tres- 
 
 (/) Ellis V. Lond. & S. W. Eail. Co., 2 H. & N. 429; 26 Law J., Exch. 3i9. 
 
Sec. 1.] FEROCIOUS ANIMALS. 229 
 
 passing at the time, he fell into the pit(^). But wherever a person 
 designedly deviates from the highway and commits a trespass, in 
 order to make a short cut across the defendant's land, and in so doing 
 falls into an open, unguarded vault or cellar, more than twenty-five 
 yards distant from the highway, the defendant is not responsible for 
 the injury(/j). And whenever a person neglects to keep a proper 
 watch upon his flocks and herds, and allows them to trespass on the 
 highways and byeways and adjoining land, and the trespassing cattle 
 get injured, the plaintiff, being himself in default, may have no 
 remedy for the injury he sustains(i). 
 261 Nuisances and injuries from ths keeping of ferocious animals. — Who- 
 ever keeps an animal accustomed to attack or bite mankind, with 
 knowledge of its dangerous propensities, is, primd facie, liable to 
 an action for damages at the suit of any person attacked or injured 
 by the animal, without proof of any negligence or default in the 
 securing or taking care of it. The gist of the action is the keeping 
 the animal after knowledge of its mischievous disposition(^). But a 
 man is entitled to keep a ferocious dog for the protection of his prem- 
 ises, and to turn it loose at night, provided the barking of the dog 
 does not disturb the rest of the neighbors and create a nuisance (ante, 
 p. 167). And, therefore, where the defendant, for the . protection of 
 his yard, kept a fierce dog, which was tied up all day and was let 
 loose at night, and the defendant's foreman incautiously went into the 
 yard after dark, knowing that the dog was let loose at night, and was 
 thrown down and bitten by the dog, it was held that he was not enti- 
 tled to an action for damages(Z). But a man has no right to put a 
 ferocious dog in such a situation in the way of access to his house, that 
 a person innocently coming there for a lawful purpose in the day-time 
 may be injured by it. And so with respect to a foot-patl\, though it 
 be a private one, a man has no right to put a dog with such a length 
 of chain, and so near the path, that he could bite a person going along 
 it(m). 
 
 There is a difference between beasts that are f&rce natwrm, as lions 
 
 (g) BamesD.Wavd, 9C. B. 392; 19 Law J., C. P. 195; ante, p. 202. See E. o. Dant, 34L. J., 
 M. C. 119; Madley v. Taylor, L. K., 1 C. P. 53; Vale v. Bliga, 50 Barb. (N. Y.) 358. 
 
 (7i) Harrlc.astle v. South York, etc.. Rail. Co., 4 H. & N. 74. Stone v. Jackson, 16 (J. B. 199; 
 ante, pp. 200, 201. 
 
 (i) Ante, pp. 37, 214, 215. 
 
 (/;) May v. Burdett, 9 Q. B. 110. Kelly v. Tilton, 4 Koyes (N. T.), 263. 
 
 (J.) Brock V. Oopeland, 1 Esp. 203. See Loomis v. TeiTy, 17 Wend. 496. 
 
 (m) Tindal, C.J., Sarch v. Blackburn, 4 C. & P. 300 ; M. & M. 505. Curtis v. Mills, 5 C. & P. 
 489. Kelly v. Tilton, 3 Keyos (N. Y. ), 263. Loomis v. Terry, 17 Wend. 496. Sberl'ey V. Bart- 
 ley, 4 Sneed (Tonn.), 58. 
 
230 NUISANCES. [Chap. 4. 
 
 and tigers, which a man must always keep chained up at his peril, 
 and beasts that are mansuetce natures, and break through the ordinary 
 tameness of their nature, such as oxen and horses. In the latter case, 
 an action lies only if the owner, whether an individual or corporation, 
 has had notice of the mischievous nature of the beast(w). In the 
 former case, an action lies without such notice(o). 
 
 There is no distinction between the case of the keeping of an animal 
 which breaks through the ordinary tameness of its nature, and be- 
 comes fierce, and is known by the ow'ner to be so, and the keeping of 
 one which iaferce natural {p). If a dog has once laitten a man without 
 provocation, or under circumstances which would not excite any dog 
 of good temper to bite, and the owner has notice of it, it is his duty to 
 chain up or muzzle the dog ; and if he lets him go about, or lie at the 
 door unmuzzled, and another person is bitten under similar circum- 
 stances, the owner of the dog will be responsible for the iniury(g'). It 
 is not material whether the defendant is the owner of the dog or not. 
 It is enough for the maintenance of the action that he keeps the dog; 
 and the harboring a dog about one's premises, or allowing him to be 
 or resort there, is a sufficient keeping of the dog to support the action. 
 As soon as a. dog is known to be mischievous, it is the duty of the per- 
 son whose premises the dog frequents, to send him away, or cause him 
 to be destroyed(r). The same rule of law prevails with regard to 
 a bull, which is known to have run at a man, and to be therefore dan- 
 gerous(s). 
 262 Effect of putting up a notice to beware of the dog. — The putting up a 
 notice to beware of the dog will not exempt the owner of the dog from 
 liability to a person injured, if it appears that the latter could not read, 
 or did not in fact, read the notice. If the plaintiff was lawfully in a 
 way leading to the house, and was, in point of fact, ignorant of the 
 
 (n) stiles V. Cardiff Steam Navig. Cor, 33 L. J., Q. B. 310. Smith v. Causey, 23 Ala. 568. 
 Stumps V. Kelly, 23 m. 140. See Baldwin v. Casella, L. R., 7 Exch. 325, post, p. 212. This rule 
 applies to domestic animals rightfully in the place where the injury is done. K such animals 
 ■wore AvTongfuUy in the place where they did the mischief, the owner is liable without proof 
 that the animals were vicious and the owner knew it. Decker v. Gammon, 44 Me. 323. 
 
 (0) Eex «. Huggins, 2 Ld. Kaym. 1533. Jenkins v. Turner, 1 ib. 110. M^|n v. Keeling, 1 
 ih. 608. Scribncr v. Kelley, 38 Barb. 14. , 
 
 (J3) Jackson v. Smithson, 15 M. & W. 565 ; 15 Law J., Exch. 311. 
 
 (g) Charlwood v. Greig, 3 C. & K. 48. Marsh ». Jones, 21 Vt. (6 Washb.) 378. Buckley «. 
 Leonard, 4 Denio, 500. McCaskill v. Elliot, 5 Strobh. 190. Loomis v. Terry, 17 Wend. 496. 
 
 (r) McKoue ». Wood, 5 C. & P. 2. See Smith ». Great East. Kwy , L. E., 2 C. P. 4; Tram- 
 mell V. Little, 16 Ind. 251 ; Smith v. Montgomery, 52 Me. 178. See Auchmuty v. Ham, 1 Denio, 
 495 ; Wilkinson v. Parrott, 33 Cal. 102. By 34 & 35 Vict. c. 66, " The Dogs Act, 1871," stray 
 dogs may be detained by the police, and dangerous dogs destroyed by order of justices. 
 
 {«) Blackman v. Simmons, 3 C. & P. 138. Clark ». Armsti-ong, 24 Sc. Sess. Cas. 1315. 
 
Sec. 1.] FESOCTOUS ANIMALS. 231 
 
 notice, and of the danger from the dog at the time he was bitten by 
 it, he will be entitled to compensation iA damages(i). 
 
 363 Dogs worrying sheep and destroying game. — " If a man has a dog that 
 kills sheep" (or hunts on his own account and destroys game), "the 
 master of the dog, being ignorant of such quality, shall not be pun- 
 ished for this killing; but if he has notice of the quality of the dog, it 
 is otherwise "(m). By 25 and 26 Vict. c. 59, s. 1, every owner of a dog 
 in Ireland is made liable in damages for injury done to any sheep by 
 his dog, and it is not necessary for the party seeking damages to show 
 a previous mischievous propensity in the animal or the owner's knowl- 
 edge thereof, or to prove any neglect on the part of the owner. And 
 the law is the same now in England so far as injuries by dogs to sheep 
 and cattle are concerned (28 & 29 Vict. c. 60, ante., p. 23). 
 
 The circumstance of a dog being of a ferocious disposition, and 
 being at large, is not sufficient to justify a man in shooting it. To 
 justify such a course, the animal must be actually attacking the 
 shooter at the time he uses his gun(a;). 
 
 204 Of the keeping dogs reputed to have been bitten by a mad dog. — If, by 
 common report, a dog has been bitten by a mad dog, " it becomes the 
 duty of the owner of the dog so reputed to have been bitten to be very 
 circumspect " in the keeping of it. Whether the dog said to be mad 
 was mad or not, may be mere matter of suspicion, and yet it is not 
 enough for a defendant to say, " I did use a certain precaution." He 
 ought to put it out of the animal's power to do further mischief(y). 
 
 265 Injuries fro-m driving ferocious animals along a public thoroughfare. — 
 Where the defendant's bull, which was being driven along the public 
 streets, ran at a man with a red handkerchief round his neck and 
 
 («) Sarch v. Blaekbuni, M. & M. 607 ; ante, p. 202. See Sawyer ». Jackson, 5 N". Y. Leg. 
 01)3. 380. 
 
 (M) Vin. Arb. ACTIOXS, H. pi. 3. Fleeming o. OiT, 2 Macq. H. L. C. 14. See Eeadt). 
 Edwards, ante, p. 30. Under the Statutes of New York, the owner or possessor of any dog 
 that has killed or wounded sheep is liable for their value without proof of knowledge on his 
 part that the dog was mischierous or disposed to kill sheep. 1 E. S. 70i, s. 9 ; Auchmuty v. 
 Ham, 1 Denio, 495. Laws of 1867, oh. 814. 2 R. S. 663, s. 14. Osincupy. Nichols, 49 Barb. (N. 
 Y.)145. Fish J). Skut, 21 Barb. 333. 
 
 The same rule is in force under the statutes of Ohio. See Swan's Stat, of 1854, 328 ; Job », 
 Harlan, 13 Ohio (N. S.) 485. 
 
 (a;) Morris v. Nugent, 7 C. & P. 572. Clark v. Webster, 1 C. & P. 104. Perry v. Phipps, 10 
 Ired. 259. But see Brown v. Carpenter, 26 Vt. (3. Deane) 6?? ; Dunlap v. Snyder, 17 Barb. (N. 
 Y.) 561; Wolf «. Chakler, 31 Conn. 121. ...•:.. 
 
 («) Ld. Kenyon, Jones ». PeiTy, 1 Esp. 483. Under the statnte.s of North Carolina an owner 
 is liable in a penalty of fifty dollars for neglecting to kill his dog after it has been bitten by 
 another dog which he has reason to believe was mad. See Wallace v. Douglas, 10 Ired. 79. 
 
 Any one may lawfully kill a mad dog, or one that is justly suspected of being mad, or is 
 known to have been bitten by a dogwhioh was mad. Wolfe. Chakler, 31 Conn. 121. Put- 
 nam V. Payne, 13 Johns. 312. 
 
232 NUISANCES. [Chap. 4. 
 
 gored him, and the defendant, after the accident, was heard to say 
 that the red handkerchief caused the mischief, as a bull would run at 
 anything red, it was held that this was some evidence to go to a jury 
 to show that the defendant knew that his bull was a dangerous 
 animal. " As the circumstance of persons carrying red handkerchiefs 
 is not uncommon," observes Pollock, C.B., " and it is reasonable to 
 expect that in every public street persons so dressed may be met with, 
 we think it was the duty of the defendant not to suffer such an animal 
 to be driven in the public streets, possessing, as he did, the knowledge 
 that if it met a person with a red garment, it was likely to run at 
 and injure him"(z!). 
 
 The following laws respecting the keeping of ferocious animals, 
 extracted from the Roman law, are not undeserving of attention. "If 
 an ox has a trick of pushing with his horns, and wounds any one, or ' 
 causes any other damage, tlie master who has neglected^ to shut up 
 the ox, or to give such warning that people might avoid it, shall be 
 answerable for the harm he does.'' 
 
 " Those who have horses or mules which kick or bite, must either 
 warn people of their being vicious, or take care to have them well 
 watched, otherwise they will be made liable for the damage they may 
 do. If a dog, who has a trick of biting, is not tied up, or if he gets 
 loose for want of being well looked after, and wounds any one, the 
 master of the dog will be liable to make good the damage. But if a 
 dog or other creature bites or does any damage only because he has 
 been provoked, he who has given occasion to the injury that has 
 happened shall be accountable for it; and if he be the person who has 
 sustained the injury, he is alone to blame. If the beast which has 
 done the damage has been exasperated and stirred up by another 
 beast, the master of the latter beast shall be accountable for the 
 damage." 
 
 "Those who have wild beasts — such as lions, tigers, bears, and 
 others of the like kind — ought to keep them so that they can do no 
 harm, and they are answerable for all damage that arises from their 
 not being safely and securely kept"(a). 
 
 (z) Hudson e. Roberts, 6 Exch. 699 ; 20 Law J., Bxoli. 299. 
 (a) Domat. liv. 2, tit. 8, ». 2. 
 
Sec. 2,] ENTRY TO ABATE. 233 
 
 SECTION II. 
 
 ABATEMENT OP NUISANCES — STATOTORT REMEDIES AND PENALTIES — 
 ACTIONS — PROHIBITION — INJUNCTION AND INDICTMENT. 
 
 266 Abatement of nuisances. — By the Nuisances Removal Acts (18 & 19 
 Vict. c. 121(&) ; 2.S & 24 Vict. c. 77 ; 26 & 27 Vict. c. 117(c) ; 29 & 30 
 Vict. c. 90, s. 14, et seq. ; and 31 & 32 Vict. c. 115), various provisions 
 are made for the abatement of nuisances affecting the public health. 
 Sect. 8 of the first-mentioned Act defines what are to be considered 
 nuisances within its provisions(cc), and the second part of the statute 
 enables summary proceedings to be taken before magistrates, who are 
 empowered to make orders for the abatement or prohibition of the 
 nuisance(d). All persons having control over the soil on which a nui- 
 sance is suffered to exist, are liable to be proceeded against under 
 this statute(e). By the 22d section the local authority are required, 
 in cases where a watercourse, etc., has become a nuisance, to construct 
 a new sewer. They are not, however, bound to follow the course 
 of the old watercourse, but may make the new sewer through private 
 enclosed land, in any direction they think fit, and where no sewer 
 existed previously(/). Various statutory powers for the abatement 
 of public nuisances are also given by the Salmon Fishery Acts (24 & 
 25 Vict. c. 109(^) ; 28 & 29 Vict. c. 121)(A), the Smoke Prevention Act 
 (16 & 17 Vict. c. 128), the Burial Acts (20 & 21 Vict. c. 81, and 22 
 
 (6) As fo the recovery of penalties, before justices, Res. v. Jenldus, 3 E. & S. 116. And sec 
 23 & 29 Vict. c. ViltPOSt, p. 201. 
 
 (o) As to diseased meat, see Yonng v. Gratti-idge, L. R., 4 Q. B. 166. 
 
 (cc) See Norris v. Barnes. L. E., 7 Q. B. 637, as to nuisances arising from mines, and the 
 smelting of ores and mi&erals. The Act applies only to such nuisances as are injurious to 
 health, such as slaughter-houses, accumulation of refuse, etc., and not to mere nuisances of 
 discomfort, such as the drip of water through a railway bridge on to a highway. Great 
 West. Kail. ■«. Bishop, L. E., 7 Q. B. 660. 
 
 i.d) Ex parte Mayor, etc., of Liverpool, 8 E. & B. 537. Eeg. ». Bateman, 27 Law J., M. C. 
 95. Amys v. Creed, L. E., 4 Q. B. 122 ; 38 L. J., M. C. 22. No previous notice is necessary 
 where proceedings are taken by an inhabitant, and not \ty the local authority ; Crocker r. 
 Cardwell, L. E., 5 Q. B. 15. 
 
 (e) Draper v. Spen-ihg, 10 C. B., N. S. 113 ; 30 Law J., M. C. 225. See Bird v. Elwcs, L. E., 
 3 Bxch. 225 ; Barnes v. AJa'oyd, L. E., 7 Q. B. 474. Where several persons join in creating a 
 nuisance, see Brown ». Bussell, L. E., 3 Q. B. 251. 
 
 (/) Earl of Derby ». Bury Improvement Commissioners, L. E., 4 Exch. 222; 38 Law J., 
 Exch. 100. 
 
 (g) Williams v. Blackwell, 32 Law J., Exch. 174 ; po»t, p. 199. 
 
 (7t) The appointment of commissioners and inspectors is continued by 34 & 35 Vict. c. 95, 
 And see 33 & 34 Vict. c. 33. 
 
234 NUISANCES, [Chap. 4, 
 
 Vict. c. l)(i), the Public Health and Local Government Acts (21 & 22 
 Vict. c. 98; 23 & 24 Vict. c. 77 ; and 29 & 30 Vict. c. 90, ss. 35 to 55), 
 the Sewage Utilization Acts (28 & 29 Vict. c. 75 ; and 29 & 30 Vict, 
 c. 90, ss. 1 to 13(^') ), and by the Metropolitan Building Act, 1855 (18 
 & 19 Vict. c. 122), ss. 69 to 81, which provides for the shoring up and 
 removal of dangerous structures situate in the metropolis and its 
 neighborhood(A:). The expense incurred in the removal of nuisances, 
 the construction of sewers, etc., under many of these local Acts, 
 is recoverable either in the county* court(Z), or by order of jus- 
 tices(?w). 
 
 A man cannot, at the common law, enter upon his neighbor's land, 
 to prevent the commission of an apprehended nuisance, but he may 
 justify a peaceable entry for the purpose of abating and putting a 
 stop to an existing nuisance. Thus, where the plaintiff had set up 
 poles on his own land, in order to build a house which, when erected, 
 'Would be a nuisance to the adj.oining dwelling-house of the defend- 
 ant, and the latter entered upon the plaintiff's land and prostrated 
 the poles, to prevent the nuisance, it was held that the entry was 
 wholly unjustifiable(w). But if H builds a house so near mine thai 
 it stops my lights, or shoots the water upon my house, or is in any 
 other way a nuisance to me, I may, after previous notice and request 
 to remove the building, enter upon the owner's soil and pull it down, 
 provided the whole house is a nuisance. If part only of the house 
 obstructs my lights and creates a nuisance, I am not justified in 
 pulling down the whole building(o). 
 
 Before an entry is made upon the land of another for the purpose 
 of abating a nuisance, notice should be given to the occupier of the 
 land of the existence of the nuisance, and he should be required to 
 abate it himself(p); and the plea justifiying the entry should contain 
 an averment that notice was given to the plaintiff to abate the nui- 
 sance, and that he neglected or refused to do it, whereupon the 
 
 ({) See Foster v. Dod, L. K., 1 Q. B. 475 ; and 34 & 35 Vict. o. 33. 
 
 (J) See 30 & 31 Vtct. c. 113. . 
 
 (ft) Eeg. V. Harden, 2 Ell. & Bl. 191 ; post, ch. 21. See 32 & 33 Vict. c. 82. 
 
 (l) As to proof oi' the ownership of the premises, Blything Un. v. Warton, 32 Law J., M. 
 C. 132. 
 
 (m) As to parties liable to pay these expenses, see Peek ». Waterloo', etc., Local Board, 33 
 L. J., M. C. 11; Cook v. Montana, L. E., 7 Q. B. 418. 
 
 (m) Norris v. Baker, 1 Eoll. Eep. 393, pi. 15. 
 
 (0) Eex V. Rosewell, 2 Salk. 459, A person cannot lawfully pull down a building as a 
 nuisance, where the nuisance is not caused by the erection itself, but by the persons who 
 resort there. Miller v. Buroh, 32 Texas, 208. Ely v. Superivsors of Niagara Co., 36 N. T 
 297. Barclay v. Commonwealth, 25 Penn. St. 603. 
 
 (^i Perry v. FitzhOwe, 8 Q. B. 776. Jones v, Jones, 1 H. & C. 1; 31 Law J., Exch. 506. 
 
Sec. 2.] • ASATEME,\T OF. 235 
 
 defendant entered upon the plaintifi''s land and abated it himself, 
 using no more violence than was necessary for the purpose(2). 
 
 Where there is any immediate danger to life from the continuance 
 of the nuisance, so as to render it unsafe to wait for its removal by 
 the occupier, the injured party may at once enter and remove it ; 
 but the facts establishing the necessity should be set forth in the 
 special plea(gg). 
 
 A distinction has been taken between nuisances of commission 
 and nuisances of omission ; and it is said that if the plaintiff was 
 the original wrong-doer, and himself created the nuisance, it may be 
 abated without notice ; but if the nuisance was created by another, 
 and the plaintiff succeeded to the possession of the locus in quo 
 afterwards, then notice to remove it must be given and averred in 
 the plea, in order to make out a justification(r). " There is no decided 
 case," observes Best, J., " which sanctions the abatement by an in- 
 dividual of nuisances of omission, except that of cutting the branches 
 of trees which overhang a public road, or the private property of the 
 person who cuts them. The security of lives and property may, 
 however, sometimes require so speedy a remedy, as not to allow time 
 to call on the persons on whose property the mischief has arisen to 
 remedy it; and, in such cases, an individual would be jdstified in 
 abating a nuisance from an omission without notice. In all other 
 cases of such nuisances, persons should not take the law into their 
 own hands, but follow the advice of Lord Hale, and appeal to a court 
 of justice "(s). 
 267 Abatement of nuisances upon commons. — Where an encroachment had 
 been made on a common, and a house built which obstructed the ex- 
 ercise of the right of common, it was held that the commoner might, 
 after notice and request to the wrong-doer to remove the house, pull 
 it down, though the latter was at the time actually present in the 
 house with his family(<). The commoner has a right to pull down and 
 remove a hedge, a gate, or a wall, which obstructs or abridges the 
 exercise of his right(M) ; but he cannot destroy beasts of warren, such 
 
 (g) Davies v. Williams, 16 Q. B. 556; qualifying PeiTy v. Fitzhowe, 8 Q. B. 757. In romov- 
 ing a nuisance, the party abating it is only liable to the owner for a wanton or unnecessary 
 injury. Indianapolis v. Miller, 27 Ind. 394. Gates v. Blancoe, 2 Dana, 158. 
 
 iqq) See Van Wormer v. Mayor of Albany, 15 Wend. 262; Meeker v. Van Rensselaer, 15 
 Wend. 397; Hart v. Mayor of Albany, 3 Paige, 213. The .abatement of a nuisance by a person's 
 own act is authorized only in cases of particular emergency, requiring a more speedy remedy 
 than could be had by ordinary proceedings at law. Moffefct v. Brewei-, 1 Iowa (Greene), 318. 
 
 (r) Jones v. Willi.ams, 11 M. & W. 176. 
 
 («) Lonsdale v. Nelson, 2 B. & C. 311. 
 
 (t) Da-ries v. Williams, 16 Q. B. 546 ; 20 Law J., Q. B. 330. But see Jones v. Jones, ut sup. 
 
 (u) Mason v. Ciesar, 2 Mod. 66. 
 
236 KUiSANCES, [Chap. 4. 
 
 as hares or rabbits, although they have increased to such an extent as 
 to destroy all the herbage('«). 
 
 268 Removal of ruinous buildings. — The Metropolitan Building Act (18 
 & 19 Vict. c. 122) provides, as we have seen, for the removal or rep- 
 aration of structures, certified by their surveyor to be in a dangerous 
 state, and enables the Metropolitan Board of Works(w), in certain 
 contingencies, to pull down and remove such structures, and to charge 
 the expenses incurred in so doing upon the owner of the property, 
 without prejudice to his right to recover the same from the lessee, or 
 other person liable to repair. Section 3 of this statute provides that 
 the word " owner" shall apply to every person in possession or receipt 
 of the whole or any part of the rents or profits, or in the occupation of 
 the tenement other than as tenant from year to year, or for any less 
 term, or as tenant at will(«) ; so that, if a tenant for a term of years 
 has sub-let from year to year, and receives rent from his sub-lessee, 
 he is the statutable owner, and upon him the order for expenses must 
 be made. If the occupier be a lessee for a longer term than from 
 year to year, he is then the statutable owner(y). The 83rd to 85th 
 sections provide for notice being given in certain cases to the pro- 
 prietor of the adjoining house(z). 
 
 269 Abatement of nuisances arising from the exercise in excess of limited 
 rights. — Where a' person who is entitled to a limited right exercises it 
 in excess, so as to produce a nuisance, and the nuisance cannot be 
 abated without obstructing the enjoyment of the right altogether, the 
 exercise of the right may be entirely stopped, until means have been 
 taken to reduce it within its proper limits. " Thus if a man," ob- 
 serves Alderson, B., " has a right to send clean water through my 
 drain, and chooses to send dirty water, every particle of the water may 
 be stopped, because it is dirty." So, if a man has a limited right to 
 the use of a window, and he enlarges the window considerably, the 
 person annoyed by the enlargement of the window may, by erecting 
 a screen or barrier on his own land, stop up the whole of it. The per- 
 son who is in that way prevented from the exercise of a limited right, 
 because he has turned it into a larger claim, has no other resource than 
 
 (V) Cooper v. Marshall, tmte, p. 131. 
 
 (w) 33 & 33 Vict. 0. 82. 
 
 (X) See Tubb v. Good, L. E., 5 Q. B. 443. 
 
 (y) Mourilyan v. Labalmondiere, 1 Ell. & EU. 533 ; 30 Law J., M. C. 03. Labalmondiere V. 
 Frost, 1 Ell. & EU. 527. Labalmondiere v. Addison, ib. 41 ; 28 Law J., M. C. 225. Peek ». 
 Waterloo, etc.. Local Board, ante, p. 234. Caudwell v. Hanson, L. E., 7 Q. B. 55. 
 
 («) SeeMajor ». ParkLane Co., L. E., 2Eq. Ca. 453. ' 
 
Sec. 2. J ABATEMENT OF. 237 
 
 to reduce his mndow to its ancient size, and then insist on his tight 
 to have it tolerated(a). 
 
 If a landlord has been content to allow the public a limited right of 
 way over his lands, and across a brook, by a certain number of step- 
 ping-stones, the Commissioners of Highways have no right to widen the 
 footpath or the stepping-stones, or do anything to increase the public 
 accommodation, or enlarge the right of passage, without the consent 
 of the landowner. If, therefore, the surveyor places fllag-stones on the 
 stepping-stones, so as to make a kind of rough bridge, the landowner 
 has a right to remove them(6). So if a riprarian proprietor having a 
 prescriptive right to obstruct the flow of a stream with a dam or weir 
 of a certain height, for the purpose of watering his meadows, exceeds 
 his right by enlarging his dam or weir, to the prejudice of another 
 riparian proprietor, the latter may, after notice, remove the enlarged 
 portion of the structure, but cannot lawfully rSmove the whole dam. 
 Thus, where the plaintiff, being possessed of laud the occupiers whereof 
 from time immemorial enjoyed the right of penning back the water 
 of a stream, by means of a dam or weir made with a loose board kept 
 in its place with large stones, fastened the board down with stakes 
 driven into the bed of the stream, and the defendant, who had rights 
 on the same stream, thinking the stakes unauthorized by the plain- 
 tiff's ancient right, pulled up both the stakes and the board, it was 
 held that this was an unjustifiable trespass, for, assuming he had a 
 right to remove the stakes, he had no right to remove the board also(c). 
 270 Removal of obstructions in public thoroughfares{d). — A private indi- 
 vidual cannot, of his own authority, abate an obstruction in a public 
 highway, unless it does him a special injury; and he can only inter- 
 fere with it as far as is necessary to enable him to exercise his right 
 of passing along the highway. He cannot, therefore, justify doing 
 any damage to the property of the person who has improperly placed 
 the nuisance in the highway, if, avoiding it, he might have passed on 
 with reasonable convenience(e). To justify a private individual in 
 pulling down a wall or destroying a fence, on the ground of its being 
 an obstruction in a public highway, it must be shown, not only that 
 
 (n) Cawkwell v. EuBsell, 26 L. J., Exoh. 24. See ante, p. 188. 
 (6) Sutcllffe V. Surveyor?, etc. Sowerby, 35 Law T. U., Q. B. 7. 
 (c) Greenslade J). IlaUiaay, 6 Bing. 379. 
 
 (rf) As to cattle lyiug in a higlivvay, see La-nrenco v. King, L. E., 3 Q. B. 345, decidecl under 
 s. 23 of 27 & 28 Vict. c. 101, and Gelding v. Stocking, L. li., 4 Q. B. 516 ; Freestone v. Caswell, 
 
 lb. 519. 
 
 (e) Dimes v. Petley, 15 Q. B. 283. Davies v. Mann, 10 M. & W. 546. Mayor of Colchester v 
 Brook, 7 Q. B. 377. 
 
238 NUiSANCMS. [Chap. 4. 
 
 ttie wall or fence encroached upon the public thoroughfare, but that 
 the defendant was unable to enjoy his right of passing along the road 
 without the removal of the obstruction(/). The placing of a gate 
 across a public carriage road, where no gate existed before, is, as we 
 have seen, a nuisance, so that any one having occasion to pass along 
 the thoroughfare, may cut down and destroy the gate(^). 
 
 271 The removal of obstructions in watercourses on the land of a third 
 person, by those who have a Hght to the watercourse, and conversely 
 the stoppage, on another's land, of a Watercourse which would other- 
 wise flow wrongfully on to the land of the person who stops it, must 
 be effected with the least possible damage to the owner of the servient 
 tenement, whether the method adopted (if there be alternative methods 
 of affecting the object) be more onerous to the wrong-doer or not(^). 
 
 272 Removal of obstructions to the navigation of navigable rivers.' — ^To 
 justify a private individual in breaking down a weir or sluice, or re- 
 moving an obstruction in the channel of a navigable river, it must be 
 shown that the obstruction was of such a nature as to prevent him 
 from passing up and down the river. If there were sufiicient space 
 left for him to pass with reasonable safety, he cannot justify the re- 
 moval of the obstruction(i). The 4th statute of 25 Ed. 3, c. 4, reciting- 
 that the common passage of boats and ships in the "great rivers" of 
 England is oftentimes annoyed by the setting up of gorces, mills, 
 weirs, stanks, stakes, and kiddles, provides for the destruction of all 
 such as have been levied and set up in the time of Edward I. and 
 after. It directs writs to be sent to the sheriffs, to survey, and inquire, 
 and do execution thereof. The effect of this statute appears to be to 
 legalize weirs which can be shown to have been erected prior to the 
 time of Edward I., although, from changes in the bed of the river, 
 they may have the effect of totally preventing the navigation of the 
 stream(^'). But this and the subsequent statutes on the subject apply 
 only to navigable rivers(A). The 2 Hen. 6, c. 15, pl-ohibits not only 
 the use of nets which are permanently fixed day and night, but also 
 those which are fixed for intervals of time only, if they obstruct the 
 navigation of the river and the passage of the fish(Z). 
 
 (/) Bateman v. Bluck, IS Q. B. 876 ; 21 Law J., Q. B. 40G. 
 {g) James v. Hayward, ante^ p, 207. 
 
 (7i) Eoberts v. Koso, 38 L. J., Exch. 1 ; ib. 241 ; S. C. (in error), L. R., 1 Exch. 82. 
 (i) Ante, p. 208. East. Co. Kail. Co. v. Dorling, 3 C. B., N. S. 821; 28 Law J., C. P. 203. 
 See Selman v. Wolfe, 27 Texas, 68. 
 U) Williams v. Wilcox, 8 Ad. & E. 329. See ante, pp. 88, 89. 
 (*) EoUe V. Whyte, L. E., 3 Q. B. 286. 
 (J) HoU'ord V. George, L. E., 3 Q. B. 639. 
 
Sec. 2.] OBSTRUCTIONS TO FISHING. 289 
 
 Penalties have been imposed by statute upon all persons having 
 charge of vessels who shall throw any ballast, gravel, earth, rubbish, 
 or filth, into any navigable river, so as to tend to the injury or obstruc- 
 tion thereof; and the person having charge of the vessel will be 
 responsible for the acts of the crew, and may be convicted of the 
 offence and fined, though he was not on board at the time it was cora- 
 mitted(-m). 
 
 273 Vbstructions to fishing. — Under the Salmon Fishery Acts (24 & 25 
 Vict. c. 109, and 28 & 29 Vict. c. 121), ante, p. 233, obstructions to the 
 free passage of salmon may be removed by order of the Commission- 
 ers(w), subject to an appeal to the Court of Queen's Bench(o). It has 
 been hel^ under these statutes, that a user for forty-five years, previ- 
 ous to the passing of the first of them, of putchers and stop nets (which 
 are "fixed engines" within the meaning of the statutes(p), and there- 
 fore forbidden unless used by virtue of a grant, charter, or immemorial 
 usage), does not raise a conclusive presumption of law that such putch- 
 ers and nets have been used from time immemorial(5') ; nor does the 
 user of fixed engines for a very long period raise such a presumption, 
 where*, owing to changes in the bed of the river, the actual user has 
 been in places different from the site of the ancient user, although 
 such user would be evidence of a right to have such engines in rea- 
 sonable places with reference to the changing bed of the river(7-). The 
 power of the Commissioners to order a fish gap to be made in existing 
 •weirs only extends to cases where the weir extends more than half- 
 way across the stream(s). 
 
 274 Pulling down ruinous houses adjoining a public thoroughfare. — The 
 Metropolitan Building Act (18 & 19 Vict. c. 122, ss. 69-81(«) authorizes 
 the pulling down, shoring up, etc., of ruinous buildings under certain 
 circumstances and contingencies, and provides (s. 97) for payment 
 of the expenses by the owner immediately entitled in possession to 
 such premises(M), or the occupier. 
 
 (m) M Geo. 3, c. 159, 8. 11. See Miohell v. Brown, 28 Law J., M. C. S3. 
 
 («) See Garnett v. Backliouse, L. R., 3 Q. 13. 30, 690. 
 
 (o) Belle V. Whyte, supra. 
 
 (p) Gore o. English Fisheries Commissioners, L. R., 6 CJ. E. 6G1. 
 
 (g) Holford v. George, supra. See State v. Franklin Falls Co., 49 N. H. 240. As to fishing 
 ■without a license from the Board of Conservators, Lj-no v. Leonard, L. E., 3 Q. B. 156. And 
 see Watts ». Lucas, L. R., 6 Q. B. 226. 
 
 (r) llawstorne v. Backhouse, L. E., 3 C. r. 07. 
 
 (s) Eolle V. 'Whyte, supra. 
 
 it) See 32 & 33 Vict. c. 82. 
 
 («) See Overseers of Saffron Hill (esporte), 24Law J., M.C. 56, decided under the 7&8Tiot. 
 c. 84, the greater part of which Act is repealed by the above-mentioned statute. 
 
240 NDISANCMS, [Chap. 4. 
 
 275 Slatutory remedies and penalties in respect of nuisances from gas-works. 
 ■ — By the statute 10 & 11 Vict. c. 15, for comprising in one general 
 Act sundry provisions to be contained in Acts of Parliament thereafter 
 passed, authorizing the construction of gas-works for supplying towns 
 with gas, penalties are imposed (s. 11) upon persons authorized by 
 statute to construct gas-works, for delays in making good broken 
 ground, and re-instating roads broken up by them, and removing 
 rubbish ; and, in case of delay, the persons having the control or man- 
 agement of the street, etc., may do what is necessary to be done, and 
 recover their expenses from the persons authorized to construct the 
 gas-works. A penalty of 200Z. is also imposed (s. 21) upon such per- 
 sons, and upon gas companies, for corrupting streams, ponds, and 
 drains with the refuse or filth of gas-works. It is recoverable for each 
 offence, with full costs of suit in any of the superior courts (s. 22) by 
 the person whose water has been fouled by the gas-washings or refuse, 
 provided the action is brought during the continuance of the offence, 
 or within six months after it shall have ceased. In addition to this 
 penalty of 200L, a sum of 201., to be recovered in like manner, is to 
 be paid for each day during which gas-washing or refuse is allowed 
 to flow into and foul the water, after the expiration of twenty-four 
 hours from the time when notice of the offence (s. 23) shall have been 
 served by the person whose water has been fouled ; and such penalty 
 is to be paid to the latter. And whenever any water within the limits 
 of the special Act is fouled by the gas, a sum of 20Z. is forfeited for 
 every such offence (s. 25) and 10^. a day for every day during which 
 the offence shall continue, after twenty-four hours' notice of the offence. 
 The object of the Legislature appears to have been to make the com- 
 pany insurers, at all events, against any contamination of the water 
 in the neighborhood by the access to it of the residuum of their gas- 
 works(i;). By s. 29 of this statute, it is enacted that nothing in this or 
 the special Act contained shall prevent the undertakers (the persons 
 authorized to construct the gas-works and make gas) from being liable 
 to an indictment for nuisance, or to any other legal proceeding to 
 which they may be liable,, in consequence of making or supplying gas. 
 The ordinary remedy by action for damages, therefore, is maintain- 
 able for a nuisance arising from gas-works, notwithstanding the ex- 
 istence of the penal clauses in this statute(w). 
 
 (») Hipkins v. Birm. etc., Gas'Light Co. 6 H. & N. 250 ; 30 Law J., Exch., 60 ; 29 ib. 169. 
 («)) WiUes, J., Broadbent v. Imp. Gas Light Co., 26 Law J., Cb. 280. 
 
Sec. 2.] ACTIONS FOB. 241 
 
 276 Penalties for fouling water in any well, fountain, or pump, are im- 
 posed by 23 & 24 Vict. c. 77, s. 8. 
 
 277 Penalties for the non-consumption of smoke are imposed by divers 
 Acts of Parliament upon manufacturers and proprietors of steam- 
 boats(.«) and railway companies(y). By the Small Penalties Act, 1865 
 (28 & 29 Vict. c. 127), persons convicted in a summary manner in any 
 penalty not exceeding 5Z., may, in case of non-payment, be imprisoned 
 without any warrant of distress for the periods — ^uot exceeding two 
 months — mentioned in the Act. 
 
 I 278 By-laws for the suppression of nuisances made by town councils of 
 boroughs under s. 90 of the Municipal Corporation Act, must, as we 
 have seen, be confined to the suppression of such acts as are nuisances 
 in themselves, and cannot be extended to an act which may, or may 
 not be a nuisance according to circumstances(z). 
 279 Actions for nuisances — Private injuries from a public nuisance. — When- 
 ever a special or particular damage is sustained by a private indi- 
 vidual from a public nuisance, an action for damages is maintainable(a). 
 It has been held that the prevention of customers from coming to a 
 colliery by obstructing a public highway(6), per quod the benefit 
 of the colliery was' lost, and the coals dug up depreciated in value, 
 was such a special and particular damage as would enable the 
 owner of the colliery to maintain an action for the private injury re- 
 sulting from the public nuisance(c). But no one can have an action 
 for a nuisance or obstruction in a common highway without assign- 
 ing some particular damage to himself individually, independent 
 of the general inconvenience to himself as one of the public(d), 
 
 (K) 16 & 17 Viot. c. 128 ; 19 & 20 Vict. u. 107. Walker ». Evans, 29 Law J., M. C. 22. 
 
 (y) Manchester, Sheff. etc. Bail. Co. v. Wood, 29 Law J., M. C. 29. 
 
 (2) Everett v. Grapes, ante, p. 46. 
 
 (a) Soltau V. De Held, 2 Sim. >f. S. 145 ; 21 Law J., Ch. 159. Grigsby v. Clear Lake Water 
 Co., 40 Cal. 396. Yolo Co. v. Sacramento, 3fi Cal. 193. Francis v. Schoellkopf, 53 N. Y. 152. 
 Selmaii v. Wolfe, 27 Texas, 68. Gerrish v. Brown, 51 Me. 256. Brown «. Watson, 47 Me. 161. 
 Cole V. Sprowl, 35 Me. 161. Mayor etc. of Baltimoru v. Marriott, 9 Md. 160. Crommelin v. 
 Coxe, 30 Ala. 316. Bruning v. New Orleans Can.al and Banking Co. , 12 La. An. 641. 
 
 (6) Which is a local action. Richardson v. Looklin, 34 L. J., Q. B. 225. 
 
 (c) Iveson ». Moore, 1 Ld. Haym. 486 ; 1 Salk. 15 ; Carth. 451. Green v. Lond. Gen. Omnib. 
 Co.,a«'e, p. 207. 
 
 t,d) Chichester v. Lcthbridge, Willes, 73. Baxter v. Winooski Turnpike Co., 22 Vt. 142. 
 Blanc c. Klampke, 29 Cal. 156. Houok v. Wachter, 34 Md. 265. Lansing v. Wiswall, 5 Uenio, 
 213. And, though one person may sufTer more inconvenience than others from the obstruc- 
 tion, by reason of his proximity to the highway, that will not entitle him to maintain tlie ac- 
 tion. Pierce r. Dart, 7 Cow. 609. The damage must be different, not merely in degiee but 
 different in kind from that suffered in common. Stetson ». Faxon, 19 Pick. 147. Thayer v. 
 Boston, 19 Pick. 611-514. Quincy Canal Co. v. Newcomb, « Mete. 283. Houck v. Wachter, 
 84 Md. 266. And see Hatch v. Vermont Central R. E. Co., 28 Vt. 114 ; McLauchlin v. Charlottu 
 and South Carolina E. U. Co. , 5 Eich. 683. tt was held in Maine, that an injury to a private 
 person by a common nuisance, however inconsiderable, will entitle him to maintain an ao- 
 
 Ad. Vol. I.— 16 
 
242 ifviSANCES, [Chap. 4. 
 
 and the expense of removing the obstruction is not such dam- 
 age(e). 
 
 "Where the plaintiff, in an action for damages from an obstruction in 
 a public navigable tidal river, declared that he carried on the business 
 of an innkeeper in a house abutting upon the river, and that the de- 
 fendant placed beams and spars in the water which floated backwards 
 and forwards with the tide, and obstructed the access to the house at 
 certain periods, whereby the plaintiff's customers were prevented from 
 coming to his house to take refreshments, it was held that this was a 
 speciiic particular damage resulting to the plaintiff from the public 
 nuisance, which entitled him to an action for damages(/). And so 
 where the plaintiff was navigating a public navigable river with his 
 barges laden with goods, and the barges were impeded in their pro- 
 gress by a vessel which the defendant had wrongfully moored' across 
 the stream, and the plaintiff, in consequence of the obstruction, was 
 compelled to unload his barges and carry his goods by land to their 
 place of destination, it was held that the plaintiff" was entitled to re- 
 cover from the defendant all ther expenses of the land carriage of the 
 merchandise(p'). 
 280 When a notice to abate or discontinue a nuisance shall be given before 
 commencing an action. — If an action is brought against the originator 
 of a nuisance, it is not necessary to demand the abatement or discon-. 
 tinuance of the nuisance before commencing the action. But if the 
 action is brought against the mere coutinuer of a pre-existing, nui- 
 sance, a request to remove the nuisance must be made before the action 
 is commenced(A). A notice to abate or remove a nuisance, delivered 
 at the premises to which it relates, to the occupier for the time being, 
 will bind a subsequent occupier(i). 
 
 tion ; and that where a person was returning home "with a loaded wagon, and was stopped 
 hy obstructions placed in the highway, and compelled to take a more circuitous route, he was 
 entitled to recover damages from the person .who placed the obstruction there. Brown v. 
 Watson, 47 Me. 101. But in a similar case in Maryland, it was held that merely being obliged 
 to proceed by a more circuitous route, in consequence ol" an obstruction, was not such a 
 special damage as would maintain an action. Houck v. Wachter, 34 Md. 265. 
 
 (e) Winterbottom v. Lord Derby, L. B., 2 Exch. 316. But see Pierce v. Dart, 7 Cow. 609. 
 
 </) Rose V. Groves, 6 Sc. N. R. 653 ; 6 M. & G. R. 613. 
 
 (ST) Rose V. Miles, 4 M. & S. 101. 
 
 (71) Penruddock's case, 5 Co. lOOb. Winsmore v. Greenbank, Willes, 583. West v. Louis- 
 ville, etc., R. R. Co., S Bush. (Ky.) 404. Grigsby v. (Jlear Lake Water Co., 40 Cal. 896. Thorn- 
 ton V. Smith, 11 Minn. 15. Ray v. Sellers, 1 Duvall (Ky.), 254. McDonough v. Gilman, 3 Allen 
 (Mass.), 264. Cromelin v. Coxe, 30 Ala. 818. Hubbard v. Russell, 24 Barb. (N. T.) 404, 
 Beavers v. Trimmer, 1 Dutch. ^. J.) 97. But see Brown v. Cayuga & Susquehanna B. 15. 
 Co., 12 N. Y. 486 ; Conhooton Stone Co. v. Buffalo, etc., R. B. Co., 62 Barb. (N. Y.) 390 ; IrviM 
 tJ. Wood, 4 Rob. (N. Y.) 138. 
 
 (i) Salmon v. Bensley, R. & M. 189. 
 
Sec. 2.] ACTIONS FOR — PARTIES. 243 
 
 If a man commits a nuisance, and afterwards does away with it, 
 and with all the effects of it, before action brought, the cause of action 
 is extinguished(A:) ; but the abatement of the nuisance is no defense 
 in point of law against a complaint for an antecedent injury. If 
 damage has been sustained, the defendant is not the less bound to 
 compensate for that, because he has promptly and properly repaired 
 his fault(Z). 
 
 28 1 Continuing nuisances. — The continuance of the nuisance is a fresh 
 injury, for which another action may be brought, and so, toties quoties, 
 until the obstruction is removed(TO), or the wrongful act done away 
 with(w). Persons may be liable for the continuance of a nuisance 
 which they thMnselves originally created, although they are not in 
 possession of, or interested in, the soil on which the nuisance exists at 
 the time of action brought ; and although they have no right to enter 
 thereon for the purpose of abating the nuisance(o). 
 
 282 Parties to be made plaintiffs. — The actual occupier of lands and 
 buildings incommoded and prejudiced by a nuisance is, in general, 
 the proper person to maintain an action for damages. If the injured 
 property is in the occupation of tenants to whom it has been demised, 
 the landlord or reversioner has no right of action, unless the nuisance 
 is of a permanent character, and necessarily inflicts a lasting injury 
 upon the inheritance. It has been held, for example, that the rever- 
 sioner is not entitled to maintain an action for damages arising from 
 the erection of a noisy workshop, or a furnace and smoky chimney, in 
 close contiguity to dwelling-houses in the occupation of his tenants, 
 although the noise and the smoke render the houses uninhabitable, 
 and the tenants give notice to leave ; for the occupiers of the workshop 
 and the furnace may be compelled, by proceedings on the part of the 
 tenants, to discontinue the nuisance. "The action," observes Bram- 
 well, B., "should be brought by the tenant. It is said that the noises 
 diminished the value of the premises. I do not agree to that. If the 
 tenant is damaged by them' to the value of 101., he will get 101. com- 
 
 (&) Bio. Abv., pi. 2. King v. Morris & Essex K. E. Co., 3 Greene (N. J.), 397. 
 
 (J) Bell ». Twentyman, 1 Q. B. Hi. An action on the case for a nuisance T5:ill not be barred 
 by a subsequent abatement of the nuisance by the plaintiff. Call v. Buttriok, 4 Cush. 345. 
 Gleason v. Gai-y, 4 Conn. 418. 
 
 (m) Shadwell v. Hutchinson, 4 C. & P. 333. Conhocton Stoue Co. v. Buffalo, etc., R. K. Co., 
 52 Barb. 390. Beckwith ». Griswold, 29 Barb. (N. Y-.) 291. Pillsbury v. Moore, 44 Me. 154. 
 Grady v. WolBner,.46 Ala. 381. A failure to remove a nuisance, erected by another, does not 
 of itself constitute a continuance of it. To constitute a continuance there must be some 
 positive act done evidencing its adoption. Walter o.WiooiniAp County, 35 Md. 385. See Bar 
 ring t). Commonwealth, 2 Duval (Ky.), 95. 
 
 (B) Wbitehouse «. FeUovfes, 10 C. B., N. S. 765 ; 30 Law J., C. P. 305. 
 
 (o) Thompson v. Gibson, 7 M. & W. 460. Dorman t>. Ames, 12 Minn. 451. 
 
244 NUISANCES. [Chap. 4, 
 
 pensation." "In order to give a right of action to the reversioner," fur- 
 ,ther observes Pollock, C.B., "the injury must be of a permanent 
 nature. Here the hammering and noises may be stopped and the 
 nuisance removed at any time "(js). If, however, the tenant actually 
 leaves the premises, and^the reversioner comes into possession, then 
 an immediate injury accrues to him, in respect of which he has an 
 immediate right of action. 
 
 Where, on the other hand, a building was erected, the roof and 
 eaves of which overhung the plaintiff's land, and discharged raiij- 
 water thereon, and the plaintiff brought his action for an injury to his 
 reversion, the land being in the occupation of his tenants, it was held 
 that he was entitled to recover, as the very existence of the building 
 was a nuisance and permanent injury to the property, and would, 
 if allowed to continue, impose a servitude thereon(5). 
 
 "When several persons have a joint interest in property injured by a 
 nuisance, they ought all to be made plaintiffs in an action for the 
 injury. Tenants in common also, should join in an action for a nui- 
 sance done to their land(r). 
 283 Parties to lie made defendants. — We have seen that the occupier 
 of lands is in general responsible for the continuance of a nuisance 
 • upon them ; and so is the landlord, if the nuisance existed at the time 
 he demised them, or re-let them or continued the tenancy after he 
 had the power of determining it(s). Every person who does, or directs 
 the doing of, an act which cannot be done at all without constituting 
 and creating a nuisance, is personally responsible, whether he was 
 acting for himself, or for or on behalf, or for the benefit, of another, 
 
 [p) Mumforcl v. Oxfd., Wore. & Wolv. Rail. Co., 1 H. & N. 35. Simpson v. Savage, 1 C. B., 
 X. S. 347 ; 26 Law J., C. P. 50. A reversioner occupying land of the tenant for life under a, 
 parol agreement, may maintain an action for injury to the land from the stoppage of a water- 
 course. Ashley v. Ashley, 4 Gray (Mass.), 197. And the owner of land may maintain an ac- 
 tion against parties flowing the land, altliough it has been leased Ijy parol to several tenants, 
 for the purpose of pasture. Noyes v. Stillman, 24 Conn. 15. The owner of a water power 
 may maintain an action for any disturbance which is in its existing form injurious to the pos- 
 session, and which, without further interference, would, in the ordinary coui-se of things, 
 continue to be so to the termination of the tenancy. Beavers v. Trimmer, 1 Dutch. (N. J.) 
 97; Tinsman ». Kailroad Co., 1 Dutch. (N. J.) 255, It is no bar to an action by the rever- 
 sioner that the act constituting the nuisance is also an injury to the tenant ; nor that the 
 cause of the injury may possibly be removed before the expiration of the tenancy ; nor that 
 the reversioner has suffered no loss by diminution of rent, or the sale of the premises at u 
 aepreciated price. Id. 
 
 (g) Tucker v. Newman, 11 Ad. & E. 40. 
 ' (r) Bac. Abr., Joint Tenants, etc., K ; ante, p. 85 ; post, ch. 20. 
 
 (s) Ante, pp. 193, 197. Bishop v. Trustees of Bedford Charity, 1 Ell. & Ell. 697 ; 28 Law J., 
 
 . Q. B. 215. Gandy v. Jubbei-, ante, pp. 147, 165. Grady v. Wolsner, 46 Ala. 381. Owings v. 
 
 Jones, 9 Md. 108. Pickard v. Collins, 23 Barb. (N. Y.) 444. Durant ». Palmer, 6 Dutch. (N. J.) 
 
 544. A municipal coiToration is liable for tjie continuance of a nuisance which it has created. 
 
 Pennoyer v. Saganaw, 8 Mich. 534. 
 
Sec. 2.] PARTIES. 245 
 
 and whether he is a principal and employer, or a mere servant carry- 
 ing into effect the orders of his master(<). But a steward, manager, 
 or agent, who merely hires laborers for his master, and takes no part 
 in the immediate creation of the nuisance, is not answerable for the 
 nuisance(M). If the landlord of a house, under a contract with his 
 tenant to whom he has demised the house, employs workmen to repair 
 the house, the landlord is responsible for a nuisance in the house occa- 
 sioned by the negligence of his own workmen, although the repairs 
 are done at the instance and for the benefit of the tenant, and are, 
 when executed, to be paid for by him(a;). 
 
 When a defendant is sought to be made responsible for a nuisance, 
 not on the ground of his being the owner or the occupier of the land 
 or premises on which the nuisance exists, but because he has ordered 
 or directed the doing of an act in a public thoroughfare, or a na^^igable 
 river, or on the land of the plaintiff himself, which has created a nui- 
 sance, it must be shown that the relationship of master and servant 
 exists between the defendant and the workmen who have personally 
 done the act complained of, or that the workmen were acting under 
 his immediate control and direction. If the execution of repairs to a 
 dwelling-house, or the construction of a draiti, is entrusted to a builder 
 or contractor, who exercises an independent employment, and selects 
 his own servants and workm^en, and has the immediate control and 
 superintendence of the work, the owner of the house, who .employs 
 the contractor, is not responsible for the creation of nuisances in the 
 public thoroughfare, by the negligence of the contractor's servants, if 
 he was ignorant of their unlawful proceedings, and had no knowledge 
 of the probable consequences of their acts(^). 
 
 If any excavations or constructions of any kind are authorized to be 
 made over or across a public thoroughfare, by private individuals or a 
 public company, or by commissioners, and the works are lawful in 
 themselves, and can be done without injury to individuals, and with- 
 out creating any nuisance, and the persons directing the works to be 
 executed employ a contractor to do the work, who selects the workmen, 
 and has the entire conduct and management of the work, the persons 
 so employing the contractor, and authorizing the execution of the 
 works, are not themselves responsible for nuisances or injuries arising 
 
 (« Wilson V. Peto, 6 Moore, 49. Witte v. Hague, 2 D. & K. 33. 
 («) Scone V. Cartwright, 6 T. E. 412. 
 [X) Leslie v. Pounrls, 4 Taunt. 648. 
 
 (y) Peaohoy v. Bovviand, 13 C. B. 185. Blake v. Ferris, 5 N. T. 48. And see Easton e. Eu- 
 ropean & Xortliern R. E. Co., 69 Me. 520. 
 
246 NUISANCES, [Chap. 4. 
 
 from the incompetence of the contractor, or for the negligent execution 
 of the works by him, his servants, or agents, or for damage from things 
 done by the contractor or his workmen, which were never authorized 
 or ordered to be done by the company or commissioners(2). 
 
 Where commissioners, appointed under an Act of Parliament for 
 the improvement of the navigation of a canal, agreed with a contrac- 
 tor for the performance of certain works for draining and carrying 
 off the surplus waters of the canal, and the contractor, in the exercise 
 of the powers conferred on the commissioners by the Legislature, 
 constructed a drain through the land of the plaintiff for the purpose 
 of carrying off the waste water, and the plaintiff's land was flooded 
 in consequence of the defective and negligent construction of the 
 drain, it was held that the contractor, and not the commissioners, 
 was responsible for the nuisance, as the contractor was not the servant 
 of the company, but occupied an independent position, having the 
 selection and' entire control of the workmen, and the sole management 
 of the works(a). 
 
 In this case the defective drain, causing the overflow of the water 
 and creating the nuisance, was on the plaintiff's own land. Had 
 the nuisance arisen upon the land of the defendants, they would 
 have been responsible for it {ante, pp. 192, 193). Where the defendants 
 have employed a contractor to do an act which is unlawful in itself, 
 or which cannot be done without creating a nuisance, then the act 
 done by the contractor is in substance their act, and they as well 
 as he are responsible for the consequences which naturally result from 
 it(6). 
 
 The action may be brought against all the persons doing, or order- 
 ing the doing of, the wrongful act, as well as against the occupier of 
 the land on which the nuisance exists ; but, instead of bringing his 
 action against all jointly, the plaintiff" may, as we have seen, sue one 
 or more of them at his election(c). 
 
 («) Gray v. PuUen, 32 Law J., Q. B. 169. Knight r. Fox, 5 Excli. 72S ; 20 Law J., Excli. 9. 
 Ovoiton 11. Freeman, 11 C. B. 867 ; 21 Law J., C. P. 52. Peachey v. Kowland, 13 C. B. 182 ; 22 
 Law J., C. P. 81, qualifying Bush v. Steinman, 1 B. & P. 404. Cuff v. Newark & New York 
 E. E. Co., 9 Am. Law Eeg. N. S. 541. Pawlot v. Eutland & Washington E. E. Co., 28 Vt. 297. 
 And scoipos*, ch. 8 s. 2, Contkactor and Sub-Contuactor. 
 
 (a) Allen v. Hay ward, 7 Q. B. 9S0; 15 Law J., Q. B. 99. See Eaton v. European & Nor- 
 thern E. E. Co., 59 Me. 520. 
 
 (6) Ellis V. Sheff. Gas Co., 2 Ell. & Bl. 757; 23 Law J., Q. B. 42. Hole e. Sittingboume, etc.. 
 Rail. Co., 6H. &N. 500. Blake v. Thirst, 32 Law J., Exch. 188. Brownlow V. Met. Bd. or 
 Works, 33 L. J., 0. P. 233. And sea post, , ail. 8, s. 2; ch. 21. 
 
 (c) Ante, pp. 85, 175; post, ch. 20. Irvine v. Wood, 61 N. T. 224. Eogers ». Stewart, 3 Vt 
 115. 
 
Sec. 2.J ACTIONS FOR — PLEADINGS. 247 
 
 £. 84 Declarations for nuisances. — If the plaintiff complains of smoke 
 or noisome smells and exhalations, or noises emanating from the 
 defendant's land, the declaration should set forth the plaintiff's pos- 
 session of certain tenements adjoining other tenements in the occu- 
 pation of the defendant, and the creation and continuance by the 
 defendant of the nuisance on the land and tenements in his occu- 
 pation, setting forth the nature of the nuisance, and alleging that 
 the plaintiff was thereby disturbed and annoyed in the occupation 
 and enjoyment of his property, and the property itself was deterio- 
 rated in value. If the plaintiff has been impeded in the exercise 
 of his trade or profession, or any special damage has been sustained, 
 it should be stated as a consequence of the wrong done and the declar- 
 ation should conclude with a claim of a specific sum for daraages(d). 
 
 If the injury of which the plaintiff complains arises from the fall of 
 chimneys from the defendant's premises upon the plaintiff's house, or 
 from filth and rubbish being allowed to run down from the defendant's 
 premises upon the plaintiff's land, the plaintiff may declare for a tres- 
 ' pass upon his land, alleging that the defendant cast thereon large 
 quantities of stones, bricks, and rubbish, night-soil, filth, or manure, 
 as the case may be(e), and flooded the plaintiff's premises, and dis- 
 turbed him in the occupation and enjoyment of his dwelling-house, or 
 he may declare for the consequential injury arising from acts of com- 
 mission or omission by the defendant on his own land. We have seen 
 that the duty of cleansing and repairing drains used by the occupier 
 of a house devolves upon such occupier, and not upon the landlord. A 
 declaration, therefore, which merely alleges that the defendant is the 
 owner and proprietor of the drains or the houses, and seeks to cast 
 upon him, as such owner, a legal obligation to make good the damage 
 ensuing to his neighbor from their foul or dangerous condition, is bad 
 on general demurrer, unless it shows some special ground for making 
 the defendant liable as owner(/). 
 
 Where the plaintiff declared that he was possessed of a cellar con- 
 tiguous to the defendant's privy, and parted by a wall, part of the 
 defendant's house, which the defendant " debuit, et solebat reparare," 
 and that, for want of repair, the filth of the privy ran into the cellar, 
 it was moved, in arrest of judgment, that this being a charge laid 
 
 {d) Ante, p. 89 ; post, ch. 21. See Kowand v. Bellinger, 2 Strobh. 373 ; Hart v. Evans, 8 
 Barr, 13. 
 
 (e) Gregory v. Piper, 9 B & C. 691. Tenant e. Golding, 1 Salk. 21. Pickering v. Endd, 1 
 Stark. 68. 
 
 (/) EusseU V. Shenton, 3 Q. B. 457. Chauntler v. Robinson, i Exch. 169. 
 
248 NUISANCES. [Chap. 4, 
 
 upon the occupier of the adjoining land, the plaintiff should have 
 showed a title by prescription to have the wall kept in repair for his 
 benefit, " sed non allocatur ; " for it is a charge laid on the defendant 
 of common right, which by law he is subject to. As one is bound to 
 keep his cattle from trespassing on his neighbor's ground, so he must 
 a heap of dung if he erects it. "Sic utere tuo ut alienum non 
 lse.das "(gi). 
 
 A declaration setting forth the plaintiif 's possession of a messuage 
 and land, and the defendant's possession of an adjoining brew house, 
 and that the defendant caused water to be couveyed from a certain 
 spring through leaden pipes placed near the foundations of the plain- 
 tiff's house, and took so little care of the pipes, or so negligently used 
 and managed them, that the water escaped from the pipes, and 
 flooded the plaintiff's house, and injured the foundations thereof, and 
 caused the walls of the house to crack and give way, etc., discloses a 
 good cause of action(A). 
 
 When the plaintiif complains of the pollution of a stream, he should 
 show that he was in the actual enjoyment of pure water, or that, by 
 reason of his possession of a messuage or land, he had the right to the 
 flow of a stream of water through his premises in its natural purity 
 (ante, pp. 86, 175, 177), and that the defendant polluted it. If the 
 injury has resulted from negligence on the part of the defendant, in 
 not having properly fenced or guarded a hole or cellar or dangerous 
 excavation on his premises, the declaration should show that the 
 defendant was the occupier of the cellar and premises ; that the cellar 
 closely adjoined a public footway, and opened thereon, so as to be 
 dangerous to persons passing along it, or that the hole or excavation 
 was within twenty-five yards of a public highway; and that the 
 defendant wrongfully suffered the hole to remain unfenced and un- 
 guarded; and that the plaintiff, whilst he was passing along the 
 highway, or along the open unenclosed land adjoining the highway, 
 and within twenty-five yards thereof, fell into the hole and was 
 injured, and prevented from attending to his business, and was 
 obliged to expend money in surgical attendance and advice(i). 
 
 It is not necessary to state in the declaration that it was the duty of 
 the defendant to do the act which he is alleged to have neglected to 
 do, but the facts creating the obligation to perform the duty should be 
 
 (17) Tenant v, Golding, 1 Salk. 21. Hodgkinson o. Ennor, 32 Law J., Q. B. 2il. 
 
 (ft) Hoare v. Dickinson, 2 Ld. Raym. 1569. 
 
 (i) Bishop V. Trustees of Bedford Cliarity, ante, p. 197. 
 
Sec. 2.J ACTIONS FOR DAMAGES — PLEADINGS. 249 
 
 set forth. The allegation of duty is useless where the declaration is 
 insufficient, and superfluous where it is sufficient(^'). 
 
 A declaration alleging that the defendant was the proprietor of a 
 building called, etc., used by the defendant for purposes of gain, that 
 the plaintiff entered and paid for his admission, and that the defend- 
 ant, not regarding his duty in that behalf, did not carefully and skil- 
 fully, and with proper strength and materials, construct and maintain 
 the building and the staircase thereof, so as to be, for the purposes 
 aforesaid, safely and securely used, and that, by reason thereof, whilst 
 the plaintiff was in the building, the staircase fell, and the plaintiff 
 was violently thrown down and injured, discloses a good cause of ac- 
 tion(Z). 
 
 If the grantor of a private way is bound, by express stipulation or 
 prescription, to repair it, it is sufficient, in an action against him for 
 neglecting to do so, to allege generally in the declaration that he, by 
 reason of his possession of the close in which the way is, ought to 
 repair it and the special matter of the obligation may be given in evi- 
 dence('m). 
 
 When the plaintiff complains of an injury to his reversionary estate, 
 the declaration should allege that, at the time of the committing the 
 grievance of which he complains, certain messuages, tenements, and 
 land, with the appurtenances, were in the occupation of certain per- 
 sons, as tenants thereof to the plaintiff, the respective reversions iri 
 the said messuages, etc., being in the plaintiff, and that the plaintiff 
 and his tenants, by reason of their interest in, and possession of, the 
 said messuages or tenements, and land, of right ought to enjoy the 
 use of the water of a certain well and pump, and that the defendant 
 erected a cesspool so near the well and pump that the water therein 
 was contaminated and rendered useless by the oozing out of the soil 
 and filth from the cesspool into the well(w). 
 285 Declarations for injuries from the keeping of ferocious animals. — In 
 actions for injuries from keeping ferocious animals, the plaintiff must 
 
 (i) Metcalfe v. Hetherington, 11 Exoh. 270. Seymour v. Maddox, 16 Q. B. 331. Southcote 
 V. Stanley, 1 H. & N. 247 ; 25 Law J., Exch. 2i7. Gibbs v. Trust. Liv. Docks, 3 H. & N. 164. 
 City of Buffalo v. HoUoway, 7 N. Y, 493. Congi-eve v. Morgan, 4 Duer, 439. Taylor v. Atlantic 
 ■ Mut. Ins. Co., 2 Bosw. (N. T.) 106. 
 
 (i) Brazier v. Polytechnic Institution, Q. B. 1869. See CoUia v. Selden, L. R., 3 C. P. 493, 
 ante, p. 226. 
 
 (m) Eider v. Smith, 3 T. E. 766. « 
 
 (n) Metrop. Assoc, v. Fetch, 5 C. B., N. S. 604 ; 27 Law J., C. P. 330. The declaration must 
 show an injury of such a permanent nature as to be necessarily injurious to the reversion or 
 must explicitly allege that the act was done to the injury of the reversion. Beavers v. Trim- 
 mer, 1 Dutch. (N. J.) 97. Tinsman V. Eailroad Co., 1 Dutch. (N. J.) 256. And see Noyes v. 
 StUlman, 24 Conn. 15. 
 
250 NUISANCES. [Chap. 4. 
 
 set forth in his declaration the mischievous propensity of the animal, 
 the keeping of it by the defendant, with knowledge of such propen- 
 sity, and the injury to the plaintiff ; but the plaintiff need not tie 
 himself down to any allegation of the particular habits of the animal, 
 and of the defendant's knowledge of those habits. He may allege, 
 generally, that-the animal was of a ferocious nature, and unsafe to be 
 left at large, and that the defendant knew it, and that he neverthe- 
 less permitted the animal to be at large(p). It is usual, however, to 
 allege that the animal was of a ferocious disposition, and accustomed 
 to attack or bite mankind, or sheep and animals, the subject of private 
 property(yi). It is not necessary to allege or prove any negligence or 
 want of care in the keeping of the animal by the defendant(g). The 
 injurious consequences to the plaintiff should be stated; and if any 
 special damage has been sustained, it should be set forth on the face 
 of the declaration. 
 286 Plea of not guilty. — In an action for a nuisance to the occupation of 
 a house by carrying on an offensive trade, the plea of not guilty will 
 operate as a denial only that the defendant carried on the alleged 
 trade in such a way as to be a nuisance to the occupation of the house, 
 and will not operate as a denial of the plaintiS^s occupation of the 
 house(r). In an action for forming a cesspool near a well, and thereby 
 contaminating the water of the well, it was held that the plea of not 
 guilty put in issue both the fact of the erection of the cesspool, and 
 that the water was thereby contaminated(s). In actions for injuries 
 from acts of omission, the fact that the injury was occasioned by 
 negligence and misconduct on the part of the plaintiff, as well as by 
 neglect of duty on the part of the defendant, is also admissible under 
 the plea of not guilty(0. In actions for injuries resulting from the 
 keeping of ferocious animals, with knowledge of their dangerous pro- 
 pensity, the plea of not guilty puts in issue both the fact of the 
 
 (0) Hartley v. Harriman, 1 B. & Aid. 624. In an action for injuries committed by an ani- 
 mal presumptively harmless the declaration must allege that the owner had notice or knowl- 
 edge of the habit of the animal to commit such injuries. Vrooman v. Lawyer, 13 Johns. 339. 
 Tift V. Tift, 4 Denio, 175. Buckley v. Leonard, 4 Denio, 500. Earl v. Van Alstine, 8 Barb. 630. 
 But when the animal is of a savage species no averment of knowledge is necessary. Van 
 Leuven e. Lyke, IN. T. 515. Scribner «. Kelley, 38 Barb. 14. And no averment of knowledge 
 is necessary where the animal committed the injury while trespassing, rairchildji. Bentlej-, 
 30 Barb. 147. Van Leuven v. Lyke, 1 N. Y. 516. And generally it is necessary to allege the 
 vioiousness of an animal in committing an injury only where but for the vice of such animal 
 the owner would be free from fault. Dickson v. McCoy. 59 N. T. 400. 
 
 (p) Jenkins v. Turner, 2 Salk. 661. • 
 
 ;s) May ti. Bardett, 9 Q. B. Ill ; 16 Law J., Q. B. 64. 
 
 (r) Ecg. Gen. 16 Vict. 1 Ell. & Bl., App. btxxi. 
 
 («) Norton v. Scholefleld, 9 M. & W. 666. 
 
 («) Holden v. Liv. Uas Co., 3 C. B. 1. 
 
Sec. 2.J ACTIONS FOB DAMAGES — FLEADINQS. 251 
 
 ferocity of the animal and the defendant's knowledge of it ; those two 
 matters forming the substa,nce of the wrongful act(t4). 
 
 387 Pleas justifying the fouling of the water of a stream under a prescriptite 
 right to discharge into it the refuse of dye-houses and manufactories, and 
 the washings of mines. — ^When the plaintiff complains of the fouling 
 and sending rubbish down a natural stream of water running through 
 the plaintiff's land, it is a good defence to plead that the defendant, 
 at the time of the committing of the alleged injury, was the occupier 
 of land, and of a tin-mine situate thereon, and abutting upon the 
 stream, and that the defendant and all other occupiers for the time 
 being of the land and tin-mine, for the period of twenty years next 
 before ihe commencement of the action, enjoyed as of right, and with- 
 out interruption(a;), the privilege of using the water of the stream for 
 the purpose of working the tin-mine, and mining and washing tin-ore, 
 and of fouling the water of the stream with sandstones and rubble 
 and the washings of the tin-mine ; and that the defendant, being the 
 occupier of the land and tin-mine, did, in working the mine, and 
 mining and washing the tin- ore, necessarily discharge into the stream 
 sandstones and rubble, and did necessarily foul the water of the 
 stream, and obstruct the channel and bed thereof(2/). A plea of this 
 sort sets up a prescriptive right to the use of the water of the stream 
 for the necessary working of the mine ; but it is doubtful whether a 
 plea which merely alleges a user as of right to throw cinders, scoriae, 
 coal dust, and the refuse of the ash-pit of a steam-engine into a 
 running stream, so as to obstruct the channel and bed thereof, is a 
 good plea, as it does not appear to set up a claim which might law- 
 fully be made at the common law by custom, prescription, or grant, 
 to an easement or watercourse, or use of water within the meaning of 
 the Prescription Act(z). , 
 
 288 Pleas justifying the obstruction of a watercourse, on the ground that 
 water was wrongfully discharged therefrom on the defendant's land, 
 should allege that the defendant in abating the nuisance did no un- 
 necessary damage to the plaintiff(a). 
 
 389 Pleas justifying the poisoning of the atviosphere with noxious smells and 
 exhalations under a prescriptive right to carry on an offensive trade, should 
 set forth that the defendant and his predecessors, occupiers for the 
 
 {«) Card V. Case, 6 C. B. 623. 
 (X) Ante, pp. 142, 160. 
 
 {y) Carlyon v. Lovering, 1 H. & N. 789 ; 26 Law J., Exch. 251. 
 
 (a) Murgatroyd v. Eobinson, 2 Ell. & Bl. 391; 26 Law J., Q. E. 233. See MoCallum r 
 Germantown Water Co. , 54 Benn. St. 40. 
 (o) Koberts v. Eoae, ante, p. 238. 
 
252 NUISANCES, [Chap, 4. 
 
 time being of the house and premises and ground in the declaration 
 mentioned, exercised and enjoyed for the full period of twenty years 
 next before the commencement of the action, as of right and without 
 interruption, the trade of, etc., in and upon the said premises, and 
 thereby, during all that time, divers noisome smells unavoidably arose 
 from the said premises, and extended themselves to the plaintiff's 
 land, and created smells thereon, and- that the grievance complained 
 of by the plaintiff was a user by the defendant of his premises for the 
 purposes of such trade(6). ♦ 
 
 290 Evidence at the trial — Proof on the part of the plaintiff should be 
 directed to the establishment of all the material allegations in the 
 declaration in the order in which they are set forth, i.e. the plaintiff's 
 possession of a certain tenement adjoining another tenement in the 
 occupation of the -defendant, and the existence of a nuisance on the 
 last-named tenement. When the plaintiff sues for a temporary 
 nuisance {ante, pp. 193, 244), he must show that he is the actual occu- 
 pier of the property injured by the nuisance. When he sues as the 
 landlord or reversioner of the property injured, he must prove that the 
 nuisance was of a permanent character, damaging the marketable 
 value of the property {ante, pp. 85, 91, 173). The nature and charac- 
 ter of the nuisance will have to be proved {ante, pp. 193-232) ; and it 
 must be shown either that it disturbed and annoyed the plaintiff in 
 the occupation and enjoyment of the property, or that the property 
 was deteriorated in value {ante, p. 85). 
 
 In order to make the defendant responsible for the nuisance, it must 
 be proved, either that he was the actual occupier of the land or tene- 
 ment on which the nuisance existed(c), or that he had authorized or 
 directed the doing of the thing which created the nuisance. Proof of 
 the exercise of acts of ownership over the tenement on which the 
 nuisance exists, such as paying the wages of workmen employed 
 there(ii), locking the doors, or chaining the gates at night, or giving 
 orders that it should be done, posting bills in the windows, or paying 
 a woman to open the shutters and air the house, will be sufficient 
 prima facie evidence of actual or constructive occupation ; and any 
 declarations or admissions by the defendant tending to show that the 
 tenement on which the nuisance exists belonged to him, or was under 
 
 (6) Flight V. Thomas, 10 Ad. & E. 590 ; X Smith's L. C. 261, 6th ed. Cooper o. Hubbuck, 
 ante, p. 140. As to the sufficiency of such a plea see Commonwealth v. Upton, 6 Gray (Mass.), 
 473 ; Ashbrook v. Commonwealth, 1 Bush. (Ky.) 139 ; House o. Metcalf, 27 Conn. 631. • 
 
 (0) Eobbins v. Jones, ante, p. 211, 
 
 (d) Jarvis v. Dean, U Moore, 359. 
 
Sec. 2.] ACTIONS FOR — EVIDENCE. 253 
 
 his control, will, of course, be evidence against liim(e). Proof that the 
 defendant has received rent for the use of a wall, building, or pave- 
 ment, and has previously repaired it when it required repairs, has 
 been held sufficient to render the'defendant responsible for a nuisance 
 existing thereon(/). 
 
 If the plaintiJBf complains of a nuisance arising from the non-repair 
 of drains and sewers, it must be shown that the defendant had the 
 use and occupation of the drain and sewer. Proof that the defendant 
 occupies the land through which the sewer runs does not cast upon 
 the defendant the duty of cleaning out the sewer or repairing it, or 
 preventing it from becoming a nuisance. It does not follo^fr, from his 
 being the occupier of the land through which the sewer runs, that he 
 has the occupation and use of the sewer. He may never have used it 
 or occupied it, and may have no power to touch it, or interfere with it 
 in any way(p'). The persons who have a right to use the sewer, and 
 who exercise that right, are in general bound to cleanse the sewer and 
 repair it, and prevent it from becoming a nuisance, unless the duty of 
 so doing is imposed on others by express legislative enactment. 
 
 If the defendant is not in the actual occupation of the premises on 
 which the nuisance exists, but it is sought to make him liable, on the 
 ground that he demised the premises with the nuisance existing upon 
 them, it must be proved that the nuisance was in existence at the time 
 of the demise {ante, pp. 196, 197). If it is sought to make him liable for 
 injuries arising from dangerous excavations, pits, or holes, on premises 
 demised by him, or from the fall of ruinous buildings in the occupation 
 of his tenant, it must be shown that the holes and excavations existed, 
 and that the buildings were ruinous and dangerous to, the public at 
 the time he let them. If the action is brought against the occupier of 
 ruinous buildings, which have fallen down and injured the plaintiff, a 
 prima facie case will be established against the defendant, merely by 
 proving that he was in the actual or constructive occupation of the 
 property at the time of the injury; and it will be for the defendant to 
 show, if he can, that he was a mere tenant-at-will, and had no knowl- 
 edge of its ruinous or dangerous condition ; or that before the build- 
 ings fell he ceased to occupy them, and gave up possession to the land- 
 lord {ante, pp. 210, 211). 
 
 (e) Sybray v. White, 1 M. & W. 440. 
 
 (/) Bishop V. Trustees of Bedford Charity, 1 Ell. & Ell. 697 ; 28 Law J., Q. B. 215. Payne v. 
 Eogers, 2 H. Bl. 349. 
 (j) Po8t, ch. 0. 
 
254 NUISANCES, [Chap. 4. 
 
 If the defendant is charged with acts of omission, non-feasance, 
 and neglect of duty, the facts creating the duty must be proved, and 
 the defendant's neglect established. If the injury arises from the 
 non-repair of party-walls or fences, il must be shown that the defend- 
 ant was bound by contract, prescription, or statute, to repair or fence 
 {ante, pp. 148, 214). If it arises from the negligent use and man- 
 agement of buildings, stations, or railways {ante, pp. 210-221), or 
 canals or docks {ante, pp. 221, 222), it must be shown that the defendants 
 were in the occupation of the property upon which the dangerous 
 nuisance existed, and had dominion and control over it. If the injury 
 arose from the dangerous state of premises on which the plaintiff was 
 employed as a workman, it must be shown that the danger was latent 
 and unknown to the workman, but well known to the employer {ante, 
 pp. 222-224). If it arose from defective hoisting-tackle iij mines, or 
 insecure ladders, it must be shown that the defendant ordered or 
 selected the tackle, or knew that it was insecure and unfit to be used, 
 and that the plaintiff had no knowledge of the danger he incurred by 
 using it {ante, pp. 224-226). If the plaintiff complains of injuries from 
 the dangerous state of premises in the occupation of the defendant, to 
 which, he had come on the invitation of the defendant as a guest, he 
 must show that the danger was of an unusual and unexpected charac- 
 ter, the existence of which was wholly unknown to the plaintiff, but 
 was well known to the defendant {ante, pp. 222-227). 
 
 In actions for injuries for keeping ferocious animals, the plaintiff 
 must prove that he has been bitten or hurt, or has sustained some 
 actual damage from the ferocity of the animal, and that the defend- 
 ant kept or harbored the animal with knowledge of its savage dispo- 
 sition ; but it is not necessary to allege or prove any negligence or 
 want of care in the keeping of it {ante, pp. 229, 230). If the plain- 
 tiff has not, by his declaration, tied himself down to proof of some 
 particular mischievous propensity on the part of the animal, it is suf- 
 ficient for him to prove, generally, that the animal was of a ferocious 
 nature, and given to bite, and that the defendant knew it(^); and 
 if this be proved, it is not necessary to prove that anybody before the 
 plaintiff had in fact been bitten(j). Where- a dog was proved to be 
 of a savage disposition, and the defendant had warned a person to 
 beware of the dog, lest he should be bitten, it was held that this was 
 evidence for a jury of the defendant's knowledge of the nature of the 
 
 (ft) Hartley v. HalliweU, 2 Stark. 212. 
 (i) Worth V. Gilllng, L. B., 2 C. P. 1. 
 
Sec. 2. J ACTIONS FOR — EVIDENCE — DAMAGES. 255 
 
 beast(^'). And where the wife of the defendant, who occasionally- 
 assisted him in his business as a milkman, had a complaint made to 
 her of the savage nature of a dog kept on the premises, for the pur- 
 pose of communicating it to her husband, this was held evidence 
 of the husband's knowledge(A). If it can be shown that a dog has 
 been- guilty, to the knowledge of the owner, of a single act of ferocity, 
 that is sufficient to impose upon the owner the duty of watching and 
 securing the animal, and will render the master responsible in dam- 
 ages if the dog is guilty of another ferocious act(^). 
 
 Proof of an offer on the part of the defendant to make compensa- 
 tion to the plaintiff is some, but very slight, evidence against the de- 
 fendant, as the offer may have been made purely from charitable and 
 praiseworthy motives, and not as admitting any consciousness of 
 wrong or of legal liability in the matter(rft) ; and it has been held that 
 such an offer is no evidence at all of the scienter(ra). 
 
 291 Evidence for the defence. — Where the plaintiff sues for a nuisance, 
 arising from the exercise by the defendant of a noxious trade in the 
 vicinity of the plaintiff's dwelling, and the defendant has put a plea 
 of justification on the record, he must prove the material averment of 
 his plea, and show how his right to create the nuisance arises. Under 
 the plea of not guilty, the defendant may, as we have seen, show that 
 the injury was occasioned by the plaintiff's negligence and miscon- 
 duct, as well as by the default of the defendant, and so defeat the 
 plaintiff's claim for damages(o). If it be shown that the defendant 
 was a wilful trespasser upon the land of the plaintiff, and must have 
 known that he had no right to be there at the time he sustained the 
 injury of which he complains, his claim for damages will, in general, 
 be defeated. 
 
 292 Damages recoverable. — For every nuisance, the continuance of which 
 would inflict permanent injury upon premises demised to a tenant, 
 and diminish their value in the market, damages are recoverable by 
 the reversioner in respect of the injury to the inheritance, as well as 
 by the tenant, in respect of the immediate residential injury. Thus, 
 where the subject of complaint was, that the defendant had fixed a 
 
 ij) Judge 1). Cox, 1 Stark. 285. i 
 
 • {!;) Gladman ». Johnson, 36 L. J., C. P. 153. It has been held also that if the owner of a 
 dog appoints a servant to keep it, the servant's knowledge of the dog's ferocity is the knowl- 
 edge of the master. Baldwin ». Casella, L. R., 7 Exoh. 325. 
 
 (l) Fleemingo. Orr, 2 Macq. Sc. A. 25. Proof that the defendant kept the dog without 
 proof that he was the owner, will support the action. Wilson ». Parrott, 32 Cal. 102. 
 
 (m) Thomas v. Morgan, 2 C. M. & K. 502. 
 
 (») Beck V. Dyson, i Campb. 198, per Lord EUenborough, C.J. See post, ch. 22. , 
 
 (o) Ante, pp. 24, 251 ; post, ch. 8, s. 1. 
 
256 NUISANCES. . [Chap. 4. 
 
 spout to the eaves of his house, which poured rain-water into the 
 plaintiff's yard and made it damp, it was held that this was an 
 injury of a permanent nature, which entitled the plaintiff' to damages, 
 although the yard was in the occupation of a tenant(j)). But where 
 an action is brought by a reversioner to recover damages in respect of 
 an injury to his reversionary estate in certain lands and premises, by 
 reason of a nuisance committed by the defendant, the diminution in 
 the saleable value of the premises is not the true criterion of damage, 
 because every day that the defendant ■ persists in continuing the nui- 
 sance, he renders himself liable to another action. Nominal damages 
 are generally given in the first action ; and then, if the defendant per- 
 sists in continuing the nuisance, and another action is brought, and 
 the verdict is obtained against him for continuing the nuisance, the 
 jury generally give exemplary damages, to compel an abatement of 
 the nuisance(g'). If, however, the jury choose to give substantial dam- 
 ages in the first instance, there is nothing to prevent them from so 
 doing(r). 
 
 Wherever the nuisance was, in its commencement, an injury to the 
 reversion, on any ground whatever, the continuance of the nuisance 
 must be §o likewise, and an action is maintainable by the reversioner, 
 toties quoties, until the nuisance is abated(s). In all cases of continuing 
 nuisances, the jury cannot lawfully give damages in respect of any 
 injury subsequent to the day of the commencement of the action ; for 
 every day that the nuisance continues there is a fresh cause of action, 
 in respect of which further deCmages are recoverable(i). 
 
 If the plaintiff's house has been thrown down by reason of the neg- 
 ligence of the defendant or his servants in pulling down an adjoining 
 house, the jury ought not to give as much in damages as would be 
 sufiicient to build a new house, but should make a reasonable and 
 proper allowance for the benefit which the plaintiff would receive by 
 having a new house instead of an old one. Lord Kenyon likened a 
 
 (p) Tucker v. Ne-HTnan, H Ad. & E. 41. 
 
 (g) Battishill v. Reed, 18 C. B. 714 ; 25 Law J., C. P. 290. In an action on the case by a 
 reversioner for injuries to tlie premises, tlie measure of damages is tlie amount of injury to 
 the reversionary estate. Dutro v. Wilson, i Oliio (N. S.) 101. 
 
 (r) Cresswell, J., IS C. B. 712. As a general mle exemplary damages will not be given in 
 an action for nuisance if the defendant exercised due care, and the damage was occasioned 
 by the neglect of his workmen to follow his directions. Morford v, Woodworth, 7 Ind. 83. 
 
 (s) Shadwell v. Hutchinson, 2 B. & Ad. 97. 
 
 («) See Goldsmid v. Tunbridge Wells Commissioners, post, pp. 215, 216 ; Dorman v. Ames, 
 12 Minn. 451 ; Thayer v. Brooks, 17 Ohio, 489. And in a second action the plaintifl' can 
 recover only for damages since the commencement of the former suit. Beckwith v. Gris- 
 wold 29 Barb. (N. Y. ) 291. The measure of damages in an action for a nuisance which renders 
 the adjoining premises disagreeable and uncomfortable, is the difference in the rental value, 
 fc(?e from the effects of the nuisance, and subject to it. Francis v. Sohoellkopf, 53 N. Y. 152. 
 
Sec. 3.J injunction: 257 
 
 case of this sort to the case of marine insurances, where an allowance 
 of one-third new for old was always niade(M). 
 
 In actions for injuries from keeping ferocious animals (ante, p. 229), 
 the plaintiff is entitled to recover substantial ^s-niages in respect of 
 any bodily anguish he has endured, together with the expenses of 
 surgical attendance, and all such expenses as have been reasonably 
 and necessarily incurred by him in consequence of the injury, and 
 have been claimed in the plaintiff's declaration. If, in consequence of 
 a bite from a ferocious dog, knowingly kept and harbored by the 
 defendant, the plaintiff has been obliged, under medical advice, to 
 undergo a surgical operation to guard against hydrophobia, this will 
 be a ground for increasing the damages(ai). 
 
 SECTION III. 
 
 PREVENTION OP NUISANCES BY INJUNCTION AND INDICTMENT. 
 
 293 Injunction. — Both the courts of common law(j^) and Chancery will, 
 by injunction, prevent the continuance of a nuisance on one man's 
 land to the injury or annoyance of another(z). An injunction will be 
 granted, in certain cases, to prevent the fouling of a stream by pour- 
 ing into it the contents of sewers, and tAe refuse of dry-houses and 
 manufactories(a) ; or to prevent the fouling of a canal by taking water 
 
 («) Luiin V. Goodsall, 2 Peake, 15. 
 
 (a) Post, ch. 22. 
 
 iy) As to injunction at common law, see post, ch. 23. 
 
 (s', Oldacre v. Hunt, 19 Beav. 489. Inclibald v. Eobinson, and Inchbald e. Barrington, L. 
 E. , 4 Ch. App. 388. To entitle a party to a remedy by injunction in cases of private nuisance, 
 the right must be clear, and the injury such as cannot be adequately compensated by dam 
 ages, or such as by its long continuance may occasion a constantly recurring gi-ievance, 
 which can only be prevented by injunction. Middleton v. Franklin, 3 Cal. 238. Burnham ». 
 Kempton, U N. H. 78. Wolcott v. Melick, 3 Stoc. (N. J.) 204. Holsman o. Boiling Spring, 
 etc. Co. 1 MoCarter (N. J.), 335. Parkerc. Winnipiseogee Lake etc. Co., 1 Clifford, 247. The- 
 baut V. Canova, 11 Florida, 143. 
 
 As a general rul«, the existence of the nuisance must be admitted or established at law 
 before the court will grant equitable relief. Frizzle v. Patrick, 6 Jones Eq. (N. C.) 354. Dun- 
 ning V. Aurora, 40 111. 481. ' 
 
 If the apprehended nuisance is doubtful or contingent, the complainant will be left to his 
 remedy at law. Ellison ». Commissioners, 5 Jones Eq. (N. C.) 57. Grey v. Ohio and Penn- 
 sylvania K. E. Co., 1 Grant's Cases (Penn.) 412. Boss v. Butler, 4 Green (N. J.) 294. Duncan 
 t). Hayes, 22 N. J. Eq. 25. 
 
 (o) Wood V. Sutcliffe, 2 Sim. N. S. 1B3. Att.-Gen v. Borough of Birmingham, 4 S. & J. 528. 
 Davis V. Lambertson, 56 Barb. (N. T.) 480. Mayor of.New Tork v. Baumberger, 7 Eob. (N. 
 Y.) 219. H\idson Eiver E. E. Co. i>. Loeb, id. 418. 
 
 Ad. Vol. L— 17 
 
258 NUISANCES. [Chap. 4 
 
 from a stream polluted by sewage, although the pollution of the 
 stream was not caused by the proprietors of the canal(6) ; also to pre- 
 vent the burning of bricks(c), the erection of coke-ovens(d), and densely- 
 smoking chimneys(e), and the carrying on of gas-making or any 
 noisome trade, so as seriously and materially to interfere with the or- 
 dinary comfort and enjoyment of a neighboring dwelling-house, or to 
 injure the trees or vegetation of the neighboring fields(/). When the 
 nuisance is of a permanent chatacter, such as a nuisance caused by the 
 erection of a building which obstructs the passage of light and air to 
 ancient windows, the courts will interfere to protect the proprietary 
 interests of the reversioner, as well as to protect the enjoyment by the 
 tenant or occupier(g'). But where the injury is of a temporary nature, 
 not likely to last long, nor to deteriorate the marketable value of the 
 property, the reversioner has no claim to the equitable interference of 
 the court(A) ; nor will the court interfere in any case, unless some 
 serious inconvenience has been sustained, or some actual damage done 
 or threatened(i) ; nor where the injury, in itself trifling, will shortly 
 
 (6) Att.-Gren v. Bradford Canal, L. K., 2Eq. Ca. 71. Andsee Att.-Gen. v. Eiehmond, ibid. 306. 
 
 (c) Walter v. Selfe, arOe, p. 192. 
 
 (d) Semple v. Lond. & Birm. Bail. Co., 1 Bail. Ca. 120. 
 {e) Sampson v. Smith, 8 Sim. 272. 
 
 (/) Imp. Gas, etc., Co. v. Broadbent, 7 H. L. C. 600. Haines v. Taylor, 10 Beav. 75. Cramp 
 r. Lambert, L. E., 3 Eq. Ca. 409. Att.-Gen. v. Cleaver, 18 Ves. 211, ante, p. 194. Mulligan r. 
 Elias, 12 Abb. (N. T.) N. S. 259. Wolcott r. Melick, 3 Stoct. (Jf. J.) 204. Bat to justify an in- 
 junction against the erection of a building for manufacttiring purposes, as a nuisance to an 
 adjoining dweUing-house, a strong case mast be made. The mere anticipation of noise, smoke, 
 cinders, and increased danger fi-om fire will not be such a case. Id. Bhodes v, Dunbar, 57 
 Penn. St. 274. Duncan v. Hayes, 22 X. J. Eq. 25. And where a locality has lost its character 
 as a place of residence, and has become essentially a manufacturing neighborhood, a court 
 of equity will not restrain the carrying on of a manufacturing business, even though it 
 renders an adjoining building unfit for a dwelling. Gilbert v. Showerman, 23 Mich. 448 ; 2 
 Mich. N. P. 158. The exercise of an offensive trade In the vicinity of a vacant lot intended 
 ■for a house lot, will not be restrained on the ground that its value will be decreased, as the 
 owner has an adequate remedy at law. Thebautr. Canova, UElorida, 143. Dana v. Valen- 
 tine, 5 Met. 8. 
 
 In addition to the cases stated in the text, a court of equity will restrain the continued use 
 of a slaughter-house to the annoyance of the inmates of an adjoining dwelling. Bishop v. 
 Banks, 33 Conn. 118. The floiving of impure and offensive water from a brewery in front oJ 
 a dwelling-house. Smith r. Fitzgerald, 24 Ind. 316. The keeping and standing of jacks and 
 BtaUions within full view and hearing of a dwelling-house. Hayden o. Tucker, 37 Mo. 214. 
 
 (g) Wilson v. Townend, 30 Law J., Ch. 25. Herz t. Un. Bank, 2 Giff. 688. But see Cun 
 ningham v. Dorsey, 4 W. Va. 293 ; Gwin v. Melmoth, 1 Fi-eem. Ch. 505. Where a party builds 
 a house, and, at the same time, owns the adjoining lot, and afterwards sells the house, an in- 
 junction will lie to restrain him or his grantees from so building on the vacant lot as to ob- 
 struct the windows of the house conveyed. Lampman v. MUks, 21 N. Y. 605. Story t>. Odin, 
 12 Mass. 157. Hubbard v. Town, 33 Vt. 295. 
 
 (ft) Cleeve v. Mahany, 9 W. E. 882. 
 
 («) Wandsworth Board, etc.,t!.Lond. & S. W.E., ante, p. 92. As to prospective damage, see 
 Golsmid v. Tunbridge Wells Commissioners, L. K., 1 Ch. App. 819, ante, p. 256. Parker r. 
 Winnipiseogee Lake, etc., Co., 1 Clifford, 247. Duncan c. Hayes, 22 N J. Eq. 25. Mohawk 
 Bridge Co. v. Utica and Schenectady E. E. Co., 6 Paige, 554. 
 
Sec. 3. J EQUITABLE BELIEF. 259 
 
 be abated by the operation of an Act of Parlianient(^'). If the injury 
 be accidental or occasional only, and not likely to become more fre- 
 
 > quent, or to be exceptional in amount, such as arises from the storage 
 of inflammable materials, the person complaining will be left to his 
 action at law(A). It is no answer that the removal of the nuisance is 
 a task of great difficulty, though that may be ground for suspending 
 'ts operation for a period(Z). The injunction will be enforced by se- 
 questration, if necessary («z). / 
 
 294 Acquiescence preckiding equitable relief. — In some cases it has been 
 held to be the duty of a person seeing a nuisance in progress, and 
 having the power of abating it and stopping it, to give notice to the 
 person erecting the nuisance of his intention to object ; and it is clear 
 that a person may so encourage that which he afterwards complains 
 of as 1 nuisance, as to preclude him from any claim in equity to an 
 injunction(w). If a person sees a building in progress of erection 
 which, when completed, must necessarily darken his windows, and 
 nevertheless allows the building to be completed, and finished, and 
 decorated, at great expense, without making any protest or complaint, 
 or taking any proceedings against the wrong-doer, the Court of Chan- 
 cery will not interfere by injunction to compel the pulling down of the 
 building, but wUl leave the complainant to his remedy at law(o). But 
 acquiescence in the erection of injurious buildings, or of noxious works, 
 while they produce little injury, will not deprive the person so acqui- 
 escing of his right to an injunction if the nuisance is increased and 
 becomes productive of more serious damage(oo) ; otherwise it would 
 follow that a partial obscuration of ancient lights might be followed by 
 their total destruction, and that an easement assented to might be 
 increased at the pleasure of the grantee, provided it could be shown 
 that the increase was only a probable and natural consequence of the 
 use of the easement. Nor can u prescriptive right be claimed, it 
 
 (i) Att.-Gen. v. Gee, L. E., 10 Eq. Ca. 131. Nor where the party ereotingthe nuisance shows 
 an iatention to discontinue it, and is proceeding with all possible haste and diligence to abate 
 it. King V. Morris, etc., E. E. Co. 3 Green (N. J.) 397. 
 
 (*) Coolse V. Forbes, L. E., 5. Eq. Ca. 166. 
 
 (Z) Att.-Gen. v. Colney Hatch Asylum, L. E., i Ch. App. 146. 
 
 (m) Spokes ». Banbury Board of Health, L. E., 1 Eq. Ca. 42. 
 
 (») Williams ». Earl of Jersey, 1 Cr. & Ph. 97. See Exeter (Corporation of) v, Deron (Earl 
 of), I.. E., 10 Eq. Ca. 232. Big Mountain Improvement Co.'s appeal, 64 Penn. St. 361. Bas- 
 sett V. Salisbury, etc., Co., 47 N. H. 426. Southard V. Morris Canal, Saxton, 518. Binney's 
 Case, 2 Bland, 99. Sprague v. Steere, 1 E. I. 247. 
 
 (o) Cooper r. Hubbuok, 30 Beav. 160 ; 31 Law J., Ch. 123. Cotching v. Bassett, 32 Law J., 
 Ch. 286. 
 
 ^oo) Hnlme v. Shreve, 3 Green. Ch. 116. 
 
260 NUISANCES. [Chap. 4, 
 
 beems, in such a case — at all events unless there has Ibeen a continuance 
 of sensible damage for the requisite period(p). 
 
 If a person has acquiesced in the erection (3f chemical or smelting 
 ■works, in ignorance of the nuisance that will arise from them when 
 they are put into operation, the acquiescence in the erection is no ac- 
 quiescence in the nuisance arising from them, and will not preclude 
 him from the remedy by injunction(g). And if the person injured has 
 refrained from taking any actiye>steps to abate or put an end to a 
 nuisance in consequence of assurances he has received from the per- 
 sons creating the nuisance that measures would be taken to put a stop 
 to it, there is no laofies on his part, and no such acquiescence as will 
 deprive him of his right to an inj unction (r). Nor will the fact that 
 the plaintiff has purchased the land with full knowledge of the nui- 
 sance, disentitle him to relief(s)'. Nor the fact that the plainfiff is 
 much more injured by many other people, provided a definite injury 
 can be traced to the defendant(i). 
 
 295 Injunction to prevent the eontinuance of noUy nuisances. — If a belfry 
 is erected so near to the dwelling-house of the plaintiff, that the bells 
 when rung prevent people from being heard whilst talking in the 
 house, or disturb the rest of the inmates at night, this is such an 
 invasion of the domestic comfort and enjoyment of a man's home as 
 entitles him to an injunction to prevent the nuisance(M). 
 
 296 Prevention of pvMic nuisances — Writs of prohibition were formerly 
 issued by courts of common law to prevent the continuance of a public 
 nuisance, such as the bowling alley near St. Dunstan's Church ; the 
 rope-dancer's stage at Charing Cross ; and the play-house in Little 
 Lincoln's Inn Fields(c) ; and courts of equity will interfere by injunc- 
 
 (p) Goldsmid v. Tunbridge Wella, L. E., 1 Eq. Ca. Ifil ; S. C.l Ch. App. 349. Crossley o. 
 ■Lightowler, infra. But see Dana v. Valentine, 5 Met. 8. 
 
 (g) Bankart v. Houghton, 27 Bear. 431 ; 26 Law J., Ch. 473. 
 
 (r) Atty.-Gen. v. Birmingham, 4 Kay & J. 546. Davies v. Marshall, 31 Law J., C. P. 61. 
 
 («) Tipping V. St. Helen's Smelting Co., L. K., 1 Ch. App. 66. King v. Morria, etc., E. E. Co., 
 3 Green (N. J.), 397. But where ooei person purchases land of another, after being informed 
 that it is the vendor's intention to erect a barn on his own land near the land conveyed, the 
 purchaser cannot afterwards enjoin the erection of the bam on the ground that it would be 
 a nuisance and lessen the value of his property. Curtis v. Winslow, 38 Vt. 690. 
 
 («) Crossley i». Lightowler,L.E., 3 Eq. Ca. 279. Kogera ». Stewart, 5 Vt. 21S. Douglass e. 
 State, 4 Wis. 387. 
 
 («) Soltan V. De Held, 2 Sim. N. S. 133. So a party may be enjoined from holding public 
 exhibitions or entertainments upon his premises, which call together a noisy and disorderly 
 crowd; and it has been held that the playing of a powerful band of music, twice a week, 
 for several hours continuously, within one hundred yards of a dwelling house, is a nuisance 
 which a court of equity will restrain. Walker v. Brewster, L. E., 5 Eq. Cas. 25. So where 
 a lawful business is carried on at unreasonable hours, to the annoyance and discomfort of 
 neighbors, a court of equity will restrain it. Dennis v. Eokhardt, 3 Grant (Penn.), 390. 
 
 (c) Hall's case, 1 Mod. 76. Eex r. Betterton, 6 Mod, 142; Sl^iTt, 625, 627. Eex v. Dorset 
 Justices, 15 East, 594. 
 
8eC. 3.J BEMEDT BY INJUNCTION. 261 
 
 tion to prevent public nuisances(w), such as nuisances to public rivers, 
 and public harbors(a;), and public roads(2/) ; and magistrates, boards 
 of health, and commissioners of public works, may be restrained from 
 exercising their statutory powers, so as to create or occasion a public 
 
 auisance(2^2')- 
 
 Where, by an Act of Parliament, a corporation were directed to 
 cause a piece of land to be drained and leveled, and kept in a proper 
 condition, for purposes of public recreation, the court restrained the 
 corporation from using it for the holding of a cattle fair(0). In infor- 
 mations and proceedings for the prevention of public nuisances, the 
 ordinary course is for the Attorney-General to sue, as representing 
 the public ; but individuals may come forward and invoke the assist- 
 ance of the court when they have themselves individually sustained 
 damage, and the interposition of the court is required for the protec- 
 tion of their property(a), or the preservation of the beneficial use, 
 occupation, and enjoyment of it(6). 
 
 The same principles of law guide the interference of the court 
 whether the nuisance be a public or a private nuisance(c). However, 
 
 (w) Colnmbus v. Jaques, 30 Ga. 606. People v. Vanderbilt, 28 N. T. 396. Parrish v. Steph- 
 ens, 1 Oregon, 73. Hamilton t>. Whlteridge, 11 Md. 128. Walker v. Shepardson, 2 Wis. 384. 
 Eowe V. Granite Bridge Co., 21 Pick. 344. Bradsher v. Lea, 3 Ired. Cli. 301. State v. Mayor 
 of Mobile, 6 Porter, 279. 
 
 (X) People V. VauderbUt, 26 N. T. 287. Attorney-General o. Hudson E. E. Co., 1 Stock. 
 (N. J.) 526. 
 
 (y) Green v. Oakes, 17 HI. 249. Fort v. Groves, 29 Md. 188. Ewell c Greenwood, 26 
 Iowa, 377. , 
 
 iyy) Atty.-Gen. v. Forbes, 2 Myl. & Cr. 133. See post, ch. 16, s. 3. 
 
 (e) Atty.-Gen. v. Corp. of Southampton, 29 Law J., Ch. 282; 1 Giff. 363. People v. Vander- 
 bilt, 28 N. Y. 396. Sparhawk v. Union Passenger E. E. Co., 54 Penn. St. 401. 
 
 (o) Crowder v. Tinkler, 19 Ves. 621, Atty.-Gen. v. Forbes, 2 Myl. & Cr. 129. Spencer ». 
 Lond. & Bii-m. Bail. Co., 1 Eail. C. 159; 8 Sim. 193. Sampson o. Smith, 8 Sim. 272. Hepburn 
 V. Lordan, 34 L. J., Ch. 293. Parrish v. Stephens, 1 Oregon, 73. Milhau v. Sharp, 27 N, Y. 
 611. Zabriskie ». Jersey, etc., E. E. .Co., 2 Beasley (N. J.), 314. Corning v. Lowerre, 6 
 Johns. Ch. 439. Eosser ». Eandolph, 7 Porter, 23S. Walker o. Shepardson, 2 Wis. 384. Green 
 V. Oakes, 17 111. 249. 
 
 But to entitle a private individual to invoke the interposition of a court of equity to restrain 
 a public nuisance, he must show special damage apprehended or sustained peculiar to 
 himself and distinct from that suffered by the public at large. Allen v. Board of Freehold- 
 ers, 2 Beasley (N. J.), 68. Hinchman v. Patterson Horse E. E. Co., 2 Green (N. J.), 75. 
 Hartshorn v. South Eeading, 3 Allen (Mass.), 501 Bechtel v. Carslake, 3 Stoot. (N. J.) 500. 
 Bigelow V. Hartford Bridge Co. 14 Conn. 565. Delaware & Maryland E. E. Co. v. Stump, 8 
 Gill. & J. 479. B.everidge v. Lacey, 3 Eand. 63. Black v. Philadelphia, etc., E. E. Co., 68 
 Penn. St., 249. The injury must be different, not merely greater in degree. Hartshorn v. 
 South Eeading, 3 Allen (Mass.), 501. The injur/ must also be one for which the law does not 
 afford adequate relief. Mayor of Georgetown e Alexandria Canal Co., 12 Peters, 91. Van- 
 winkle V. Curtis, 2 Green Ch. 422. Eosser v. Eandolph, 7 Porter, 238. Water Commissioners 
 ». Hudson, 2 Beasley (N. J.), 420. Fort ». Groves, 29 Md. 188. Finley v. Thayer, 42 111. 350. 
 Attorney-General v. Heishon, 2 Green (N. J.), 410. New Boston Coal, etc., Co., ». Pottsville 
 Water Co., 54 Penn. St. 164. Camp v. Matheson, 30 Ga. 170. Banks v. Bnssey, 34 Md. 437. 
 
 (6) Soltau V. De Held, supra. 
 
 (c) Att.Gen. v. ShefT. Gas. Co., 3 DeGex, M. & G. 315; 22 Law J.,Ch. 812. 
 
262 NUISANCES. [Chap. 4. 
 
 in the former case, where the public injury purports to be asserted, 
 it is not immaterial, at least upon an interlocutory application, e.g., 
 for an injunction to restrain a nuisance, to look into the motives from 
 which the case is brought forward(d). 
 
 The court will not grant an interlocutory injunction before .the hear- 
 ing of the cause, unless it is necessary for the protection of property, 
 or the prevention of some threatened injury thereto(e) ; nor will it 
 interfere in any case, as we have seen, to protect a dry legal right or 
 title, merely because the legal right is iSifringed(/). 
 297 Preeention of public nuisances bp indictment. — In the case of public 
 nuisances, such as obstructions in public thoroughfares or navigable 
 rivers, or suffering boughs of trees to overhang highways, or ditches 
 adjoining them to become foul and choked up, or buildings by the 
 side of public thoroughfares to become ruinous, the remedy is by 
 indictment in respect of the public injury(gr), and by action in respect 
 of any particular or special damage sustained by individuals(A). 
 
 The following nuisances have been held indictable : — The over- 
 crowding of houses with poor people in time of infection of plague, 
 and thereby endangering the health of the neighborhood(j) ; the carry- 
 ing of people infected with contagious disorders along public thorough- 
 fares in such a way as to endanger the health of the passengers(^) ; or 
 the exposure for sale in a public place of a horse affected with 
 glanders(A) ; the keeping of large quantities of gunpowder in danger- 
 ous proximity to populous neighborhoods(Z) ; the carrying on of noxious 
 and offensive manufactures in public places, or adjoining public 
 thoroughfares, so as seriously to incommode and annoy large numbers 
 of persons(TO) ; holding out inducements to people to collect together 
 in large crowds, to the obstruction of public thoroughfares, the tread- 
 
 ((i) Att.-Gen. v. Cambridge Gas Co., I/. E., i Ch. App. 71. 
 
 (e) Att. Gen. v. United King. Elect. Tel. Co., ante, p. 93. 
 
 (/) WandBwortli Board v. Lond. & S. W. B., mUe, p. 92. Bassett v. Salisbury, etc., Co., 47 
 N. H. 426. 
 
 (g) Kex ». Eussell, 6 East, 427. Bex v. Cross, 3 Campb. 226. Bex ». Jones, 3 Campb. 230. 
 Beg. V. Watson, 2 Ld. Baym. 856. Weld v. Hornby, 7 East, 195. Beg. v. Leech, 6 Mod. 145. 
 Gerrisb v. Brown, 61 Me. 256. State v. Freeport, 43 Me. 198. Harvey v. Dewoody, 18 Ark. 
 252. Eowe v. Granite Bridge Co., 21 Pick. 344. 
 
 (A) Artte, p. 242. Bex v. Dewsnap, 16 East, 196. Gerrisb «. Brown, 51 Me. 256. Harrey v. 
 Dewoody, 18 Ark. 252. 
 
 (4) 3 Boll. Abr. 139, pi. 3. See Meeker v. Van Eensselaer, 15 Wend. 397 ; State e. Pnrse, 4 
 McCord, 472. 
 
 (i) Bex V. Vantandillo, 4 M. & S. 73. 
 
 (h) Beg. o. Henson, 1 Dearsl. C. C. 24. 
 
 (I) Bex V. Taylor, 2 Str. 1167. Biggs v. Mitchell, 31 Law J., M. C. 163. See Cheatham v. 
 Shearon, 1 Swan (Tenn.), 213 ; People ». Sands, 1 Johns. 78. 
 
 (m) Bex V. White, 1 Burr. 335. Bex v. Pappineau, 2 Str. 686. Bex t>. Neil, 2 C. & P. 485. 
 State t;. Wetherall, 5 Harring. (Del.) 487. 
 
Sec. 3. J BEMEDT BT INDICTMENT. 263 
 
 ing down the grass of the neighboring meadows, the destruction of 
 fences, or the creation of alarm and disturbance in the surrounding 
 neighborhood(w) ; the making of a great noise in the night with a 
 speaking trumpet^ to the disturbance of divers householders(o) ; sawing 
 of logs of timber in a public street, and incumbering a road or foot- 
 path with barrels of beer(p) ; the opening of new coal-holes, and 
 unloading coals in a public thoroughfare, in places where no coal-hole 
 previously existed, and where the highway was not originally dedi- 
 cated subject to the use of it for domestic coaling(g') ; making excava- 
 tions and openings in the soil of a highway, or in the pavement of a 
 public street, for water, gas, sewerage, or other purposes, without 
 parliamentary authority(r) ; the use on a highway of a traction steam- 
 engine, which, by its noise and appearance, frightens horses, and 
 makes the highway dangerous to persons riding or driving(s) ; mixing 
 of large quantities of alum and deleterious and prohibited ingredients 
 in bread, intended for the use and consumption of the public(i) ; keep- 
 ing of a disorderly house, gaming-house, or bawdy-house(M) ; indecent 
 bathing(a;), and the indecent exposure of the person in any public 
 place within view of persons resorting there, or within view of the 
 inhabitants of a dwelling-house(y) ; and a place may be a public place, 
 
 («) Eex V. Moore, 3 B. & Ad. 184. One who collects a large crowd in the public highways 
 and streets of a city by addressing violent and indecent l|uguage to persons passing along 
 the highway, is indictable for committing a common nuisance. Barker v. Commonwealth, 
 19 Penn. (7 HaiTis) 412. A way acquired by a town by grant is a private way, and a nuisance 
 on it will not be indictable. Commonwealth v, Low, 3 Pick. 408. 
 
 (o) Eex V. Higginson, 2 Burr. 1233. See Commonwealth v. Smith, 6 Cnsh. 80. 
 
 (p) Eex V. Jones, 3 Campb. 229. State ». Atkinson, 24 Vt. 448. The making of a fence 
 across a public highway is a public nuisance under the statutes of Indiana, and indictable as 
 such. State v. Miskimmons, 2 Carter, 440. 
 
 (3) Cockburn, C. J., 29 Law J., M. G 123. 
 
 (r) Eeg. V. Longton Gas Co., 29 Law J., M. C. 119. A person may be indicted for cutting a 
 canal for mill purposes across a highway ; and so may persons continuing the nuisance. 
 State V. YarreU, 12 Ired. 130. So a person may be indicted for so building a mill dam as to 
 overflow a highway. State v. Phipps, 4 Ind. 515. 
 
 (s) Watkins v. Redden, ante, p. 204. 
 
 (<1 Eex V. Dixon, 3 M. & S. 11. Or adulterating milk. Commonwealth t>. Nichols, 10 Allen 
 (Mass.), 199. Commonwealth v. Tarren, 9 Allen (Mass.), 489. People v. Pauerbuok, 5 Pick. 
 311. Or selling unwholesome provisions. State v. Smith, 3 Hawks, 378. See 36 & 36 Vict. c. 
 74, against the adulteration of food ; c. 94, ss. 19-22, against the adulteration of liquor. See 
 6 & 7 Wm. rv., c. 37, s. 8, Core v, James, L. E., 7 Q. B. 135. 
 
 (u) Eex V. Smith, 2 Str. 704. Eeg. v. Eogier, 1 B. & C. 272. Eeg. v. Williams, 1 Salk. 383. As to 
 the meaning of the word "keeping," see Eeg. «. Stannard, 33 L. J., M. C. 61. See also Garrett 
 v. Messenger, L. E. , 2 C. P. .WS ; State ». Bertheol, fi Blackf. 474 ; State v. Buckley, 5 Harring. 
 (Del.) 508; State ». Bailey, 1 Foster (N. H.), 343 ; State e. Haines, 30 Me. 65 ; Bloomhuff o. State, 
 S Blackf. 205 ; Smith v. Commonwealth, 6 B. Mon. 21. One who demises a house with the intent 
 that; it shall be kept for purposes of prostitution, may be indicted as a keeper of a bawdy house, 
 and his lessee may be joined with him in the indictment. People v. Erwin, 4 Denio, 129. One 
 who keeps a house in such a manner as to disturb the neighborhood, and to tend to corrupt 
 the public morals, may be indicted. People v, Carey, 4 Park. 238. 
 
 (a) Eex V. CrundeB, cmte, p. 47. 
 
 {y) Sidley'B case, 1 Sid. 168. Holmes' case. Dears. Or. C^. 207. 
 
264 NUISANCES. [Chap. 4. 
 
 although it is not a highway or place of public resort(z). But the 
 exposure must be in the presence or within view of more persons than 
 one, in order to render it a public nuiBance(a), and it must be a wilful 
 and indecent exposure, and not such an exposure as may be made in 
 a public urinal(6), or under the pressure of paramount necessity (&6). 
 
 It is no defence to an indictment for a public nuisance to show that 
 the public generally are benefited by it, though a portion of the pub- 
 lic may be inconvenienced, "for if the violation of rights which belong 
 to any part of the public is to be vindicated by the benefit which may 
 arise to another part of the public elsewhere, inquiries would be intro- 
 duced of a most vague and unsatisfactory nature, and speculations 
 entered into which no jury could be expected properly to decide"(c). 
 
 S98 Nuisances in public highways. — " Highway is the genus of all public 
 ways, as well cart, horse, and foot-ways, and an indictment lies foi 
 any one of these ways, if they be common to all the Queen's subjects 
 having occasion to pass there ; that is, if it be a foot-way only, com- 
 mon to them all, or a horse-way and a prime-way ; and these are not 
 altCB reg/icB viw, for that is the great highway common to cart, horse, and 
 foot, that please to use it "(d). 
 
 299 Indictment against a corporation. — A corporation or a railway company 
 is as much amenable to an indictment for obstructing a public thorough- 
 fare as any private person \s{dd). "It is as easy," observes Lord Den- 
 
 \z) Reg. V. Thallman, 33 L. J., M. C. 58. 
 
 (o) Beg. V. Watson, 2 Cox, Cr. C. 376. Webb's case, 1 Den. Cr. C. 338 ; 2 C. & K. 933. Elliot's 
 case, Leigh & Cave, C. C. E. 103. 
 
 (6) Eeg. V. Orchard, 3 Cox, Ci-. C. 248. But si^e Eeg. v. Harris, L. E., 1 C. C. E. 282. 
 
 (66) A common scold may be indicted as a nuisance. Commonwealth ». iVtohn, 52 Penn. St, 
 243. Frofane cursing- and swearing in public is indictable as a common nuisance. State v. Gra- 
 ham, 3 Sneed (Tenn.), 134. Unless it be in North Carolina, where one may curse and swear 
 so loudly at a tavern as to break up a singing school near by, and yet commit no nuisance. 
 State V. Baldwin, 1 Dev. & Bat. 195. A constable obstmcting a street by a sale, may be in- 
 dicted as 51 nuisance. Commonwealth v. Milliman 13 Serg. & E. 403. Reckless driving 
 through the streets of a populous city in a manner to endanger the safety of the inhabitants, 
 is also an indictable offence. United States ». Hart, Pet. C. C. 390. The keeping of a house 
 in a negligent and filthy state, to the annoyance of the neighborhood and community, may 
 be an indictable ofl'ence. State v. Purse, 4 McCord, 472. So letting a stallion to mares on the 
 public street of a town and in view of the inhabitants, is indictable as a nuisance. Crane v. 
 State, 3 Ind. 193. 
 
 (c) Ld. Denman, C.J.,Eex o. Ward, 4 Ad. &E. 460. Eex* ». Tindall, 6 Ad. & E. 143. Heg- 
 ingbotham v. East. & Cont. St. Packet Co., ante, p. 194. Eeg. v. Train, 31 Law J., M. C. 109 ; 
 Q. B. 179, overruling on this point Eex v. Russell, 6 B. & C. 566. Eespublica v. Caldwell, 1 
 DaU. 150. So it is no defence to an indictment for a nuisance that at the time it was created 
 ' no inhabitants dwelt in the neighborhood ; nor that at the time of the action other erections 
 of a similar character are equally injurious to the public health. Douglas v. State, 4 Wis. 387. 
 Nor is it any defence to an indictment for canying on a noxious ti-ade in a public place, that 
 the proper officers have neglected to exercise their statutory powers in assigning a place for 
 the exercise of the trade. State v. Hart, 34 Me. 36. 
 
 (<J) Eeg. V. Saiutlff, 6 Mod. 256. , 
 
 (Af) Louisville, etc., E. E. Co. restate, 3 Head (Tenn.), 523. See State ». Vermont Central 
 E. R. Co., 30 Vt. 108. 
 
Sec. 3.J DEDICATION OF BIQHWAT. 265 
 
 man, C.J., " to charge a body corporate (by indictment) with erecting 
 a bar across a public road as with the non-repair of it, and they may 
 as well be compelled to pay a fine for the act as for the omission "(e). 
 300 Proof of dedication of way to the public. — ^If the owner of the soil 
 makes and throws open a foot-way or carriage-way leading from one 
 part of a public thoroughfare to another part of a public thoroughfare, 
 and neither marks by chain or bar, or visible distinction, that he means 
 to preserve all his rights over it, nor exclude persons from passing 
 through it by positive prohibition, and the public^ notoriously use the 
 way for a number of years (see post, p. 268), it is presumed to be dedi- 
 cated to the use of the public, and becomes a public highway, which 
 cannot lawfully be interrupted, though it was originally opened and 
 intended for private convenience(/). The user and enjoyment of the 
 way by the public must have been had under circumstances from which 
 an intention on the part of the owner of the soil to dedicate the way 
 may fairly be inferred(j7)- If therefore, the passage of the public 
 
 (e) Eeg. V. Gt. Korth of Eng. Eail. Co., 9 Q. B. 325. Eeg. v. Bii-m. & GloQO. Rail. Co., 3 Q. 
 B. 223. 
 
 (/) Rex V. Lloyd, 1 Campb. 260. Roberts v. Carr, ib. 263. Rex v. Barr, 4 ib. 16. Ewell v. 
 Greenwood, 26 Iowa, 377. Stevens ». Nashua, 46 N. H. 192. Conway®. Jefferson, id. 521. Lit- 
 tle V. Denn, 34 N. Y. 462. Day v. AUender, 22 Md. 511. Gmbe v. Nichols, 36 111. 92. Onstott 
 V. Murray, 22 Iowa, 457. Keys v. Tait, 19 Iowa, 123. Gentleman v. Soule, 32 lU. 271. Lewis- 
 ton V. Proctor, 37 111. 414. Compton's Petition, 41 N. H. 197. Hart v. Trustees, etc., 15 lud. 
 226. Commonwealth v. Cole, 26 Penn. St. 187. 
 
 Such use is said to be conclusive proof of dedication. Lemon ». Hayden, 13 Wis. 159. 
 Wyman v.State, id. 663. Johnson©. Stayton,5Harring. (Del.)448. Green v. Oakes, 17ni. 249. 
 Smith ». State, 3 Zabr. 130. See Williamso. Cummington.lS Pick. 312 ; State!). Hnnter, 5 Ired. 
 369. But a highway cannot be established by prescription if the consent of the owner of the 
 soil was given by mistake. State v. Crow, 30 Iowa, 258. And it has also been held that no 
 length of user by the public will of itself establish a public road. Kelly's case, 8 Gratt. 632. 
 
 (ff) See Gentleman v. Soule, 32 111. 271 ; Robertson v. Wellsville, 1 Bond, 81 ; Morrison v. 
 Marquardt, 24 Iowa, 35 ; Marcy v. Taylor, 19 111. 634 ; People v. Jones, 6 Mich. 176 ; Holdane 
 V. Coldspring, 21 N. Y. 474 ; Dodge v. Staoey, 39 Vt. 658 ; Fulton Village v. Mehrenfleld, 8 
 Ohio(N. S.), 440. 
 
 Not only must there be an intention on the part of the cwner to dedicate a portion of his 
 land for the purposes of a highway and an act amounting to dedication, but there must be 
 also an acceptance on the part of the public. Id. State v, Wilson, 42 Me. 9. 
 
 At common law, if the intention of the owner to dedicate a road to the public is evident, no 
 formal or official acceptance is necessary, but travel by the public to sucli an extent and for 
 such a length of time as to show that public convenience and accommodation require the 
 road is sufficient for the purpose, Buohannan v. Curtis, 25 Wis. 99. Hanson v. Taylor, 23 
 Wis. 647. Guthrie v. New Haven, 31 Conn. 30S. Green v. Canaan, 29 Conn. 157. 
 
 Acceptance may be conclusively evidenced by twenty years' use of the land as a highway. 
 SI evens v. Nashua, 46 N. H. 192. Haywood v. Charlestown 34 N. H. 23. Jennings v. Inhabi- 
 tants of Tisbury, 5 Gray (Mass.), 73. So it may be evidenced by proof of the express vote of 
 th e proper officers, or by any act recognizing an obligation to repair. State v. Otherton, 16 N. 
 H 203. Alvord v. Ashley, 17 lU. 363. 
 
 Where there has been no public user, acceptance of a city street must be manifested by 
 some act of the lawful authorities, either formally confirming the dedication, or exercising 
 authority over the property dedicated. People v. Jones, C Mich. 176. State ». Wilson, 42 Me. 9. 
 
 And user of a city itveei, by the public does not of itself constitute acceptance, but is merely 
 evidence tending to prove acceptance. Detroit v. Detroit, eto.,R. R. Co., 23 Mich. 173. 
 
266 NUISANCES. [Chap. 4. 
 
 was allowed under some special agreement or license of the owner of 
 the soil, the conditional and permitted user will not establish the 
 public right. Thus, where the owner of land agreed with an iron 
 company, and with the inhabitants of a hamlet repairing its own roads, 
 that a way over his land in such hamlet should be open to carriages, 
 that the company should pay him five shillings a year, and find 
 cinders to repair the road, and that the inhabitants of the parish should 
 lay down and spread, the cinders, and the way was thereupon left open 
 to all persons passing with carriages for nineteen years, at the end of 
 which time a dispute arising, and the road being left unrepaired, the 
 owner of the land stopped up the road, it was held that there had been 
 no dedication of the road to the public, but only a license to use it on 
 certain terms and conditions, which license might be withdrawn on the 
 condition not being complied with(^). 
 
 Where an ancient highway was illegally stopped and the public 
 deviated on to the adjoining land, which was an open down, forming 
 a track nearly parallel with the old road, which track they continued 
 to use for about twenty years, when it was stopped, and the old road 
 was re-opened to the public, it was held that the deviating track had 
 not become a public highway, as it had never been used by the public 
 except when they had been shut out from the old road, and the user, 
 being referable to the right of the public to deviate on to the adjoin- 
 ing land whenever the owner of the soil illegally stopped the high- 
 way(^), would not establish any permanent dedication of the deviating 
 track to the use of the public, so as to make it a permanent public 
 thoroughfare(i). 
 30 1 User of a way hy the public is by no means conclusive of the way being 
 a public way ; it is evidence only to be weighed in connection with 
 surrounding circumstances. Where, therefore, there was a wood, and 
 divers paths or tracks through it leading in different directions, and 
 people wandered where they pleased through the wood and made 
 tracks, but the tracks were used only in dry weather, and were hardly 
 
 ig) Barraclough v. Johnson, 8 Ad. & E. 99 ; 3 N. & P. 233. It has, however, been held, that 
 where one owner of land dedicated a strip of land twenty-five feet wide for a public street on 
 condition that an adjoining owner should dedicate a like strip for the same purpose and 
 make a street fifty feet wide, the immediate opening of the first mentioned strip for a street 
 and its use by the public for eighteen years, will constitute a waiver of the condition and 
 make the dedication absolute even though the neighbor should refuse to dedicate his part 
 of the street. Lloyd v. Hnlbert, 1 Cine. (Ohio) 228. See Robertson v. WellsvUle, 1 Bond, 81 ; 
 Lownsdale v. Portland, Deady 1. 
 
 (li) Absor V. French, 2 Show. 28. Steel v. Prickett, 2 Stark. 463. 
 
 (i) Dawes v. Hawkins, 8 0. B., K. S. 857. And see Pound v. Flumstead Board of Works, 
 L. R., 7 Q. B. 183. 
 
Sec. 3.] DEmcA7ioN of highway. 267 
 
 passable after rain, and led. to no public place ■which could not be 
 reached by a more convenient thoroughfare, it was held that this was 
 a mere permissive user of the wood for purposes of recreation and 
 pleasure, and that there was no dedication of a way to the public to 
 be used " as of right "(A). 
 
 The right to the use of a public foot-way includes the right of bring- 
 ing on to it all the ordinary accompaniments of a foot-passenger, not 
 being of a size to obstruct the way and interfere with the use of it by 
 other passengers(Z). 
 302 Proof of animus dedicandi. — There must be on the part of the owner 
 of the soil an animus dedicandi, of which the user by the public is evi- 
 dence and no more, so that a single act of interruption by the owner 
 of the soil is of much more weight upon the question of intention than 
 many acts of enjoyment(?w). But the question of dedication does not 
 depend upon what a man says, but upon his acts. "A man may say 
 that he does not .mean to dedicate a way to the public, and yet, if he 
 has allowed them to pass every day for a length of time, his declara- 
 tion alone would not be regarded. The facts may warrant a jury 
 in believing that the way was dedicated, though he has said that he 
 did not so intend ; and if his intention be insisted upon, it may be 
 answered that he should have shown it by putting up a gate, or by 
 some other act "(«)• I^ the owner of the soil shuts up the way one 
 day in the year, that is sufB.cient to show that he does not intend to 
 dedicate, but gives a license only(o). 
 
 (k) Schuringe v. DoweU, 2 F. & F. 848. Chapman v. Cripps, ib. 867. Mildred vMenyeT, ib. 
 33. See State v. Thomas, i Harring. 568 ; Harding v. Jasper, 14 Cal. 642 ; Bowman v. Wick- 
 liflfe, 15 B. Mon. (Ky.) 84 ; Hutts v. Tindall, 6 Bioh. 393. 
 
 (I) Keg. V. Mathias, ib. 570. 
 
 (m) Parke, B., Poole v. Huskinson, 11 M. & W. 830. 
 
 (n) Littledale, J., Barraolough v. Johnson, 8 Ad. & E. 105. Surrey Canal Co. v. Hall, 1 So. 
 N. E. 264 ; M. & Gr. 403. 
 
 (o) Trustees of British Museum v. Pinnis, 5 C. & P. 465. The law requires not only an 
 intention to dedicate, but an act manifesting such intention ; and an expression of an inten- 
 tion without an. act to effectuate it, does not constitute a valid dedication. Robertson v. 
 Wellsfille, 1 Bond, 81. Fulton Village v. Mehrenfeld, 8 Ohio (N. S.), 440. This intention may 
 be manifested in writing, by declarations, or by acts. Id. Gentleman v. Soule, 32 lU. 271. 
 A dedication by parol is valid, and may be established by proof of the verbal declarations 
 of the owner. Chapin v. State, 24 Conn. 236. Robertson v. Wellsville, 1 Bond, 81. So it 
 may be established without proof of any act of dedication, by presumption arising from con- 
 tinued use for a considerable time with the knowledge of the owner and without objection 
 on his part. Id. Holcrait v. King, 25 Irert. 352. See ante, note /. 
 
 If there be no written evidence of the intent to dedicate, the acts and circumstances relied 
 on to establish it must be unequivocal and convincing. Morrison v. Marquardt, 24 Iowa, 35. 
 AH the acts of the owner bearing on the question of intent must be considered together ; 
 and one act may be explained and qualified by another. Harding v. Jasper, 14 Cal. 642. 
 People V. Jones, 6 Mich. 176. The mere act of leaving land adjoining the highway unin- 
 closed is no proof of dedication. Morse ». Ranno, 32 Vt. 600. But the sale of lots described 
 as bounded on certain streets is sufficient evidence of dedication. Shenley v. Common 
 
268 NUISANCES. [Chap. 4. 
 
 Where the owner of the soil had placed and maintained a gate 
 across a foot-way, with a view of preventing a public right of passage, 
 and the gate went to decay, and for twelve years there was no gate at 
 all, and then the owner of the soil put up a new gate, at the place 
 where the old gate formerly stood, it was held to be a question for the 
 jury whether the owner of the soil, from suffering the gate to be down 
 so long, and permitting the public to use the way without obstruction 
 for so many years, had completely dedicated the way to the public, so 
 that the gate could not be replaced(p). Where a bar, placed across a 
 bridge, was kept locked, and opened only in times of flood, when the 
 ford hard by was dangerous or impassable, it was held that this was 
 conclusive to show that there was no general right of passage(g'). 
 
 If there has been a public uninterrupted user of a road for such a 
 length of time as to satisfy a jury that the owner of the soil, whoever 
 he might be, intended to dedicate the road to the public, this is suffi- 
 cient to prove the existence of a highway, though it cannot be ascer- 
 tained who was the owner of the soil of the road during the time it 
 was so used(r). The open user by the public of a way as of right 
 raises a prima facie presumption of the existence of the public right, 
 and when such user is proved, the onus lies on the person who seeks 
 to deny the inference from such user to show that the state of the title 
 was such that dedication was impossible, and that no one capable of 
 dedicating existed(s). There is nothing in the nature of a sea wall or 
 embankment erected to protect land against the encroachment of the 
 sea, inconsistent with the existence of a public right of way along it, 
 except so far as the necessary repairs of the wall might make a tempo- 
 rary stoppage of the way necessary(<). 
 
 If an owner of land lets land oili building leases, and houses are 
 built which require a way to them, and a way is made, and used by 
 carts and carriages going to these houses, and which can go nowhere 
 else, there is nothing from these facts alone to establish a dedication 
 of the way to the public(M). 
 
 wealth, 36 Penn. St. 29. BiaseU v. New York, etc., E. E. Co. 23 N. Y. 81. Oswald v. Greuet, 
 22 Texas, 94. Preston v. Navasotee, 34 id. 684. Burthe v. Fortier, 15 La. An. 9. 
 
 (p) Lethbridge v. Winter, 1 Campb. 263. See Carpenter v. Gynn, 35 Barb. (IST. Y.) 395. 
 
 (g) Eex V. Marquis of Buckingham, 4 Campb. 190. See Green v. Bethea, 30 Ga. 896. 
 
 (r) Eeg. V. East Mark, 11 Q. B. 877. Williams, J., Dawes v. Hawkins, 8 C. B., N. S. 857 ; 28 
 Law J., C. P. 343. See Dimon v. People, 17 111. 383 ; Holt v. Sargent, 15 Gray (Mass.), 97. 
 
 («) Eeg. V. Petrie, 4 Ell. & Bl. 737. 
 
 (*) Greenwich Board of Works v. Maudslay, L. E. , 5 Q. B. 397. 
 
 («) Woodyer v. Hadden, 5 Taunt. 140. But see Bateman o. Bluok, infra. A person may, 
 for his own convenience and the convenience of his tenants occupying houses on either side, 
 construct and maintain a way opening into a puWic street, and leave the same open to public 
 
Sec. 3.]; dedication of higbw at. 269 
 
 303 Occupation roads, laid out through an estate for the use and conven- 
 ience of the occupiers, are not thereby dedicated to the public(c). 
 
 304 No particular time of enjoyment is nesessary for evidence of dedica- 
 tion(iyo) ; it is not, like a grant, presumed from length of time. If the 
 act of dedication be unequivocal, it may take place immediately('jo) ; 
 for instance, if a man builds a double row of houses, opening into an 
 ancient street at each end, making a new street, and sells or lets the 
 houses, that is instantly a highway, and although the new street may 
 terminate in a cul de sac, it may nevertheless be a public .place, accessi- 
 ble to all(ww). But if a bar or rope, or the, slightest obstruction, is put 
 up, showing that the owner of the soil does not intend to give a gen- 
 eral and unreserved right of passage, that will prevent a dedication. 
 And to support anything like a dedication, the street or road must be 
 finished as a perfect street ; for if the foot- ways are not completed, or 
 paving has to be done, or fences to be put up, the evidence of an inten- 
 tion to dedicate is insufficient(a;), unless the way has been used in its 
 unfinished state as a public thoroughfare for a considerable number of 
 years(2^). 
 
 305 There may lie a highway hy dedication to the public, where there is no thor- 
 oughfare. — ^Where there was a public street, and at the side of it a passage 
 leading to a court consisting of fifteen houses, all of which belonged to 
 the plaintiff, but the court had been freely used by the public for many 
 years without restriction, it was held that this was evidence from which 
 a jury might find a dedication to the public, although the court and 
 thoroughfare had originally been made for the use of the occupiers of 
 the houses, and led only to their dwellings(0). A highway, therefore, 
 may exist, though it is not a thoroughfare(zz). But if a road be made 
 for the accommodation of particular persons only, it is not a public 
 
 travel for more than twenty years without interruption, and yet not dedicate the land to the 
 public if there is some sign maintained showing the intent of the owner to maintain only a 
 private way. Durgin v. Lowell, 3 Allen (Mass.), 398. Hall v. McLeod, 2 Met. (Ky.) 98. See 
 People V. Jackson, 7 Mich. 432. 
 
 (o) Selby v. Cryst. Pal. Distr. Gas Co., 31 Law J., Ch. 595. 
 
 (OT)Parrish o. Stephens, 1 Oregon, 59. State v. Marble, 4 Ired. 318. State c. Trask, 6 
 Vt. 355. 
 
 (w) Jersey City v. Morris Canal, etc., Co., 1 Beasley (N. J.), 547 Trustees of Jordan v. Otis, 
 37 Barb. 50. 
 
 But to establish a dedication by a single act, the act must be of such an unequivocal char- 
 acter as to render the presumption of dedication from lapse of time or user unnecessary. Lo- 
 gansport v. Dunn, 8 Ind. 378. 
 
 (WW) People V. Kingman, 24 N. Y. 559. People v. Van Alstyne, 3 Keyes (N. Y.), 35. Stone 
 V. Brooks, 35 Cal. 489. 
 
 (x) Woodyer v. Hadden. 5 Taunt. 140. 
 
 (j/) Jarvis v. Dean, 3 Bingham, 447. 
 
 (z) Bateman v. Bluck, 21 Law J., Q. B. 407. 
 
 (zz) People V. Kingman, 24 N. Y. 559. 
 
270 NUISANCES. [Chap. 4. 
 
 road, and there is no reason why the inhabitants in a street which is 
 jiot a thoroughfare should not-put up a fence at the end of it, and ex- 
 clude the public(a). 
 
 306 Who may dedicate — A mere tenant or lessee has no power to throw open 
 land to the pitblic, and cieate a public thoroughfare in derogation of the 
 rights of the landlord or reversioder. There cannot be a public way 
 by dedication, unless there be some evidence to show that the owner 
 of the soil has consented to such user. The consent of the lessee is 
 not sufficient for that purpose, because it cannot bind the owner of the 
 inheritance(6). But if the acts of user are notorious, and go on for a 
 great length of time, and notwithstanding a frequent change of ten- 
 ants, it may be presumed that the owner has been made aware of them, 
 and that the way was used with his concurrence((;). 
 
 307 " Commissioners of public works haw no power to dedicate to the use of 
 the public, as a highway, land which they have been intrusted with 
 the ownership of for a special purpose, and for which special purpose 
 the land may at some future period be required. As all the King's 
 subjects are presumed to know Acts of Parliament, they, when they 
 used the road, must be presumed to have known that, in point of law, 
 it could not be so dedicated, and that it could only be used as a way 
 of permission and sufferance ; and they cannot be considered as having 
 acquired a right by adverse enjoyment, but only by usurpation on 
 rights which were designated by Parliament, and which, therefore, 
 could not be infringed upon "(d). 
 
 308 Limited dedication. — There may be a dedication of a way for a 
 limited purpose, as for a foot-way, horse-way, or drift-way, but there 
 cannot be a dedication to a limited part of the public, as to the inhabi- 
 tants of a particular parish. Such a dedication would be simply 
 void(e). A way may be dedicated to the use of the public for all pur- 
 poses except that of carrying coals, so that persons carrying coals may 
 be prevented from passing along it(/). Where there was a strip of 
 open uninclosed land between a public carriage-road and a paved 
 footpath, and the owners of the houses by the side of the paved foot- 
 
 (a) Best, J., Wood ». Veal, 5 B. & AM. 457. See Hall v. McLeod, 2 Met. (Ky.) 98. 
 
 (6) Wood V. Veal, 5 B. & Aid. 434. Harper v. Charlesworth, 4 B. & C. 591. See Lownsdale 
 V. Portland, Deady, 1. Dedication of land for a highway can be made by the o^vner only or 
 his duly authorized agent. BushneU v. Scott, 21 Wis. 451. It cannot be made by a squatter 
 on government lands. Gentleman v. Soule, 32 111. 271. Nor by a mortgagor to the prejudice 
 of the rights of the mortgagee. McMannis o. Butler, 49 Barb. (N. T.) 176. 
 
 (c) DavieB v. Stephens, 7 C. & P. 570. 
 
 {d) Littledale, J., Hex v. Leake, 5 B. & Ad. 4S5. 
 
 (e) Bermondsey Vestry ». Brown, L. R., 1 Eq. Ca. 204. 
 
 (/) Marquis of Stafford i>. Coyney, 7 B. & C. 257. 
 
Sec. 3.] OBSTRUCTIONS IN HIGHWATS. 271 
 
 way had always, by permission of the owner of the soil, used the 
 space between the foot and carriage-way for purposes connected with 
 their occupations, whenever they had occasion, and such use as the 
 public had of it was of a limited and uncertain character, and was 
 subject to the use of it made by such occupiers, it was held that the 
 dedication to the public of the use of the intermediate space was sub- 
 ject to the use so made of it by the landlord and his tenants(5'). 
 
 A highway may also, as we have seen, be dedicated to the public, 
 subject to the existence of steps, cellar-flaps, and obstructions render- 
 ing the way dangerous, so that the public must take the way subject 
 to these inconveniences {ante, pp. 205, 206). 
 
 309 Gates across a highway. — When a way has been dedicated to the use 
 of the public subject to a gate across it, the public can only take the 
 way subject to the inconvenience of the gate ; but when the way has 
 been dedicated without a gate, the owner of the soil cannot lawfully 
 obstruct the road with a gate(^). 
 
 310 There can he no dedication for a limited time, certain or uncertain.' If 
 dedicated at all, the way is dedicated in perpetuity. Hence the 
 maxim " once a highway, always a highway" — for the public cannot 
 release their right, and there is no extinguishment of the public right 
 by presumption or prescription(i). 
 
 311 Common highway of necessity. — " If there be but one road to a place, 
 and no other way of going, that is a way of necessity ; if the jury 
 find this, we take it to be a common highway by necessity "(A). If a 
 vill be erected, and a way laid out to it, if there be no other way but 
 that to the vill, it is not material quo animo it was laid out, it shall 
 be deemed a public way(Z). 
 
 312 Proof of highway by proof of parish repairs. — The fact of a road 
 having been repaired by a parish " as far back as living memory can 
 go," is a strong fact in favor of the road being a public road, but it 
 is not conclusive(m). 
 
 '313 Indictable obstructions in public thoroughfares. — ^A highway may, as 
 we have seen, be dedicated to the public subject to a pre-existing 
 
 ig) Le Neve v. Vestry of Mile End, etc., 8 EU. & Bl. 1054 ; 27 Law J., Q. B. 208. 
 
 (R) James v. Hayward, ante, p. 207. Green v. Bethea, 30 Ga. 896. 
 
 (i) Byles, J., Dawes ». Hawkins, 8 C. B., N. S. 857 ; 29 Law J., C. P. 343. A dedication once 
 made is irrevocable. Proctor ». Lewiston, 25111. 163. Oswald ». Grenet, 22 Texas, 94. By 
 the laws of New York (laws of 1861, eh. 311,) all highways that have ceased to be traveled or 
 nsed as snch for six years cease to be highways. See Amsbry v. Hinds, 48 N. Y. 57. 
 
 (*) Chichester v. Lethridge, Willes, 72. 
 
 (V) Keg. V. Inhab. of Hornsey, 10 Mod. 150. 
 
 (m) Eeg. V. Hawkhurst, 11 W. R. 9; 7 Law T. R., N. S. 288. See Baniels v. People, 21 HI. 
 439. 
 
272 NUISANCES. [Chap. 4, 
 
 , easement, such as a right vested in the owners of adjoining land, of 
 depositing goods thereon in certain places(«). 
 
 Tn the case of an ordinary highway running between fences, the 
 right of way or passage, prima, fade, and unless there be evidence to 
 the contrary, extends to the whole space between the'fences, and the 
 public are entitled to the use of the whole of it as the highway, and 
 are not confined to the part which may be metalled or kept in order 
 for the more convenient use of carriages and passengers. It is an 
 indictable offence, therefore, to place ^osts on greensward and open 
 places extending between the metalled part of the road and the fence, 
 dividing the road from the adjoining land, although the posts do not 
 in point of fact offer any injurious obstruction to the public traffic. 
 It is enough that they stand in the way of those who may wish to 
 traverse the whole space between the fences(o), and neither vestry 
 trustees nor commissioners of highways can authorize the placing of 
 anything on a highway which constitutes a public nuisance ; and it 
 is no answer to an indictment for obstructing a thoroughfare to show 
 that the obstruction, such as a tramway, though an annoyance to 
 some passengers, is a great convenience to others, for "you cannot, 
 for the advantage of one part of the public, commit acts which are a 
 nuisance to another part "(p). If, instead of an indictment at common 
 law, an injunction in Chancery is applied for, it must be in the name 
 of the Attorney-General(g). 
 
 By the 27 & 28 Vict. c. 101, s. 51, penalties are imposed upon any 
 one encroaching on the soil of a highway by placing any building, 
 fence, etc., or manure, rubbish, etc., on the sides of any carriage or 
 cart-way, within fifteen feet of the centre thereof, or by removing the 
 turf, etc., from the side of the road, and the expense of removing the 
 obstruction is to be levied by order of justices on the persons offend- 
 ing(»'). This Act extends to any land which has been dedicated as 
 
 («) Morant «. Chamberlain, ante, p. 206. Le Neve ». Mile End Vestry, etc., supra. 
 
 (o) Eeg. V. Un. King. Tel. 'Co., 31 Law J., M. C. 167. Eex v. Wright, 3 B. & Ad. 683. Turner 
 ». Eingwood Highway Board, pos«, p. 309. See narrower i/. Eitson, 37 Barb. (N. T.) 301; 
 Dickey e. Maine Telegraph Co., 46 Me. 483. 
 
 (p) Eeg. V. Train, 31 Law J., M. C. 169. Eex v. Ward, Eex v. Tindall, ante, p. 264. See 
 " The Tramways Act, 1870 ; " 83 & 34 Vict. o. 78. See 83. 40, 65, & 62. 
 
 (g) Bermondsey Vestry e. Brown, ante, p. 270. 
 
 (r) As to cattle straying on highways, see s. 25, amte, p. 237 in notis ; on a turnpike road, 34 
 & 35 Vict. 0. 115, s. 20. The statutes of New York and Michigan fixing a penalty for encroach- 
 ments upon highways, apply to highways laid out as provided by law, and not to those 
 established by public use. Doughty v. Brill, 3 Keyes (N. Y.), 612. Parker r. People, 22* 
 Mich, 93. For the statutory penalty fixed by the laws of Wisconsin, see Eevlsed Statutes of 
 1858, oh. 19, ss. 101-103. See, also, TVyman ». State, 13 Wis. 663. 
 
Sec. 3.] EliPAIB OF SIGItWA YS, SEA-BANKS, ETC. 273 
 
 and forms part of the highway, though not metalled, bnt not to land 
 on the side of the road, which has not been so dedicated(s). 
 
 314 Indictable obstructions in navigable rivers. — An erection in a port or 
 Qavigable river is not to be deemed a nuisance, simply because it 
 infringes ou the water-way. It is not every building below the high 
 water mark, nor every building below the low water mark, that is 
 ipso facto in law a nuisance, for that would destroy all the quays in all 
 the ports of England. Whether a building in or near the water, be 
 a nuisance or not, is a question of fact, to be determined by a jury, on 
 evidence, and not a question of law(i). " "Where the navigation of a 
 river has become obstructed by a vessel which has sunk, and been lost 
 to the owner, without any fault of his, the public inconvenience of the 
 obstruction is one in respect of which the owner differs from the rest 
 of the public only in having sustained a private calamity, in addition 
 to his share of a public inconvenience ; and this difference does not 
 appear to be any reason for throwing on him the cost of remedying or 
 mitigating the evil. Lord Kenyon held that the owner of a ship sunk 
 in the Thames by accident and misfortune, without his default or mis- 
 conduct, was not liable to an indictment for not removing the obstruc- 
 tion. It was contended for the prosecution, in this case, that although 
 the defendant was not punishable for causing the nuisance, it having 
 arisen from accident, it was his duty to. remove it ; but the learned 
 judge answered, that perhaps the expense of removal might have 
 amounted to more than the whole value of the property "(m). 
 
 315 Repair of highways, sechbanks{v), and sewers. — The Highway Act, 
 1835, 5 & 6 Wm. 4, c. 50, requires (s. 23) three months' notice to be 
 given to the surveyor of highways of the intention, to dedicate any 
 road or occupation way, made by private persons, bodies politic or cor- 
 porate, or any private drift-way and horse-path, set out in any award 
 of commissioners under an inclosure Act, describing its situation and 
 extent, and also the certificate of two justices in petty sessions that it 
 has been made in a substantial manner, and of the width required by 
 the Act before any such road, etc., shall be deemed to be a highway, 
 which the inhabitants of the parish shall be compellable to repair, but 
 in all other respects as regards the right of the public to use it, it re- 
 mains a highway(w). 
 • 
 
 •(«) Eaaton «. Richmond Highway Board, L. E., 7 Q. B. 69. 
 
 (<) Hale, De Portibus Maris Hagr. Tracts, p. 85. Rex. v. Eussell, 6 B. & C. 572. 
 
 («) The King c. Watts, 2 Esp. 675. Brown ». Mallet, 6 C. B. 619. White V. Crisp, ante, p. 209. 
 
 (e) See post, pp. 276, 279. 
 
 (w) Roberts v. Hunt, 15 Q. B. 17. 
 
 Ad, Vol, I.— 18 
 
274 NUISANCES. [Chap. 4. 
 
 If a highway is washed away and totally destroyed by the sisa, so 
 that there is no longer anything left to repair, and nothing that can 
 be effectually restored, the parish is released from its liability to 
 repair(a!). 
 316 Liability to repair ratione clausurae. — ^Where a defendant is sought to 
 be made responsible for the non-repair of a highway, on the ground 
 that he has enclosed vacant spaces of ground adjoining the highway, 
 and encroached on land used for passage when the beaten track was 
 foundrous, it must be proved, first, that the highway has been used 
 immemoriaHy as a highway ; secondly, that the land inclosed has been 
 used for passage when the beaten track was foundrous ; thirdly, that 
 the defendant is the occupier of the enclosed land taken from the 
 public thoroughfare, for there is neither precedent nor authority for 
 charging the owner not in possession(2/). 
 
 The parish of common right ought to repair their highway(0), unless 
 by order of the magistrates they have been relieved from their liabil- 
 ity(a). Where, indeed, there are several townships in one parish, a 
 particular township may, by immemorial usage, be liable to repair its 
 own roads distinct from the parish at large(6). But it lies upon the 
 township to establish its exemption from the ordinary rule(c), and it is 
 not sufficient for this purpose to show that it has never been assessed 
 to the highway rates of its own parish, but has always been treated 
 as part of an adjoining parish, and rates levied upon it by such 
 parish until recently, when, by arrangement with such parish, the 
 occupiers repaired the highways themselves, without any rate being 
 made ; for the proper inference from such facts is, not that it is a town- 
 ship repairing its own roads, but that, by some old arrangement made 
 for mutual convenience, it was considered part of the adjoining parish 
 for the purposes of repair, and on the termination of ihat arrange- 
 ment all parties are remitted to their original rights and liabilities(c?). 
 Where to an indictment for the non-repair of a highway in parish A 
 the defendants pleaded that from time immemorial the inhabitants of 
 parish B, in consideration of levying and receiving rates on certain 
 lands in parish A, had repaired such highway, it was held that such 
 
 » Reg. V. Hornsea, 23 Law J., M. C. 59. 
 
 (J/) Keg. V. Eamsden, Ell. Bl. & Ell. 919 ; 27 Law j., jj. C. 296. 
 
 («) Eex V. Bagley, 12 Mod. 409, per Holt, C. J. See Hii-st v. Halifax Xiocal Board, L. E., 6 
 Q. B. 181. 
 (a) See Reg. v. Justices of Snrrey, L. E., 5 Q. B. 466. 
 (6) Rex V. Eoolesfleld, 1 B. & Aid. 348. 
 
 (c) Freeman ». Bead, 4 B. & ,S. 174. 
 
 (d) Dawson v. Willoughby-with-Sloothby, S4 L. J., M. C. 37. 
 
Sec. 3.] REPAIR OF HWBWATS. 275 
 
 a liability, if it could exist at all, whicli was very doubtful, could only 
 arise on sufficient consideration, and that the consideration stated, viz,, 
 an immemorial custom to levy rates, was clearly not sufficient, for the 
 power to levy rates existed by statute only, and arose long after the 
 time of legal memory. Any arrangement, therefore, made by adjoin- 
 ing parishes as to mutual repair can be put an end to at any time(e). 
 317 Repair by District Highway Board. — ^By the 25 & 26 Vict. c. 61, the 
 formation of district highway boards is authorized. By the 17th sec- 
 tion, such board is directed to maintain the highways within their 
 district, and they are to have the same powers, to be sublet to the 
 same liabilities, and to perform the same duties as the parish surveyor 
 would have performed or been liable to if the Act had not been passed. 
 By the 18th section provision is made for the issue of a summons by a 
 justice of the peace if the highway is out of repair, and for the making 
 of an order at petty sessions for such repair, which order is removable 
 into the Court of Queen's Bench, in the same way as an order ol 
 general or quarter sessions. If the liability to repair is disputed, the 
 justices are to order an indictment against the parish or person charged 
 with the repair (s. 19). But this section only applies to admitted high- 
 ways, and does not apply where the liability to repair, if the highway 
 is one, is admitted, but it is denied that it is a highway at all(/). When 
 any private person or body politic, liable to repair a highway, ratione 
 tenurce, or otherwise, omits to repair such highway, the district board 
 may repair it, and recover the expenses from the party liable (s. 34). 
 Such person or body politic, however, or the district board, may apply 
 by summons before justices to have such highway made repairable by 
 the parish, on payment of such a sum to the highway board as the 
 justices think fit (s. 35)(gr). If the parish wish to undertake the repair 
 of a private road in return for its use, and the owner and occupier is 
 willing, on application to justices in petty sessions, they may declare 
 it repairable by the parish (s. 36). No person is to become liable for 
 the repair of a highway by erecting fences between the highway and 
 the adjoining land, if the fences have been erected with the consent of 
 the district board, or other authority having jurisdiction over the high- 
 way (s. 46). By the 27 & 28 Vict. c. 101, s. 22, the district board may 
 contract for three years with any person liable to repair a highway, to 
 repair it themselves, and vice versa. 
 
 («) Reg. V. Ashby Folville, L. R., 1 Q. B. 213. Dawson ». Willoughby-with-Sloothby, supra. 
 
 (/) Reg. r. Farrer, L. E., 1 Q. B. S58 ; 35 L. J., M. C. 210. 
 
 (ff) These sections are amended by 27 & 28 Vict. c. 101, es. 23, 24. 
 
276 NUISANCES. [Chap. 4. 
 
 318 Ditches of turnpike roads. — By the General Turnpike Act, 3 Ge6. 4, 
 c. 126, s. 113, the duty of cleansing, scouring, and keeping open 
 ditches and watercourses for the purpose of keeping turnpike roads 
 dry, is cast upon the trustees, and not upon the owners of the adjoin- 
 ing lands(A;. 
 
 "Where a person owning land adjoining the sea is liable ratione tenurcB 
 to repair the sea banks as a defence against the irruption of the water, 
 the Commissioners of Sewers, under 23 Hen. 8, c. 5, s. 3, have power 
 to do the repairs, and to fine such owner for the amount expended, 
 without giving him any notice ; and for such a purpose the mortgagor, 
 who is in receipt of the rents and profits of the land by his tenant, is 
 the owner(i). 
 
 By the common law the repair of public sewers is either by pre- 
 scription ratione tenures, or is imposed upon the land that is benefited 
 or preserved from damage by them(A). 
 
 ill) Merivale v. Trustees of Exeter Turnpike Eoad, L. K., 3 Q. B. 149 ; 37 L. J., M. C. 40. 
 
 (») Keg. V. Baker, L. R., 2 Q. B. 621. Who is " owner" under a building agi-eemcut for tlie 
 purpose of recouping tlie District Board of' Works in London money expended in paving, 
 see Lady HoUand v. Kensington Vestry, L. E., 2 C. P. 565. As to paving expenses under the 
 riiblio Health Act (11 & 12 Tiot. c. 63, s. 69), see Cook v. Ipswich Local Board, L. B., 6 Q. B. 
 451. Who is "owner" under that Act, Bowditoh». Wakefield Local Board, lb. 567. 
 
 (t) See BigUn "». WyUe, 36 L. J., Q. B. 307. 
 
CHAPTER V. 
 
 OF INJURIES TO LANDS AND TENEMENTS FROM 'WASTE, NEGLI- 
 GENCE AND FIRE. 
 
 Sbction I. — Of injuries to realty from waste, etc. — Commissive and permissive 
 waste — Waste by lessees, tenants for term of years, tenant-at-will, and ten- 
 ant for life — Waste in trees and woods — Decaying timber — Equitable waste, 
 whei-e tenant for life holds without impeachment of waste — ^Ecclesiastical 
 dilapidations — Waste by copyholders and tenants in common — Waste from 
 the removal of things attached to the freehold — Landlord's fixtures — Tenant's 
 fixtures — Ornamental and trade fixtures — Fixtures removable by custom — 
 Abandonment of the right to disannex and remove fixtures — Right of pur- 
 chasers and mortgagees to enter and remove fixtures — Waste by strangers 
 upon lands demised to tenants — License to commit waste — Injuries from fire — 
 Fire spreading from blast-furnaces, steam-engines, and railways — Fires occa- 
 sioned by the negligence of servants — Injuries from gunpowder and explo- 
 sive substances. 
 
 Section II. — Of remedies for injuries to lands from waste, negligence, and fire. — 
 Actions for waste — Actions by owners of insured premises — Parties, plead- 
 ings, defences, and evidence — Assessment of damages. 
 
 SBCTioif III. — Of injunction to prevent waste. — Parties liable to an injunction — 
 Effect of acquiescence in the commission of waste — Lilches or delay in seek- 
 ing a remedy. 
 
 SECTION I. 
 
 OP INJURIES TO LANDS AND TENEMENTS PROM WASTE, NEOLIGENCE, AND 
 
 PIRE. 
 
 319 " Waste" observes Blackstone, "is a spoil or destruction of houses, 
 gardens, trees, or other corporeal hereditaments, to the disherison of 
 him that hath the remainder or reversion. It is either voluntary, 
 which is a crime of commission, as by pulling down a house, or it is 
 permissive, which is a matter of omission only, as by suffering it to 
 
278 WASTS. [Chap. 5. 
 
 fall for want of necessary reparations. Whatever does a lasting dam- 
 age to the freehold or inheritance, is waste. Tenant for life or term 
 of years was not by the common law responsible for waste, nor was 
 waste punishable," observes Blackstone, "in any tenant, excepting 
 guardian in chivalry, tenant in dower, and tenant by the curtesy. 
 And the reason of the diversity was, that the estate of these three ten- 
 ants was created by the act of the law itself, which therefore gave a 
 remedy against them ; but tenant for life, or for years, came in by the 
 demise and lease of the owner of the fee, and therefore he might have 
 provided against the committing of waste by his lessee : and if he did 
 not, it was his own fault"(a). But, for the benefit of reversioners, it 
 was provided by the statutes of Marlbridge, 52 Hen. 3, c. 23, and of 
 Gloucester, 6 Ed. 1, c. 5, that every man from thenceforth should have 
 a writ of waste in the chancery against him that holdeth for term of 
 life or years, or a woman in dower. And for waste made in the time 
 of wardship it shall be done as is contained in the great charter, etc. 
 Since the passing of these statutes, therefore, all tenants for life or 
 term of years have been liable in damages for waste, unless their 
 leases have been made to them without impeachment of waste. All 
 tenants, whatever their term or interest, are liable for commissive 
 waste ; but a mere tenant-at-will, or from year to year, is not respon- 
 sible for permissive waste(6). 
 
 320 Commissive and permissive waste. — Commissive, or, as it is more 
 frequently termed, wilful waste, consists, amongst other things, in the 
 doing by a tenant of some wilful injury to the premises demised to 
 him, such as pulling down houses and buildings, prostrating walls, re- 
 moving landlord's fixtures, breaking windows, or tiles and slates, and 
 uncovering the roofs of houses. Permissive waste is where the tenajit 
 remains a passive spectator of decay and ruin, doing nothing to ac- 
 celerate, and making no effort to retard the evil. 
 
 321 Permissive waste hy lessees for terms of years. — A tenant for term of 
 years is responsible for permissive as well as commissive waste(c), but 
 where he has not obliged himself by covenant to do repairs, he is not 
 bound to rebuild ; for if the subject of occupation perishes from time 
 and natural decay, the landlord is the person to provide a new one, if 
 
 (a) 2 Bl. Com. ch. 18, a. 6. Waste has been defined as a lasting damage to the reversion 
 caused by the destruction, by the tenant for life or for years, of such things on the land as 
 are not included in its temporary profits. ProfBt v. Henderson, 29 Mo. (8 Jones) 325. 
 
 (6) Harnett v. Maitland, 16 M. & W. 257. Kedfern v. Smith, I Bing. 382. Tenants for life 
 are liable for injuries to the inheritance, whether committed by themselves or a stranger, or 
 by one of several life tenants. Wood ii. GrilBn, 46 N. H. 230. 
 
 (c) Tellowly V. Gower, U Exoh. 294 ; 21 Law J., Exch. 299. 
 
Sec. l.J- ^ASTE BY TENANTS. 279 
 
 he think fit(d) A tenant for' years must not suffer the roof of a house 
 to remain uncovered, so as to let the timbers rot, and must use all 
 reasonable endeavors to keep the buildings wind and water-tight; 
 but he is not bound to repair the principal timbers of the roof, nor to 
 replace old materials with new, except where the expense is of a 
 trifling character, and the mischief, if neglected and left unrepaired, 
 would operate to the lasting injury of the inheritance. If a roof is 
 blown off by tempest, he is not bound to put on a new roof, but if a 
 few tiles only are stripped off, he is bound to replace them, or adopt 
 means' to keep out the wet. The extent of the liability of a lessee, not 
 holding under a covenant or agreement to repair, for permitting build- 
 ings demised to him to go to decay and ruin, will depend upon the 
 age and general state and condition of the buildings at the time he 
 took possession of them, the nature and extent of the repairs required 
 for their preservation, and the duration of his own term and interest 
 in the property ; for a tenant-at-will, or a tenant from year to year, 
 cannot be expected to do as much for the preservation of the property 
 as a tenant for a long term of years. If a house is burnt by negli- 
 gence, this, as we shall presently see, is waste(d(3) ; and if sea-walls 
 and river-banks are destroyed from want of timely reparation, this 
 will be waste ; but if they receive the usual and customary repairs, 
 and are destroyed by a great tempest or a violent inundation, the 
 lessee is not responsible for waste if he fails to rebuild them(e). 
 322 Commissive waste by tenants for terms of years — Whenever a tenant ear 
 lessee makes material changes in the nature of the premises demised 
 to him, which have the effect of converting them into something 
 substantially different from what they were at the time thoy were 
 placed in his hands, he is guilty of commissive waste, and is respon- 
 sible in damages for infringing upon the proprietary rights of the 
 landlord. The tenant by the lease has the use, not the dominion of 
 the property demised to him, and cannot make permanent changes 
 and alterations in the property without the consent of the landlord, 
 although such changes and alterations may greatly enhance the value 
 of it ; for the owner has a right to have his houses and lands kept 
 in an unaltered state, surrounded by all their old features, land- 
 marks, and associations(/). Therefore an action is maintainable by 
 the reversioner pending the term against the tenant for inclosing 
 
 O) Bayley, J., Wise v. Metcalfe, 10 B. & C, 3U. 
 
 dd) Cook ». Champlain Transportation Co., 1 Denlo, 91. 
 (e) 2 EoU. Abr. Waste (C.) 
 (/) Smyth V. Carter, 18 Beav. 78. 
 
280 WASTE. ' [Chap. 5. 
 
 and cultivating waste land included in the demise, and for continu- 
 ing the grievance(p'); also for the pulling down of an old building, 
 and the substitution in lieu thereof oS tenements of greater value(A), 
 and for removing a partition-wall in a house and enlarging a cham- 
 ber (i). 
 
 323 "Where a lessee opened a new door in a house, whereby the house 
 was not in any respect weakened or, injured, it was held to be a 
 question for the jury whether there was or was not any injury to thei 
 rights of the reversioner(it). But, if tjiere is any substantial alter- 
 ation in the form and arrangement of the house, the house -is no 
 longer the same house, and there is an invasion of the proprietary 
 rights of the landlord or reversioner. It is no answer to an action 
 for the infringement of these rights to say that the defendant might, 
 before the expiration of the lease, restore the premises to their former 
 plight, and surrender them up to the landlord in their original 
 cpndition(Z). , 
 
 324 A lessor may sue for commissive waste, although the lease contains 
 a covenant upon which the lessor might maintain an action for the 
 same wrong. It is no answer for the lessee to say that an action 
 of covenant may also be maintained against him in respect of the 
 same cause of action, for the lessor may have either remedy(TO). 
 
 {g) Provost, etc., of Queen's College V. Hallett, 14 East, 489. 
 
 (ft) Cole». Green, 1 Lev. 309. 
 i) 1 RoU. Abr. 815, pi. 9. 
 
 (fc) Young V, Spencer, 10 B. & C. 145. Alterations in a house rlemised are not waste unless 
 prejudicial to the lessor. Jackson v. Tihbits, 3 Wend. 341. 
 
 (J) Provost, etc., of Queen's Colle.iio v. HiiUett, 14 East, 489. Cole ». Forth, infra. 
 
 (m) Kinljoide v. Thoi-nton, 2.W. El. 1111. Torriano ®. Young, 6 C. & P. 8. Marker v. Ken- 
 rick, 13 C. B. 198. The common law doctrine of waste is not, in its strictness, applicable to 
 the condition of things in this country. It is waste, here as in England, to make material al- 
 terations in a dwelling house, as by changing it into a w.arehouse, and thereby. produce a 
 permanent injury to the building. Douglas v. Wiggins, 1 Jolins. Ch. 435. But it is not waste 
 to erect a new edifice upon demised premises without destroying or materially injuring the 
 buildings or improvements already thereon. Winship v. Pitts, 3 Paige, 259. In this country 
 no act of a tenant amounts to waste unless it is or may be prejudicial to the inheritance or to 
 those who are entitled to the reversion or remainder. Pj'nchon v. Stearns, 11 Met. 304. A 
 tenant does not commit waste by erecting houses on the demised land, and digging cellars 
 for them, and raising the ground about them, provided the cost of restoring the premises to 
 their original state would be small, and the land as valuable for a^icultural purposes as if it 
 had not been built upon. Id. Tlie erection of a new out-house in the place of one which had 
 become ruinous, although constructed of timber from the fai-m, is not waste. Sarles v. 
 Sarlcs, 3 Sandf. Ch. R. 601. 
 
 The catting of trees and timber without leave or license is waste, if such cutting will work 
 permanent injury to the freehold or inheritance. McCoy v. Wait, 51 Barb. (N. Y.) 225. Van 
 Deusen c. Young, 29 N. Y. 9. McGregor v. Brown, 10 N. Y. 114. Jackson v. Brown«on, 7 
 Johns. 227. And it has been held that the cutting of a single timber tree for sale is waste. 
 Sarles v. Sarles, 3 Sandf. Ch. 601. But it has also been held that it is not waste for the tenant 
 to cut down timber trees for the purpose of repairs, or to sell them to purchase boards for re- 
 pairs, if the latter is the most economical mode. Loomis v. Wilbur, 5 Mason, 13. And it may 
 not be waste for the tenant to remove trees throivn down by a tempest. Houghton t>. Cooper, 
 
Sec. l.J BY TERMORS, TEjCRLT TENANTS, ETC. 281 
 
 325 The lessee of a water-mill, worked by a head of water penned back 
 under a prescriptive right to pen back water for the purpose of work- 
 ing the mill, has no right to alter the height of the tumbling-bay, or 
 transpose or alter the old permanent water-marks, as it tends to 
 destroy the landlord's evidence of title to the head of water, and goes 
 to the destruction of the thing granted. The lessee of house-property 
 must not remove Avainscots or floors, or pull down and rebuild, or open 
 new windows and doors, and change the form and arrangement of the 
 house, without the consent of the owner. He cannot convert one spe- 
 cies of edifice into another, such as a corn-mill into a fulling-mill, or 
 malt-mill, or a water-mill into a wind-mill, though the conversion be 
 to the pecuniary advantage of the landlord, as well as to the benefit 
 of the tenant(K). He must not fell timber-trees (except for the neces- 
 sary repairs of a house he has covenanted to repair), nor destroy 
 spring-woods or young plants destined to become trees ; but he may 
 cut willows, maples, beeches (see post, p. 284), and thorns, if they do 
 not shelter a dwelling-house or sustain a bank, or afford shelter to cat- 
 
 B B, Mon. 281. WTiether the cutting and sale of timber by the tenant is Tvaste or flbt may de- 
 pend on the oharauter of the land demised, the purposes of the lease, and the quantity of timber 
 felled. Thus if a f:irm,'consistingmainly of woodland, be leased for agricultur.al purposes, the, 
 lessee may fell sulRcient timber to fit the laud for cultivation, leaving a sufficient quantity for 
 the purposes of the farm, without committing waste. Kidd v. Deiinison, 6 Barb. (N. Y.) 9. 
 Jackson v. Brownson, 7 Johns. 227. Adams ». Brereton, 3 Har. & J. 124. See Dickinson 
 i;. Jones, 36 Ga. 97. But the tenant must not cut down all the timber to the permanent injury 
 of the inheritance. Jackson v. Brownson, 7 Johns. 227. Nor must he cut trees merely for the 
 purposes of sale and not for the purpose of preparing the land for cultivation. Kidd v. Den- 
 nison, 6 Barb. 9. And to what extent wood and timber may be cut on land leased for agri- 
 cultural purposes, without waste, is,a question of fact for the jury. Jackson v. Brownson, 7 
 Johns. 227. Drown v. Smith, 62 Jle. 141. In deciding the question the condition of the land 
 must be taken into consideration, and whether good husbandry requires that the land should 
 be cleared or the trees felled and marketed. Id. Morehouse v. Cothcal, 2 N. J. 521. Wood- 
 ward V. Gates, 38 Ga. 206. If the jury find that the clearing of land was bad husbandry, the 
 tenant is liable for waste. Chase v. Hazelton, 7 N. H. 171. If a fiarm is let as a dairy farm, 
 and with a covenant ^gainst waste, the clearing of woodland Mdll be clearly an act of waste. 
 McGregor v. Brown, 10 N. Y. 114. 
 
 The opening of a way over meadow land and the digging of drains by its side, or the carry- 
 ing on of earth for the purpose of making the way passable, is not waste if the cost of restor- 
 ing the premises to their fonner condition is not great, and the land has not been rendered 
 less valuable for agricultural purposes. Pynchon v. Stearns, 11 Met. 304. And it is toi waste 
 to convert meadow and pasture land into plough land. Crockett v. Crockett, 2 Ohio {X. S.), 
 180. Unless the change is detrimental to the inheritance or contrary to the usual course of 
 good husbandry. Clemence v. Clemence, 1 R. I. 272. Nor is it waste to fill in and break up 
 low, wet lands for the purpose of cultivation. Pynchon v. Stearns, 11 Met. 304. It may be 
 waste, however, to impoverish fields by constant tillage from year to year. Sarles v. Sarles, 
 3 Sandf. Ch. 601. Or to suffer pastures to be overgrown with brush where ordinary prudence 
 would require the land to be kept cleared. Clemence v. Clemence, 1 E. I. 272. But if a ten- 
 ant for life allows pasture land to become woodland, it may be waste to cut the timber trees 
 thereon, if not for the use of the estate, even though it be done to restore the land to its origi- 
 nal condition, and though it would be good husbandry in an owner of the fee to so restore it. 
 Clark V. Holden, 7 Gray (Mass.), 8. Mere ill husbandry will not support the action of waste, 
 Richards v. Torbert, 3 Houst. (Del. ) 172. 
 
 (») Bao. Abr. (Waste). Cole v. Forth, 1 Mod. 94 ; Co. Litt. 53a., 53b. 
 
282 WASTE. [Chap. 5. 
 
 tie, and the cutting of them is not prejudicial to the inheritance. He 
 may also cut oaks and ashes where they are usually cut as underwood, 
 and are in due course to grow up again from the stumps, and the cut- 
 ting is warranted by local custom and usage. He must not dig for 
 gravel, lime, clay, brick-earth, stone, or the like, except for the neces- 
 sary repair and improvement of the demised premises, in fulfilment 
 of the covenants of his lease(»m). He must not remove virgin soil(o), 
 nor open quarries or mines of metal or coal, for the purpose of selling 
 the produce thereof ; but he may work mines and quarries which were 
 open and in existence at the time of the demise, as they then form 
 part of the annual profits of the land(oo). He must not convert arable 
 land into pasture, or pasture into arable land, or plough up a warren, 
 or stub up a wood to make it pasture, or divert the courses of streams, 
 nor dry up ancient pools or fish-ponds, nor destroy fences, nor put land 
 under water, nor destroy the stock or breed of anything. He iriust 
 not take all the fish out of a fish-pond, or the doves from a dovecote, 
 or the deer from a park, or the rabbits and conies from a warren, or 
 the game from preserves ; but he is entitled to the reasonable use and 
 enjoyment of them, leaving as many in store for the landlord when he 
 goes out as he found when he was intrusted with the possession and 
 use of the property(p). 
 
 Waste may be committed Jby removing glass annexed to windows, 
 for it is parcel of the house ; and although the lessee himself, at his 
 own cost, put the glass in the windows, yet, being once parcel of the 
 house, he cannot take it away or waste it. Wainscot also, whether 
 annexed to the house by the lessor or the lessee, is parcel of the house, 
 and cannot be removed, unless it is purely of an ornamental character 
 {post, p. 297) ; and there is no difference in law if it be fastened by 
 great nails, or little nails, or by screws or irons put through the posts 
 or walls(g), for every chattel affixed to the soil of another becomes a 
 part of the soil, and belongs to the owner of the land, unless it is 
 shown to ha;ve been affixed there in the necessary enjoyment of an 
 easement by the person entitled to the easement, in which case it will 
 belong to the latter, and not to the owner of the soil(?-). 
 326 Waste by tenant from year to year. — ^Tenant from year to year is not 
 
 (n«) Livingston v. Eeynolda, 26 Wend. 115. 
 (o) Higgon V. Mortimer, 6 C. & P. 616. 
 
 (00) Owings V. Emery, 6 Gill. 260. Lynn's Appeal, 31 Penn. St. 44. 
 
 (p) D'Arcy (Ld.) v. Askwith, Hob. 234. Phillips v. Smith, 14 M. & W, 593; Bac. Abr. 
 (WASTE), Litt. s. 71. 
 (g) Herlakenden's case, 4 Co. 63b. Wilde v. Waters, 16 C. B. 637. 
 (r) Lancaster v. Eye, 5 C. B., K. S. 717. 
 
Sec. l.J BY TENANT-AT-WILL — TENANT FOR LIFE. 283 
 
 responsible for permissive waste. Where an action on the case was 
 brought by a lessor against a lessee holding from year to year, for suf- 
 fering a house demised to him to go to ruin for want of repairs to the 
 roof and windows, it was held that such an action was not maintaina- 
 ble. " There is no doubt," observes Mansfield, C.J., " but that an 
 action on the case may be maintained for wilful waste ; but, at com- 
 mon law, if any part of the premises are suffered to be dilapidated, 
 it amounts to permissive waste ; and if this action be maintainable 
 against tenant from year to year, such an action might be brought 
 against a tenant-at-will who omitted to repair a broken window. I 
 think this action is an innovation, and I am not disposed to encourage 
 it"(s). But every tenant from year to year is bound to take all due 
 and reasonable care of the premises demised to him, and if windows 
 are broken by the wind or hail, and the rain gets in, he is liable for 
 the non-repair of them, if the consequences of his neglect would be 
 damage to the building from the rain. 
 
 327 Tenant-at-will. — "If a house be leased to hold at will, the lessee is 
 not bound to sustain or repair the house, as tenant for term of years 
 is tied. But if tenant-at-will commit voluntary waste, as in pulling 
 down of houses or felling trees, the lessor shall have an action of tres- 
 pass against him," for this amounts to a determination of the will, and 
 the tenant so acting is a mere trespasser(<). 
 
 328 Tenant for life. — Tenant for life not made unimpeachable for waste 
 by the persqn creating the tenancy is, by the statute of Gloucester {ante, 
 p. 278), put upon the same footing, with regard to waste, as tenant for 
 a term of years, and is responsible for permissive as well as commissive 
 waste, so that if he fails to keep up and maintain buildings, walls, and 
 fences, he will be liable to an action for dilapidations(ii). If the roofs 
 of houses are uncovered by the wind, he must, in convenient time, 
 repair them ; but if /the buildings are blown down by a violent tempest, 
 or destroyed by lightning, he is not bound to rebuild. And if a 
 house was uncovered and ruinous when he came into possession of it, 
 it is then no waste to suffer it to fall down, as he is not bound to keep 
 
 (s) Gibsons.Wells, IB. &P.,N.E. 290. Heme ». Benlow, 4 Taunt. 76i. Martin ». Gilham, 
 7 Ad. & E. 543. , ■ 
 
 (<) ■ Litt. 8, 71 ; Co. Litt. 57a, Harnett v. Maitlaind, 16 M. & W. 262. 
 
 («) In the matter of Steele, 4 Green (N. J.), 120. But the tenant is oJily required to use ordi- 
 nary care to keep the buildings on the life estate from going to decay. He is not required to 
 expend extraordinary sums. Wilson v. Edmonds, i Foster (N. H.), 517. And he may defer 
 repairs until a de(jline in the price of materials and labor, provided the estate suffer no imme- 
 diate and permanent injury thereby. Harvey v. Harvey. 41 Vt. 373. But he must pay the 
 taxes assessed upon the estate, and if he neglects to do so, and thereby subjects the estate to 
 a sale, it is waste. Stetson v. Day, 51 Me. 434, 
 
284 WASTE [Chap. 5. 
 
 » 
 
 up and maintain a mere ruin(M). He is entitled to all such trees felled 
 
 by the wind as he would have been entitled himself to fell, and also 
 to all proper thinnings of plantations, etc., as well as to all coppices 
 and osier beds cut in the nature of crops, but it seems to be doubted 
 whether he has a right to cut poles(.£!;). He may properly work an open 
 mine, i.e., a mine which has been worked within a few years of his 
 coming into possession, but he cannot open a new mine and search for 
 and carry away minerals(2/). 
 329 Waste in trees and woods may be committed in Buckinghamshire by 
 the cutting of beeches, because there, by the custom of the country, 
 they are the best timber ; and the same may be said of birches in 
 Berkshire(2). If the tenant suffer the young germins to be destroyed, 
 either by stubbing them up, or suffering a wood to be open, by which 
 beasts enter and eat them off, it will be waste, though they grow up 
 again, for after such destruction they will never be great trees, but 
 shrubs. But the cutting down of seasonable underwood, of hazel, 
 willows, maple, or oak, in a husbandlike manner, at the usual seasons, 
 and of the usual growth, in accordance with the custom of the country, 
 is not, as we have seen, waste (ante, p. 281) ; nor, if it is the custom 
 to cut ashes from ten years to ten years, is it waste so to cut them ; but 
 it is, in general, waste to cut down young trees of that growth fit for 
 great timber(a). But the tenant is, in general, entitled to take suflBl- 
 cient wood for necessary repairs to buildings and fences, to enable him 
 to keep them up in the same state as he found them, but mot for the 
 purpose of making new fences, etc., where none before existed(6) 
 
 («) 2 Eoll. Abr. Waste (C). Co. Litt. 53. Bao. Abr. (Waste). Clemenoe v. Steere, 1. E. I. 
 272. 
 
 (a:) Eateman V. Ilotclikiu, 32 Law J., Ch. 6. Cutting hoop-poles is waste, unless it is the 
 ordinary mode of managing the farm. Clemenoe v. Steere, 1 R. I. 272. 
 
 {y) Bagot». Bagot, 33I.aw J., Ch. 116. Coats u. ChecTCr, 1 Cowen, 450. Irwin ». Covode, 
 24 Penn. St. 1S2. LjTin's Appeal, 31 Penn. St. 44. Neel v. Necl, 19 Penn. (7 Harris) 323. So 
 of opened sand pit. Eeed v. Eeed, 1 Green (N. J.), 248. 
 
 («) Aubrey v. Fisher, 10 East, 446. 
 
 (ffi) 2 Eoll. Abr 815, 817. Gage v. Smith, Goodb. 210, pi. 298 ; 1 Inst. 53a. In this countiy 
 the test whether a tenant for life has been guilty of waste in cutting timber trees is the 
 inquiry : " Did good husbandry, considered with reference to the custom of the country, 
 require the felling of the ti-ees, and were the acts such as a judicious, prudent owner of the 
 inheritance would have committed ? " WooSward v. Gates, 38 Ga. 205. Davis v. Gilliam, 5 
 Ired. Eq. 308. McCuIlough v. Ii-yine, 13 Penn. St. 438. The same test may be applied to deter- 
 mine whether an omission to keep pasture land clear of underbrush is waste. Clemenoe v. 
 Steere, 1 R. I. 272. 
 
 (6) 1 Inst. 63b. Foley v. Wilson, 11 East, 56. A tenant for life may cut timber trees and 
 sell them, and purchase boards with the proceeds for the purpose ofmaliing necessary repairs 
 provided tliis is the most economical mode of making repairs. Loomis v. Wilbur, 5 Mason, 
 13. But it would be waste to cut and sell timber trees in exchange for lift wood. Padel- 
 ford V. Padelford, 7 Pick, l.'ii. So it would be waste to sell Are wood to pay for cutting and 
 carting the Are wood, necessary for the proper enjoyment of the life estate. Johnson v. John- 
 son, 18 N. H. 594. 
 
Sec. l.J BY TAMIN& AND RECLAIMING DEEB, ETC. 285 
 
 330 Where timber is decaying from age, and requires cutting to prevent 
 its deterioration, or its injuring other timber, the Court of Chancery 
 ■will order the timber to be cut and sold, and the proceeds of the sale 
 invested, and the interest thereof paid to the tenant for life, and the 
 capital paid over after his death to the person entitled to the inheri- 
 tance, unless the timber, though decaying, is for the defence and 
 shelter, or ornament, of a mansion-house(c). But it is not sufficient, 
 it seems, that the timber is merely ripe ; it must be for the benefit of 
 the remainderman that it be cut, otherwise no order will be made(d). 
 Where timber fit to be cut is felled by tenant for life for the benefit of 
 the estate, the person next in remainder may elect to treat the timber 
 as»lawfully cut, and require the value of it to be invested in land, and 
 held as part of the estate, the tenant for life taking the interest of the 
 fund, and the first owner of the inheritance, or tenant for life without 
 impeachment for waste, taking the capital(e). If the tenant for life 
 treats the money produced by the sale of timber as his own, that is a 
 wrongful act, and the Statute of Limitations will run from the date of 
 its conversion, and not from the death of the tenant for life(/). 
 
 33 1 Waste hy taming and reclainning deer. — In the old books, the feeding 
 of deer is declared to be waste where the deer have always been kept 
 on the estate in a wild state, for wild deer go with the land to the 
 heir-at-law, whereas, if they are fed and reclaimed, they cease to be 
 animals ferm naturae, and become personal property, and are severed • 
 from the freehold, and go to the executor ; and it is this alteration in 
 the nature of the property which makes the taming of the wild animal 
 waste. But wild deer which have never been fed are seldom to be 
 met with in England at the present day(5'). 
 
 332 Equitable waste. — Where tenant for life holds without vmpeachment for 
 waste he may nevertheless be restrained from committing what is 
 termed equitable waste, which consists in doing acts of destructive 
 injury to the property, to the detriment of the persons entitled in re- 
 mainder. The term " without impeachment of waste," contained in 
 a deed or will creating a life estate in land, does not enable the life 
 
 (c) Burges «. Lamb, 16 Ves. 182. Bewick ». Whitfield, 3 P. Wms. 267. Tield j>. Brown, '27 
 Beav. 90. 
 
 «*) Seagi-am v. Knight, L. R., 2 Ch. App. 628. 
 
 (e) Phillips V, Barlow, 14 Sim. 263. Gent ». Harrison, Johns. & H. 519 ; 29 Law J., Ch. 68. 
 Bagot ». Bagot, supra. As to the liability of the tenant for life to account for wood or timber 
 trees wrongfully cut, see Phillips v. Allen, 7 Allen (Mass.), 116; Porch v. Frees, 3 Green (N. 
 J.), 204. ■> 
 
 (/) Seagram v. Knight, L. B., 3 Eq. Ca. 398; S. 0.2 Ch. App. 628. Higginbotham t). 
 Hawkins, L. B., 7 Ch. App. 676. 
 
 iff) Ford V. Tynte, 31 Law J., Ch. 177. 
 
286 WASTE, [Chap. 5. 
 
 tenant to deal with the property as if he was the absolute owner 
 thereof in fee simple. He may cut down timber and growing trees 
 fit for timber(A), and convert them to his own use(i), and open 
 new mines, and work them for his own benefit, but he cannot 
 dig and carry off brick-earth, and destroy a field, to the prejudice of 
 the inheritance(^') ; and he will be restrained from committing wanton 
 and malicious waste, such as damaging and destroying buildings, 
 pulling down ancient boundary walls and fences(A), and cutting down 
 thriving wood unfit for timber, and the felling of which would be 
 destructive to the property(Z); also from cutting down trees which 
 •wexe either planted or left standing for the shelter or ornament of a 
 mansion-house(»i). But he is not responsible, even in equity, although 
 he allows a mansion-house and buildings to go to wreck and ruin for 
 want of timely repairs to the roofs and windows (n), nor if he pulls 
 down a ruinous structure, and uses up the materials in rebuilding 
 it(o). 
 
 333 Tenant in fee simple subject to an executory devise over, will also be 
 restrained from committiag that sort of destructive injury to property 
 which is called equitable or malicious waste, but he is entitled to com- 
 mit ordinary waste, such as cutting timber, not being ornamental tim- 
 ber, unless he is restrained by the will creating his estate from cutting 
 down timber of any kind(p). 
 
 334 Lessee for term of years without impeachment of waste may be 
 restrained at the instance of the reversioner from digging and carry- 
 ing away brick-earth, as it destroys the field and causes lasting injury 
 to the inheritance(g'). 
 
 The words " without impeachment of waste," as applied to trustees of a 
 term for special purposes, has a very different sense from the same 
 words annexed to a tenancy for life. The Court of Chancery will not 
 permit trustees so holding to execute their trust by cutting down 
 
 (ft) Smythe ». Smythe, 2 Swanst. 251. Gordons. Woodford, 29 Law J., Ch. 232. 
 
 (i) Pyne v. Dor, 1 T. E. 56. 
 
 {j) London (Bishop of) v. Web, 1 P. Wms. 528. 
 
 (ft) Aston V. Aston, 1 Ves. sen. 265. Vane ». Lord Barnard, 2 Vem. 739 ; Co. Litt. 220a. 
 Duke of Leeds v. Ld Amherst, 14 Sim. 357. 
 
 (I) Chamberlayne v. Dummer, 1 Bro. Ch. C. 160 ; 3 ib. 548. 
 
 (m) Micklethwaite v. Mioklethwaite, 26 Law J., Ch. 721. Wellesley v. Wellesley, 6 Sim. 497. 
 Surges V. Lamb, 16 Ves. 174. See Bubb v. Yelverton, L. K., 10 Eq. Ca. 465. 
 
 (») Powys V. Blagrave, 4 De G. M. & G. 448. Lansdowne v. Lansdowne, 1 Jac. & Walk. 
 622, overruling Parteriche v. Powlett, 2 Atk. 383. , 
 
 (o) Morris v. Morris, 3 De Gex & J. 323. 
 
 (p) Blake v. Peters, 31 Law J., Ch 889. Turner v. Wright, 29 ib. 470 ; Johns. 740 ; 2 De G. F. 
 & J. 234. 
 
 (3) Bifhop of London v. Web, supra. 
 
Sec. l.J BY TRUSTEES — ECCLESIASTICAL DILAPIDATIONS. 287 
 
 timber ; but, at common law, trustees without impeachment of waste, 
 cannot be made responsible for cutting timber(r). 
 
 335 Waste by trustees. — The Court of Chancery will grant an injunction 
 to prevent trustees from cutting down ornamental timber; and, if 
 trees are felled by their orders, without the consent of the persons 
 intreested in the property, the trustees are bound to show that the 
 cutting of them was absolutely necessary(s). 
 
 336 Persons having only an equitable interest in land. — ^When the legal 
 estate in land is vested in trustees, and the equitable tenant for life is 
 in possession of the land, it is the duty of the trustees to exercise their 
 legal powers for the prevention of waste(<), but the Court of Chancery 
 n^er holds trustees responsible for suflfering permissive waste for 
 want of repairs. "I can foresee," observes Wood, V.-C, "no end to . 
 the demand which would be made upon trustees by remainder-men 
 coming into possession of the trust property who might not think it 
 sufficiently repaired, if they might say to the trustees, ' It was your 
 duty to look after the tenant for life ; you had the legal estate, and it 
 was your business to see that he was doing all necessary repairs ; and, 
 as you have not done so, we shall fix you with the liability ' "(m). 
 
 The Court of Chancery does not in general interfere to prevent permis- 
 sive waste ; it will not compel tenant for life to repair, but an account 
 for dilapidations will be decreed against an incumbent(a;). 
 
 337 Ecclesiastical dilapidations. — By the common law, the incumbent of a 
 living is bound not only to repair the buildings belonging to his ben- 
 efice, but also to restore and rebuild them when necessary, for the rev- 
 
 ' enues of the benefice are given as a provision not merely for the cler- 
 gyman himself personally, but for keeping up a suitable residence 
 for the incumbent, and also for the maintenance of the chancel ; and 
 if by natural decay, which, notwithstanding continual repair, must at 
 last happen, the buildings perish, these revenues form the only fund 
 for obtaining the means of replacing them. But the liability of the 
 incumbent to repair and rebuild extends only to that which is useful ; 
 he is not bound to restore or replace anything in the nature of orna- 
 ment, such as whitewashing, papering, and painting, except whei-e 
 painting is necessary to preserve exposed timbers from decay. His 
 liability, therefore, in respect of the preservation and maintenance of 
 
 (r) Marquis of Devonshire v. Larly Sandys, 6 Ves. 115. 
 
 («) Campbell v. Allgooa, 17 Beav. 627. 
 
 (t) Pugh V. Vaughn, 12 Beav. 617. 
 
 («) Powys V. Blagiave, Kay, 508 ; 4 De G. M. & G. 44S. 
 
 (X) Powys V. Blagrave, Kay, 499. / 
 
288 WASTE. [Chap. 5. 
 
 buildings, extends further than that of a tenant for a term of years, who 
 is not bound, as we have seen, to rebuild where he does not hold under 
 a covenant to repair(2/). 
 
 His power and dominion over the property, also, extends further 
 than that of tenant for a term of years ; for an action for dilapidations 
 cannot be maintained against him for pulling down old buildings, and 
 erecting new structures, provided they are found by a jury to be more 
 convenient and beneficial to the living, and it appears that the evi- 
 dence of title is in nowise impaired, and no increased burthen is im- 
 posed upon the property(z). 
 
 As regards the cultivation and management of the glebe land of the 
 li\?ing, that w^hich would be waste when committed by tenant for life, 
 or lessee for term of years, will not be so considered in the case of 
 the incumbent of a living ; for if you apply to a parson's glebe the 
 same law^ that prevails between lessor and lessee, and tenant fdr life 
 and reversioner, the course of husbandry and cultivation must remain 
 the same for all time. What is once arable or pasture must always 
 continue so ; ahd no rector or vicar could effect agricultural improve- 
 ments by employing any part of his glebe in any other manner than 
 he found it employed. The court, therefore, will not restrain an 
 incumbent from ploughing up meadow land when it is shown that 
 a great improvement would be thereby effected, and the permanent 
 value of the rectory, in a pecuniary point of view, be thereby 
 increased(a). 
 
 A rector may cut down timber for the repairs of the parsonage- 
 house or the chancel, but not for any common purpose. If it is the 
 custom of the country he may cut down underwood for any purpose, 
 but if he grubs it up, except in furtherance of a manifest improve- 
 ment, it is waste. He may cut down timber, likewise, for repairing 
 any old pews that belong to the rectory ; and he is also entitled to 
 botes for repairing barns and outhouses belonging to the parsonage, 
 but he cannot cut down timber except in these instances(6) ; nor can 
 he open mines without the consent of the patron and ordinary(c); 
 but he may work mines which were open and in existence at the 
 time he came into possession of thfe property, and formed part of the 
 
 iy) Wise v. Metcalfe, 10 B. &. C. 313. See ante, p. 279. 
 (a) Huntley v. Eussell, 13 Q. B. 572. 
 (o) Duke of St. Albans v. Skipwltli, 8 Beav. 354. 
 
 (6) Strachy r. Francis, 2 Atk. 217.* Duke of Marlborongli v. St. John, 5 De Gcx & Sm. 179. 
 Sowerby v. Prior, L. B. 8 Eq. Ca. 417; 38 L. J. Ch. 617. 
 (0) Holden v. Weekes, 1 Johna. & Hem. 278; 30 Law J., Cli. 35. 
 
Sec. l.J ECCLESIASTIOAL DILAPIDATIONS. 289 
 
 annual profits thereof. No action at law is maintainable against his 
 representatives for getting gravel, though it seems he might be pro- 
 hibited from such getting by a court of equity or common law, or 
 punished by the ecclesiastical court(d). 
 
 The law, however, of ecclesiastical dilapidations has been placed 
 on an entirely new footing, so far as buildings are concerned, by the 
 " Ecclesiastical Dilapidations Act, 1871 " (34 & 35 Vict. c. 43), which 
 provides (s. 53), that no sum shall be recoverable for dilapidations in 
 respect of any benefice becoming vacant after the commencement of 
 the Act, and to which the Act shall be applicable {i.e., semble, in no 
 case but that of wilful waste), unless the claim for such sum be 
 founded on an order made under the provisions of the Act. 
 
 The Act accordingly provides for the appointment of diocesan sur- 
 veyors (s. 8), on whose recommendation all repairs to buildings, which 
 the incumbent would be bound to repair, are to be made, and on 
 the completion of such repairs, the liability of the incumbent or 
 his personal representatives to any claim for dilapidations will cease 
 for a period of five years from the date of the certificate by the sur- 
 veyor of the due execution of the prescribed works, except in cases of 
 wilful waste, or darpage by fire, against which the incumbent shall not 
 have insured (ss. 46, 47). Similar provisions are made in respect of 
 the residences, etc., of archbishops, bishops, deans, canons, etc., on 
 their employment, for the purpose of inspection and repair, of a sur- 
 veyor approved by the Ecclesiastical Commissioners (ss. 25-8). The 
 duty of executing the prescribed repairs, however, still rests on the 
 incumbent (s. 19), who may borrow from the G-overnors of Queen Anne's 
 Bounty the whole or any part of the sum required, and charge the 
 same upon the benefice (s. 17). The incumbent may, if he prefers it, 
 execute all necessary repairs himself, without the intervention of the 
 surveyor (s. 22). But he would not, it seems, in such a case be entitled 
 to the exemption from liability mentioned above; and provision is 
 made by ss. 23 and 45, for the execution of the repairs, if the incum- 
 bent refuses or neglects to execute them. 
 
 It will be seen from the above provisions that the Act contemplates, 
 in effect, a quinquennial inspection and repair of all ecclesiastical 
 buildings, which the incumbent would be bound to repair. But should 
 this not be done, it further provides that on the vacancy of any bene- 
 fice, the bishop shall direct the surveyor to report upon the dilapida- 
 tions, and, after hearing the objections to such report, if any, shall 
 
 (d) Boss V. Adcock, L. B., 3 C. P. 655. See Martin ». 'Roe,poat, 292. 
 
 Ad. Vol. I.— 19 
 
290 WASTE. [Chap. 5. 
 
 make a final order stating the repairs and their cost, for which the 
 late incumbent or his personal representatives are liable, which sum 
 shall be a debt due from the late incumbent or his personal represent- 
 atives to the new incumbent, and recoverable as such at law or in 
 equity (ss. 29-36). 
 
 338 Waste hy copyhold&rs. — ^By the general custom of copyholds, if a copy- 
 holder commits waste, it is a forfeiture of his estate(e), and, as such 
 penal consequences are attached to this description of tort, the law re- 
 quires clear proof of some invasion on the part of the tenant of the 
 lord's property, or some act or neglect which tends materially to dete- 
 riorate the tenement, or to destroy the evidence of its identity(/). 
 The pulling down of an old ruinous barn by a copyholder, without the 
 license of the lord, is, in strictness of law, waste, and works a forfeit- 
 ure of the copyhold estate ; but if no real injury has thereby been 
 done to the inheritance, the penal consequences of waste do not attach, 
 and there is no authority for saying, that any act can be waste, so as 
 to work a forfeiture, which is not injurious to the inheritance, either by 
 diminishing the value of the estate, or by increasing the burthen upon 
 it, or by impairing the evidence of title(g'). 
 
 339 Tenants in common. — If one tenant in commop misuses property 
 which he holds in common with another, he is answerable \o the other 
 in an action for misfeasance ; but he is not responsible in an action 
 for waste for felling timber trees tit to be cut, or for opening mines, or 
 taking any of the fair profits of the common property ; nor is he liable 
 in trespass for cutting grass(A) ; but the other tenant in common will 
 be entitled to recover a moiety of the value of whatever is severed 
 from the freehold and converted into a chattel(i). 
 
 340 Waste hy the removal of fixtures. — " Questions respecting the right to 
 what are ordinarily called fixtures," observes Lord Ellenborough, 
 "principally arise between three classes of persons. First, between 
 different descriptions of representatives of the same owner of the in- 
 heritance, viz., between his heir and executor. Iil this first case, i.e., 
 between heir and executor, the rule as to severance obtains with the 
 most rigor in favor of the inheritance, and against the right to dis- 
 
 (e) See ante, p. 124, Salisbury v. Gladstone. 
 
 (/) Barton's Keal Property, 411 ; 7th ed. p. 1335. 
 
 {g) Grubb ». Earl of Burlington, 5 B. & Ad. 517. 
 
 (A) Jacobs V. Seward, 38 L. J., C. P. 252 ; L. B., 4 C. P., 328. See Bailey v. Hobson, post, p. 
 318. Under the statutes of New York, a tenant in common of unimproTed timber lands may 
 maintain an action of waste against his co-tenant who has cut and removed timber and con- 
 verted it to his o^vn use. ElweU v. Burnside, 44 Barb. (N. Y.) 447. See also Hawley e. 
 Clowes, 2 Johns. Ch. 122. 
 
 (<) Martin v. Knowles, 8 T. E. 145. 
 
Sec. 1.] JREifOVAL OF FIXTURES. 291 
 
 annex therefrom, and to consider as a personal chattel, anything which 
 has been aifixed thereto(^'). Secondly, between the executors of 
 tenant for life or in tail, and the remainderman or reversioner ; in 
 which case the right to fixtures is considered more favorably for execu- 
 tors than in the preceding case between heir and executor. The third 
 case, and that in which the greatest latitude and indulgence have 
 always been allowed in favor of the claim of severance, as against the 
 claim in respect of freehold or inheritance, is the case between land- 
 lord and tenant "{k). 
 
 As between heir and executor, the rule is, that where a lessee having 
 annexed anything to the freehold during his term, afterwards takes 
 it away, it is waste. But this rule, at a very early period, had several 
 exceptions engrafted upon it in favor of trade, and of those vessels and 
 utensils which are immediately subservient to the purposes of trade. 
 And it was laid down that if a lessee for years erect a furnace for his 
 advantage, or a dyer make his vats or vessels to occupy his occupation 
 during his term, he may remove them ; but if he suffer them to be 
 fixed to the earth after the term, then they belong to the lessor. And 
 so of a baker. And it is not waste to remove such things within the 
 term(Z). And as between the executor and the heir-at-law, it has 
 since been. held that where a fixed instrument, engine or utensil, or a 
 building covering machinery, is accessory to matter of a personal na- 
 ture, then it shall itself be considered personalty, and belong to the 
 executor, such as a fire engine accessory to the carrying on the 
 trade of getting and vending coals ; or a brew-house furnace and 
 coppers, or a cider-mill, or vamish-house ; but salt-pans connected 
 with salt-springs, and erected for the benefit of the inheritance, and 
 bams and agricultural buildings, erected for farming purposes, are 
 
 0") Walmsley v. Milne, 7 C. B., N. S. 115 ; 29 Law J., C. P. 97. See 2 Kent's Comm. 343 et 
 seq.i Eichardson v. Borden, 42 Miss. 71. In New York, however, it is proTided by statute 
 that things annexed to the freehold or to any building shall not go to the executor, but shall 
 descend with the freehold to the heirs or devisees, except such fixtures as are mentioned in 
 the fourth subdivision of the sixth section ; and that subdivision declares that " things an- 
 nexed to the freehold, or to any building for the purpose of trade or manufacture, and not 
 fixed into the walls of a house so as to be essential to its support," shall be deemed assets and 
 shall go to the executors or administrators. 2 K. S. 83, H 6, 7. By this statute it was probably 
 intended to put the executor upon the same footing with the tenant, and to give him in pre- 
 ference to the heir, such articles as a tenant might hold against his landlord. Voorhees v. 
 McGinnis, 48 N. Y. 278. How far the legislature were successlld in this attempt may be seen 
 by consulting House v. House, 10 Paige, 158 ; Ford v. Cobb, 20 N. Y. 344 ; Murdook v. Gifford, 
 18N. Y. 28. 
 
 (*) Blwes V. Maw, 3 East, 63. Eichardson v. Borden, 42 Miss. 71 ; 1 Washb. on Eeal Prop. 18. 
 
 (?) lb. 20 Hen. 7, 13a. b. See Treadway v. Shawn, 7 Nev. 37 ; Hill v. Sewald,.53 Penn. St. 
 
 en. 
 
292 WASTW. [Chap. 5, 
 
 pot bythei cammon law rempvalbl© by executors, but belong to the 
 heir(w). 
 
 The cases regarding the right of removal of fixtures, as between 
 the executor of a tenant for life and the remainderman, will be found 
 to turn each on its own peculiar circumstances ; the character of the 
 fixture, the use niade of it, the mode of its attachment to the free- 
 hold, the facility of severance, the injury to the freehold by severance, 
 and, in regard to an ecclesiastical benefice, the character and object 
 of the building to which the chattel is attached, and the purppse for 
 which it was attached. A building erected by an incumbent, wMch 
 is in itself mere matter of luxury and ornament, which it would be a 
 burthen to the benefice to keep up, and which the incumbent might 
 have pulled down if he thought fit, and which may be detached withr 
 out injury to the freehold, passes in general as part of the personal 
 estate to the executors of the deceased incumbent, and may be taken 
 away by them(M). 
 
 The Tight to remove fixtures, without incurring liability for waste, is 
 considered at length in many learned treatises(o), and the remainder 
 of the present chapter will be confined to the consideration of fixtures 
 that have been held removable, or irremovable, as between landlord 
 and tenant(o(?). 
 
 (m) lb. 2 Smith's L. C. 153, 6th ed. The case of the salt pans, decided by Lord Mansfield, 
 has been very generally followed in England and in this country. Ford v. Cobb, 20 N. Y. 344. 
 Murdock v. Gifford, 18 id. 28. Powell v. Monsen Co., 3 Mason, 459. Gale v. Ward, 14 Mass. 
 352. Cresson v. Stout, 17 Johns. 117. Swift v. Thompson, 9 Conn. 63. Teaff v. Hewitt, 1 
 Ohio St. 511. Tanderpoel u.Van Allen. 10 Barb. 157. 
 
 (n) Martin v. Eoe, 7 Ell. & Bl. 24S. 
 
 (0) Amos on Fixtures. Grady on Fixtures. And see D'Eynconrt v. Gregory, L. E., 8 Eq. 
 Ca. 382. 
 
 (00) It is a general rule that as between vendor and vendee, mortgagor and mortgagee, 
 exeeutor and heir, the strict rule of law applies in favor of the vendee, mortgagee, and heir, 
 holding many articles to be fixtures, and as belonging to the freehold, which would not be so 
 held as between landlord and tenant. Richardson v. Berden, 42 Miss. 71. Preston v. Briggs, 
 16 yt. 124. McGreary o. Osborne, 9 Cal. 119. 2 Kent's Gomm. 343 et aeq. 1 Wash, on Epal 
 Prop. 7. Dispatch Line of Packets v. Bellamy Man. Co., 12 N. H. 205. 
 
 And although the executor is placed upon the same footing as the heir by the statutes of 
 New York, in other respects the law in that state preserves its former rigor in favor of the 
 inheritance. Voorhees v. McGinnis, 48 N. Y. 278. 
 
 " As the illustratioiLs given in the text are oonflned to questions arising between landlord 
 and tenant, a few of the many decisions will be noticed, showing what have been deemed fix- 
 tures as between vendor and vendee and mortgagor and mortgagee. 
 
 As between vendor and vendee it has been held that double windo^^s which were not in 
 use at the time of the sale of the house, and had never beep nailed O]; fastened in, did not 
 pass with the honse. Peck ». Batohelder, 40 Vt. 233. 
 
 A deed of a hotel has been held to carry with it as an appurtenance the hotel sign and post, 
 although set at a considerable distance in front of the hotel lot. Eedlon v. Barker, 4 Kansas, 
 445. But it does not carry with it an ice-chest, although it is so constructed as to prevent 
 removal without being taken apart. Park v. Baker, 7 AUen (Mass.), 78. 
 
 Chandeliers attached to the house are fixtures as between vendor and vendee. Johnson v. 
 Wiseman, 4 Met. (Ky.) 357. But see Vaughen v. Haldeman, 33 Pe«B. St, 522. 
 
Sec. 1.] landlord's fixtures. 293 
 
 341 Landlord's fixtures. — The term "landlord's fixtures" means such 
 things as the landlord chooses to annex to the freehold and demise 
 with it, and which, of course, the tenant has no right to remove, and 
 
 Permanent fences pass with the realty. Gidden v. Bennett, 43 N. H. 306. Smith v. Carroll, 
 4 Green (Iowa), 146. Boon ». Orr, id. 304. 
 
 A cider press once annexed to the realty passes by a conveyance of the freehold, although 
 temporarily severed from the freehold for the purpose of repairs. Wadley v. Jauvrin, 41 Jf. 
 H. 603. 
 
 So a cotton gin put up after the usual manner for use on lands devoted to the growing ol 
 cotton, has been held to be a fixture and to pass with the land to the vendee. Richardson v. 
 Borden, 42 Miss. 71. So of a bath-tub nailed to a dwelling-house and the pipes used to con- 
 vey water thereto. Cohen v. Kyler, 27 Mo. (6 Jones) 1*22. 
 
 In respect to machinery, no general rule can be given, and each Case depends upon its own 
 peculiar circumstances. It has been held that machinery does not pass with the freehold as 
 between vendor and vendee. Lacey v. Gibonoy, 36 Mo. 320. And see Bartlett v. Wood, 32 
 Vt. 372. And on the other baud, machinery in a steam flouring mill has been held to pass 
 with the realty. McGreary V. Osborne, 9 Cal. 119. So of stills for distilling, and copper ket- 
 tles for cooking feed for hogs, when encasecf in brick and mortar. Ryan v. Lawrence, 5 
 Jones' Law (N. C), 337. As between one who has taken a mortgage of steam boilers, engine, 
 shafting, etc., while in process of construction and before annexation to the freehold, and a 
 purchaser under a foreclosure of a mortgage of the lands to which they had been annexed 
 In a permanent and substantial manner, it has been held that in the absence of proof of the 
 intent of the owner either to makfe the machinery a part of the i-ealty or to remove it at a 
 future time, it would pass to the purchaser under the foreclosure sale. Voorhees v. McGinnis, 
 48 N. Y. 278. But in the same case the rule was held to be otherwise as to other machines, 
 such as planing machines, saw benches, saws, etc., affixed to the building only for conven. 
 lence in using and capable of removal without injury to the building or the machinery 
 itself But in Symonds v. Harris (51 Me. 14), it was held that the machinery attached to a 
 mill by spikes, bolts and screws, and operated by belts running from permanent shafting 
 driven by a waterwheel, were a part of the realty. And in Brennan w.Whitaker (15 Ohio St. 
 446), it was held that boilers, engines, saws and gearing and other machinery for applying 
 the power in a steam saw mill were fixtures as between the mortgagor and the mortgagee of 
 the land to which such machinery is attached. The cases cited show that no rule of uni 
 versal application can be given by which to determine whether a given article or thing is oi 
 is not a fixture, and that the question depends on the peculiar facts and circumstances sur. 
 rounding each particular case. A thing or article may be a fixture under one state of facts 
 and not nnder another. Thus on the sale of agricultural lands, manure, whether in heaps or 
 scattered in a barnyard, has been held to be a flxtui'e and to pass as a part of the realty to the 
 vendee ; but, on the sale of lands not used for agricultural purposes, has been held to be per- 
 sonal property and not to pass to the vendee. Richardson v. Borden, 42 Miss. 71. Stone v. 
 Proctor, 2 Chip. 115. Daniels v. Pond, 21 Pick. 367. But see Ruokman «. Outwater, 4 Dutch. 
 (N. J.) 581. 
 
 It is a general rule that to give to articles personal in their nature the character of real 
 estate, the annexation must be of a permanent character. To this rule there are exceptions, 
 nnder which fall such articles as are not themselves annexed, but are deemed to be of the 
 freehold from their use and character, such as millstones, fences, statuary and the like. 
 Voorhees v. McGinnis, 48 N. Y. 278. Potter v. Cromwell, 40 id. 287. Capen v. Peckham, 35 
 Conn. 88. Snediker «. Warring, 12 N. Y. 170. 
 
 It is not the manner of fastening, but the permanent and habitual annexation that deter-" 
 mines when the article annexed becomes a part of the realty. Laflin v. Griffiths, 35 Barb. 
 (N. Y.) 58. And the permanency of the attachment does not depend so much upon the degi'ce 
 of force with which the thing is attached, as ijpon the motive and intention of the party 
 attaching it. If an article is attached for temporary use with the intention of removing it, a 
 mortgagee cannot interfere with its removal by the mortgagor. If it is placed there for the 
 permanent improvement of the IVeehold, he may. Crane ». Bingham, 3 Stoct. (N. J.) 29. 
 See Noble v. Bosworth, 19 Pick. 314 ; Butler e. Page, 7 Met. 40 ; Christian ». Dripps, 28 Penn. 
 271; Hill V. Sewall, 53 Penn. St. 271; Brennan s.Whitaker, 16 Ohio St. 446. And it has been held 
 in Pennsylvania that the old notion of physical attachment, or that the question of whether 
 an article is a fixture or not depends upon the mode of its attachment to the freehold, has 
 long been exploded in that State ; and that oh the contrary the question depends on the 
 
294 WASTE. [Chap. 5. 
 
 must restore at the end of the term ; such as grates, marble chimney- 
 pieces, locks, keys, bars and bolts, steam-engines and boilers, hay- 
 cutters, malt-mills, corn-crushers, grinding-stones, etc.(p). 
 343 Tenants fixtwres. — The rule formerly was, that where a lessee, 
 having annexed a personal chattel to the freehold during his term, 
 afterwards took it away, it was waste. In the progress of time this 
 rule was relaxed, and many exceptions have been grafted upon it. 
 One has been in favor of ornament, as ornamental chimney-pieces, 
 
 nature and oharater of the act by whicli the article Is put in place, the policy of the law con- 
 nected with its purpose, and the intentions of those concerned in the act. Meigs' appeal, 62 
 Penn. St. 28. And the rule adopted hy the courts of Vermont requires the intention to render 
 an article a fixture by the act of annexation to be affirmatively made to appear. HiU v. 
 Wentworth, 28 Vt. 428. From the current of the later authorities it would ' seem that the 
 mode in which an article is annexed to the freehold is important rather as an evidence of 
 the Intention of the person in making the annexation than as an independent test whether a 
 chattel has become a fixture. 
 
 The adaptability of the chattel to the use of the freehold is another test whether it has lost 
 its character of personal property or not, although not so certain in its character as the one 
 above mentioned. Voorhees v. McGinnis, 48 N. Y. 278. Voorhees v. Freeman, 2 Watts & S. 
 116. Pyle V. Pennook, id. 390. Murdock v. Giflbrd, 18 N. Y. 28. 
 
 But the most important and conclusive test is the intention of ttie party in making the 
 annexation. Potter ». Cromwell, 40 N. Y. 287. HUl v. SewaU, 53 Penn. St. 271. Hill e. 
 Wentworth, 28 Vt. 428. Murdock v. Gifford, IS N. Y. 28. Winslow v. Merchants' Ins. Co., 4 
 Met. 306. Swilt ». Thompson, 9 Conn. 63. Capen v. Peokham, 35 id. 88. 
 
 The fact that the article annexed to the freehold cannot be severed therefrom without 
 great injury to the article itself or to the freehold has in a number of cases been held to fix 
 the character of the article as a part of the realty. MoKim v. Mason, 3 Md. Ch. Deeis. 186. 
 Providence Gas Co. v. Thurber, 2 B. I. 18. Ford v. Cobb, 20 N. Y. 3a. Main v. Schwarz- 
 waelder, 4 E. D. Smith (N. Y. C. P.), 273. Tuttle v. Eobinson, 33 K. H. 104. Baker v. Davis, 
 19 id. 326. But it has also been held that this fact is not now to be deemed controlling. Voor- 
 hees «. MoGinnis, 48 N. Y. 278. 
 
 ■It has also been held in New York that a chattel may lose its personal character and be- 
 come a part of the realty without further annexation thereto than its own weight, as in the 
 case of a statue and sun dial, carved in stone, and placed as an ornament on the lawn sur- 
 rounding a private residence. Snedeker v. Warring, 13 N. Y. 170. And see Voorhees v. Mc- 
 Ginnis, 43 N. Y. 278. 
 
 And it has "been held in Mississippi, that in determining whether a given article is a chattel 
 or a fixture, reference must be had to the nature of the thing itself; the position of the party 
 placing it where found ; the probable intention in putting it there ; the injury which would 
 result from its removal, and also the object of the party placing the article on the premises- 
 with reference to ti'ade, agriculture or ornament. Richardson v, Borden, 42 Miss. 71. 
 
 It has been held in Ohio and New York that the true criterion of a fixture is the united 
 application of three requisites : First. Actual annexation to the realty or something appur- 
 tenant thereto. Second. Application to the use or purpose to which that part of the realty 
 . with which it is connected is appropriated. Third. The intention of the party making the 
 annexation to make a permanent accession to the freehold. TeaflT v. Hewitt, 1 Ohio St. 511. 
 Potter V. Cromwell, 40 N. Y. 287. 
 
 But it does not follow that a chattel may not become a fixture without the existence at the 
 same time of each of these characteristics, nor that if once a fixture it will cease to be a part of 
 the realty when any one of the conditions faUs. Thus a fence enclosing a field, and in no way 
 attached to the soil other than by its own weight, is not the less a fixture because it is not 
 supported by posts or stakes set in the ground. Smith v. Carroll, 4 Green (Iowa), 146. Boon 
 V. Orr, id. 304. Nor will a dwelling-house cease to be a part of the realty when reduced to 
 its original elements of boards and timber by a tempest. Eogors »;. Gelinger, 30 Penn. 'St. 
 185. Or by the owner for the purpose of reconstruction or repair. Wadley v. Jauvrin, 41 N. 
 H. 503. Beard v. Durald, 22 La. An. 284. > 
 
 (i)) Walmsley v. Milne, 7 C. B., N. S. 115 ; 29 Law J., C. P. 97. 
 
Sec. l.J TRADE AND TENANT'S FIXTURES. 295 
 
 pier-glasses, hangings, wainscot fixed only by screws, and the like. 
 Of all these, it is to be observed that they are ■ exceptions only(g'). 
 Other exceptions have been grafted upon the rule in favor of the en- 
 joyment of the occupation, and in favor of trade, and vessels, machin- 
 ery, and utensils, which are immediately subservient to the purposes 
 of trade(g'g'). If a landlord lets a house unfurnished, without the con- 
 veniences of grates or gas-fittings, and the tenant, for the enjoyment 
 of his occupation; fixes them in the house, he may, unless he has con- 
 tracted to leave them behind, remove them during his term(r). 
 Whether a particular fixed chattel belongs to the landlord or the tenant, 
 must in some instances depend upon what the contracting parties pro- 
 pose to be the subject of the demise(r?'). Pillars of brick and mortar 
 built on the fioor of a dairy by a tenant to sustain milk-pans have, 
 however, been held to be part of the freehold(s) ; also barns and beast- 
 houses, wagon-houses, fuel-houses, pigeon-houses, carpenters' shops for 
 mending wagons and carts, and agricultural buildings employed and 
 used upon the farm, and let into the ground, and not merely placed on 
 the surface thereof, or on a brick or stone fioor(i) ; also conservatories, 
 hot-houses, or green-houses, erected on a brick or stone foundation, 
 and attached thereto by permanent fastenings ; so that if the tenant 
 
 (S) Buckland ». Butterfleld, 4 Moore, 447. See Tread way «. Shawn, 7 Ke v. 37. 
 
 (qq) If a tenant attaches to the I'reehold any articles for the purposes of his business, the 
 law, in favor of trades, presumes an intention to remove them before the expiration of his 
 term; and it is only on the failure of the tenant to so remove them that the law wUl presume 
 an intention to make a gift to the landlord. Hill v. Sewald, 63 Penn. St. 271. 
 
 And trade fixtures generally, although attached to the realty, if erected by the tenant, 
 remain his property, and may be removed by him during or at the expiration of his lease. 
 Crane v. Brigham, 3 Stoct. (N. J.) 29. 
 
 (r) Gas fixtures, such as a gasometer, and an apparatus for generating gas, may be re 
 moved by the tenant. Hays v. Doane, 3 Stoct. (N. J.) 84. 
 
 (rr) Elliott v. Bishop, 10 Exoh. 496; 11 ib. 113. Sumner v. Bromilow, 34 L. J'., Q. B. 130. 
 
 («) Leach v. Thomas, 7 C. & P. 327. 
 
 (t) Blwes V. Maw, 3 East, 38; 2 Smith'sL. C. 153, 6th edit. Wood v. Hewett, 8 Q. B. 913. In 
 Iowa it was held that buildings erected by a tenant on land demised for the purpose of carry- 
 ing on his business, and under an implied license flrom the owner, would not in equity be 
 deemed apart of the realty in the hands of a purchaser having ftdl knowledge of the license 
 before purchasing. WUgus v. GettingS; 21 Iowa, 177. 
 
 In a late case in Pennsylvania it was held that buildings erected by the United States upon 
 a public common, and used as barracks and hospitals during the rebellion, did not become a 
 part of the freehold, and that the question of fixture did not depend upon whether or not the 
 foundation was let into the soil. Meigs' Appeal, 62 Penn. St. 28. 
 
 In Tennessee it was held that a wooden house built by a settler upon land upon which his 
 regiment was encamped became a part of the freehold. Childress v. Wright, 2 Cold. 
 (Tenn.) 350. 
 
 In Massachusetts it was held that a meeting-house, built upon stone foundations on land 
 not owned by the society building the house, became a part of the realty. Poor v. Oakman, 
 104 Mass. 309. 
 
 A building is, in its very nature, an annexation to the land, and becomes a chattel only by 
 t^e application of some exceptional rule. Ombony v. Jones, 19 N. Y. 234. Sohemmer v. North, 
 32 Mo. 208. 
 
296 WASTE. [Chap. 5. 
 
 removes them after he has put them up he is guilty of waste(M). But 
 if the tenant raises and constructs foundations of a permanent char- 
 acter for the reception of a superstructure of wood, such as a windmill, 
 a pump, a Dutch barn or granary, a pigeon or fowl-house, or a conser- 
 vatory, and the superstructure merely rests on this foundation, or is 
 attached thereto by screws or movable pins or bolts, so as to be remov- 
 able at pleasure without material or permanent injury to the freehold^ 
 the foundation belongs to the landlord, as part and parcel of the land, 
 and the movable structure placed on such foundation by the tenant 
 continues the property of the latter, and may be carried away by him 
 at the expiration of his lease(a;). A door which may be lifted from its 
 hinges, and a sliding fender used to prevent the escape of water from 
 a mill-stream, does not necessarily beco;ne part of the freehold(^); 
 nor a mooring-pile, driven into land for the accommodation of the nav-. 
 igation of a canal or river(z). But locks, keys, and bars belong to the 
 landlord; and so does a shutter and sliding bolt, put up for the security 
 of the premises(z0). 
 343 Agricultural tenants fixtures made removable ty statute. — ^By 14 & 15 
 Vict. c. 25, s. 3, it is enacted that if any tenant shall with the con- 
 sent in writing of the landlord, at his own cost and expense, erect any 
 building, engine, or machinery, for the purposes of trade or agricul- 
 ture, such buildings shall be the property of the tenant, and shall be 
 removable by him, one month's previous notice in writing being given 
 of his intention, and the landlord or his agent being afforded an 
 opportunity of purchasing the thing proposed to be removed, as 
 therein mentioned(a). 
 
 If a tenant receives from his landlord timber for the purpose of 
 erecting a shed, and- uses the timber in the construction of it, he has 
 no right to pull down the building and remove the timber, although 
 he has added materials of his own, and confounded them, in the 
 erection, with those furnished by the landlord(aa). 
 
 (u) Buckland v. Butterfleld, 4 Moore, 440; 2 B. & B. 64. Jenkins v. Gething, 2 Johns. & H. 
 620. Syme v. Harvey, 24 Se. Sess. Cas. 502. Sleddou v. Cruikshank, 16 M. & W. 71; 16 Law 
 J., Exch. 61. 
 
 (X) Grymes ». Boweren, 4 M. & P. 143; 6 Bing. 437. Bex v. Otley, 1 B. & Ad. 161. Wans- 
 brongh v. Maton, 4 Ad. & E. 884. Davis r. Jones, 2 B. & Aid. 165. Rex v. Londonthorpe, 8 
 T. E. 377. Wiltshear v. Cottrell, 22 Law J., Q. B. 181. Taylor v. Townsend, 8 Mass. 411. Wash- 
 bum V. Sproat, 16 Mass. 449. 
 
 (y) Wood V. Hewitt, 15 Law J., Q. B. 247. 
 
 (») Lancaster v. Eve, 5 C. B., N. S. 726. 
 
 {zz) A tenant may lawfully remove a padlock placed by him on a oom-boaSe. Whiting v. 
 Brastow, 4 Pick. 310. 
 
 (o) See PeUeuz v. BuUerdeick, 13 La. An. 274. 
 
 (aa) Smith v. Bender, 27 Law J., Exch. 83. So if a tenant has erected additional sheds and 
 buildings upon the demised premises with his own materials, and has so connected then) 
 
Sec. 1.] TBADE AND TENANT'S FIXTURES. 297 
 
 344 Ornamental fixtwres. — ^The ornamental 'fixtures now held severable 
 and removable by the tenant are, chimney-glasses, pier-glasses, orna- 
 mental chimney-pieces, and stoves, tapestry and hangings nailed to 
 the wall, in lieu of ornamental paper or panels(6), and ornajnental 
 cornices capable of being detached without injury to the building(c). 
 
 345 Domestic and trade fixtures. — Amongst the various domestic and 
 trsCde-fixtures held to be removable by the tenant are gas-pipes and 
 gas-fittings((i), and water-pipes attached to buildings by metal bands 
 and nails(e), grates, ranges, ovens, coppers, bells, blinds, fixed tables, 
 water-butts, cupboards, etc.(/), soap-boilers' furnaces, fat-vats, coppers^ 
 dyeing and brewing vessels(p'), cider-mills(^), baking-ovens, steam- 
 engines, and salt-pans(i) ; also machinery, engines, vats, plant and 
 utensils used in trade, however bulky or complex they may be in 
 their construction. The tenant may take them, to pieces, and remove 
 them, and put them together again in the same form in some other 
 place(A). And where a shed or building is a mere accessory to a trade 
 fixture, such as a shed, or any temporary building, erected merely for 
 the purpose of covering and protecting a steam engine, or machinery 
 or trade utensils, from the effect of the weather, it may be removable, 
 together with the trade-fixture to which it belonged, on the ground 
 that " omue accessorium sequitur suum principale "{I). But a build- 
 ing is not removable merely because it has been erected for manufac- 
 turing or trading purposes, or for the purpose of covering and protecting 
 machinery. If the building is of a substantial character, standing on 
 
 with buildings already thereon that they cannot be removed without material injury to the 
 landlord's property, such erections will be treated as a part of the realty. Powell v. Mc- 
 Ashan, 28 Mo. 70. 
 (B) Beck V. Eebow, 1 P. Wms. 94. 
 
 (c) Avery ». Cheslyn, 3 Ad. & E. 75. Any chattel becomes a part of the realty, when so 
 afiixed to the freehold as to be incapable of severance without injury thereto; and it is 
 immaterial whether the annexation be for use, ornament or caprice. Providence Gas Co. v. 
 Thurber, 2 B. I. 1.5. 
 
 (d) Lawrence v. Kemp, 1 Duer (N. T.), 363. Wall v. Hinds, 4 Gray (Mass.), 266. 
 («) Wall V. Hinds, 4 Gray (Mass.), 256. 
 
 (/) EUiott V. Bishop, ante, p. 295. So of flre-fi-ames fixed in common Are places with bricks 
 between the frame and Jambs of the fireplace. Gaffleld ». Hapgood, 17 Pick. 192. So of a 
 pump placed in the well by the tenant. McCracken v. Hall, 7 Ind. 30. Or a cistern and sink 
 fastened by nails or set into the floor by cutting away the boards. Wall ». Hinds, 4 Gray 
 (Mass.), 256. 
 
 (^) Moore v. Smith, 24 111. 512. Pillou v. Love, 5 Hayw. 109. And see Burk v. Baxter, 3 
 Mp. 207; Terry v. Bobbins, 5 Smedes & Marsh. 291. 
 
 (H) Holmes ».' Tremper, 20 Johns. 29. 
 
 (i) 42 Ed. 3, fol. 6, pi. 19; 20 Hen. 7, fol. 13, pi. 24. Poole's case, 1 Salk. 368. Lawton v. 
 Lawton, 3 Atk. 13. Penton v. Eobart, 2 East, 90. Ford v. Cobb, 20 N. Y. 344, 349. 
 
 (/c) Vanness B. Pacard, 2 Pet. 137. Kelsey ». Durkee, 33 Barb. (N. Y.) 410. Finney ». Wat- 
 kins, 13 Mo. 291. 
 
 (i) A tenant may remove sheds erected by him for the purpose of brick making. Beekwith 
 c. Boyce, 9 Mo. 660. 
 
298 WASTE. fCtap. 5. 
 
 brick or stone foundations let into the soil, and is constructed so as not 
 to be removable without the entire destruction of the fabric, it cannot 
 be disannexed from the freehold and taken away, although it may be 
 built (jver a steam-engine, and may contain nothing but steam- 
 machinery, spinning-jennies, drums and wheels, all of which may be 
 removable, and to all of which it may in a certain sense be acces- 
 sory(/). 
 
 346 Fixtures removable hy local custom and, usage. — ^Things annexed to the 
 freehold are sometimes hqld removable in accordance with local custom 
 and usage in particular districts, such as barns and granaries erected 
 on stone pillars, or on pattens, or blocks of timber(^). And if the pil- 
 lars or pattens merely rest on the ground, and are not attached to 
 foundations sinking into the soil, they are removable without any cus- 
 tom(^). 
 
 347 Abandonment of the right to disannex and remove ornamental and 
 trade-fixtures. — If the tenant has entered into an' express covenant to 
 yield up, at the expiration of his term, " all erections and buildings 
 that maybe erected," or "all improvements that maybe made," upon 
 the demised premises, he cannot afterwards remove trade erections or 
 buildings, or trade or ornamental or domestic flxtures(i). A covenant 
 in a lease to yield up the demised premises to the lessor at the expira- 
 tion of the lease, together with all fixtures thereunto belonging, is 
 confined to fixtures which belonged to the demised premises at the . 
 time of the execution of the lease, and does not extend to fixtures 
 which were not then in existence ; but a covenant to yield up fixtures 
 belonging, or that may belong, to the demised premises, extends to 
 fixtures that are afterwards put up by the tenant(A:). 
 
 348 Inability of the tenant to remove fixtures after the expiration of his term. 
 — Whenever an outgoing tenant is possessed of fixtures which he has 
 
 (/) Whitehead v. Bennett, 27 Law J., Ch. 474. In the case of Omberry ». Jones (19 N. T. 
 234), that a ball room, resting upon stone posts slightly embedded in the soil, and removable 
 without injury to the inheritance, was, within the principle of erpctions made for the pur- 
 poses of trade, removable by the tenant who erected it. 
 
 In the case of Cowden o. St. John (16 Iowa, 690), the court was equally divided upon the 
 question whether a building erected by a tenant for the purposes of trade, and consisting of 
 a balloon flame set upon posts extending into the ground, and attached to a fence at the cor- 
 ners, was a trade fixture. 
 
 (^) 11 Vin. Abr. 154. Executors, U. pi. 74. CuUing v. Tuffinell, Bull. N. P. 34. Keough t>. 
 Daniell, 12 Wis. 163. 
 
 (A) 2 Smith's L. C. 8th ed. Notes to Elwes v. Maw. ' 
 
 («) Naylor v. Collinge, 1 Taunt. 19. Thresher v. E. L. Water Co., 2 B. & C. 608 ; 4 D. & R. 
 62. IMartyr v. Bradley, 2 M. & So. 25 ; 9 Bing. 24. West v. Blakeway, 3 S. C. N. E. 218. Elli- 
 ott V. Bishop, ante, p. 298. See alao Bumergue v. Bumsev, 33 Law J., Exch. 83 ; Sumner e. 
 Bromilow, 34 ib. Q. B. 130. 
 
 (A) Hitchman -o. Walton, 4 M. & W. 414. Motrop. Co. Ins. Soc. v. Brown, 28 Law J., Ch. 
 681. 
 
Sec. 1.] TRADE AND TMNANT'S FIXTURES. 299 
 
 a right to remove, he must exercise such right prior to the determina- 
 tion of his tenancy ; he cannot, after a formal disclaimer of the title 
 of his landlord, or after he has once quitted the demised premises 
 and given up the key to the landlord, re-enter for the purpose, of sev- 
 ering and removing fl.xtures(M). "After the term, they become a gift 
 in law to him in reversion, and are not removable," unless the tenant, 
 after the expiration of the term, has remained in possession, with the 
 suflferance and permission of the landlord, and actually severs them and 
 removes them during the continuance of his lawful possession, after 
 the expiration of the 'term(Z). If he holds over wrongfully, he loses 
 his right to sever and remove his fixtures ; and if he quits possession, 
 and the tenancy is determined, his right to his fixtures is extinguished, 
 and they become the property of the reversioner(W). If the lease 
 becomes forfeited, and the tenant, whilst he continues in possession 
 after the forfeiture, and before judgment in ejectment has been 
 obtained against him, removes his fixtures, he will be entitled to retain 
 those removed within a reasonable time, as they are not forfeited to 
 the landlord by the forfeiture of the lease(m). But if the landlord 
 re-enters for the forfeiture the tenant's right to remove the fixtures is 
 gone(?i). 
 349 Right of purchasers, or Tnortgagees, to enter and remove fixtures. — The 
 right of the assignee of the lessee can of course, in general, extend no 
 
 (i*) Davis v. Buffnm, 51 Me. 160. Hafliot v. Stober, 11 Ohio (N. S.), 482. Davis v. Moss, 38 
 Penn. St. 316. Beers v. St. John, 16 Conn. 322. liOughi-an v. Eoss, 45 N. Y. 792. MoCraclsea 
 V. HaU, 7 lud. 30. State v. Elliott, 11 N. H. 540. 
 
 {I) MeiTitt V. Judd, 14 Cal. 59. Loughran o. Ross, 45 N. Y. 792. Ombony v. Jones, 19 
 N. Y. 234. But this possession must be under an implied continuance of the original lease to 
 give the tenant the i"ight to remove fixtures after tlie expiration of his term. If the tenant 
 has talcen a new lease of the premises, in which no mention is made of the fixtures; and has 
 entered upon a new term thereunder, the right to remove the fixtures is thereby terminated, 
 although the tenant's possession has been in fact continuous. Id. And "see Shepard v. Spaul- 
 ding, 4 Met. 416. 
 
 ill) Leaders. Homewood, 5 C. B., N. S. 646; 27 Law. J., C. P. 316. Ruffey v. Henderson, 
 21 ib. Q. B. 49 ; 17 Q. B. 574. Heap v. Barton, 12 C. B. 274. Talbot v. Whipple, 14 Allen 
 
 (Mass.), 177, and see note 1, ante, p. . The rule given in the text applies only to tenancies 
 
 having a fixed duration. When the time at which the term will end is uncertain, depending 
 upon a contingency, and may be determined unexpectedly to the tenant, as in case of a len- 
 anoy for life, or at will, this rule is relaxed, and the tenant or his representatives will be 
 allowed a reasonable time to remove the fixtures after the expiration of the term. Davis v. 
 Moss, 38 Penn. St. 346. Loughran v. Eoss, 45 N. Y. 792. Ellis v. Paige, 1 Pick. 43. Reynolds 
 V. Shuler, 5 Cow. 323. Amboney v. Jones, 19 N. Y. 234. Perard on Fixtures, 106, 107. As to 
 what will be deemed a reasonable time, see Burlc v. Hollis, 98 Mass. 55. 
 
 The rule also presupposes 'hat the act of the tenant in allowing the fixtures to remain 
 attached to the freehold was voluntary on his part. If the landlord has enjoined the removal 
 of the fixtures, and the tenancy has terminated while the injunction was pending, the tenant 
 will be allowed a reasonable time for the removal of the fi.xtures after the dissolution of the 
 injunction. Bircher v. Parke, 40 Mo. 118. Mason v. Fenn, 13 111, 525. 
 
 (m) Stansfield v. Mayor of Portsniouth, 4 C. B., N. S. 131. Sumner v. Bromilow, 34 L. J., Q. 
 B. 130. Keogh v. Danieli, 12 Wis. 163. But see Storer v. Hunter, 3 B. & C. 368. 
 
 (n) Pugh V. Acton, 38 L. J., Ch. 619. L. R., 8 Bq. Ca. 626. Whipley v. Dewey, 8 Cal. 36. 
 
300 WASTgi [Ohfep. S. 
 
 further than the right of the lessee himself ; but the tenant's right to 
 remove fixtures is held to be so far connected with the land, that it 
 may be considered as a right or interest in it, which, if the tenant 
 grants away, he shall not be allowed to defeat his graiit by a subse- 
 quent voluntary act of surrender, " for, as regards strangers who Were 
 not parties or privies to the surrender, the estate surrendered hath in 
 law a continuance "(o) ; and, therefore, if a lessee who has mortgaged 
 his fixtures surrenders his term and quits possession, the mortgagee 
 may nevertheless enter and remove the flxtures(p). Trade fixtures 
 affixed to mortgaged premises by the mortgagor in a quasi-permanent 
 manner, before or even after the mortgage, pass to the m6rtgagee((?)i 
 An equitable mortgagee has the same rights in this respect as a legal 
 mortgagee(r). 
 
 350 Waste commuted, by sPrafigers upon land demised to a tenant or lessee. — 
 Every lessee of land, whether for life or years, is liable, under the 
 statute of Gloucester, to an action for commissive or wilful waste done 
 on the land in lease, by whomsoever it may be committed. The statute 
 of Gloucester {ante, p. 235) " prohibiteth farmers from doing waste : 
 and yet, if they suffer a stranger to do waste, they shall be charged 
 with it, for it is presumed in law that the farmer may withstand it, 
 ' Et qui non obstat quod obstare potest, facere videtur.' In this case 
 the lessor shall have his action of waste against the lessee, and the 
 lessee his action of trespass against him that did the waste, and so the 
 loss, as reason requireth, in the end shall lie upon the wrong-doer"(s). 
 
 351 License to commit waste. — If a general or partial permission be given 
 to the lessee by the lease to commit waste, he is so far tenant without 
 
 (0) Co. Litt. 338b. 
 
 (p) Lond. & Westminster Loan, etc., Co., 6 C. B., N. S. 798 ; 28 Law J., C. P. 297. 
 
 (q) CuUwiok v. Swindell, L. E., 3 Eq. Ca. 249. Climie v. Wood, L. E.,3 Exoh. 257 ; i Exoh. 
 328 (Exch. Ch.) ; 38 L. J., Bxch. 223. See Boyd ». ShoiTook, L. E., 5 Eq. Ca. 72. Ex parte 
 Ashbury, L. K., 4 Ch. App. 630. Longbottom v. Berry, L. K., 5 Q. B. 123. Holland v. Hodg- 
 son, L. E., 7 C. P.- 328. Voorhees v. MoGinnis, 48 N. T. 278. Breunau v. WTilttakcrr. 15 Ohio 
 St. 446. Hoskin v. Woodward, 45 Penn. St. 43. Burnside v. Twitchell, 43 N. H. 390. Harris 
 r. Haynes, 34 Vt. 220. Crane v. Brlgham, 3 Stoot. (N. J.) 29. Millikin v. Armstrong, 17 Ind. 
 456. Laflin v. Griffiths, 35 Barb. (N. T.) 58. Smith v. Moore, 26 111. 392. Sands v. Pfeiffer, 10 
 Cal. 268. Gardner ». Finley, 19 Barb. (N. Y.) 317. Eoberts v. Dauphin Deposit Bank, 19 Penn. 
 (7 Harris) 71. MoKim ». Mason, 3 Md. Ch. Decis. 186. Corliss r. McLagin, 29 Me. 115. Sparks 
 V. State Bank, 7 Blackf. 469. Winslow v. Merchant's Ins. Co., 4Met. 306. Butler v. Page, 7 
 Met. 40. Union Bank v. Emerson, 15 Mass. 159. But see Fullman v, Stearns, 30 Vt. 443; Clark 
 V. Eeyburn, 1 Kansas, 281 ; Tibbetso. Moore, 23 Cal. 208. But the parties may, by an agree- 
 ment made contemporaneously with the execution of the mortgage, limit its application so far 
 as to exempt specified classes of chattels from the operation of the general rule. Frederick e. 
 Devol, 15 Ind. 357. See Bartholomew v. Hamilton, 105 Mass. 239, 
 
 (r) Tebb. v. Hodge, L. K., 5 C. P. 73. 
 
 (») 2In8t. 146. Wood o.Griffln, 46 N. H. 230. Austin v. Hudson Eiver E. E. Co., 25 N. T. 
 834. Cook V. Champlain Transportation Co., I Denio, 91. 
 
Sec. 1.] INJURIES ST FIRE. 301 
 
 impeacliment of waste. Such permiasion vests the property of what 
 is the subject of waste in' the lessee, so that he avails himself of it 
 during the continuance of his interest. It is so with respect to trees 
 and minerals. Where land was dejnised for a term of years, with lib- 
 erty to the lessee to dig half an acre of brick-earth to a certain depth 
 annually, and the lessee covenanted that if he dug more he would pay 
 an increased rent of 375Z, per annum per acre, and a stranger dug and 
 took away brick-eaith, it was held that the lessee was entitled to re- 
 cover from the stranger the full value of such brick-earth (i). 
 
 353 Right of reversioners to enter upo'n lands in the possession of their lessees 
 to inspect waste.^-The law gives to the lessor, or him who hath the re- 
 version, liberty to enter upon the lands of his lessee to see if there be 
 waste, to the intent that he may have his action, if there be cause for 
 it ; and if the lessee prevents the inspection, he is liable to an action 
 for damage8(M), 
 
 353 Injuries to lan4s and tenements from fire. — The involuntary and un- 
 intentional burning of a house, through the negligence of the tenant or 
 his servants, amounts, in contemplation of law, to no more than per- 
 missive waste ; and for this a tenant-at-will or from year to year is not, 
 as we have seen, responsible to the reversioner {ante, p. 283). "Where 
 the Countess of Shrewsbury brought an action against a lawyer of the ' 
 Temple, and declared that she leased to him a house at will^ " et quod 
 ille tarn negligenter et improvide custodivit ignem suum quod domus 
 ilia combusta fuit," it was held that the action was not maintainable, 
 as it was in effect an action for permissive waste, for which a tenant- 
 at-will was not answerable(u). Every landlord who demises buildings 
 to a tenant must be taken to contemplate all the ordinary risks to which 
 house prc^erty is exposed from fire and the negligence of servants 
 intrusted with fire and candles(w) ; and if he wishes to be protected 
 from these risks, he must either insure or take from his lessee a cove- 
 nant to repair and maintain the premises. If he fails to do so, and 
 the preinises are destroyed by fire, without any gross or culpable neg- 
 ligence on the part of the tenant, the landlord will have no remedy for 
 the loss. If the fire has been caused by such an amount of gross neg- 
 ligence as to give it the appearance of a wilful act, the party guilty 
 
 (<) Attersoll v. Stevens, 1 Taunt. 183. 
 
 («) Hunt ». Downman, Cro. Jao. 478. Conwell v. State, 3 Ired. S87. 
 
 (») Countess of Shrewsbury v. Crompton, 5 Cci. 13b ; Cro. Eliz. 777 ; Tindal, C. J., 4 M. * 
 So. 253. Horaefall v. Mather, Holt, N. P. C. 9. 
 
 {w) Portuna autem ignis, vel hujnsmodi, eventus inopinati, omnes, tenentes excusat. Plcta 
 lib. i. cap. 12, B. 20. 
 
302 WASTE. [Chap. 5. 
 
 of the misconduct, whether it be the tenant or a stranger to the demise, 
 will be answerable for commissive waste. And, although a lessee com- 
 ing into possession of houses and buildings under a contract w;ith a 
 lessor who might, f.i he thought fit, have taken security against dam- 
 age from fire, is not responsible to such lessor for fire caused by invol- 
 untary and unintentional neglect, yet, if a fire, originating in negli- 
 gence, spreads from the demised premises to other buildings of the 
 lessor, or to the buildings of strangers, the lessee will be responsible 
 for the damage done to them(a;). 
 
 Every person who puts a dangerous thing in motion which causes 
 injury to another, is, as we have seen {ante, p. 2), in general respon- 
 sible for the mischief it occasions(«/). Where a man shooting with 
 a gun at a fowl, hit his own house and set it o.n fire, and the fire 
 spread to the house of his neighbor and destroyed it, it was held that 
 the firer of the gun was responsible for the damage, although the fire 
 was occasioned rather by an accident or misadventure than by negli- 
 gence(z). 
 
 Every person who lights a fire is clothed by the common law with a 
 heavy responsibility to his neighbors as regards the safe keeping 
 of such fire. By the ancient custom of the realm, " quilibet homo et 
 fcemina, ignem suum, die et nocte, salve et secure custodire teneatur, 
 ne pro defectu debitae custodiae ignis hujusmodi damnum aliquod vici- 
 nis suis eveniat"(a). It was formerly held, that if a fire broke out 
 accidentally in a man's house, and raged to such a degree as to bum 
 his neighbor's house, he in whose house the fire first happened was 
 liable to an action on the case on this general custom of the realm(6). 
 In Rolle's Abridgment it is said : " If my fire by misfortune burns the 
 goods of another man, he shall have an action on the case against me. 
 If the fire lights suddenly on my house, I knowing nothing of it, and 
 bum my goods, and also the house of my neighbor, my neighbor shall 
 have an action on the case against me. If my servant puts a candle 
 or other fire in a place in my house, and it falls and bums all my 
 house and the house of my neighbor, action on the case lies against me 
 by him ; and the law is the same if my guest should do it, or a person 
 who enters my house with my leave or knowledge "(c). " But if a man 
 out of my house, against my will, puts fire into the straw of my house 
 
 [x) Panton v. Isham, 3 Lev. 359. 
 
 (y) Grose, J., in Leame v. Bray, 3 East, 600. 
 
 (s) Anon. Cro. Eliz. 10. 
 
 (a) Eastr. Entr. p. 18. Pantone. Ishain,3Lev. 356. See Althorfe. Wolfe, 22 N.T. 368, note. 
 
 (6) Bac. Abr., Actions on the Case, F., p. 104, 7tli ed. 
 
 (c) 1 EoU. Abr„ Action sue Case B. Danvers Abr. 10. 
 
Sec. 1.] ACCIDENTAL FIRES. SdiJ 
 
 or elsewhere, whereby my house is burnt, and the houses of my neigh- 
 bors are burnt, of that I shall not be bound to answer to them, etc., for 
 that cannot be said to btf by malfeasance on my part, but against my 
 \d\V\d). 
 
 But although the master of a house, or the raiser of a fire, was 
 clothed with this extensive responsibility as regarded the lighting, 
 safe-keeping, and spreading of such fire, yet if the fire spread by rea- 
 son of the act of God, or from some superior cause which could not 
 have been prevented, controlled, or resisted by human agency, the 
 master of the house, or the lighter of the fire was held excused. Thus, 
 where the defendant's servant kindled a fire in the defendant's field 
 in the way of husbandry, and in the ordinary course of his employ- 
 ment as a farm servant, and the wind drove the fire into an adjoining 
 heath and coppice of the plaintiff, and set it on fire, it was held that 
 if the defendant could have shown that the spreading of the fire had 
 been occasioned by a sudden storm, which could not have been fore- 
 seen, guarded against, or controlled by human agency, that would be 
 good evidence to excuse the defendant(e). 
 354 Accidental fires. — To put the law on a proper footing, by reridering 
 a person responsible only, on proof that the fire was occasioned by the 
 actual negligence of himself or his servant(/), it was enacted by the 
 6 Anne, c. 31, ss. 6, 7, that no action or suit shall be maintained against 
 any person in whose house or chamber any fixe shall accidentally begin, 
 or any recompense be made by such person for any damage occasioned 
 thereby. This statute was repealed by 12 Geo. 3, c. 73, s. 46, but the 
 above protection was re-enacted by s. 37 ; and by 14 Geo. 3, c. 78, s. 
 36, it is extended to all persons in whose stable, barn, or other build- 
 ing, or on whose estate any fire shall accidentally begin ; but no contract 
 between landlord and tenant is to be defeated or made void. 
 
 It was thought for a long time that the word " accidental " in these 
 statutes was employed in contradistinction to wilful, and that the same 
 fire might be said to begin accidentally, and yet be the result of a cer- 
 tain amount of negligence ; but it has been since held that these 
 statutes refer only to fires produced by mere chance, or which are inca- 
 pable of being traced to any cause, and so stand opposed to the negli- 
 gence of either servants or masters, and that they do not, consequently, 
 protect persons from the ordinary common-law responsibility in respect 
 
 (d) Markhatn J., BeauUeu v. Finglam, 2 H. 4, fol. 18, pi. 6. 
 
 (e) Tubervil v. Stamp, 1 Salk. 13 ; 1 Ld. Kaym. 264. 
 
 (/) Ld. Canterbury v. The Queen, 1 Phill., 12 l4aw J., Ch. 284. 
 
304 WASTE. [Chap, 5. 
 
 of fires occasioned by negligence(g'). Thus, where the occupier of a 
 meadow adjoining some cottages belonging to the plaintiff stacked a 
 hay-rick on the extremity of the meadow ih too green a condition, 
 close to the plaintiff's cottages, and the hay smoked, and steamed, and 
 exhibited unequivocal symptoms of approaching combustion, and the 
 defendant was frequently warned of the danger of the stack's taking 
 fire, and said that he would "chance it," but he ultimately caused a 
 hole to be cut through the centre of the rick, which, unfortunately, 
 hastened the catastrophe it was intended to avert, and the hay-stack 
 caught fire, and the fire spread to the bam and stables of the defend- 
 ant, and thence to the plaintiff's cottages, and totally consumed them, 
 it was held that the defendant was responsible for the destruction of 
 the cottages, and that, in cases of this sort, "it is for the jury to say 
 whether or not, under the circumstances, the party has conducted 
 himself with such a degree of care and caution as might be looked for 
 in a prudent man "(A). 
 
 It has been held, also, that these statutes respecting accidental fires 
 do not apply where the fire originates in the use of a dangerous 
 engine or instrument, knowingly used by the owner of the land or 
 estate on which the fire breaks out ; so that if the owners of manufac- 
 tories and steam-engines are guilty of any negligence or carelessness 
 in the management of their furnaces and chimneys, and by reason 
 thereof sparks escape and are blown on to the adjoining buildings, the 
 owners of the furnace will be responsible for the damage done(M). It 
 
 (jr) Filliter v. Phippavd, 11 Q. B. 357. Canterbury (Visct.) ». Att.-Gen., 1 PhiU. 328. Webb 
 e, Home, Watertown & Ogdensbijrgh K, E. Co., 49 N. Y. 420, 427. The common law rule is 
 BtiU in fqrce, at least to this extent, that he who negligently sets or negligently manages a 
 fire in his own property, is liable to his immediate neig^ibor for the damage caused to him by 
 the spread of the fire on his neighbor's next adjacent property. Higgins v. Dewey, 107 Mass. 
 484. Barnard v. Poor, 21 Pick. 378. Perley v. Eastern E. E. Co., 98 Mass. 414. Jacobs v. An- 
 drews, 4 Iowa, 60f). Webb v. Rome, Watertown & Ogdensburgh R. E. Co., 49 N. Y. 420, 427. 
 But it has been held in New Yorli and Pennsylvania that where a spark from a locomotive 
 set fire to a house, and the fire communicated from tlience to another house, the owner of the 
 latter building had no cause of action against the company, as the damages were too remote. 
 Eyan v. New York Central E. E. Co., 35 N, Y. 210. Pennsylvania R. R. Co. v, Kejr, 62 Penn. 
 St. 353. 
 
 But the doctrine of these eases Is in direct opposition to decisions in Massachusetts and 
 New Hampshire. See Hart o. Western R. E. Co. , 13 Met. 99 ; Perley v. Eastern E. E. Co. , 98 
 Mass. 414 ; Ingersol v. Stookbridge & Pittsfleld E. E. Co., 8 Allen, 438 ; Hooksett v. Concord 
 E. R. , 38 N. H. 242. And was expressly dissented from in an unreported case decided in the 
 Supreme Court of Illinois, decided June, 1872. See 4 Chicago Legal News, 326. In a similar 
 case decided in the same State, it was held that it was properly a question for the jury to 
 decide whether the damages were too remote. Toledo, Peoria & Warsaw E. R. Co. v. Pindar, 
 63 111. 447. And in a recent case in Wisconsin, the cases in New York and Pennsylvania, ■ 
 above referred to, were cited with doubt if not disapproval. Kellogg o. Chicago & North- 
 western E-. R. Co., 26 Wis. 223. And it is doubtful if they will be followed in New York. 
 Webb V. Rome, Watertown & Ogdensburgh E. E. Co., 49 N. Y. 420, 428. 
 
 (ft) Vaughan v. Menlove, 4 Sc. 251 i 3 B. N. C. 468. 
 
 (ftft) See Tcall v. Barton, 40 Barb. (N. Y.) 546. 
 
yeC. 1.] imf:S StREADING FROM BLAST-FVRNACES, ETC. 305 
 
 has been held, moreover, that a fire designedly lighted by the defend- 
 ant or by his orders, on his own estate, and which afterwards spreads, 
 and causes damage to the plaintiff, is not a fire which " accidentally 
 begins" within the meaning of the statute ; so that if a person lights, 
 or causes his servants to light, fires on his land, for the purpose of 
 burning weeds and rubbish, and the fire spreads to and destroys the 
 hedges and woods or cornfields of the adjoining landed proprietor, the 
 lighter of the fire will be responsible for the damage(i). But a fire 
 may be knowingly and designedly lighted in the first instance, and 
 yet may fairly be said to " accidentally begin'' the moment that, 
 through some sudden and unexpected wind, the fire spreads, or sparks 
 and fragments of fire are blown into the air, and get beyond the con- 
 trol of the party who has lighted and watched the fire {ante, p. 303). 
 
 355 Fire spreading from hlast-furnaces and steam-engines. — Wherever it is 
 practicable to adopt precautions that will render damage by fire from 
 a furnace "next to impossible," a failure to adopt those precautions 
 will be negligence. Where a spark of fire from the chimney of a 
 locomotive engine on a railroad fell on the thatch of a cart-lodge, and 
 set it on fire, and the fire communicated to several other farm-build- 
 ings, and totally destroyed them, it was held that the very occurrence of 
 the disaster was, prima facie, proof of negligence on the part of the com- 
 pany and their servants having the management of the engine, render- 
 ing it incumbent on them to show that every possible precaution had 
 been taken to prevent the escape of sparks(j). 
 
 356 Fires spreading from railways to the adjoining property, — If railway 
 companies allow quantities of long dead grass, or any other combus- 
 tible material, dangerously to accumulate along their railway, and the 
 combustible matter is ignited from lighted coals or sparks escaping 
 trom their locomotive engines, and the fire spreads from the railway 
 to the adjoining coppices and fires them, the railway company will be 
 responsible for the damage done, for such a fire is not a fire which ac- 
 
 <») Filliter o. Phippard ; Tubervil f . Stamp, eupra. In this country, in the absence of any 
 statutory rule to the contrary, the liability of the owner of laud in the case mentioned in the 
 text depends wholly upon the question of negligence. If the fire was negligently set or 
 negligently kept the owner will be liable, but otherwise if he was guilty of no negligence. 
 Higgins V. Dewey, 107 Mass. 494. Stuart ». Hawley, 22 Barb. (N. Y.) 619. Hanlou v. Ingi-am, 
 3 Clarke (Iowa), 81 ; id., 1 Clarke (Iowa), 108. Clarke v. Foot, 8 Johns. 421. Bush v. Brainerd, 
 1 Cow. 78. Bailey v. Mayor, etc., of New York, 3 Hill, 631. Gardner v. Heartt, 1 Denio, 468. 
 
 In Connecticut it is provided by statute that " every person who shall set Are on any land, 
 that shall run upon the land of any other person, shall pay to the owner all the damages done 
 by such Are." E. S. tit. 1, } 277, 
 
 (i) Piggott V. Eastern Co. Rail. Co., 3 C. B. 229. Aldridge v. Gt. West. Eall. Co., 3 M. & Gr. 
 615. Freomantle v. Lond. & North-West. Eail. Co., 10 C. B., N. S. 89; 31 Law J., C. P. 12; 3 
 F. & F. 337. Huids v. Barton, 25 N. Y. 544. Fero r. Buffalo & State Line E. E. Co., 22 N. Y. 209. 
 
 Ad. Vol. I.— 20 
 
306 WASTE. [Chap. 5. 
 
 cidentally begins on their estate, but is a fire caused by their negli- 
 gence in not keeping the railway free from combustible materials 
 likely to be ignited by their furnaces, and to cause damage to their 
 neighbors. And they will be liable, although they could not reason- 
 ably anticipate that such consequences would ensue from their negli- 
 gence(A-). They may be expressly authorized by statute to use loco- 
 motive furnaces of a dangerous character, but no statute can exempt 
 them from the consequences qf negligence in the management of their 
 railways, or the construction of their fire-boxes, chimneys or furnaces, 
 
 (i) Smith V. Lond. & South-West. Rail., L. R., 5 C. P. 98; 6 ib. U. riynn v. San Francisco 
 & San Jose R. B. Co., 40 Cal. 14. 
 
 In tlie following cases it has been helfl, in an action to recover damages for property de- 
 stroyed by a fire caused by sparks fi'om the engine usedbyarailway company, and communi- 
 cated to the lauds of an adjoining owner by means of dry grass, weeds, and bushes allowed to 
 accumulate along the track, that the question whether the company were guilty of negligence 
 in allowing combustible matter to accumulate upon their laud, was properly left to the jury. 
 Kellogg V. Chicago & Northwestern It. K. Co., 26 Wis. 223. Ohio & Mississippi E. R. Co. v. 
 Shauefelt, 47 111. 497. Illinois Central R. R. Co. v. Nunn, 61 id. 78. Illinois Central R. E. Co. 
 V. Frazier, 47 111. 505. Bass v. Chicago, Burlington & Quinoy R. B. Co., 28 111. 9. Illinois 
 Central B. B. Co. v. Mills, 42 lU. 407. Webb v. Borne, Watertown & Ogdensburgh R. E. Co!, 
 49 N. Y. 420. Kesee v. Chicago and Northwestern B. B.. Co., 30 Iowa, 7S. 
 
 In Illinois and Iowa it has been held, in a number of cases, that an owner of land adjoining 
 a railroad track is as much bound in law to keep his land free from an. accumulation of dry 
 grass and weeds as railroad companies are; and that, if a fire is ignited on the track, and is 
 communicated to the fields adjoining, the negligence of the owner will be held to have so 
 far contributgd to the loss as to prevent a recovery for the injuries sustained, unless it be 
 sho^vn that the negligence of the company was gi'cater than that of the owner. Chicago & 
 Northwestern E. B. Co. v. Simonson, 54 111. 504. Ohio & Mississippi E. E. Co. v. Shauefelt, 
 47 111. 497. Illinois Central E. E. Co. v. Mills, 42 HI. 407. Kesee v. Chicago & Northwestern 
 E. B. Co., 30 Iowa, 78. 
 
 But it has been held in California and Wisconsin that a failure to remove dry grass and 
 stubble from land adjoining a railroad track is not an omission of any duty which the law 
 imposes; and that it is not such contributory negligence on the part of the o-wner of the ad- 
 joining land as to impair or defeat a recovery for damages arising from a fire communicated 
 to such land b3^ weeds negligently allowed to accumulate along the line of the railroad. 
 Flynn v. San Francisco and San Jose li. R. Co., 40 Cal. 14. lielloggr. Chicago & Northwestern 
 B.'E. Co., 26 Wis. 223. And see Martin v. Western Union E. E. Co., 23 Wis. 437; Hewey v. 
 Nourse, 54 Me. 2.56; Field v. N. Y. Central E. B. Co., 32 N. Y. '339; Bacheldcr v. Heagan, 18 
 Me. ii2; Barnard ». Poor, 21 Pick. 378; Ferot). Buffalo and State Line R. R. Co., 22 N. Y. 209; 
 Hart V. Western R. R. Co.; 13 Mote. 99; Ingersoll v. Stockbridge and Pittsfield R. R. Co., 8 
 Allen, 438; Parley v. Eastern E. B. Co., 98 Mass. 414; I-Iooksett v. Concord E. E. Co., 38 N. H. 
 242; McCready v. R. R. Co., 2 Strobh. (Law,) 350; Cleveland v. Grand Trunk R. R. Co., 42 
 Vt. 449. 
 
 It has also been held that the fact that natural agencies, such as high winds or drought, 
 contributed to cause the injury, or that the property destroyed was at a distance from the 
 place where the fire originated, does not affect the liability of the company. Kellogg v. Chi- 
 cago and Northwestern R. R. Co., 26 Wis. 223. See Perley v. Eastern R. R. Co., 98 Mass. 414; 
 Hart V. Western E. E. Co., 13 Meto. 99; Ingersoll v. Stockbridge and Pittsfield R. E. Co., S 
 Allen, 438; Webb v. Rome, Watertown and Ogdensburgh R. R. Co., 49 N. Y. 420. But see 
 Ryant). N. Y. Central R. E. C6.,35N. Y. 210; Pennsylvania E. E. Go. ». Kerr, 62 Penn. St 353; 
 Toledo, Peoria and Warsaw B. E. Co. v. Pindar, 53 111. 44?. 
 
 It is provided by the general statutes of Massachusetts (ch. 63, } 101), that every railroad 
 corporation shall be responsible in damages to any person or corporation whose buildings or 
 other property may be injured by fire communicated by its locomotive engines, and that the 
 railroad corporation shall have an insurable interest in the property along the route, for 
 which it may be held so responsible, and may procure insurance thereon in its behalf. 
 
Sec. l.J NEGLIGENCE OF SERVANTS. 307 
 
 whereby coals of fire are thrown on the adjoining property. If they 
 neglect to avail themselves of all such contrivances as are in known 
 practical use to prevent the emission of sparks from their engines, they 
 will be responsible for such neglect(^). And if they run locomotive 
 engines without statutable authority, in that case they are responsible 
 for any damage caused by such engines in setting fire to adjoining 
 property or otherwise, although they have not been guily of negli- 
 gence(-OT). 
 357 Fires occasioned by the negligence of < servants. — The 12 Geo. 3, c. 73, s. 
 35, imposes penalties upon servants who, through negligence or care- 
 lessness, fire any houses or buildings ; but this enactment does not ex- 
 empt the master from the responsibility for the negligent acts of the 
 servant whilst carrying into execution the master's orders, and doing 
 something which the master employed him to do(M). If the work the 
 servant is employed to execute does not require the use of fire, but 
 the servant, nevertheless, kindles a fire for his own purposes, to cook 
 his dinner or light his pipe, and carelessly throws burning material 
 amongst combustibles, and destroys valuable property, the master is 
 
 (l) Freemanfcle v. Loud. & North- West. Eail. Co., ut sup. Vaughan v. Taff Vale Eail. Co., 3 
 H. & N. 743; 28 Law J., Bxch. 41; 29 Law J., Exoli. Wl; 5 H. & N. 079. Jackson v. Chicago 
 & Sorthwestoru R. K. Co., 31 Iowa, 176. * 
 
 It has been held in a long line of cases in this country, that the mere fact that a lire was oc- 
 casioned by sparlis from a railway locomotive does not malio a prima facie case against the 
 companj', as the emission of sparks from a locomotive is not in itself' illegal, and negligence 
 cannot be inferred from the mere fact of causing fire, as sparks and coals may escape not- 
 withstanding the adoption of all the safeguards which modern improvement has suggested. 
 Gaudy ». Chicago and Northwestern E. K. Co., 30 Iowa, 420. Fj-ankfort, etc., Turnpike Co. 
 V. Philadelphia, etc., E. E. Co., 54 Penn. St. 345. Sheldon v. Hudson Elver E. E. Co., 14 N. 
 Y. 21S, 224. Burroughs v. Housatonio E. E. Co., 15 Conn 124. Fero v. Buffalo and State Line' 
 E. E. Co., 22 N. Y. 209. Eood v. N. Y. and Erie E. E. Co., 18 Barb. (N. Y.) 80. Macou and 
 Western E. E. Co. v. McConnell, 27 Ga. 481. Smith v. Hannibal and St. Joseph E. E Co., 37 
 Mo. 287. McCready v. South Carolina E. E. Co., 2 Strobh. 356. But see Hull v, Sacramento 
 VaUey E. K. Co., 14 Cal. 387; Illinois Central E. E. Co. v. Mills, 42 lU. 407. 
 
 It seems to be conceded by the authorities that the loss of property adjacent to a railroad 
 from the sparks, is, in the absence of negligence on the part of the company, or statutory 
 rule to the contrary, dcannum absque injuria. 
 
 But it haa also been held that the absence of a spark-arrester, the failure to use the best, 
 the employment of a drunken engineer, the use, at the time, of an excessive amount of 
 steam, an e-xtraordinary heavy train, an.uulawliil rate of speed, the defect or want of repair 
 in the engine, the stopping of the engine, or stirring the Are in a place of peculiar peril, the 
 repeated and unusual dropping of coals, or excessive and continual emission of sparks, etc., 
 are facts tending to establish negligence. Gaudy v. Chicago and Northwestern E. E. Co., 30 
 Iowa, 420 Jackson ». Chicago and Northwestern E. E. Co., 31 Iowa, 176. Webb v. Eome, 
 Watertown and Ogdensburgh E. E. Co., 49 N. Y. 420, 424. Bedell v. Long Island R. E. Co., 
 t4N. y. 367. 
 
 And when it is in evidence that engines properly constructed and in good order wiU not 
 drop coals upon the track, the dropping of coals from the engine upon the track is, of itself, 
 evidence of negligence sufScieut to charge the company. Field v. N. T. Central E. E. Co., 
 3-3 N. Y. 339. 
 
 (TO) Jones e. Festiniog Kail. Co., L. K., 3 Q. B. 733. 
 
 (») Vaughan v. Menlove, 3 B. N. C. 468. 
 
308 WASTE, [Chap. 5. 
 
 not responsible Sor the unauthorized act of his servant(o). Where a 
 maid-servant, in order to clear a chimney of soot, set fire to the soot, 
 with a quantity of furze, and burnt the house down, it was held that 
 the master was not responsible for the damage, as it was no part 
 of the servant's business to clean the chimney, or to use fire for the 
 purpose(p). 
 
 Amongst the Romans, where fire was little used, and candles were 
 unknown, it was considered that dai^age from fire seldom occurred 
 without imprudence or negligence, and those through whose neglect, 
 however slight, a fire occurred, were held answerable for the damage 
 done by it(g'). 
 358 Injuries from gunpowder and explosive substances — Explosions of gaSi 
 —Whoever introduces gunpowder or explosive materials into a build- 
 ing is responsible for damage occasioned by the introduction of such 
 dangerous substances. If a person mixes things together, which alone 
 are perfectly innocent, but which are liable to explode on coming into 
 contact, he is responsible for the consequences ; and if an explosion 
 ensues he must make good the damage(r). Every tenant of a house 
 
 (o) Williams v. Jones, 33 Law J., Exch. 297. 
 
 (p) McKenzie v. MoLeod, 10 Bing. 38S ; 3 Law J., N. S. C. P. 75. It was held in North Car 
 oliiia that where slaves, in a dry time, in workiijg new ground, set fire to a log-heap within a 
 few i'eet of the fence and a dead pine ti*ee, and there was an abundance of dry stuff between 
 the log-pile and the fence, the master was responsible for the injury occasioned by the spread- 
 ing of the fire, although it was calm in the morning when the fire was set. Garrett v, Free- 
 man, 5 Jones' Law, 7S. 
 
 The law of waste has been modified in the United States both as to the remedy and 
 the law itself; and the action of waste orestrcpment has in a gi'eat degree been super- 
 seded by an action on the case in the nature of waste. See 4 Kent's Comm. SI. In New 
 York, prior to the Code, the remedy for wi'ongs in the nature of waste was by a special stat- 
 utory action, technically known as the action of waste. See 'i K. S. 331, ss. 1-10 ; 1 K. S. 750, 
 s. 8. But by the adoption of the Code of Procedure the action of waste was abolished, and it 
 was provided that " wrongs heretofore remediable by action of waste are subjects of action 
 as other wrongs, in which action there may be judgment for damages, forfeiture of the estate 
 of the party offending, and eviction from the premises." N. Y. Code, s. 450. It was also pro- 
 vided that " the provisions of the Revised Statutes relating to the action of waste shall apply 
 to an action for waste brought under this act, without regard to the form of the action, so far 
 as the same can be so applied. Id. s. 451. 
 
 For the history of the statutes of California in regard.to actions of waste and their construc- 
 tion and effect, see Parrott ». Barney, Deady, 404. 
 
 In Massachusetts the statute of Gloucester (6 Edw. 1, ch. 5) was adopted, but modified in 
 respect to tenants in dower. Sackett v. Sackett, 8 Pick. 309. Under the Massachusetts stat- 
 ute of 1783, ch. 40, o. 3, the tenant in dower, committing waste, forfeits the place wasted and 
 single damages only. PadeU'ord ». Padelford, 7 Pick. 152. So in Georgia, the statute of 
 Gloucester has not been adopted in respect to tenants in dower, and the remedy is by action 
 on the case in the nature of waste, for actual damages, or by injunction. Parker v. Chambliss, 
 12 Ga. 235. 
 
 Under the statutes of Maine, for waste committed or suffered by a tenant for dower or fo> 
 life, the reversioner may elect between an action of waste to recover the place wasted, with 
 damages, and an action on the case in the nature of waste, to recover damages only ; hut h6 
 cannot have both remedies. Stetson v. Day, 51 Maine, 434. 
 
 (g) Domat, liv. 2, tit. 8, s. 4. 
 
 (r) Tindal, C.J., in Vaughan v. Menlove, 4 Sc. 252. 
 
Sec. 2. J ACTIONS FOR. 309 
 
 i& responsible for not taking care that the stop-cocks for regulating the 
 supply of gas to a house are properly turned ; and if these stop-cocks 
 are negligently left open by the tenant or servants when the gas-lights 
 are not burning, and an explosion ensues, and injures the house, the 
 tenant will, be responsible for the injury. But if a thief enters the 
 house in the absence of the tenant, and cuts and carries away a gas- 
 pipe without the knowledge of the tenant, or against his will, the lat- 
 ter is not then responsible for the resulting damage. When the entry 
 of gas into a house is under the control of the occupants of the house, 
 the gas company supplying the gas is not bound, on receiving notice 
 that no more gas will be required, to stop the supply from the outside 
 by putting on an outer stop-cock, or cutting off the communication 
 between the .gas-pipes in the interior of the house and the main in the 
 street(s). In supplying gas to a house, a gas company is bound to use 
 every reasonable precaution to prevent injury during the operation 
 of " tapping the main"(0- 
 
 SECTION II. 
 
 REMEDIES AT COMMON LA.W FOR INJURIES TO LANDS FROM WASTE, 
 NEGLIGENCE, AND FIRE. 
 
 359 The writ of prohibition for waste was anciently a common law remedy, 
 grantable only at the instance of the person injured, but by the stat- 
 ute of "Westminster the second (13 Ed. 1, c. 14), this writ is taken 
 away, and a writ of summons substituted in its place ; " and although 
 it is said by Lord Coke, when treating of prohibition at the common 
 law, that it may be used at this day, those words, if true at all, can 
 only apply to that very ineffectual writ directed to the sheriff, empow- 
 ering him to take the posse comitatus to prevent the commission of 
 intended waste "(?.«). 
 
 360 Actions for waste. — The real action for waste, in which the land or 
 tenement itself was recovered, with thrice as much as the waste was 
 taxed at, has been abolished by 3 & 4 Wm. 4, c. 27, s. 36, and the 
 remedy at common law is now by the ordinary action on the case, in 
 
 (») Holder! v, JAf. Gas Co., 3 C. B. U ; 15 Law J., C. P. 304. 
 {«) Blenkiroti ». Gt. Central Gas Consumers' Co., 2F. & F. 438. 
 («) Jefferson v. Bishop of Durham, 1 B. & F. 121. 
 
310 WASTE, [Chap. 5. 
 
 which the actual damage sustained may be recovered, and an injunc- 
 tion obtained to prevent the continuance or repetition of the mis- 
 chief). 
 
 36 1 Actions hy owners of insured premises. — The right of the owner of real 
 property which has been damaged or destroyed by fire, caused by 
 rioters or by negligence, to sue the wrong-doer for damages, is not 
 affected by the fact of his having insured the property, and received 
 from an insurance company full indemnity for his loss(2^), but, he sues 
 in the character of a trustee for the insurer, and is bound to hand over 
 the damages he recovers to the latter. And an insurer, who has paid 
 ffie loss, is entitled to sue in the name of the insured for the purpose 
 of recovering full compensation from the wrong-doer(z). 
 
 362 Parties to actions for waste. — An action for waste in houses and build- 
 ings must in general be brought by the person entitled to the immedi- 
 ate estate in remainder ; but if the fenant for life commits waste, and 
 the first remainderman dies, the person next entitled; may sue for the 
 daniage(a), if he had a vested interest in remainder at the time the 
 waste was done(6). When the person next in remainder has only a^ 
 life interest, his right to recover damages is of course confined to the 
 
 {x) Post, ch. 23, B. 1. 
 
 to) Yates V. Whyte, 5 So. 640 ; 4 Bing. N. C. 272. 
 
 («) Randall v. Cookran, 1 Ves. sen. 97 ; post, oh. 22, s. 1. 
 
 (a) Bray v. Traoy, Cro. Jac. 688 ; Paget's oase, 5 Co. 76b. At common law none but an imme- 
 mecUate reversioner or remainderman in fee or in tail, could have waste, and the estate ofinher- 
 itance must have been in him when the waste was committed. But he could have maintained 
 waste alter the tenancy had expired, and he had got possession of the estate. If an estate inter- 
 vened for life between the reversioner in fee and the tenant, he could not bring an action of 
 waste so long as the intervening estate continued. Bobinson v, Wheeler, 25 N. Y. 252. 
 
 In New York, under the Revised Statutes, any person seized of an estate in remainder or 
 reversion, may maintain waste, notwithstanding an intervening estate for life or years. 1 R, 
 S. 750, 8. 8. So the statute gives the action against the tenant for life or years, and the assigns 
 of the tenant by the curtesy or in dower, or for life or years, thus extending the common law 
 remedy which gave the action only against the tenant by the curtesy, tenant in dower or 
 guardian. Robinson v. Wheeler, 25 N. Y. 2,'i2 ; 2 R. S. 334, s. I. The statute also gives the 
 action to the assignee of such tenant ; to one joint tenant or tenant in common against 
 another joint tenant or tenant in common who shall commit waste of the estate held in joint 
 tenancy or in common ; and to an heir, wjiether he be within or of full age, for waste done in 
 the time of his ancestor, as well as in his own time. 2 R. S. 334, ss. 2, 3, 4. And under the 
 statutes of New York the reversioner may recover waste by a tenant, although alter its com- 
 mission he has alienated the estate, and has no interest therein at the time of suit brought. 
 Bobinson v. Wheeler, 25 N. Y. 252. 
 
 One having a contingent remainder, or entitled, upon a contingency, to an executoiy 
 devise, cannot maintain an action of waste as having the next immediate estate of inheri- 
 tance. Hunt V. Hall, 37 Me. 333. 
 
 In Wisconsin only the person having the legal title can support an action of waste. Gillett 
 V. Treganza, 13 Wis. 472. 
 
 Under the Revised Statutes of North Carolina (ch. 119, s. i), one tenant in common may 
 maintain an action on the oase in the nature of waste against his co-tenant, but only where 
 there is a permanent injury to the property held in common. Smith v. Sharpe, Busbee'a Law 
 (N. C.) 91. 
 
 (t) Bacon r. Smith, 1 Q. B. 348. 
 
Sec. 2.] DECLARATIONS FOR. SIX 
 
 injury done to, his limited iuterest(c). Where timber has been law- 
 fully felled on an estate by a tenant for life, or a person having a, 
 limited interest, the first owner of the inheritance is entitled to 
 maintain an action for the conversion of the timber as a chattel 
 severed from the inheritance, passing over all the intermediate limited 
 estates(cZ), for the property in the timber must be in some one as soon 
 as the wrongful act is done, and the law therefore vests it in the first 
 owner of the inheritance(e). 
 
 In cases of injuries from fire caused by the negligence of a neigh- 
 bor, who has carelessly lighted a fire on his own land, which has 
 spread to a demised tenement and injured it, the landlord is entitled 
 to sue for the damage done to his inheritance, and the tenant for the 
 injury tcf his possession and occupation(/). "We have already seen 
 that, when several persons have a joint interest in the property, as 
 occupiers or reversioners, they ought all to be made plaintiffs in an 
 action for an injury to the property(g') ; and that when several persons 
 have been jointly engaged in the doing of the wrongful act, the 
 plaintiff may sup one or more of them at his election(A). 
 363 Declarations for waste should set forth the defendant's possession 
 and occupation of a messuage, tenement or land, of which the reversion 
 is in the plaintiff, and the wrongful commission by the defendant of 
 the particular description of waste complained of, averring that, by 
 means of the wrongful act, the plaintiff is greatly injured in his 
 revisionary estate, and claiming damages(j). If the tenant has 
 severed and removed things attached to the freehold ; if he has dug 
 up and carried away virgin soil, stone, or gravel, without the license 
 of the landlord or reversioner, or has severed and removed landlord's 
 fixtures, the things so severed forthwith vest in the landlord as chattels, 
 and the latter may also declare either for a trespass or for a conversion 
 of the property(fe). 
 
 (c) Evelin v. Eaddish, ante, p. 91. And where an action on the case is brought against the 
 tenant for life by the remainderman, the measure of damages is the injury to the inheritance. 
 McCuUough V. Ii-vine, 13 Penn. St. 438. 
 
 (d) Bowie's case, 11 Eep. 79b. 
 
 (e) Wood, V.tC, Gent v. HaiTison, Johns. 524; 29 Law J., Ch. 68. 
 (/) Panton v. Isham, 3 Lev. 399; 1 Salk. 19. Ante, jp. 242. 
 
 (g) Ante, pp. 85, 242. 
 
 (A) Ante, pp. 207, 243; and pos«, ch. 20. 
 
 (i) Martyr v. Bradley, 9 Bing. 24. Young v. Spencer, 10 B. &. C. 145. Martin e. Gilham 
 7 Ad. & JB. 540; 2 Wm. Saund. 252. It is not necessary that the plaintiff in an action of waste 
 should set out his title particularly; it is sufficient if he shows himself entitled to an imme- 
 diate estate of inheritance. Greenly ». Hall, 3 Harring. 9. 
 
 {*) Higgon V. Mortimer, 6 C. &. P. 616; post, ch. 7, s. 2. 
 
312 WASTS, [Chap. 5. 
 
 364 Declarations upon the custom of the reahnfor the negligent keeping of a 
 fire show a good cause of action, by setting forth that the defendant, 
 by his servant, lighted a fire on the defendant's land, and so negli- 
 gently kept such fire that it extended from the defendant's land to the 
 adjoining buildings, etc., of the plaintiff, and wholly destroyed them(Z); 
 or that the plaintiff was possessed of a close of land, closely adjoining 
 a certain other close in the occupation of the defendant, and that the 
 defendant wrongfully lighted a fire on his said close, at a time when, 
 by reason of the state of the wind and weather, it was highly danger- 
 ous to light a fire, and that through the negligence of the defendant 
 and his servants, the fire extended itself from the close of the defend- 
 ant to the close of the plaintiff, and burnt and destroyed the trees, 
 hedges, and fences of the plaintiff, etc.,(m). 
 
 A good cause of action also is disclosed by a declaration alleging 
 that the plaintiff was possessed of farm-buildings and stacks of corn 
 standing in a close in the occupation of the plaintiff, closely adjoining 
 a certain other close in the occupation of the defendant, and that the 
 defendant placed a stack of hay on his said close, which heated and 
 smoked, and gave out a strong smell, indicating that the hay-stack 
 was in danger of taking fire, of which, the defendant then had notice, 
 and that the defendant, knowing the dangerous condition of the hay- 
 stack, nevertheless kept it on his said close, and knowingly caused' it 
 to be a source of danger to the adjoining property of the plaintiff, 
 although he could have removed it, or prevented it from being danger- 
 ous ; and that by reason of the defendant's default and negligence in 
 the premises, the hay-stack ignited and burst into flame, and set fire 
 to the adjoining farm-buildings of the plaintiff(w). 
 
 365 Pleas. — The plea of not guilty, and the evidence admissible there- 
 under, and special pleas in actions for waste, etc., are governed by the 
 same rules as those previously set forth in actions f(5r infringements 
 upon territorial and incorporeal rights(o). ' 
 
 366 Evidence at the trial. — Proof on the part of the plaintiff in actions for 
 waste, must be directed to the establishment of the material facts 
 alleged in the declaration, i.e., the defendant's tenancy of the land on 
 which the waste was committed, the plaintiff's reversionary interest 
 
 (t) Panton v. Isham, 3 Lev. 359. 
 
 (m) Filliter v. Phippard, 11 Q. B. 348. 
 
 (m) Vaaghan v. Menlove, 3 B. N. C. 468. Aldridge V. Gt. West. Ewy., 3 M. & Gr. 516. Pig- 
 got V. East Co. Bail. Co., 3 C. B. 229. Vaughan v. Taff Vale Bail. Co. . Fremantle r. Lond. & 
 North- West.^ Rail. Co., ante, p. 307. • 
 
 (o) Ante, pp. 88, 180 ; Siai. post, ch. 21. 
 
Sec. 2. J ACTIONS FOR — DAMAGES. 313 
 
 therein, the nature of the grievance, and the permanent injury thereby 
 done to the inheritance, or to the plaintiff's proprietary rights as rever- 
 sioner {ante, pp. 85, 310). If the action is brought for permissive waste, 
 the plaintiff muet prove that the defendant is tenant for life, or that 
 he has a permanent interest in the property permitted by him to go 
 to waste and ruin {ante, pp. 242, 278) ; but if it is for commissive 
 waste, the nature and duration of the defendant's interest in the prop- 
 erty is wholly immaterial. If it be proved that the tenant left windows 
 and doors open which ought to have been kept closed against storm 
 and rain, or that panes of glass were broken, and that he allowed the 
 windows to remain without glass, so that the rain, frost, and damp 
 penetrated the building, and rotted the internal timbers and'woodwork 
 thereof, to the lasting damage of the inheritance, there will be evidence 
 of commissive waste. If the plaintiff complains of the removal of 
 doors and partitions in the house, he must show that the alteration^ 
 made were of a permanent character, making a real change in the 
 form and arrangement of the building, or that they deteriorated the 
 property {ante, pp. 279, 280). If the cause of action is founded on the 
 removal by the tenant of things attached to the freehold, it must be 
 shown that the removal was wrongful, either on the ground that the 
 things removed never did belong, or ceased to belong to the defendant, 
 or that they had become forfeited to the plaintiff {ante, pp. 290-299). 
 If the plaintiff sues for damage from fire, he must show that the fire 
 was lighted by the defendant or his servants, or that a fire was burn- 
 ing on the defendant's estate, and that it was so negligently managed, 
 or was lighted so carelessly, that it extended to the plaintiff's buildings 
 and destroyed them. It is not necessary to prove the legal duty to 
 to take care of a fire(oo). If the action is brought by a lessor, it may, 
 as we have seen, be defeated by proof of the tenancy between the 
 plaintiff and the defendant {ante, p. ,301). 
 367 Damages recoverable in respect of the severance and sale of fixtures. — 
 Where fixtures have been unlawfully detached from the freehold and 
 sold by auction, the measure of damages in an action against a wrong- 
 doer for the seizure and removal of the fixtures is the value of the 
 
 (00) In actions against a railroad company to recover damages caused by fire created by 
 sparks from a locomotive, the burden of proof is on the plaintiff to show negligence on the 
 part of the company. Smith v. Hanibal & St. Joseph's K. E. Co., 37 Mo. 287. And see note I, 
 page 307. 
 
 But if the'plaintiff shows such circumstances as to raise the presumption of negligence, it 
 will not bo necessary for him to show aflirmativcly that there was something unsuitable or 
 improper in the construction, or condition, or management of the engine, unless Ihe pre- 
 sumption of negligence is rebutted by the defendant. Field v. New York Central E. R. Co., 
 S2 N. Y. 339. 
 
314 WASTE, [Chap. 5. 
 
 fixtures, as between an outgoing and incoming tenant(p), in addition 
 to compensation for any intentional wrong, injury, or insult involved 
 in the act of removal, or for any trespass that may have been commit- 
 ted in removing them. 
 
 868 Effect of the reccm&ry of nominal damages. — In the old action of waste, 
 where the thing wasted was sought to be recovered as well as damages, 
 it was held that if the damages did not amount to 3s. ^d., the defend- 
 ant was entitled to judgment(3). " I do not," observes Lord Eldon, 
 C.J., "see precisely on what grounds these decisions proceeded; 
 though I can easily conceive many cases in which it may be extremely 
 unconscientious for a plaintiff to take advantage of his judgment, where 
 such small damages have been recovered." Therefore, where the owner 
 of land suffered his tenant to expend a large sum of money in building 
 ' upon the land and laying out a garden without making any objection 
 to the alteration and improvement, and then brought an actjon of waste 
 on the statute, and the jury assessed the damages at one farthing, the 
 court gave judgment for the defendant. But in an action on the case 
 for waste, it is no objection to the landlord's claim to substantial 
 damages, or to the judgment of the court, that the property has been 
 improved in value by alterations made upon it, if those alterations 
 have been made without the knowledge of the landlord, or in spite of 
 his protest or objections. Thus, if a tenant convert a furze brake in 
 which game have bred into arable or pasture land, by which its real 
 value is much improved, but the landlord has objected to the improve- 
 ment, preferring a furze brake with game to a cornfield without game, 
 the landlord is entitled to substantial damages(r), and to judgment, 
 whatever may be the damages recovered(s). 
 
 369 Assessment of damages. — We have already seen that the damages in 
 actions for injuries to real property must be assessed with reference to 
 the several interests of the owners and occupiers, and be apportioned 
 to each in respect of the injtiry sustained by each, and that the satis- 
 faction made to one is no bar to an action brought by the other {ante, 
 pp. 90, 255). 
 
 Where, therefore, a house has been burned down, or destroyed by 
 culpable negligence, and there are several persons interested in the 
 property, viz., tenant for life, tenant in tail, and reversioner in fee, 
 the tenant for life can recover only such damages as are commensurate 
 
 (p) Thompson v. Pettit, 10 Q. B. 106. 
 (g) Bigg V. Paraons, cited 2 East, 155 ; Bull. N. P. 120. 
 (r) Heath, J., Harrow School ». Alderton, 2 B. & P. 88. 
 (») Pindar v. Wadsworth, 2 East, 161. 
 
Sec. 2.] ACTIONS FOR — DAMAGES. 315 
 
 with his life estate(<). If a house demised to a tenant has been set on 
 fire, or thrown down through the negligence of a neighbor, the 
 damages are apportionable between the landlord and tenant. The 
 tenant is entitled to recover in respect of the value of his possessory 
 interest and unexpired term in the premises, and the landlord in re- 
 spect of the injury to his reversion(M). But if the tenant is bound by 
 covenant to keep the house in repair, the substantial injury would 
 then accrue to the tenant, and the tenant would be entitled to recover 
 the cost of rebuilding the house, deducting the difference iu value 
 between old materials and new(a;). The tenant, moreover, would be 
 entitled to damages in respect of the loss he has sustained in being 
 obliged to seek out and pay fot another residence ; but he could not 
 recover the full value of the house(2/). 
 
 When the action is brought for a breach of duty by the defendant, 
 in omitting or neglecting to restore or rebuild a house which the de- 
 fendant has undertaken to maintain and keep up, and which has been 
 accidentally burnt or destroyed, the measure of damages is not the 
 cost of rebuilding the house. In such a case, the plaintiff can only 
 recover the loss he has sustained by the actual deterioration of his 
 property. And if the new house, when rebuilt, will be much more 
 valuable to the plaintiff than the old house that was burnt or 
 destroyed, the defendant is entitled to the benefit of the deduction 
 of the increased value from the cost of the rebuilding(z). 
 
 The plaintiff's right to recover damages from the wrong-doer, in 
 respect of the injury he has sustained, is not affected, as we have seen, 
 by the fact of his having insured the property and being indemnified 
 for the loss(a) ; but he cannot, as we shall presently see, recover a, 
 louble satisfaction, but is bound to pay over to the underwriter of the 
 policy the damages he recovers from the wrong-doer(6). 
 370 Damages recoverable from a tenant who obstructs the reversioner in the 
 exercise of -his right to enter upon the demised premises to inspect waste. — 
 We have already seen that the law gives to the lessor, or him who 
 hath the reversion, liberty to enter upon the lands of his lessee, to see 
 if there be wg-ste, to the intent that he may have his action, if there 
 be cause for it ; and, therefore, if the lessee prevents the inspection, 
 
 (t) Evelyn v. Eaddish, Holt, 543. 
 (M) Panton v. Isham, 3 Lev. 359 ; 1 Salk. 19. 
 (K) Lukin V. Godsall, 2 Peake, 15 ; post, ch. li, s. 1. 
 (y) Ilosking v. Phillips, 3 Exch. 182. 
 
 («) Yates V. Dunster, 11 Exch. 17 ; 24 Law J., Bxoh. 226. Lukin V. Godsall, 2 Peake, IB. 
 ■ (a) Clark V. Bly thing, 2 B. & C. 253 ; ante, p. 810. 
 I.b) Post, ch. 22, ». 1. 
 
316 WASTE. [Chap. 5. 
 
 substantial damages may be recovered from him by reason of the 
 infringement of the lessor's right, a,lthough no waste has actually been 
 committed or damage done(c). 
 
 SECTION III. 
 
 OP INJ0WCTION TO PREVENT WASTE. 
 
 37 1 Prevention of commissive or wilful waste hy injunction. — The courts of 
 chancery and of common law (d) will interfere by injunction to restrain 
 lessees, tenants for life, mortgagors in possession, and persons having 
 a limited interest in land, from committing waste thereon to the 
 injury of the landlord, mortgagee, or Teversioner(e). The court will 
 restrain them from digging, or ploughing up, or destroying the sur- 
 face, of ancient pasture land, and from sowing the land with perni- 
 cious crops(/), from digging and carrying away brick-earth(^) and 
 stones(A), catting ditches, opening mines and quarries(j), and abusing 
 a limited right to dig for and carry away stone(A-), cutting turf(Z), or 
 timber(m), or underwood of insufficient growth(n), pulling down 
 fences and buildings, and carrying away the materials(o) ; unless the 
 wrongful act works a forfeiture of the estate, and the landlord or 
 reversioner has an immediate right of entry, and fails to exercise the 
 
 (c) Hunt o. Bowman, Cro. Jac. 478. 
 
 (d) As to injunctaon at common law, see poat^ ch. 23. 
 (c) Bao. Abr. (Waste), N. 
 
 (/) Worsley v. Stuart, d Bro. P. C. 377. Drury v. Mollns, 6 Tea. 328. Pratt V, Brett, 2 
 Madd. 62. 
 
 (g) London (Bishop of) v. Webb, 1 P. Wms. 528. Vinor ». Vaaghan, 2 Beav. 466. Living- 
 stone II. Reynolds, 2 Hill, 157. 
 
 (ft) CowiDcr V. Baker, 17 Ves. 128. West Point Iron Co. v. Eeymert, 45 N. T. 703. 
 
 (i) Gibson v. Smith, 2 Atk. 182. West Point Iron Co. v. Keymert, 45 N. T. 703. Moore ». 
 Massoni, 32 Cal. 690. 
 
 (*) Thomas ». Oakley, 18 Ves. 184. 
 
 (i) Coppinger v. Gubbins, 9 Ir. Eq. Bep. 310. 
 
 (»n) Pcrrot v. Perrot, 3 Atk. 94. Packington's case, ib. 215. Mori'is v. Morris, 15 Sim. 509. 
 Porch V. Frees, 3 Green (N. J.), 204. Dickinson v. Jones, 36 Ga. 97. But an injunction 
 restrainiiig the cutting ol" timber will be more rarely granted in this country than in Eng- 
 land, as it is only where the cutting of timber will work a permanent injury to the freehold 
 or inheritance that this act will be deemed waste, and its commission restrained. McCay v. 
 Wait, 51 Barb. (N. Y.) 225. Keeler ». Eastman, 11 Vt. 293. Shine ». Wilcox, 1 Dev. &Bat. 
 Ch. 631. Alexander v. Fisher, 7 Ala. 514. And see ante, p. ^— note. 
 
 (j>) Brydges V. Stephens, 6 Madd. 279. 
 
 (o) London (Mayor of) V. Hedger, 18 Ves. 355. 
 
Sec. 3.] ^ BEMEDY BY INJUNCTION. 317 
 
 right by bringing an ejectment(p), or unless the parties have, by 
 their contract, assessed the compensation in the shape of an increased 
 rent or liquidated damages, to be paid for the doing of the act(g'), and 
 not as a cumulative remedy(?'). "Where a tenant from year to year 
 received notice to quit, and then began to cut and damage the hedge- 
 rows, and to take manure off the land and remove straw, etc., con- 
 trary to the course of good husbandry, the court granted an injunction 
 to stop the mischief(s). And where the tenant of a farm, having 
 discovered valuable mineral deposits in a stream which ran from the 
 Welsh mountains through his land, set to work to gather the minerals, 
 and sell them, the court granted a perpetual injunction to restrain 
 him from so idoing(i). 
 
 Where there is tenant for life, remainder for life, remainder in fee, 
 or where there is tenant for life subject to waste, remainder for life 
 dispunishable for waste, remainder in fee, the Court of Chancery 
 will not suffer an agreement between the two tenants for life to 
 commit waste, to take place against the remainderman before the 
 time comes when the second tenant for life's ^owei- conimences(M). 
 And where there is tenant for life, remainder for life, remainder in 
 fee, the court, on a bill brought by remainderman in fee to stay waste 
 in the first tenant for life, will, notwithstanding the intermediate 
 estate for life, upon a certificate of the waste, grant an injunction. 
 And so it will on a bill brought by a mortgagor, where the mortgagee 
 in possession commits waste by cutting down timber, and the money 
 arising from the sale of the timber is not applied in sinking the 
 interest and principal of the mortgage. And where mortgagor in 
 possession commits waste, the court will, on a bill by the mortgagee, 
 grant an injunction, for they will not suffer a mortgagor to prejudice 
 the incumbrance(»). 
 
 The court will also restrain, by injunction, a lessee for lives 
 renewable for ever from committing waste on the demised premises(ir), 
 
 (p) Lathropp v. Marsh, 5 Ves. 259. 
 
 (g) Woodward v. Gyles, 2 Vern. 119. Games v. Nesbitt, 7 H. & N. 778; 30 Law J., Exch. 348. 
 Rolfe V. Peterson, 2 Bro. P. C. 436. Linden v. Hepburn, 3 Sandf. (N. T.) 608. Young e. 
 Edwards, 11 How. (N. Y.) 201. 
 
 (r) London (City of) v. Pugh, i Bro. P. C. 395. • 
 
 (») Onslow f>. , 16 Ves. 173. See Harvey e. Harvey, 41 Vt. 373. 
 
 (0 Thomas ». Jones, 1 Y". & C. 510. 
 
 («) Eobinson r. Litton, 3 Atk. 210. See Birch- Wolfe v. Birch, L. E., 9 Eq. Ca. 683. 
 
 (») Farrant v. Lovel 3 Atk. 722. Gray v. Baldwin, 8 Blackf. 164. Brown v. Stewart, 1 Md. 
 Ch. Decis. 483. Phoenix v. Clark, 2 Halst. Ch. 447. Cooper v. Davis, 15 Conn. 550. Brady v. 
 Waldron, 2 Johns. Ch. 148. Salomon v. Clagett, 3 Bland. 125. Capner v. Flemington Mining 
 Co., 2 Green Ch. 463. Eobinson v. Eenwick, 3 Edw. Ch. (N. Y.) 245. 
 
 («♦ Parcell v. Nash, 1 Jones, 6.25. 
 
318 WASTE. ^ [Chap. 5. 
 
 and prevent one tenant in common from wilfully destroying the com- 
 mon property(2/) ; but where a railway company obtained a lease from 
 five out of six tenaats in common, and laid down a railway on the 
 land in spite of the opposition of the sixth, the court refused to grant 
 an injunction to prevent the latter from tearing up the rails(z). 
 
 If one tenant in common thinks proper, by agreement with the 
 other, to hold the common property as occupying tenant, and thereby 
 excludes his co-tenant in common from all right of entry upon the 
 land hold en in common, an injunction will be granted to restrain him 
 from dealing with the land otherwise than as an ordinary occupying 
 tenant(a). But if there be no tenancy, the tenant in common in occu- 
 pation of the _ land cannot be restrained from acts contrary to good 
 husbandry and the custom of the country only, but not amounting to 
 the destruction or waste of the common property(&). 
 
 The patron of a living may also have an injunction against the 
 incumbent to stay waste ; and a bishop may be restrained from felling 
 timber for sale at the instance of the Attorney-General, on behalf of 
 the crown, the patron of bishoprics(c). The patron is the proper per- 
 son to institute a suit to restrain the opening and working of new 
 mines, and he is the only person who can interfere, unless it be the 
 ordinary, in the event of collusion between the patron and the incum- 
 bent(d). 
 
 An injunction to restrain waste will be granted to protect the inter- 
 est of a child in ventre sa mere, or a contingent remainderman or execu- 
 tory devisee(e). 
 
 If a tenant, finding his house ruinous and in danger of falling, 
 proceeds to pull it down, with the intention of building a better, the 
 landlord may, by injunction, restrain him from so doing, as the ten- 
 ant has no right, as we have seen (aiite, p. 279), to make changes and 
 alterations in the property demised to him without the landlord's con- 
 6ent(/). 
 
 The Court of Chancery does not now treat questions of destructive 
 damage to property exactly as it did forty or fifty years back ; its 
 
 (y) Hole *. Thomas, 7 Ves. 289. 
 
 (z) Durham and Sund. Bail. Co. v. Wawn, 3 Beav. 119. 
 (n) Twoi-t V. Twort, 16 Ves. 128. See Hawley v. Clowes, 2 Johns. Ch. 122. - 
 (6) Bailey v. Hobson, L. E., 5 Ch. App. 180. 
 
 (c) Knight V. Mosely, Amb. 17B Wither v. Dean, etc., of Winchr., 3 Mer. 427. Dnte of 
 . Marlborough v. St. John, ante, p. 288. 
 ((J) Holden v. Weekes, ante, p. 288. 
 
 (e) Kobinson v. Litton, 3 Atk. 211 ; 2 Daniel's Ch. Pr. 1225. 
 (/) Smyth V, Carter, 18 Beav. 78. Douglass v. Wiggins, 1 Johns. Ch. 136. 
 
Sec. 8.] REMEDY BT INJUNCTION 319 
 
 protection in such respect being more largely afforded than it then 
 generally was(p'). " The arm of the court," it has been said, "isiong 
 enough to reach clear cases of destructive waste, even where the party 
 committing such waste is in possession, and the party seeking to 
 restrain the acts of waste is out of possession, and his title is denied 
 by the defendant "(A). Where, therefore, an action for ejectment has 
 been brought, the' court will, at the instance of the plaintiff in the 
 action, restrain the person in possession of the property from recklessly 
 cutting down vast quantities of timber, or denuding the estate of trees, 
 or committing acts of waste and destruction inconsistent with any fair 
 or reasonable exercise of acts of ownership(i). And where waste is 
 committed by a stranger in collusion with the tenant, the court' will, 
 at the instance of the landlord, grant an injunction against such 
 stranger, as well as against the tenant(^). But " the court never inter- 
 poses in case of permissive waste, either to prohibit or to give satisfac- 
 tion, as it does in case of wilful waste "(Z). 
 
 An injunction will be granted against waste when it is done only in 
 a slight degree, or when threatened(m) ; but not on the principle that 
 it will do no harm to the defendant, if he does not intend to commit 
 the prohibited act(w). Nor has the court jurisdiction to interfere after 
 all the mischief that can be done has been done(o). But if there is 
 yet room for its intervention, it has jurisdiction, under the 20 & 21 
 Vict. c. 27, to assess the damages already done(p). 
 
 The court also will prevent one of several partners from doing acts 
 tending to depreciate the value of the partnership property, and injur- 
 ing the credit of the fi.rm(g') ; and from disposing of the joint stock to 
 his own private purposes, in fraud of his co-partner(r). 
 372 Effect of acquiescence in the commission of waste. — It is a principle of 
 equity, that when a person has stood by seeing an act done, and has 
 
 {g) Haigh ». Jaggar, 2 CoU. Ch. C. 231. 
 
 (ft) V.-C. Wood in Talbot (Earl of) v. Scott, i Kay & J. 103. 
 
 (i) Neale v, Cripps, 4 Kay & J. 472. But in an early case in New York the court refused to 
 grant an injunction to stay waste in favor of tlie plaintiff in ejectment against the defendant, 
 the title being in dispute and the defendant having for a long time been in possession. 
 Storm V. Mann, 4 Johns. Ch. 21. 
 
 (A) Norway «. Eowe, cited 1 Myl. & Cr. 522. 
 
 (J) Powys V. Blagi-ave, 4 De Gex, Mac. & G. 448. 
 
 (m) White Water Valley Canal Co. v. Comegys, 2 Carter (Ind.), 469. Sarles v. Sarles, 3 
 Sandf. Ch. (N. Y.) 601. London ». Warfleld, 5 J. J. Marsh. 198. 
 
 (n) Coffin «. Coffin, Jacob, 70. 
 
 (o) Reubens v. Joel, 13 N. Y. 488. Society for Establishing Useful Manufactures t>. Moms 
 Canal, Saxton, 157. 
 
 (;)) Hindley v. Emery, L. R., 1 Eq. Ca. 52. 
 
 (g) Marshall v. Watson, 25 Beav. 604. 
 
 (r) Harfcz v. Sohrader, 8 Ves. 317. 
 
320 WASTS. [Chap. 5 
 
 consented to it, he cannot complain of that which he has himself ex- 
 pressly or impliedly authorized or permitted(s). Thus, where the 
 plaintiff had demised a logwood-mill to the defendant, and the latter 
 altered it to a cotton-mill of great value, and the plaintiff stood by and 
 saw the cotton-mill erected at great expense, and made no objection, 
 and afterwards approved of the defendant's planting about the mill, 
 and the plaintiff then filed a bill for an injunction to restrain the de- 
 fendant from using the mill as a cotton-mill, the court dismissed the 
 bill, on the ground that the plaintiff iiad by his conduct encouraged 
 the defendant to make the alteration(<). 
 
 373 Effect of laches or delay in seeking a remedy. — ^Where an expectant 
 tenant for life in remainder sees a tenant for life in possession im- 
 properly cut timber, and not only takes no step to prevent it during 
 his life, but allows a long period of time to elapse after his death with- 
 out seeking any redress, a court of equity will not, after this long 
 lapse of time, charge the estate of the prior tenant for life with the 
 burthen of making good the value of the timber so cut by him, for a 
 court of equity is averse to the assertion of stale demands(M). 
 
 374 Parties entitled to site in equity. — By 15 & 16 Vict. c. 86, s. 42, rule 5, 
 it is enacted that in all suits for the protection of property, and in all 
 cases in the nature of waste, one person may sue on behalf of himself 
 and of all persons having the same interest. 
 
 («) Binney's case, 2 Bland, 99 ; Water Lot Co. v. Bachs, 5 Ga. 315. 
 
 («) Brydges v. Kilburue, cited Jackson v. Cator, 6 Ves. 688. Harrow School v. Alderton, 
 ante, p. 311. Eex «. Butterton, 6 T. E. 555. E. I. Co. i>. Vincent, 2 Atk. 82. Parrott v. 
 Palmer, 3 Myl. & K. 640. 
 
 («) Haroourt v. White, 28 Bear. 311 ; 30 Law J., Ch. 681. See Sheldon v. Eockwell, 9 Wis. 
 166; Tash ». Adams, 10 Cash. 252; Whitney v. Union E. E. Co., 11 Gray, 359; Burden ». 
 Stein, 27 Ala. 104 ; Long v. Cross, 5 Jones Eq. 323 ; Schcmerhom v. L'Espinasse, 2 Dall. 360. 
 
CHAPTER VI. 
 
 OF TRESPASS UPON REAL PROPERTY— TITLE TO LANDS AND 
 TENEMENTS. 
 
 Sbctioit I. — Of trespasses upon lands and tenements. — What constitutes atraspass 
 — Abxise of a license or authority rendering parties trespassers ab initio — 
 Trespasses by cattle and domestic animals — Trespasses from want of fences 
 and from defective fences — Who is bound to fence and repair fences — De- 
 Btructiou of crops by rabbits and pigeons — Damage done by trespassing dogs 
 — Trespasses where the sui-face and subsoil constitute separate freeholds — 
 Forcible entry and detainer — Trespasses upon the soil of highways — Contin- 
 uing trespasses. 
 
 Sbction II. — Of the title to lands, fences, and bcmndary^oalls.—Ttial of title in 
 an action of trespass — ^Title to realty from twenty years' possession — Limita- 
 tion of actions for the recovery of realty — Accrual of the right on disposses- 
 sion, or discontinuance of possession — What is a dispossession or discontinu- 
 ance of possession, causing the time of limitation to begin to run — Occupa- 
 tion of poor relations and servants — The possession of the servant the posses- 
 sion of the master — Accrual of the right on death, alienation, forfeiture — 
 Conversion of tenaney-at-will into an indefeasible estate — Possession by cestui 
 que trust — Title of bon& fide purchasers of trust estates — Acquisition of title 
 by parties who gained possession as tenants from year to year — Continued 
 wrongful receipt of rent — Possession of coparceners, joint- tenants, tenants- 
 in-common, relations, etc. — Acknowledgments of title — Disabilities — Preser- 
 vation of title by re-entry and resumption of possession — Rights of mortga- 
 gees, lay rectors, etc. — Title to the sea-shore, the soil of fresh-water lakes, 
 highways, private ways, etc., and waste land adjoining' — Title to the soil of 
 towing-paths and artificial river-banks and canal-banks — Right of property 
 in trees and bushes, boundary-walls and fences, hedges and ditches — Title 
 to pews. 
 
 Sbctiow in. — Of actions for trespasses iipon realty. — Damage by rioters— Parties 
 to be made plaintiffs and defendants in actions of trespass — Pleadings — Li- 
 berum tenementum — Leave and license — Pleas of justification — Defences and 
 evidence — Assessment of damages — Surrounding circumstances of aggrava- 
 tion — Apportionment of damages as between tenant and reversioner — Dam- 
 ages recoverable from one of several co-trespassers — Tenants holding over — 
 Trespass for mesne profits — Prevention of trespasses by injunction. 
 Ad. Vol. I.— 21 
 
322 TBESPASS UPON REALTY. [Chap. 6. 
 
 SECTION I. 
 
 OP TBESP ASSES UPOK LANDS. AND TENEMENTS. 
 
 375 WJud constitutes a trespass. — Every entry upon land in the occupa- 
 tion or possession of another constitutes a trespass, in respect of which 
 an action for damages is maintainable, unless the act can be justified 
 in the exercise of some legal or personal authority or incorporeal right 
 (ante, c. 3). If a man's land is not surrounded by any actual fence, 
 the law encircles it with an imaginary inclosure, to pass which is to 
 break and enter his close. The mere act of breaking through this 
 imaginary boundary constitutes a cause of action, as being a violation 
 of the right of property, although no actual danjage may be done 
 {ante, pp. 9-13). If the entry is made after notice or warning not to 
 trespass, or is a wilful and impertinent intrusion upon a man's domes- 
 tic privacy, or an insulting invasion of his proprietary rights, a very 
 serious cause of action will arise, and exemplary damages will be re- 
 coverable(a) ; but if there has been no insulting or wilful and perse- 
 vering trespass, and no actual damage done, and no question of title 
 is involved, the damages recoverable may be merely nominal, and the , 
 trespass may be excused altogether, if it can be shown that it was 
 committed in self-defence, in order to escape from some pressing dan- 
 ger or apprehended peril(&), or in defence of the possession of a man's 
 goods and chattels, or cattle, sheep, or domestic animals; for "if I 
 drive my beasts along the highway, and' you have open uninclosed 
 land adjoining the highway, and my beasts enter your land and eat 
 the herbage thereof, and I come freshly and chase them out of your 
 land, you shall not have any action against me, because the chasing 
 them was lawful "(c). So, if my goods have been taken by you, and 
 placed on your land, I may justify my entry on your land for the pur- 
 pose of re-taking them(d). 
 
 376 Abuse of a license or authority rendering a person a trespasser ah initio. 
 — When a person has a special privilege or authority to enter upon 
 
 (a) Merest o. Harvey, 5 Taunt. MS. Greenville, etc., E. R. Co. v. Partlow, 14 Eich. Law (S. 
 C), 237. Hawk v. Eidgway, 33 111. 473. Devaugh v. Heath, 37 Ala. 595. Perkins v. Towle, 
 43 N. H. 220. Dorsey v. Manlove, 14 Cal. 553. Nagle v. Mollison, 34 Penn. St. 48. Kolb ». 
 Bankhead, 18 Texas, 228. Mitchell ». Billingsley, 17 Ala. 391. 
 
 (6) 37 Hen. 6, 37, pi. 26. See Allison v. Chandler, 11 Mich. 543 ; Hawk v. Eidgway, 33 111. 
 473 ; Jefooat «. Knotts, 13 Eich. Law (S. C), 50. 
 
 (c) Catesby, arg. 6 Ed. 4, 7, pi. 18. Goodwin v. Cheveley, 4 H & N. 631. 
 
 (d) 2 Roll. Abr. 565, pi. 9. 
 
Sec. l.J ABUSE OF LICB^rSE. 323 
 
 lands to make a s'eizure of goods, and he exceeds his authority, by- 
 breaking open the outer doors of a dwelling-house (e), he becomes a 
 trespasser ab initio. All his subsequent acts are trespasses, and he is 
 in the same position as if he was a perfect stranger, acting without 
 any color of excuse or justifi.cation(/). The same result follows when- 
 ever a person has a lawful authority to enter lands for any purpose 
 whatever, and he exceeds his authority by doing on the land what he 
 had no right to do ; or by staying longer than he had a right to stay(p'). 
 
 Every trespass upon land is, in legal parlance, an injury to the land, 
 although it consists merely in the act of walking over it, and no dam- 
 age is done to the soil or grass. Every injury to the possession of the 
 occupier is, in principle, an injury to the property ; and, therefore, if 
 a man is unlawfully turned out of his dwelling-house, that amounts, 
 in point of law, to an injury to the dwelling-house(A). 
 
 Where an action was brought for trespassing on a close and treading 
 down the grass, and the defendant pleaded that he had land lying 
 next the said close, and upon it a hedge of thorns, and he cut the thorns, 
 and they, ipso invito, fell upon the plaintiff's land, and the defendant 
 took them oS as soon as he could, and the plaintiff demurred,,it was 
 adjudged for the plaintiff : for though a man doth a lawful thing, yet 
 if any damage do hereby befall another, he shall answer for it, if he 
 could have avoided it(»). 
 
 (e) Post, ch. 11, o. 1. 
 
 (/) Attack V. Bramwell, 32 Law J., Q. B. 146. 
 
 (g) Com. Digest, Trespass (C), 2. Six Carpenters' case, S Cro. 146a. Eeed v. Harrison, 2 
 W. Bl. 1218. Aitkenhead v. Blades, 5 Taunt. 197 ; post, ch. 14, s. 2. It has been held in New 
 York that where the law gives to any person a license or authority and he abuses it, he bo- 
 comes a trespasser db initio ; but he does not become a trespasser ab initio by reason of an 
 abuse of the license or authority given by another, although he may be liable for the abuse. 
 Adams ». Elvers, 11 Barb. (N. T.) 390. Van Bnint ». Scheuok, IS Johns. 4U. Allen u. Cro- 
 foot, 5 Wend. 506. Dumont v. Smith, 4 Benio, 319. And see Cole v. Drew, 44 Vt. 49. It has 
 been held in Pennsylvania that one who has a license to enter upon the land of another for a 
 lawful purpose, and exceeds his license or abuses his authority, is liable in an action quare 
 clausum /regit for the consequential damages arising therefrom. Kisseoker v. Menu, 36 Penn. 
 St. 313. But it has also been held in the same State, that whore aright to enter on land exists, 
 its abuse will not sustain an action of trespass. Edelmau v. Teakel, 27 Penn. St. 26. 
 
 It was decided in New Hampshire that one who has a right to enter upon land for a partic- 
 ular purpose, and entering for that purpose exceeds his authority and commits acts for wh ich 
 he was not authorized to enter, is not liable in an action of trespass quare clausum fregit. 
 Jewell V. Mahood, 44 N. H. 474. 
 
 So it was held in Maine that one who has permission to enter upon the land of another is not 
 liable in an action quare clausum fregit, although he became a trespasser by acts committed 
 after entry under the license. Hunnewell v. Hobart, 42 Me. 666. 
 
 There have been similar decisions in Vermont. Stone v. Knapp, 29 Vt. 501. And New York. 
 Allen V. Crofoot, 5 Wend. 506. 
 
 A stranger is not a trespasser who enters upon land under an invitation from one lawfully 
 on land by license from the owner. KeUy v. Tilton, 8 Keyes, 263. 
 
 (ft) Meriton v. Coombes, 9 C. B. 972 ; 19 Law J., C. P. 336. 
 
 (i) Mich. 6, E. 4, p. 7, pi. 18. 
 
324 TRESPASS UPON REALTY [Chap. 6. 
 
 If one man throws stones, rubbish, or materials bf any kind, on the 
 land of another, or allows his cattle, poultry, or "domestic animals, to 
 go upon another man's land, this is a trespass for which he is responsi- 
 ble in damages, unless he can show that his neighbor was bound by 
 contract or prescription to fence for his benefit(A). To pour water out 
 of a pail into another man's yard, or to fix a spout so as to discharge 
 water upon another's la,nd, or to suffer filth to ooze through a boundarys 
 wall and to run over another's close oj yard without his leave or pev- 
 ipission, is a trespass, unless a right of way over the adjoining close, 
 or a right to discharge water upon it, or a right for the passage of 
 waste-water and refuse through it, has been gained(Z). 
 377 Trespasses ly cattle and domestic anknals. — If a man's cattle, sheep, 
 or poultry, or any animals in which the law gives him a valuable prop- 
 erty, trespass upon another's close, the owner of the animals is, as we 
 have seen {ante, p. 149), responsible for the trespass and consequential 
 damage, unless he can show that his neighbor was bound to fence, and 
 had failed so to do(?w). And it matters not whether the animals be at 
 
 (ft) Williams, J., Cox v. Burbridge, 13 C, B., N. S. 438. Holt, C.J., Mason v. Keeling, 1 L'l. 
 Raym. 608; 12 Mod. 336. Dawtry ». Iliiggins, Clayton, 32. Vin. Abr. Trespass (B). Tres- 
 pass quare clavsum /regit lies against ope who, in blasting, throws large quantities of rock^ 
 and stones upon the land and buildings of another. Scott v. Bay, 3 Md. 431. 
 
 II) Keynolds v. Clarke, 2 Ld. Eayra. 1399. 
 
 m) Sayrill v. Milward, 21 Hen. 6, p. 33, pi. 20. Lee v. Riley, 34 Law J., C. P. 212. Thayer 
 it. Arnold, 4 Mete. 589. In this country the question whether one becomes a tresp^sei" by 
 permitting his cattle to stray upon the land of another depends upon the laws of the various 
 states, and the obligation of the several owners to fence in their cattle or to fence the cattle 
 of others out. 
 
 In the absence of any statutory provisions making it obligatory on the tenants of adjoining 
 land to make and maintain partition fences, the common law rule that the tenant of a close 
 is not bound to fence against an adjoining close unless by force of ageeement or prescription, 
 still prevails. Moore v. Levert, 24 Ala. 310. 
 
 In Maine, the requisites of a legal fence are prescribed by statute ; and it is made the duty 
 of adjoining proprietors to maintain partition fences in equal shares, so long as such propri- 
 etors continue to improve the adjoining lands. See R. S. tit. 2, ch. 22. The mode of fixing 
 the liability of each to maintain a distinct portion of the division fence is also prescribed by 
 the saiiie statute.' And see E. S. of 1S71, tit. 1, ch. 3, s. 10 ; E. S. ch. 3, s. 18. But these stat- 
 utes are merely in aifirmance of the common law, and no tenant of a close is bound to main- 
 tain a fence against an adjoining close in the absence of any agi-eement, prescription or 
 assignment under the statute ; and in such cases each owner is bound to keep his cattle on 
 his own close at his peril, and it is trespass if the cattle of one cross upon the land of tho 
 other. Little v. Lathrop, 5 Greenl. 357. Sturtevant v. Merrill, 33 Me. 62. Bradbury e. Gil- 
 ford, '63 id. 99. 
 
 In New Hampshire similar statutes have been enacted. See Gen. Stat, of 18B7, ch. 128. 
 And the party neglecting to build or keep in repair any partition fence which he is hound to 
 maintain, is liable for all damages arising from such neglect, and has no i-emedy for any 
 damages happening to himself therefrom. E. S. oh. 136, s. 12. Lawrence v. Coml)s, 37 N. H. 
 331. But in New Hampshire as in Maine, the owner of a close is not obliged to fence against 
 any cattle but such as are rightfully on the adjoining laud. Id. Little v. Lathrop, 5 Greenl. 
 357. See Noyes v. Colby, 10 Foster (N. H,), 143. 
 
 In Vermont the owners of adjoining land are required to maintain division fences, 
 except when either owner elects to let his land lie vacant; and when the owner of 
 unoccupied and unimproved laud chooses to let his land lie common he can do so, unless 
 
Sec. 1.] BT CATTLE OR OTHER ANIMALS. 325 
 
 the time in his own immediate care or charge, or under the care of his 
 
 the adjoining^ owner occupies his land, in which case the other owner may be com- 
 pelled to fence; Owners of Zand adjoining highways are not compelled to fence the 
 highway. Where division fences are not required, each owner is liable for any damages 
 arising from the straying of his cattle on the occupied land of others; and where no 
 division fence is maintained, neither can legally pasture his lands untU both have agi'eed to 
 occupy in common. See Gen. Stat, of 1863, ch. 102. If the owner of cattle allows them to 
 stray upon the land of one who is not an adjoining proprietor, he will be liable in trespass, 
 «,s it is the duty of the owner of cattle to restrain them, and it is not the duty of the owner 
 of the close to fence against any animals not belonging to an adjoining proprietor. Wilder 
 V. Wilder, 38 Vt. 678. 
 
 The statutes of Massachusetts declare what shall be deemed a legal fence, and provide 
 that occupants of inclosed lands shall keep up and maintain partition fences between their 
 own and the next adjoining inclosures in equal shares, so long as both parties improve the 
 samfe. Gen. Stat. ch. 25, ss. 1, 2. Under these statutes, as at common law, w'here the owner 
 of land is not bound by prescription, agreement, or assignment of fence-viewers, to main- 
 tain a division fence, he may maintain an action of ti'espass quare clausufn /regit against an 
 adjoining owner whose cattle escape upon his land. Thayer v. Arnold, 4 Met. 589. 
 
 In Ehode Island, the requisites of a sufficient fence is prescribed by statute, and the rights 
 and liabilities of the adjoining proprietors declared and determined. Gen. Stat, of 1872, 
 ch. 94. 
 
 The statutes of Connecticut require the proprietors of lands to make and maintain suf- 
 ficient fences to secure their fields, and declare what shall be deemed such a fence. R. S. 
 of 1866, ch. 21. Under this statute the owner or occupier of land is obliged to fence against 
 cattle at his own risk, and if he faUs to do so, he cannot recover damages for trespass by 
 cattle. Wright u. Wright, 21 Conn. 329. 
 
 The statutes of New Jersey require the owners of adjoining lands to maintain an equal 
 proportion of their division fences, except where they chose to let their lands lie open or 
 vacant, and declare what shall be deemed a sufficient fence, and further provide that the 
 owner of cattle trespassing over or through a lawl\il fence shall be liable for the damages. 
 No land owner can recover damages for ti'e8]iasses through a defective division fence which 
 he is bound to maintain ; but he is liable for damages done by his own cattle to the land of 
 the adjoining owner by reason of his own defective fences. See Nixon's Dig. (4th ed.) 331, ei 
 aeq. See also Laws of 1870, ch. 398. In cases where the adjoining owners have not entered 
 into any agreement in respect to a division fence, and the cattle of th6 one have entered 
 upon the lands of the other, the owner of the cattle will be liable to the other in trespass. 
 Coxe V. Eobbins, 4 Halst. 384. 
 
 In Pennsylvania the statute requires the owner of improved lands to fence them, not only 
 to restrain his own cattle, but also to shut out the roving cattle of his neighbors, and trespass 
 cannot be maintained for the entry of cattle upon improved lands. Gregg v. Gregg, 55 Penn. 
 St. 227. But except where the statute requires the owner of lands to fence, the common law 
 rule requiring the owner of cattle to restrain them at his peril is still in force. Id. 
 
 In Delaware the owner of cattle is liable in damages for trespasses on lands inclosed with 
 a lawful fence ; and if such cattle are unruly and break through such fence after notice that 
 they are unruly, he is liable in double damages. See Revised Code, ch. 67. 
 
 In Maryland the subject of fences js regulated by the local laws for the several counties. 
 Where there is no statutory rule, the common law rule prevails, and each owner of cattle is 
 bound to restrain them on his own close at his peril, unless the adjoining owner is bound by 
 prescription to fence against him. Richardson v. Milburn, 11 Md. 340. 
 
 For the fence laws of Virginia, see Code of 1860, ch. 99, s. 1, as amended by oh. 239 of Laws 
 of 1872 ; Code, ch. 99, ss. 3-5. 
 
 For the fence laws of West Virginia, see Code of 1868, ch. 60. 
 
 For the fence laws of Ohio, see 1 R. S. oh. 45, as amended by the Laws of 187S, p. 246. 
 
 In this state, the doctrine of the common law making the owner of domestic animals a 
 trespasser for permitting them to stray upon the nuiticlosed latfds of another is not in force. 
 Cleveland, Columbus & Cincinnati R. R. Co. t>. Elliott, 4 Ohio (N. S.), 474; Kerwhaoker o. 
 Cleveland, Columbus & Cincinnati R. E. Co., 3 Ohio (N. S.), 172. 
 
 In Michigan it was provided by the act of 1847 that " no person shaU recover for damages 
 done upon lands by beasts, unless in cases where, by the by-laws of the township, siich 
 beasts are prohibited froid running at large, except wheh such lands are inclosed by'a 
 fence," etc. 
 
826 TRESPASS VPON REALTY [Chap. 6. 
 
 servants, or in the custody of a stranger. In this last case, the stranger 
 
 As to what is a legal fence in this state, and the person liable to repair, see 1 Comp. Laws 
 of 1871, oh. 14. See also as to the liability of the owner of cattle trespassing on land of an- 
 other, Aylesworth v. Harrington, 17 Mich. 417 ; Williams v. Michigan Central K. E. Co. 2 id. 
 2S9. 
 
 In Indiana it is provided by statute that the owner of land protected by a lawful, inclosure 
 may recover the amount of damage done, but otherwise where the fence was not lawful. 
 See 1 R. S. 1862, ch. 62. This act applies only to outside fences, and in respect to cattle tres- 
 passing through other fences, the parties are left to their common law rights and liabilities. 
 Coot V. Morea, 33 Ind, 497. Brady v. Ball, 14 id. 317. Page ». Hollingsworth, 7 id. 317. As 
 to what is a lawful fence, see Laws of 1865, oh. 173. , 
 
 In Illinois the owner of cattle is not required to keep them upon his own land ;• and if they 
 stray upon the land of another, the latter cannot maintain trespass unless he can show that 
 his land was protected by a good and sufficient fence. Misner v. Lighthall, 13 111. 609. Seely 
 t». Peters, 5 Gilm. 130. Headam v. Bust, 39 IU. 186. Stoner ». Shugart, 45 id. 76. 
 
 For the laws of Wisconsin in respect to fences, see 1 Taylor's Stat. ch. 17. 
 
 For the laws of Minnesota, see Bevised Stat, of 1886, ch. 13 ; B. S. ch. 10, s. IB.; id. ch. 19 
 s. 29. The law allowing cattle to run at large has been repealed. E. S. ch. 122. 
 
 In Iowa the common law requix'ing every owner of cattle to restrain them within his own 
 close is not in force ; and in order to maintain trespass for damages by cattle, the plaintiH 
 must show that the land trespassed upon was inclosed by a fence sufficient to turn ordinary 
 stock. Wagner v. BisseU, 3 Iowa, 397. Heath V. Cottenback, 5 id. 490. But where two per- 
 sons have fields fenced in common, either will be liable fqr the damage to the other if he 
 willfully turns his stock into the inclosure. Broadwell v. Wilcox, 22 Iowa, 568. For the law 
 of Iowa in respect to division fences, see Code of 1873, tit. 11, ch. 4 ; Phillips v. Oyster, 32 
 Iowa, 267. 
 
 In Missouri the common law rule is not in force, and damages cannot be recovered against 
 the owner of cattle for their trespass unless the lands entered upon were legally inclosed. 
 German v. Pacific R. E. Co., 26 Mo. 441. As to what is a legal inclosure, see 1 Wagner's Stat. 
 ch. 71. Incase the field trespassed upon was legally inclosed,' the owner of the land may 
 recover damages for the first trespass, double damages for the second, and may kill the beast 
 trespassing for a third pfl^ense. Id. 
 
 In Kansas, an owner cannot recover for injuries done to his crops by cattle trespassing, 
 unless he can show that his field was inclosed by a lawful fence. Larkin v. Taylor, 5 Kansas, 
 433. For the fence laws of Kansas, see Gen. Stal. of 1868, ch. 40. 
 
 In Nebraska, the owner of animals trespassing on lawfully inclosed land is liable in dam- 
 ages. And as to what is a lawful inclosure, see Gen. Stat, of 1873, ch. 2, ss. 18-38. 
 
 In Nevada, the owner of cattle breaking into any grounds inclosed by a lawful fence is 
 liable for the actual damage for the first ofl'ense, and in double damages for all subsequent 
 offenses ; and neither of two or more persons having fields inclosed in common can lawfully 
 turn cattle on his land to the injury of the others, without becoming liable in damages. 
 2 Comp. Laws of 1873, pp. 459-460. 
 
 In California, the owner of cattle breaking into grounds inclosed by a lawful fence is liable 
 in damages to the same extent as in Nevada ; and the requisites of a lawful fence are par- 
 ticularly described by statute. See 1 Gen. Laws of 1864, ss. 3029-3062. But where the lands 
 entered upon are not so inclosed, the owner of cattle is not liable for the trespass. Cotncr- 
 ford V, Dupuy, 17 Gal. 308. And see Logan v. Gedney, 38 id. 579. 
 
 For the fence laws of North Carolina, see Bev. Code, ch, 48 ; Laws of 1873, ch. 98 ; id. 193 ; 
 Laws of 1871, oh. 187. 
 
 In South Carolina, the owner of animals trespassing on the lands of another is liable in 
 damages if the field entered upon was inclosed by a lawful fence, but otherwise not. 6 Stat, 
 at Large, No. 2430. And see 2 Stat, at Large, No. 108. 
 
 In Georgia, no domestic animal can lawfully run at large, and the owner of an animal 
 trespassing is made liable for all damages. Code of 1873, ch. 9, ss. 1443-1451. 
 
 In Florida, owners of cattle are not liable for trespass on lands not protected by a lawful 
 fence. The requisites of a lawful fence are defined by statute. See Thompson's Digest, 
 ch. 5. 
 
 In Alabama, a partition fence between adjoining proprietors is the joint property of bo6h ; 
 and each is bound to keep the entire fence in good repair. Neither can mair*^j»ir trespass 
 against the other for injuries arising from an insufficient fence. Revised Code ot IPS'?, tit. 13, 
 ch. 8. Walker o.Watrous, 8 Ala. 493. See Clay's Digest, 241, o. 4; Moore ». Level i •,>tAla.310. 
 
Sec. 1.] FBOM WANT OF FENCES, ETC. 327 
 
 may be sued as well as the owner for the trespas8(w). But if my ser- 
 vant, without my knowledge, takes my beasts and puts them in an- 
 other's laud, my servant is the trespasser, and not I ; for, by his wilful 
 dealing with the beasts without any authority from me, he gains a 
 special property in them for the time, and for this purpose they become 
 his beasts(o). But if a wife so deals with her husband's cattle, the 
 husband himself is the trespasser, for his wife can gain no special 
 property in them as against the husband(p). A commoner who puts 
 his beasts upon a common which is not enclosed, is bound at his peril 
 to see that his beasts do not stray from the common and trespass upon 
 another man's land(9'). 
 378 Trespass from want of fences and from defective fences. — ^Where the 
 plaintiff himself has contributed to the injury of which he complains, 
 he has no ground, as we have seen, for seeking compensation in dam- 
 ages {ante, p. 24). If, therefore, a man is bound by contract or pre- 
 scription {ante, p. 149), to repair a fence between my land and his, 
 and he neglects to repair, and by reason thereof my beasts get on to 
 his land, this is a good justification to an action of trespass brought 
 by him(7'). In such a case it is lawful for me to go into my neighbor's 
 land after my beasts, and chase them back into my own land ; and I 
 may plead this as a justification for the trespass, because it was ren- 
 dered necessary by the default of my neighbor(s). 
 
 In Kentucky, the statute leflnes a lawful fence, and makes the owner of cattle trespassing 
 on fields inclosed by a lawful fence liable for actual damages for the first offense, double 
 damages for the second, and treble damages for the third, etc., and gives the owner of the 
 land trespassed upon the right to kill the cattle trespassing, on giving a prescribed notice. 
 See Gen. Stat, of 187S, ch. 55, art. 1. 
 
 Tor the laws of Tennessee in respect to animals trespassing, see Code of 1858, ch. 3. 
 
 For the fence laws of Mississippi, see B. S. "of 1870, ch. 33, ss. 1905-1915. 
 
 For the fence laws of Louisiana, see Revised Civil Code of 1870, ch. 3, s. 1, arts. 675-690. 
 
 For the liability of owners of cattle trespassing upon lawfully inclosed grounds in the state 
 of Arkansas, see Rev. Stat. ch. 76 ; Digest of 1858, ch. 87. And see Laws of 1873, ch. 96. 
 
 For the laws of Texas, see Pasohal's Annotated Digest, 639, 640. 
 
 For the laws of New York in regard to fences, see Laws of 1872, ch. 377 ; Laws of 1871, ch. 
 635 ; Laws of 1866, oh. 540 ; Laws of 1850, ch. 319 ; Laws of 1838, ch. 261 ; 1 E. 8. part 1, oh. 11, 
 tit. 4, art. 4 ; id. tit. 2, art. 1. 
 
 (n) 2 Roll. Abr. 648, pi. 20. Dawtry ». Huggins, Clayt. 32, pi. 56. Noyes V. Colby, 10 Foster 
 (N. H.), 143. 
 
 (o) 2 EoU. Abr. Trespass, 553, pi. 25. 
 
 (p)2 Roll. Abr. Trespass, 653, pi. 2. In New York, under the statutes relating to the 
 rights and duties of married women, a married woman having a separate estate may be held 
 liable for damages done by the straying of her cattle from her own premises upon adjoining 
 lands, notwithstanding the husband and children reside with her upon the lands, and both 
 the land and cattle are used for the support of the family. Rowe v. Smith, 45 N. Y. 230. 
 ' (g) 20 Ed. 4, fo. 10b, cited in Read v. Edwards, 34 Law J., C. P. 32. 
 
 (r) 2 RoU. Abr. Trespass, 565, pi. 3, citing 19 Hen. 6, 34; 39B.,3,3b. See Cowles ». Balzer, 
 47 Barb. (N. Y. ) 562 ; Walker v. Watrous, 8 Ala. 493 ; Lavrrence v. Coombs, 37 N. H. 331 ; 
 Shepherd v. Hees, 12 J-hns. 433. 
 
 («) 2 Roll. Abr. TSESPASS, 666, pi. 4. 
 
328 TSESFASS VPON RSALTT [Chap. 6. 
 
 379 Who is bound to r^airfenpes.-^'WheneYeT two persons have aAjpifX- 
 ing fields, and no hedge or fence between them, each must take care 
 that his own beasts do not trespass on his neighbor(i), unless one pro- 
 prietor has acquired a right or title, by grant or prescription, to have 
 the boundary-fence between his close and that of the adjoining pro- 
 prietor maintained and repaired at th,e expense of such adjoining 
 proprietpr(M), (ante, p. 149). " Every man must use his own land so aa 
 thereby not to hurt another ; and as, of common right, one is bound 
 to keep his cattle from trespassing on ihis neighbor,, so he is bound to> 
 uge anything that is his so as not to hurt another by such user. If, 
 therefore, a vendor sells a piece of pasture lying open to another piece, 
 of pasture of which he is possessed, the vendee is bound to keep his, 
 cattle from running into the vendor's piece"(«). If a landowner, who 
 has land abutting upon a highway, neglects to fence the land from 
 the highway, so that cattle stray from the high-road and injure his 
 crops, he cannot immediately distrain the beasts' damage feasant,, or 
 treat the owner of the beasts as a- trespasser, but must either drive 
 them out himself, or allow a, reasonable time to the drovers in charge 
 of them to get them out of the land(2/). But if the beasts are not law- 
 fully using the highway, if they have strayed away from the owner or hisi 
 servants, and are trespassing upon the public thoroughfare, and pass, 
 from thence on to the adjoining uninclosed land, this is a trespass for 
 which the owner of the beasts is responsible(z). And whenever one land- 
 owner is bound to maintain and repair a fence for the benefit of the 
 adjoining landowner, and cattle escape out of the land of the latter, 
 and trespass upon the land of the person who ought to have kept up 
 the fence, it is no excuse that the fences were out of repair, if the 
 beasts were trespassers in the place from whence they came. If it be 
 
 (*) Bayley, J., Boyle v. Tamlin, 6 Bi & C. 337 ; Dyer, 372b. 
 
 (») See Barber ». Whiteley, 34 Law J., Q. B. 212 ; Bradbury v. Gilford, 53 Me. 99 ; Gen. 
 Stat, of Vermont, 1863, ch. 102; Aylesworth v. Harrioifton, 17 Mich, 417; 2 Comp. Laws of 
 Nevada, 1873, p. 460 ; Walker v. Watrous, 8 Ala. 493. 
 
 (a!) Tenant v. Goldwln, 6 Mod. 314. 
 
 (y) Goodwin v. Chevely, 4 H. & N. 631 ; 28 Law J., Exoh. 298.. 
 
 (z) 2 EoU. Abr. 565, pi. 7. Dovaston v. Payne, 2 H. Bl. 528. In those looalitiee where cattle 
 may lawfully run at large, and in those states where it has been declared by statute that an 
 enti'y upon uninclosed land shall not create a liability foi" damages, this doctrine is clearly 
 inapplicable. The doctrine stated in the text is inapplicable in Ohio (Kerwhaoker v. Cleve- 
 land, Columbus and Cincinnati E. E. Co., 3 Ohio, N. S. 172 ; Cleveland, Cohimbus and Cin- 
 cinnati E. E. Co. V. Elliott, i Ohio, N. S. 474), m niinois (Ueadam v. Bust, 39 HI. 186 ; Stoner 
 V. Shugart, 45 HI. 76), in Iowa (Wagner v. Bissell, 3 Iowa, 396), in Missouri (Gorman v. Pacific 
 E. E. Co., 26 Mo. 441), in California (Comerferd v. Dnpuy, 17 Cal. 308 ; Logan v. Gedney, 38 
 Cal. 579), in North Carolina (Johns v. Witherspoon, 7 Jones' Law, 555), in South Carolina 
 (Murray v. South Carolina E. E. Co., 10 Eioh. Law, 227), in Florida (Thomp. Dig. ch. 6), in 
 Tennessee (Code of 1858, ch. 3), and probably in many other states. See ante, p. 324, note in. 
 
Sec. 1.] £r BABBITS, PIGBONS, BOGS, ETC. 329 
 
 a close, the owner of the cattle must show an interest or a right to put 
 them there. If it be a way, he must show that he was lawfully using 
 the way(a). 
 
 380 Destnuition of crops hy rabbits and pigeons. — ^If a man encourages the 
 growth of wild rabbits upon his land, and forms "coney burrows" 
 there, and the rabbits stray from his land to the land of his neighbor, 
 this is no trespass for which the breeder of the rabbits is responsible, 
 for when they have left his land they are not then Ais rabbits doing dam- , 
 age. Being animals fercB natures, ,'h& has no more property in them 
 after they have left his soil, than in the birds of the air, which may breed 
 in one man's land, and devour the crops of another(6). The only 
 remedy, therefore, for a person whose crops are eaten by wild rabbits 
 is the capture and destruction of the rabbits. Commoners may destroy 
 rabbits which come upon the common from the adjoining land, not 
 being the lord's land(c) ; but they have no remedy against those who 
 breed them(ci). The same law prevails with regard to pigeons ; " if 
 they come upon my land I may kill them," but I have no remedy 
 against any one for breeding them(e). 
 
 38 1 Damage done by intruding dogs. — A man is not, by the common law,, 
 considered to have the same valuable property in a dog as in cattle 
 and sheep ; and ■ it has been held that if a man's dog goes into his 
 neighbor's garden, and spoils and injures his crops, no action will 
 lie(/), unless the dog is of a peculiarly mischievous disposition, so as 
 to be unfit to be at large, arid this is known to the master(^). If the 
 master accompanies the dog, and is himself a trespasser, the damage 
 done by the dog is consequential upon the trespass by the master(A). 
 Owners of dogs in Scotland and Ireland have recently been made lia- 
 ble for injuries done to sheep and cattle by their dogs : and all persons 
 
 (o) Dovaston v. Payne, ut tup, ; Anon. 3 Wils. 126. That the owner of real estate is not 
 bound to maintain partition fences against one who is not an adjoining owner or occupant, 
 see Aylesworth v. Hei-rington, 17 Mich. 417 ; Wilder v. Wilder, 38 Vt. 678. See, also. Page v. 
 Oloott, 13 N. H. 399. 
 
 (6) Bonlton's case, 5 Co. 104a ; Cro. Ellz. 547. It has beeii held, in Missouri, that a land 
 owner is under no obligation^ to fence against animals /era natures, but on the other hand, the 
 owner of such animals must keep them at his peril, and that he is liable for damage done by 
 them on the lands of others, whether such lands were fenced or not. Camefox ». Crenshaw, 
 24 Mo. 199. 
 
 (c) Cooper e. Marshall, post, ch. 3, s. 1. 
 
 (d) Hinsley v. Wilkinson, Cro. Car. 387. 
 
 (e) Dewell v. Saunders, Cro. Jac. 490. Bayley J., Hannan v. Mookett, 2 B. & C. 939. 
 
 (/) Holt, C.J., Mason v. Keeling, 12 Mod. 336. Brown v. Giles, 1 C. & P. 118. Woolf o. 
 Chakler, 31 Conn. 121. 
 
 {g) Read v. Edwards, ante, p. 327. See Tairchild v. Bentley, 30 Barb. (N. T.) 147. 
 
 (A) Beokwith v. Shordike, 4 Burr. 2093. Woolf o. Chakler, 31 Conn. 121. As to damage done 
 by .ferocious dogs,, see ante. pp. 264, 25B. As to damage done by several dogs jointly, see Car- 
 rbll V. Weiler, 4 Sup. Ct. (N. T.) 131. 
 
330 TRESPASS UPON REALTY. [Chap. 6. 
 
 who harbor dogs on their premises are deemed to be the owners of the 
 dogs, unless they can prove the contrary, and show that the dog 
 remained on their premises without their knowledge(i). 
 
 382 Trespasses where the surface and subsoil of land constitute separate free- 
 holds.^-Ii it appears that the plaintiff has parted with the vesture 
 and herbage, and right to the surface of the land, and retains only 
 an interest in the subsoil, he cannot maintain an action for trespasses 
 upon the surface(^) ; but if any person digs holes through the surface, 
 and trespasses upon the subsoil, he is then entitled to an action for 
 damages(Z). If land is demised generally to a lessee, who enters 
 imder the lease, he is in possession of both the surface and the mine- 
 rals ; but he has no right to work the minerals without the license 
 of the lessor, neither can the lessor work them without the permission 
 of the lessee. If the adjoining occupier sinks a mine in his own 
 land, and makes lateral excavations, trespassing upon the minerals 
 of the lessee without disturbing the surface of the land in his occu- 
 pation, the lessee may, nevertheless, maintain an action for the tres- 
 pass and injury to his possessory interest, and the lessor may 
 maintain an action for the injury to his reversionary estate. If the 
 surface and minerals have been dissevered in title, and have 
 become separate tenements, then the grantee or owner of the min- 
 erals is the only person entitled to sue in respect of trespasses upon 
 them(TO). 
 
 383 Forcible entry and detainer. — ^At common law, if a man had a right 
 to the possession of land, and a right to enter thereon, he might enter 
 and obtain possession with force and arms, and retain possession by 
 force, which gave an opportunity, we are told, to powerful men to 
 enter upon land under pretence of feigned titles, and forcibly eject 
 their weaker brethren(7i), and therefore it was enacted (5 Rich. 2, c. 
 7), " that none thenceforth make entry into any lands and tenements 
 but in cases where entry is given by the law, and in that case not 
 with strong hand, nor with multitude of people, but only in a peace- 
 able and easy manner "(o). A mere trespasser cannot, by the very act 
 of trespass, immediately, and without acquiescence on the part of the 
 
 (j) 25 & 26 Vict. c. 59; 26 & 27 Vict. c. 103, amte, p. 30. 
 
 (A) Cox V. Mousley, 6 C. B. 549. 
 
 (;) Cox B. Glue, il). 549, 553; 17 Law J., C. P. 162. 
 
 (m) Keyse ». Powell, 2 Ell. & Bl. 144; 22 Law J., Q. B. 305. Lewis v. Branthwaite, 2 B. & 
 Ad. 437. See Hamilton (Duke of ) ». Graliam, L. E. , 2 So. App. 160. 
 
 (n) BaoAbr. roKCiELB Entry. 
 
 (0) As to recovery of possession by persons forcibly expelled, see 8 H. 6, c. 9; 31 Eliz. o. 
 11; 21 Jac. 1, u. 16. 
 
Sec. l.J OF SOIL OF SIOHWAYS. 331 
 
 landowner, become possessed of the land upon which he has trespassed, 
 and which he tortiously holds, and he maj- consequently be expelled 
 by main force(p) ; but if he is allowed to continue on the land, and 
 the landowner sleeps upon his rights, and makes no effort to remove 
 him, he will gain a possession, wrongful though it be, and cannot be 
 forcibly ejected. A mere intruder upon land, who has been allowed 
 to run up a hirt and occupy it, has no right to the hut or to the pos- 
 session thereof, and the landlord may enter and pull down the hut 
 about the ears of the occupants and remove the materials(g). But the 
 dwelling-houses of strangers cannot be pulled down whilst people are 
 living in them, for the mere purpose of ubating a nuisance or prevent- 
 ing the enjoyment of some incorporeal right, such as a right of com- 
 mon(r). The rightful owner cannot, in any case, when he has a right 
 , of entry, whether legal or equitable, be made responsible in damages 
 for a trespass upon his own land, for he is no trespasser if he has a 
 right to go upon it(s) ; but if he assaults and expels persons who, 
 having originally come into possession lawfully, continue to hold un- 
 lawfully, after their title to occupy has been determined, he may be 
 made responsible for the assault, and be indicted for a forcible entry(i;), 
 but he cannot be made responsible in damages for the expulsion(M). 
 Having a right to enter upon his own land, he may do so peaceably ; 
 and if his entry is resisted by force, he may, it seems, repel force by 
 force('B). 
 
 "Where a breach of the peace," observes Parke, B., "is committed 
 by a freeholder, who, in order to get into possession of his land, 
 assaults a person wrongfully holding possession of it against his will, 
 although the freeholder may be responsible to the public, in the shape 
 of an indictment for a forcible entry, he is not liable to the other 
 party. It is a perfectly good justification to say that the plaintiff was 
 in possession of the land against the will of the defendant, who was 
 owner, and that the defendant entered upon it accordingly "(a). 
 384 Of trespasses upon the soil of highways set out and dedicated to the 
 public hy private proprietors. — By setting out a highway, and dedicat- 
 ing it to the use of the public, the owner of the land over which the 
 
 [p) Browne v. Dawson, 12 Ad. & E. 629. 
 (q) Davison ». Wilson, 11 Q. B. 890 ; 17 Law J., Q. B. 196. 
 (r) Jones v. Jones, 31 Law J., Exch. 506. 
 
 (s) Davison ». Wilson, aapra. Allen ». Walker, L. R., 5 Exch. 187. 
 («) Newton v. Hai-land, 1 So. N. E. 492. 
 (M) Pollen ti. Brewer, 7 C. B. N. S., 373. 
 («) Newton v. Harland, 1 So. N^ R. 492. 
 
 (X) Harvey v. Bridges, 14 M. & W. 442 ; 1 Exch. 261. Davison v. Wilson, 11 Q. B. 890. 
 Meriton «. Coombes, 9 C. B. 787 ; 19 Law J., C. P. 336. 
 
332 TRESPASS UPON BBALTT. [Chdp. 6'. 
 
 right of way is granted does not thereby part with the property in the 
 soil. The landlord, in such a case, has full dominion and control over 
 the land subject to the easement, and may recover it in ejectment(2^), 
 or bring aiji action for a trespass against any person who deposits 
 stones or rubbish upon the soil, or constructs a bridge over or upon any 
 part of the highway, or infringes in anywise upon the ordinary pro- 
 prietary rights of the owner of the soil(z). Nor do the Highway Acts 
 or the Metropolis Local Management Acts interfere with this right, or 
 the fact that the public have appropriated part of the highway to one 
 kind of passage, viz., for carriages, and another part to another, e.g. 
 to foot-passengers. For the reasonable use and enjoyment therefore 
 of his own premises the owner may make a carriage-way across the 
 foot-way(a). And the same rule prevails with regard to land over 
 which any other privilege or easement has been granted to particular , 
 individuals, or to the public at large, such as a stall in a market(6). 
 385 Of continuing trespasses. — If a man throws a heap of stones, or builds 
 a wall, or plants posts or rails on his neighbor's land, and there leaves 
 them, an action will lie against him for the trespass, and the right to 
 sue will continue from day to day, until the incumbrance is removed. 
 An action may be brought for the original trespass in placing the 
 incumbrance on the land, and another action for continuing the thing 
 60 erected ; for the recovery of damages in the first action, by way 
 of satisfaction for the wrong,, does not operate as a purchase of the 
 right to continue the injury(c). 
 
 iy) . Goodtitle v. Alter, 1 Burr. 133. Cole v. Drew, 44 Vt. 49. Holden ». Shattuok, 34 Vt. 336. 
 Perley v. Chandler, 6 Mass. 4S>i. Staokpole v. Healj', 18 id. 38. Jackson v. Hathaway, 16 
 Johns. 447. Etz o. Daily, 20 Barb. (N. Y.) 32. But it will not lie for a street unless the occu- 
 pation of it by the defendant is wholly inconsistent with the public easement. Adams v. 
 Saratoga & Washington R. E., 11 Barb. (N. Y.) 414. 
 
 (a) 3 Com. Dig. Chimin. (A. 2), 27. Lade e. Shepherd, 2 Str. 1004. Every ». Smith, 26 Law 
 J., Exrch. 345. See 27 & 28 Vict. c. 101, s. 51, ante, p. 272 ; Cole v. Drew, 44 Vt. 49 ; Hollenbect 
 V. Bowley, 8 Allen (Mass.), 473 ; and see Pound v. Plumstead Board of Works, L. E., 6 Q. B. 
 183 ; and cases cited in the preceding note. 
 
 A private individual, under the direction of the proper officer, may lawfuUy cut the grass 
 growing beside the highway if it impedes the exercise of the right of the public to the enjoy- 
 ment of the public easement. But the grass belongs to the owner of the fee, and if the per- 
 son cutting it carries it away, this renders the whole act wrongful, and the person committing 
 it a trespasser o6 initio. Cole o. Drew, 44 Vt. 49. 
 
 (a) St. Mary Newingtono. Jacobs, L. E., 7 Q. B. 47. 
 
 (6) Mayor of Northampton v. Ward, 1 Wils. 114. 
 
 (c) Hohnes ». Wilson, 10 Ad. &. E. 603. Bowyere. Cook, 4 C. B. 236. 
 
yec. 2.] LmiTATION OF ACTIONS. SSvi 
 
 SECTION II. 
 
 OF THE TITLE TO LAND, FENCES, AND BOUNDAKT-WALLS. 
 
 386 Proof of possession of land and pernancy of the rents is prima fade 
 evidence of a seisin in fee of the person possessed, the presumptioii being 
 in favor of the fee and not of any less estate(d), until it is rebutted by 
 a contrary presumption arising frorn the surrounding circumstances. 
 If, therefore, a person is shown to be in receipt of rent, he is presumed 
 to be entitled to the reversion in fee of. the land in respect of which 
 the rent is received, unless the rent is so disproportioned to the annual 
 value of the property, as to lead to the presumption of its being a 
 mere quit rent(e). Thus; in an action on the case for an injury to the 
 plaintiff's reversion in cutting down trees on land in the possession 
 of his tenant, proof of payment of rent by the latter to the plaintiff is 
 prima fade evidence of the plaintiff being the reversioner, and of the 
 trees being his property(/). 
 
 387 Trial of title in an action of trespass. — If the defendant, in an action 
 for a trespass committed by him upon the land or messuage of the 
 plaintiff, pleads that the close or land in which the trespass was com- 
 mitted was the soil and freehold of the defendant, the plaintiff's title 
 to the property is in issue, and also his right of possession (post, s. 3), 
 and the defendant may, under this plea, bring forward evidence to 
 show that he had a right to enter upon the close because it was his 
 freehold, or because it has been demised to him, or because he has ob- 
 tained an indefeasible title under the statute for the linlitation of ac- 
 tions and suits relating to real property(^). 
 
 388 Title to realty from twenty yeari possession — Limitation of actions for 
 the reccm&ry of realty. — By 3 & 4 "Wm. 4, c. 27, s. 2, entitled " An Act 
 for the Limitation of Actions and Suits relating to Real Property," it 
 is enacted, that no person shall make an entry or distress, or bring an 
 action to recover any land or rent, but within twenty years next after 
 the time at which the right to make such entry or distress, or to 
 bring such action, shall have first accrued to some person through whom 
 he claims ; or, if such right- shall not have accrued to some person 
 
 (d) Jayne v. Price, 6 Taunt. 326. Doe v. Peufold, 8 C. & P. 537. 
 
 (e) Doe V. Johnson, Gqw, 183. KeynolcJs v. Eeynolds, 12 Ir. Eq. Eep. 181. 
 (/) Daintry v. Brooklehnrst, 3 Exch. 209. 
 
 [g) As to tlie registration of title to real estate, sue 35 & 26 Vict- o. 53. 
 
834 TRESPASS UPON REALTY. [Chap. 6. 
 
 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 ac- 
 tion, shall have first accrued to the person making or bringing the 
 same(^). Where the person really entitled to an estate is in posses- 
 sion but as agent for another, to whom he, under a mistake, accounts 
 for the rents, he has no right of entry without giving up his agency ; 
 the person in receipt of the rents, therefore, may acquire a title by 
 long possession as against him(i). An encroachment made by a tenant 
 is made for the benefi.t of his landlord,' and the statute, therefore, does 
 not apply to the land enclosed till the termination of the tenant's in- 
 terest(j). 
 389 Aecriial of the right on dispossession or discontinuance of possession. — 
 When the person claiming such land or rent, or some person through 
 whom he claims, has, in respect of the estate or interest claimed, been 
 in possession or receipt of the profits of the land, or in receipt of the 
 rent, and has, while entitled thereto, been dispossessed, or has discon- 
 tinued such possession or receipt, then the right is to be deemed (s. 3) 
 
 (ft) Brassington v. Llewellyn, 27 Law J., Exch. 297. 
 
 The period within wliich real actions must be brought has been made the subject of variona 
 statutory provisions, and in many, but not all of the States, the English period of limitation 
 has been adopted. 
 
 The States which require all actions for the recovery of lands to be brought within twenty 
 years, are : New Yorli (Code, Si 78, 79, 80), New Jersey (Laws of 1799, if 9, 10, 12, 13; Nixon's 
 Dig., 1855, p. 436), Maine (Kev. Stat, of 1S57, tit. 9, cb. 105), New Hampshire (Gen. Stat, of 1867, 
 cb. 202, }} 1, 2), Massachusetts (Gen. Stat, of 1800, oh. 154), Rhode Island (Eev. Stat, of 1857, 
 ch. 148. Si 2, 3), Delaware (Code of 1852, ch. 122, p. 439), Maryland (Code of 1800, art. 67, i 9, p. 
 397), Indiana (2 fiev. Stat., 70, 77), niinois (2 Comp. Stat, of 1858, pp. 749, 750). Wisconsin (Kev. 
 Stat, of 1858, ch. 138, ii 1-14, p. 819), Minnesota (Gen. Stat, of 1868, oh. 60, S 4), Oregon (Gen. 
 Stat, of 1864, tit. 2, ch. 1, i 4), Florida (Thomp. Dig. of 1847, p. 441). 
 
 The statutes of some of the States have fixed the period of limitation at fifteen years. This 
 is the rule in Vermont (Gen. Stat, of 1863, oh. 63, ii 1, 2, 3, 18, 21), Connecticut (Gen. Stat, of 
 1866, p. 551), Kansas (Eev. Stat, of 1868, oh. 80, $S 16, 19), Virginia (Code of 1860, tit. 45, ch. 148, 
 SS 1-4, 18), Kentucky (2 Rev. Stat, of 1S60, ch. 63, Si 1, 2, pp. 12S, 126). 
 
 The limitation of twenty-one years has been adopted in Pennsylvania (Purdon's Dig. of 
 1861, pp. 652-654), Ohio (2 Eev. Stat, of 1860, cb. 87, Si 9, 10, 23), and Nebraska (Rev. Stat, of 
 1806, part 2, tit. 2, Si 6, 7). 
 
 In some of the other States the statutes have fixed the period of limitation at ten years. This 
 is the rule in Iowa (Rev. Laws of I860, ii 2740-2750), Missouri (2 Gen. Stat, of 1866, ch. 191), 
 Nevada (Laws of 1861, ch. 12, §S 3-15, 21; Laws of 1867, ch. 49), South Carolina (Stat, at Large, 
 1712, 1744, 1788, 1824), Alabama (Code of 1867, SS 2899, 2900, 2909, 2910), Mississippi (Eev. Code 
 of 1857, cb. 57, Si 1, 2, p. 398), and Texas. 
 
 The States which fix the period of limitation at seven years, are North Carolina (Kev. Cod'? 
 of 1854, ch. 65, ii 1, 2, p. 371), Georgia (Laws of 1836, No. 179, SS 1-24), and Tennessee (Code m. 
 1858, p. 531, SS 2755, 2757, 2763-2768). 
 
 In California the period of limitation is fixed at five years, and in Arkansas at three years. 
 
 In most if not all of these States the statutes have extended the period of limitation in ac- 
 tions in which the people are a party, or in which some of the parties are under disability, 
 and in a few States exceptions exist in favor of absentees. These exceptions will be noticed 
 in a subsequent note. But the references to the statutes given above will be found to cover 
 the exceptions as well as the rule. 
 
 («) Williams e. Pott, L. K., 12 Eq. Ca. 149. 
 
 (J) Whitmore r. Humphries, L. E., 7 C. P. 1. 
 
Sec. 2.] LIMITATION OF ACTIONS. 335 
 
 to have first accrued at the time of such dispossession or discontinu- 
 ance of possession, or at the last time at which any profit or rent was 
 so received. 
 
 390 What is a dispossession or discontinuance of possession causing the time 
 of limitation to begin to run. — The word discontinuance of possession 
 means an abandonment of possession by one person, followed by the 
 actual possession of another person; for if no one succeed to the 
 possession vacated or abandoned, there could be no one in whose 
 favor, or for whose protection, the act would operate. To constitute 
 discontinuance, there must be both dereliction by the person who has 
 the right and actual possession, whether adverse or not, to be pro- 
 tected(^). Therefore, where the owner of the fee simple of a close, 
 with a stratum of coal and other minerals under it, has conveyed the 
 surface to one under whom the plaintiff claims, reserving the minerals 
 and a right of entry to get them to another, under whom the defend- 
 ant claims, the title and right of entry of the grantees of the mines 
 is not barred by simple non-user for more than forty years, no other 
 person having worked or been in possession of the mines(Z). 
 
 391 Occupation by poor relations and servants — The possession of the servant 
 the possession of the master. — A landowner who accommodates a poor 
 relation with a cottage and garden, does not necessarily part with 
 the possession of the property occupied by such poor relation. The 
 latter may have the mere custody of the property; his possession, 
 such as it is, may be the possession of the landowner ; and the latter 
 may retain and continue to exercise his proprietary and possessory 
 rights so as to rebut the presumption that he has parted with . the 
 possession of the property, and prevent the operation of the Statute 
 of Limitations(»w). If a landowner allows his gardener, or servant, 
 or workman employed upon his estate, to live in a cottage thereon 
 rent-free, the possession of the servant is the possession of the master, 
 and the servant has no greater interest in the land than a coachman 
 who occupies part of his master's coach-house, or sleeps over his 
 master's stables ; and no title can be gained by such an occupation 
 and enjoyment of the master's prpperty, however long it may be 
 continued. And if a landowner, from motives of kindness or charity, 
 allows a dependent, relative, or friend to occupy a cottage and land 
 upon his estate, and the landowner, during such occupation, continues 
 
 (*) Blackburne, C.J., M'Donnoll v. M'Kinty, 10 Irish LawEep. 616. 
 (l) Smith V. Lloyd, 23 Law J., Bxch. 194; 9 Exch. 671. 
 
 (m) Bertie v. Beaumont, 16 East, 33. Hunt v. Colson, 3 M. & Sc. 791. Doe v. Stanton, 2 B. 
 & Aid. 371. Mayhew o. Suttle, 4 El. & El. 353. 
 
336 TRESPASS UPON BEALTT [Chap. 6. 
 
 to exercise acts of ownership over the land so occupied ; if he repairs 
 the buildings, cuts down or plants trees, or causes drains to be made 
 through the land, or quarries and carries away stone, all these acts of 
 dominion exercised by him over his own property show that he has 
 never parted with the possession of it, although he has allowed another 
 person to occupy it, and share with him in the use and enjoyment 
 thereof(»i). A society, also, which allows its agent to live on its 
 premises rent-free does not confer any estate or interest in the land 
 upon the latter, but the occupation is merely the occupation of a ser- 
 vant(o). 
 
 392 Accrual of the right on death, alienation, forfeiture, etc. — Provision is 
 also made (s. 3) for the accrual of the right, and the commencement 
 of the period of limitation when the person claiming the land or rent 
 claims the estate or interest of some deceased person, who continued 
 in possession or receipt of the profits of the land 'or rent in respect of 
 the same estate or interest until the time of his death, and was the 
 last person entitled to the estate or interest in such possession or re- 
 ceipt ; also when such person claims in respect of an estate or interest 
 in possession granted, or assured, by any instrument other than a will 
 to him, or some other person through whom he claims, by a person, 
 being in respect of the same estate or interest in the possession or re- 
 ceipt of the profits of the land or in receipt of the rent, and no person 
 entitled under such instrument has been in possession or receipt ; also 
 when the estate or interest claimed has been an estate or interest in 
 reversion or remainder, or other future estate or interest, and no person 
 has obtained possession or receipt of the profits of the land, or the re- 
 ceipt of rent in respect of such estate or interest ; also when the claim- 
 ant, or the person through whom he claims, has become entitled by 
 reason of any forfeiture, or breach of condition. 
 
 Provision is made (ss. 4, 5) for giving new rights of entry, etc., to 
 remaindermen and reversioners in certain contingencies. 
 
 39J: Conversion of defeasible tenandes-at-wUl into an indefeadhle title — Pos- 
 session of land by a cestui qui trust. — ^When any person is in possession 
 or receipt of the profits of land or rent as tenant-at-will, the right of 
 the person entitled subject thereto, or of the person through whom he 
 claims, to make an entry or distress, or bring an action to recover such 
 land or rent, is to be deemed (s. 7) to have first accrued eij;her at the 
 determination of such tenancy or at the expiration of one year next 
 
 (n) Tamer v. Doe, 9 M. & W. 645. 
 
 (o) White V. BaUey, 10 C. B., N. S. 227; 30 Law J., C. P. 253. 
 
Sec. 2.] LIMITATIOJf OF ACTIONS. 337 
 
 after the commencement thereof, at which time such tenancy shall be 
 deemed to have determined(j>). But it is provided that no mortgagoi 
 or cestui que trust shall be deemed to be a tenant-at-will to his mort- 
 gagee or trustee within the meaning of that clause(g'). This proviso is 
 applicable only to cases of express and declared trusts(7') ; so that a 
 person let into possession of and holding lands under an agreement to 
 purchase, is not a cestui que trust within this proviso(s). A cestui que 
 trust may, in a certain sense, be tenant-at-will to his trustee, if he has 
 been let into possession of the trust estate by the latter, although he 
 is not a tenant-at-will capable of acquiring a title by reason of his 
 possession, within the third section of the statute. The possession 
 of the cestui que trust is, in fact, the possession of the trustee, and the 
 time of limitation will not run against the latter, so long as the rela- 
 tionship of trustee and cestui que trust subsists(i). But this applies 
 only to the case where the cestui que trust is the actual occupant. 
 If he is merely allowed to receive the rents or otherwise deal with the 
 estate in the hands of the occupying tenants, he stands in the relation 
 only of an agent or bailiff of the trustees, who choose to allow him to 
 act for them in the management of the estate ; and if the actual occu- 
 pier is, under such circumstances, permitted to occupy for more than 
 the twenty years prescribed by the statute, without paying rent, the 
 trustees lose their title, and the actual occupier gains the title exactly 
 as in an ordinary case of landlord and tenant(M). But if the cestui 
 que trust has been let into possession by the trustees, the tenancy 
 between him and his trustees will not be determined by his under- 
 letting the premises, unless the trustees have notice of such underlet- 
 ting; for though the general rule is that a tenancy-at-will is not 
 assignable, because the transfer determines the tenancy, .yet the rule 
 is subject to the qualification that a tenant-at-wiU cannot at common 
 law determine his tenancy by transferring his interest to a third 
 party, without notice to his landlord(a;). 
 394 Title of bona-flds purchasers of trust estates. — ^When any land is vested 
 in a trustee upon any express trust, the right of the cestui que trust, 
 or any person claiming through him, to bring a suit against the 
 
 (p) Doe V. Moore, 9 Q. B. 661. See Day v. Day, L. E., 3 P. C. Ca. 751. 
 (q) See Thorp v. Facey, post, p. 343. 
 (r) Drummond v. Sant, L. E., 6 Q. B. 763. 
 («) Doe V. Eock, 4 M. & Gr. 31. 
 
 it) Garrard v. Tuck, 8 C. B. 252 ; 18 L. J., 0. P. 338. Drummond v. Sant, supra. 
 (M) Moiling V. Leak, 16 C. B. 669 ; 24 Law J., C. P. 187. Doe ». Phillips, 10 Q. B. 134. 
 (a) Carpenter v. CoUins, Telv. 73. Pinhorn v. Souster, 8 £xch. 763. MeUing v. Leak 16 C. 
 B. 669. 
 
 Ad. Vol. I.— 22 
 
338 TRESPASS ON REALTT. [Chap. 6. 
 
 trustee, or any person claiming through him, to recover such land, is 
 (s. 25) to be deemed to have first accrued at, and not before, the time 
 at which such land shall have been conveyed to a purchaser for a valu- 
 able consideration, and shall then be deemed to have accrued only as 
 against such purchaser, and any person claiming through him(2/). 
 
 395 Acquisition of title iy persons who obtained possession originally as fen- 
 ants from year to year. — When any person is in possession or receipt 
 of the profits of any land or rent, as tenant from year to year, or other 
 period, ■without any lease in writing, the right of the person entitled 
 subject thereto, or of the person through whom he claims, is to be 
 deemed (s. 8) to have fijst accrued at the determination of the first 
 of such years or other periods, or at the last time when any rent, pay- 
 able in respect of such tenancy, shall have been received (which shall 
 last happen). A tenant holding a house of parish officers upon the 
 condition of sweeping the church, or ringing the church-bell, is a 
 tenant from year to year within this section of the statute(2). The 
 words " lease in writing," are construed to mean not merely a demise 
 in writing, but such an instrument as passes an interest(a). Verbal 
 declarations and admissions made by a tenant in possession of his 
 having paid rent, and of the person to whom it was paid, are admis- 
 sible in evidence to establish the fact of the receipt of rent within 
 this section(&). 
 
 896 Effect of continued wrongful receipt of rent. — It is also enacted (s. 9), 
 that when any person shall be in possession or receipt of the profits 
 of any land, or in receipt of any rent, by virtue of a lease in writing, 
 by which a rent of 20s. or upwards shall be reserved, and the rent 
 shall have been received by some person wrongfully {i.e., without 
 any title, not wrongfully in the sense of an improper intention to 
 deprive others of their property(c) ) claiming to be entitled to such 
 land or rent in reversion, immediately expectant on the determination 
 of such lease, and no payment in respect of the rent reserved by 
 such lease shall afterwards have been made to the person rightfully 
 entitled thereto, the right of the person entitled to such land or rent, 
 subject to such lease, or of the person through whom he claims to 
 make an entry or distress, or bring an action, after the determination 
 of such lease, shall be deemed to have first accrued at the time at 
 
 {y) See Waltei-s v. Webb, L. E., 9 Eq. Ca. 83 ; 5 Ch. App. 531. 
 
 (2) Doe V. Benham, 7 Q. B. 982. Doe v. BiUett, ib. 983. Doe-». Hinde, 2 M. & Bob. 441. 
 
 (a) Doe o. Gower, 17 Q. B. 589; 21 Law J., Q. B. 57. 
 
 (6) Doe r. Beckett, 4 Q. B. 006; 12 Law J., Q. B. 236. 
 
 (c) Williams v. Pott, L. E., 12 Eq. Ca. 149. 
 
Sec. 2.] LIMITATION OF ACTIONS. 339 
 
 which the rent was first so received by the person wrongfully claiming; 
 and no such right shall be deemed to have first accrued upon the 
 determination of such lease to the person rightfully entitled. 
 
 397 Entry upon land, and cimtinued claim. — It is further enacted (s. 10), 
 that no person shall be deemed to have been in possession of any 
 land within the meaning of the Act, merely by reason of his having 
 made an entry thereon ; and (s. 11) that no continual or other claim 
 upon or near any land shall preserve any right of making an entry, 
 or distress, or of bringing an action. 
 
 398 Possession of coparceners, joint^tenants, and tenants-inrCommon.—When 
 any one or more of several persons entitled to any land or rent as 
 coparceners, joint-tenants, or tenants-in-common, shall have been in 
 possession or receipt of the entirety, or more than his or their undivided 
 share, for his or their own benefit, or for the benefit of any person 
 other than the persons entitled to the other shares of the land or 
 rent, such possession or receipt is not to be deemed to have been the 
 possession or receipt of or by such last-mentioned persons, or any of 
 them. 
 
 399 Possession of younger brothers or relations. — When a younger brother 
 or other relation of a person entitled as heir to the possession or receipt 
 of the profits of land, or to the receipt of rent, enters into the pos- 
 session or receipt thereof, such possession or receipt is not to be deemed 
 to be the possession or receipt of the heir. 
 
 400 Acknowledgments of title. — By s. 14 it is further enacted, that when 
 any acknowledgment of the title of the person entitled to any land or 
 rent shall have been given to him or his agent in writing, signed by 
 the person in possession or in receipt of the profits of such laud, or in 
 receipt of such rent, then such possession or receipt by the person by 
 whom such acknowledgment shall have been given shall be deemed to 
 be the possession or receipt of the person to whom or to whose agent 
 such acknowledgment shall have been given at the time of giving the 
 same ; and the right of such last-mentioned person, or any person 
 claiming through him, shall be deemed to have first accrued at, and 
 not before, the time at which such acknowledgment, or the last of such 
 acknowledgments, if more than one, was given(c?). 
 
 401 Ecclesiastical and eleeinosynary corporations are allowed (s. 29) two 
 incumbencies, or sixty years, for the recovery of land. 
 
 403 Disabilities. — Ten years are allowed (s. 16) in all cases for persons 
 
 (d) Ley V. Peter, S H. & N. 101 ; 27 Law J., Exch. 239. Goode v. Job, 28 ib. Q. B. 1. Furs 
 don V. Clogg, 10 M. & ■W. 876. 
 
340- TSESP^ss on' MHAhTF. [Chap. 6 
 
 under disability from the time the disability ceases, but no action is to 
 be brought (s. 17) aftet forty years. The disabilities enumerated as 
 having the- effect of extending the period of limitation, are infancy, 
 coverture, idiotcy, lunacy, unsoundness of mind, and absence beyond 
 seas, at the time the right to make an entry or distress, oi* bring action 
 to recover any land or rent, shall have first accrued. The extension 
 of the period of limitation is granted also from the death of the person 
 under disability. If a person before the first disability, e.ff., infancy, 
 be removed, becomes subject to another, e.ff., by marriage, the ten years 
 rim from the date of the removal Of the last disability (e). 
 
 (e) Borrows v. Ellison, L. R., 6 Exch. 128. The length of time during wliioli the ordinary 
 period for the commencement of actions for the recovery of real property, etc., will be ex- 
 tended where the plaintiff was under disability when the cause of action accrued, varies in 
 the different States; 
 
 In tfew York " if a person entitled to commence an action for the recovery of real prop- 
 erty, or to make an entry or defence founded on the title to real property, or to rents or ser- 
 vices out of the same, be at the time such title shall first descend or accrue, either within the 
 age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon 
 conviction of a criminal offence, for a term less than for life, the time during which such dis- 
 ability shall continue, shall not be deemed any portion of the timeilimited for the commence- 
 ment of such action, or the making of such entry or defence ; but such action may be com- 
 menced, or entry or defence made after the period of twenty years, and within ten years after 
 the disability shall cease, or after the death of the person entitled who shall die under such 
 disability ; but such action shall not be commenced, or entry or defence made after that tiine." 
 Code, S 88. 
 
 It will be seen by reference to the statutes of the various States, that in' New York, New 
 Jersey, Vermont, Connecticut, Pennsylvania, Delaware, Ohio, Minnesota, Missouri, Nebraska, 
 Nevada, Oregon, Georgia, North Carolina and Alabama, exceptions are made and the 
 statute of limitations extended in favor of persons under disability arising from infancy, 
 insanity, imprisonment or coverture. 
 
 In Maine, Massachusetts, Rhode Island, Michigan, North Carolina and Tennessee the ex- 
 ception covers also persons absent from the United States ; and in Illinois the exception 
 extends to persons out of the limits of the United States and in the employment of the United 
 States, or of the State of Illinois. 
 
 A similar exception is embodied in the statutes of Mississippi and Kentucky, except that in 
 the latter State imprisoned persons are specified among the persons excepted. 
 
 In Florida the exception extends to Infants, married women, persons non compos menifs, 
 imprisoned or absent from the State. 
 
 _In Texas, Virginia and Indiana, no exception exists in favor of imprisoned persons ; and 
 in Iowa the exception applies only to minors. 
 
 In New Jersey, Vermont, New Hampshire, Oregon; Mississippi and Texas the statute of 
 limitations does not run against persons under disabilities. 
 
 In Maine, Rhode Island, Pennsylvania, Delaware, Ohio, Nebraska and Florida, the statute 
 is so far modified in favor of persons under disability, as to authorize the commencement of 
 an action to recover real property at any time within ten years from the removal of the disa 
 bility. 
 
 The same rule has been adopted in Virginia, except that the time of limitation can in no 
 case be extended beyond thirty years after the right of action or entry accrued. 
 
 In Connecticut, Michigan and Nevada, the statute of limitations is so far extended in favor 
 of persons under disabilities as to allow an action to be brought at any time within five years 
 after the removal of such disabilities. 
 
 In Illinois an action to recover lands or tenements may be commenced within three years 
 after the several disabilities have ceased to exist. The same rule has been adopted in Ten- 
 nessee. In Kentucky the action may be brought at any time within three years after disabil- 
 ities have been removed, provided the time limited by the statute oannol be extended by rea 
 
Sec. 2.] LIMITATION OF ACTIONS. 341 
 
 By section 26 it is enacted -that, in case of concealed fraud, the right 
 of a person to hfing a suit in equity for the recovery of land or rent, 
 shall be deemed to have first accrued at the time at which such fraud 
 shall, or with reasonable diligence might, have been first discovered(/). 
 403 Preservation of the rights of the landmoner hy re-entry and reswmption 
 of possession of lands before the expiration of the p&riod of limitation. — 
 We have seen that, by s. 7 of the 3 & 4 Wm. 4, c. 27, when any per- 
 son is in possession of land as tenant-at-will, the right of the land- 
 owner to enter upon the land, or recover it by action, accrues either at 
 the determination of such tenancy, or at the expiration of one year 
 after the commencement thereof, at which timeithe tenancy,. if not 
 previously determined by the act of the landowner, shall be deemed 
 to have determined {ante, p. 336). We have seen, also, that no person 
 is to be deemed to have been in possession of land within the meaning 
 of the Act, merely by reason of his having made an entry thereon, 
 and that no continual claim upon, or near to, land, shall preserve any 
 right of making an entry or bringing an action {ante, p. 339). "The 
 making an entry," observes Cresswell, J., " amounts to nothing unless 
 something is done to divest the possession out of the tenant and revest 
 it in fact in the lord." Where, therefore, the defendant has inclosjsd 
 a piece of land from the waste and built a hut thereon, and the lord 
 of the manor entered upon the premises, and said he took possession 
 in his own right, and ordered a stone to be removed from the hut, ajid 
 a portion of the fence to be thrown down, but did not turn the defend- 
 ant and his family out of the cottage, it was held that this was no 
 
 eon of any death or disability beyond thirty years tiom the time the cause of action first 
 accrued. 
 
 In North Carolina the action may be commenced at any time within three years after the 
 disabilities are removed, and within eight years after the title or claim becomes due. 
 
 In Alabama the statute of limitations may be extended three years in favor of persons un- 
 der disabilitieSj but the period of limitation can in no case be. extended longer than twenty 
 years after the cause of action or right of entry first accrued. 
 
 In Missouri the statute of limitations is extended three years in favor of persons under dis- 
 abilities, except that no action can be commenced or entry made by any persoi under disa- 
 bility after the expiration of twenty- four years after the cause of action or right of entry ac- 
 crued. 
 
 In Indiana and Arkansas the statute is extended two years in favor of persons under disabil- 
 ities. 
 
 In South Carolina any person or persons beyond the seas, or out of the limits of the State, 
 feme covert, or imprisoned, are allowed two years to prosecute their claim ; and persons mm 
 compos m«nti» have one year after the disability ceases for the same purpose. 
 
 In Iowa minors have one year after their majoj-ity in which to commence their action. 
 
 In Minnesota the statute does not run against persons under disability, except that the 
 period within which the action must be brought cannot be extended more than five years by 
 reason of any disability except infancy, nor can it be extended in any case longer than one 
 year after the disability shall cease. 
 
 For a reference to the statutes relating to the limitation of actions, see a/nte, p. , note • 
 
 (/) See Chetham e. Hoare, L. R., 9 Eq.. Ca. 571. 
 
342 TSUSFASS ON REALTY. [Chap. 6. 
 
 interruption of the possession of the defendant, and no vesting of the 
 possession in himself, and that the lord had not done enough for the 
 assertion of his rights, and for preventing the defendant from gaining 
 a title under the statute(p'). 
 
 "Where, on the other hand, the overseers of a parish put the plain- 
 tiff into possession of a parish cottage as a parish pauper, and, he hav- 
 ing continued in possession for a long time without paying any rent, 
 the overseers in 1839 entered upon the cottage, to prevent him from 
 gaining a title under the statute, and turned out both him and his 
 family, and removed his furniture ; but, on the same day, the plaintiff 
 resumed possession of the cottage, and continued in possession till 
 July, 1852, when the overseers again entered, and, he refusing to 
 deliver up the cottage, they destroyed it, and the plaintiff then 
 brought an action of trespass, and the defendants pleaded that the 
 cottage was not the property of the plaintiff, it was held that the right 
 of the defendants was not barred, as they had in 1839 actually dis- 
 possessed the plaintiff, and resumed possession of the cottage, and 
 clothed themselves with their original rights. 
 
 "Whether the plaintiff," observes Lord Campbell, "during the 
 interval between 1839 and 1852 was tenant-at-will or tenant-at-suffer- 
 ance, or a mere trespasser, seems to be wholly immaterial, so that the 
 overseers had not in the interval done anything to prejudice the right 
 of entry which vested in them in 1839. It is admitted that the plain- 
 tiff would have had no title had the jury found that his subsequent 
 occupation was under a new tenancy-at-will ; but how would this at 
 all have affected the new right of entry which had accrued in April, 
 1839 ? An attempt was made to do away with the effect of what then 
 happened, by resorting to section 10 of the statute, which enacts, ' that 
 no person shall be deemed to have been in possession of any land 
 within the meaning of this Act, merely by reason of having made an 
 entry thereon.' But this evidently applies to a mere entry, as for the 
 purpose of avoiding a fine, which may be made by stopping on any 
 comer of the land in the night-time and pronouncing a few words, 
 without any attempt, or intention, or wish to take possession. In the 
 present case possession was actually taken by the overseers animo 
 possMendi ; and whether possession was retained by them an hour or 
 a week must, for this purpose, be immaterial "(^). So, where a tenant- 
 
 (g) Doe V. Coombes, 9 C. B. 718 ; 19 Law J., C. P. 906. Brassington v. Llewellyn, 27 Law J., 
 Bxch. 297. 
 (ft) KandaU v. Stevens, 2 EU. & Bl. 650 ; 23 Law J., Q. B. 71. 
 
Sec. 2.] TITLE TO CHURCH, CHANCEL AND CHURCHTARD. 34B 
 
 at-will refused to go out, and was served with a writ of ejectment, and 
 an arrangement was then come to by which he gave up part of the 
 land, and was allowed to remain in a cottage during his life, it was 
 held that a new tenancy-at-will commenced on the making of this 
 arrangement, and that the time of limitation began to run one year 
 after the making thereof(i). 
 
 404 Rights of mortgagees. — ^The 7 Wm. 4 & 1 Vict. c. 28, provides that it 
 shall be lawful for any person claiming under any mortgage of land 
 to make an entry, or bring an action or suit to recover such land, at 
 any time within twenty years next after the last payment of any part 
 of the principal money or interest secured by such mortgage, although 
 more than twenty years may have elapsed since the time at which the 
 right to make such entry, or bring such action or suit, shall have first 
 accrued(7i;). Where in ejectment for a house by mortgagee against 
 mortgagor it was proved that in 1847 a declaration in ejectment had 
 been served on the mortgagor, who was in possession, and that judg- 
 ment was signed, and that shortly afterwards the mortgagor ceased to 
 have possession of the land (which had been mortgaged with the 
 house), but retained possession of the house, it was held that there 
 was no evidence of possession by the mortgagee, or of the creation of 
 a new tenancy under him in 1847, so as to prevent the operation of 
 the statute(Z). 
 
 405 Title to the church, chancel, and churchyard. — ^Although the freehold 
 of the church and chancel, as well as the freehold of the churchyard, 
 is in the rector, whether spiritual or lay, yet the right of possession is 
 in the incumbent, who is responsible to the ordinary for the celebra- 
 tion of divine service(wz). Where there is a spiritual rector he has, 
 when inducted, corporeal possession of the church for the use of the 
 parishioners. When there is no spiritual rector, the vicar or the per- 
 petual curate has upon induction the like possession for the like 
 puTposes(M). A lay rector, therefore, has no right as against the vicar 
 to the possession of the church or chancel(o). He is, however, prima 
 facie, entitled to the freehold of the churchyard, and to the trees and 
 herbage growing there, although where the vicar has had the enjoy- 
 ment of the pasturage for a long period, it would be presumed to be 
 
 (») Locke V. Matthews, 13 C. B., N. S. 753 ; 33 Law J., C. P. 98. 
 V*) Doe V. Massey, 17 Q. B. 381 ; 20 Law J., Q. B. iM. 
 (i) Thorp V. Pacey, 35 Law J., C. P. 349. 
 (m) See Eugg v. Bishop of Winchester, L. E., 2 P. C. C. 223. 
 
 («) Griffln v. Dighton, 33 Law J., Q. B. 29. Ibid. 181 (Exch. Ch.). As to tombstones, S90 
 cmte, p. 9; 31 & 32 Vict. o. il. As to pews, see post, p. 355. 
 (o) Griffln v. Dighton, ut sup. 
 
344 TBESPASS ON REALTY. [Chap. 6. 
 
 part of his original endowment. It is questionable, however, whether 
 such a presumption would extend to a perpetual curate, although for 
 spiritual purposes he has, like the vicar, uncontrolled possession of the 
 church and churchyard(p). And the vicar, it seems, has no right, 
 strictly speaking, to fees for the erection of monumental tablets, or for 
 the construction of vaults in the chancel(g'). 
 
 The freehold of a churchyard, which has been closed under an 
 Order in Council, remains in the rector or vicar, in whom it was 
 vested at the time of the order(7'). The 20 & 21 Vict. c. 81, which 
 authorizes the Queen in Council to prevent, by order, vaults or places 
 of burial from becoming injurious to the public health, only applies 
 to grounds, at the time of the order, used for the purpose of burial, 
 or which may again be so used as of right. An Order in Council, 
 therefore, directing the churchwardens to enter upon what was for- 
 merly a burial ground, is invalid, and the parties acting under it will 
 be trespassers(s). A churchwarden has no right without a faculty, 
 to remove portions of the soil, and the bones of deceased persons from 
 the churchyard, and if a monition from the Ecclesiastical Court issues 
 against him to replace them, it is no answer to say he has transferred 
 the land on which they were placed to another(i). The immemorial 
 occupation and repair of a private chapel or chancel attached to a 
 church, will entitle the lord of a manor, by prescription, to its exclu- 
 sive use, although the freehold may be in another, and although the 
 estate or house to which the chapel or chancel is appendant may not 
 be situate in the parish(M). And the immemorial repair of such a 
 chapel in a parish church, coupled with other acts of ownership, is 
 evidence of a right of freehold in it, which may be conveyed to a 
 third person, and is not necessarily appendant to any house(a;). 
 
 (p) Greenslade v. Darby, L. K., 3 Q. B. 4S,1. By 31 & 32 Vict. t. 117, he may now, under 
 certain circumstances, be designated as vicar. 
 
 (g) Eugg V. KingsmiU, L. E., 2 Pr. Co. Ca. 59. 
 
 (r) Champneys v. Arrowsmith, L. E., 2 C. P. 602. Ibid. 3 C. P. 107. As to bis rigbt to 
 compensation if it be taken compulsorUy under an Act of Parliament, see Stebbingv. 
 Metrop. Board of Works, post, ch. 16, s. 2; see also, Campbell v. Mayor and Corporation of 
 Liverpool, L. E., 9 Eq. Ca. 679. Ex parte Rector of Liverpool, L. E., 11 Eq. Ca. 15. Ex parte 
 Eector of St. Martin's, Birmmgbam, ib. 23. 
 
 (a) Foster v. Dodd, L. E., 1 Q. B. 475; 3 ib. 67. An act authorizing the vacation of a grave- 
 yard and the removal of bodies therefrom, is constitutional as an exercise of the police 
 power of the State. 'KiBcaid's Appeal, 66 Perm. St. 411. That the opening of a highway, by 
 town authorities, through a cemetery may be enjoined, see Trustees, etc. v. Walsh. 57 111. 
 363. That trespass will lie against the Superintendent of a cemetery for removing remains 
 therefrom, see Meagher v. DrisooU, 99 Mass. 281. 
 
 If) Adlam ». Colthurst, L. E., 2 Adm. & Eccl. 30. 
 
 («) Churton v. Frewen, L. J., 2 Eq. Ca. 634. As to the right to ring the church bells, oec 
 Durant w. Crocker, L. E., 2 Adm. & Eccl. 41. 
 
 (a) Chapman v. Jones, L. E., 4 Bxch. 273 ; 38 L. J., Exch. 169. 
 
Sec. 2.] TITLJE TO SMA-SHOBE, ETC. 345 
 
 The rector is entitled to the 'keys of the chuTch, although the church- 
 wardens have » right of access to it at proper seasons. The latter 
 cannot remove ornaments which have been illegally placed in the 
 parish church, eXcept under the sanction of the ordinary(y). Biit they 
 are entitled to the communion plate as against the rector, in case oif 
 its conversion by him(z!). 
 
 A sexton of a parish church, for the churchyard of which a burial- 
 ground has been substituted under 15 & 16 Vict. ch. 85, is entitled to 
 perform therein his duties as sexton in respect to the burial of parish- 
 ioners, just as he would have been entitled to do in the old parish 
 burying-ground, and may justify his entry on the burial-ground, by 
 himself or deputy, to perform such duties, in spite of the refusal of 
 the Burial Board to admit him. He is entitled for the same reasons, 
 to toll the bell in the chapel at such burial(a). 
 406 Title to the sea-shore{b) and bed of navigable rivers. — The Sea-shore 
 between high-water and low-wat^r mark is primd facie the property 
 of the Crown(c), and is extra parochial, unless it be shown by conimon 
 reputation or otherwise to form part of an adjoining parish(d:). And 
 so is the bed of a tidal river between high and loW-water mark(e) 
 
 ip) Ritchings v. Cordingley, !L. K., 3 Adm. & Eocl. 113. 
 
 {») Turner v. Bajrnes, 2 H. Bl. 669. Wilkinson v. Verity, L. E., 6 C. P. 205. 
 
 (o) Burial Board of St. Margaret's, Eocliester, v. Thompson, L. E., 6 C. P. 445. 
 
 (6) The Board of Trade have power, under 64 Geo. 4, oh. 169, s. 14, and 26 & 26 Viot. ch. 09 
 D. 16, to prohibit persons from taking shingle from the sea-shore witljiin the ports and harbors 
 of the kingdom ; and the Commissioners of the Treasury have power, under 16 & 17 Vict. ch. 
 107, B. 9, to alter the limits of ports, etc. See Nicholson v. Williams, I>. E., fi Q, B. 032. 
 
 (c) Hale, de Jure Maris, Hargrave's Law Tracts, pp. 25-37. In this country, the State in its 
 sovereign character owns' the bed of all navigable waters within its borders to high water 
 mark. People v. Tibbetts, 19 N. Y. 623. Gould ». Hudson piver E. E. Co., 6 id. 622. Stevens 
 V. Paterson & Newark E. E. Co., 34 N. J. 632. Arnold v. Mnndiy, 1 Halst. (N. J.) 1. Martin 
 V. Waddell, 16 Peters, 367. Pollard v. Hagan, 3 How. (U. S.) 212. Lookwood v. New York, 
 etc., E. E. Co., 37 Conn. 387. Mumford v. Wardwell, 6 Wall. (U. S.) 423. 
 
 (d) Eeg. V. Musson, 8 E. & B. 900 ; 27 Law J., M. C. 100. 
 
 (e) Duke of Bridgewater's Trustees v. Bootle-cum-Linaore, L. E., 2 Q. B. 4. People v. 
 Tibbetts, 19 N. Y. 523. Gould o. Hudson Elver E. E. Co., 6 Id. 622. Stevens v. Paterson & 
 Newark E. E. Co., 34 N. J. 632. Chapman v. Kimball, 9 Conn. 38. Smith v. Levinus, 8 N. Y. 
 472. Bailey v. Miltenberger, 31 Penn. St. 37. Haight v, Keokuk, 4 Iowa, 199. State v. Jersey 
 City, 1 Dutch. (N. J.) 525. Tomlin v. Dubuque, etc., E. E. Co., 32 Iowa, 106. But see Martin 
 ». Nance, 3 Head (Tenn.), 649 ; Balnbridge ». Sherlock, 29 Ind. 364; Flanagan ». Philadel- 
 phia, 42 Penn. St. 219. 
 
 There is an apparent conflict of authorities in this country in regard to the rfespective 
 rights of individuals and the State to the soil of lands lying under rivers which are in fact 
 navigable, but which are unaffected by the ebb and flow of the tide. In' some of the States 
 the question whether a stream is navigable or not is determined' by the rules of the common 
 law, and in others by the rules of the civil law. By the common law the criterion of a navi- 
 gable stream is the flow and reflow of the tide. By the civil law the criterion is the capa 
 biUty and suitableness of the stream to the' purposes of navigation, in the ordinary state oi 
 the water. Stuart v. Clark, 2 Swan (Tenn.), 9. People v. Canal Appraisers, 33 N. Y. 461. 
 The criterion of the civil law has been adopted In Tennessee. Stuart v. Clark, 2 Swan, 9. In 
 North Carolina, Pennsylvania and Tennessee the ebb and flow of tide is no test of the navi- 
 gability of a river. Wilson v. Forbes, 2 pev. 30. Ingi'aham v. TreadgiU, S id. 69. Carson v. 
 
346 TRESPASS ON REALTY. [Chap. 6. 
 
 The soil may, however, be vested in a private individual, or in 
 the lord of the manor, by ancient grant from ^he Crown, and 
 
 Blazer, 2 Binn. 475. Flanagan v. Philadelphia, 42 Penu. St. 219. And it has been held in 
 New York that the common law rules, determining what streams are navigable, are not 
 applicable to this country. People v. Canal Appraisers, 33 N. T. 461. So in Iowa it has been 
 held that the ebb and flow of tide is a mere arbitrary test of the navigability of a stream, and 
 one not founded in reason, as many waters where the tide flows are not in fact navigable, 
 and many where no tide flows are navigable. McManus v. Carmichael, 3 Iowa, 1. 
 
 In the Supreme Court of the United States, Justice McLean, in discussing the question, 
 says : " We apprehend that the common law doctrine as to the navigableness of streams can 
 have no application in this country, and that the fact of navigableness does in no respect 
 depend on the ebb and flow of tide." Bowman's Devisees v. Walthen, 2 McLean, 376. See 
 also, case of Genesee Chief v. Fitzhugh, 12 How. (U. S.) 454 ; The Dauiell Ball, 10 Wall. 
 563. 
 
 In some States a stream having a capacity only to float logs at such seasons of the year as 
 will render it of pubUo use, is navigable. See Browne v. Chadbume, 31 Me. 9 ; Moore v. 
 Sanbome,'2 Mich 519 ; Wadsworth v. Smith, U Me. 278 ; Treat v. Lord, 42 id. 562 ; Veazie e. 
 Dwinel, 50 id. 484 ; Berry v. Carle, 3 id. 269 ; Knox v. Chaloner, 42 id. 150 ; Laney v. Clifford, 
 B4 id. 489 ; Weise v. Smith, 3 Oregon, 445 ; Folger v. Kobinson, id. 458. But this doctrine has 
 been repudiated in California. American River Water Co. v. Amsden, 6 Cal. 443. And also 
 in niinois. Hubbard v. BeU, 54 lU. 110. 
 
 This want of a uniform test to determine whether a river is navigable or not, has led to 
 considerable confusion in the determination of the ownership of the soil in the bed of rivers 
 in which no tide ebbs and flows. Thus, in Mississippi, Illinois, Iowa, Minnesota and Mis- 
 souri the Mississippi river is held to be a public highway. Morgan v. Reading, 3 Smedes & 
 Marsh. 366. People v. St. Louis, 5 Gilm. 351. OTallon v. Daggett, 4 Mo. 343. Godfrey v. 
 City of Alton, 12 Dl. 29. McManus v. Carmichael, 3 Iowa, I. Schurmeier v. St. Paul & 
 Pacific E. E. Co., 10 Minn. 82. 
 
 But it has been held in Iowa that the riparian owner on such river owns only to high water 
 mark, with perhaps some qualified rights to low water line. McMai}us v. Carmichael, 3 
 Clarke, 1. Haight v. Keokuk, 4 Iowa, 199. Tomline v. Dubuque E. E. Co., 32 id. 109. But 
 on the other hand, it has been held in Mississippi that the rules of the common law and not 
 of the civil law govern the right to the soil in the bed of the Mississippi river, notwithstand- 
 ing its size, and that the river is not navigable at common law ; and consequently that 
 the right of the riparian owner goes to the middle of the river, subject only to the right of 
 passage in the public. Morgan v. Reading, 3 Smedes & Marsh. 336. To the same effect, see 
 Schurmeier v. St. Paul & Pacific R. E. Co., 10 Minn. 82. 
 
 In Michigan, the soil under tideless, but in fact navigable rivers, is in the owner of the 
 adjacent bank. Lorman v. Benson, 8 Mich. 18, And see Moore v, Sanborn, 2 id. 519. Tbe 
 same rule prevails in Wisconsin. Walker v. Shepardton, 4 Wis. 486. See Mariner v. Shulte, 
 13 id. 692. 
 
 In Ohio, the owner of laud on both banks of a navigable river owns also the bed of the 
 river ; and the owner of land lying on one bank of the river owns to the middle of the main 
 channel. Walker v. Board of Public Works, 16 Ohio, 540. Blanchard v. Porter, 11 id. 138. 
 The land between high and low water mark on navigable rivers in that State consequently 
 belongs to the riparian proprietors. Id. 
 
 In Tennessee, the owner of land on the bank of a^ navigable tideless river owns to the 
 ordinary low water mark. Elder v. Bums, 6 Humph. 358. Stuart v. Clark, 2 Swan, 9. So in 
 Pennsylvania, and the soil in the bed of the river to low water mark is the property of the 
 State. Flanagan v. Philadelphia, 42 Penn. St. 219. Monongahela Bridge Co. v. Kirk, 46 id. 
 112. The same rule has been adopted in Alabama. Bullock v. Wilson, 2 Porter, 436. And 
 see, as to what rivers are deemed navigable, Rhodes v. Otis, 33 Ala. 578 ; Ellis v. Carey, 30 
 id. 725. 
 
 In South Carolina, the English definition of navigable water has never been adopted ; and 
 it has been held that the owner of land on the bank of a navigable tideless stream owns the 
 soil of the bed to the middle of the stream. Cates v. Wadlington, 1 McCord, 580. 
 
 In Indiana, the title of a riparian owner on a tideless navigable river extends only to low 
 water mark. Bainbridge v. Sherlock, 29 Ind. 364. 
 
 As to the rule in North Carolina, see Collins v. Benbury, 3 Ired. 277 ; Wilson v, Forbes, 2 
 Dev. 30 ; Ingraham v. ThreadgiU, 3 id. 59. 
 
Sec. 2.J TITLE TO SEA-SHOBE, ETC. 347 
 
 may form part of the adjoining manor(/); but proof that it 
 does so ought to be strictly and rigidly required from all lords 
 of manors who set up exclusive rights in the soil, in derogation 
 of the free use -and enjoyment of the sea-shore by the public. 
 Where proof was given by the lord of the manor or territory 
 of Gower of an ancient grant of the terra de Gower in the time 
 of King John, and the limits of the manor both on the land 
 and the sea-side were uncertain, common reputation, modern usage, 
 and the exercise by the lord of acts of dominion over the sea-shore, 
 were admitted in evidence to show the boundary of the manor on the 
 sea-side(p'). And so of the bed of a navigable river, where the tide 
 flows and reflows, and of all estuaries or arms of the sea ; but where 
 a right is claimed to the bed of a navigable river, it must be subject 
 to the common law right of navigation by the public, including that 
 of anchorage. No anchorage dues, therefore, are claimable, although 
 they have been submitted to from time immemorial, unless it can be 
 shown (and slight evidence will be sufB.cient) that some service to nav- 
 igation either is, or was originally, rendered in return for the grant, 
 or the locus in quo forms part of a port(A). 
 
 Where a manor was held under an ancient grant from the Crown, 
 which professed to grant the manor with wreck of the sea, several 
 fishery, and other rights of an extensive description, but did not 
 expressly purport to convey " littus maris," it was held that acts of 
 dominion and ownership exclusively exercised by the lord upon the 
 adjoining sea-shore, between high and low water-mark, and which 
 acts would have been unlawful without a license or grant from the 
 Crown, such as the constant and exclusive digging and taking away 
 of sand, stone, gravel, and sea-weed, might be called in aid of the 
 grant to show that the sea-shore was parcel of the manor(i). But 
 mere occasional acts of taking sand or gravel, shells or sea- weed, from 
 the sea-shore, ought not of themselves, without proof of adverse and 
 exclusive enjoyment on the part of the lord, to raise any presumption 
 of a grant of the soil from the Crown(^). By a grant of the sea-shore, 
 the Crown conveys not that which at the time of the grant is between 
 
 (/) WhitestaWe (Free Fishers of) v. Gann, U C. B., N". S. 387 ; 31 Law J., C. P. 372. See 
 Mace V. Philcox, 33 Law J., C. P. 124 ; People v. Tibbetts, 19 N. Y. 523, 528. 
 
 [g) Duke of Beaufort ». Mayor, etc., of Swansea, 3 Exch. 413. See Lestrange v. Kowe, 4 F. 
 & F. 1048. 
 
 (ft) Gann v. Wbitstable Fi-ee Fishers, 35 Law J., C. P. 29. Whitstable Free Fishers v. Fore- 
 man, L. E., 2 C. P. 68b ; 3 ibid. 578 ; 4 Engl. & Ir. App. 266. 
 
 (i) Calmady ». Eowe, 6 C. B. 861. Att.-Gen. i). Jones, 2 H. & C. 347. 
 
 (i Livett V. Wilson, 3 Bing. 115. 
 
348 TSESPASS ON RBALTT. [Cha-p. 6. 
 
 high and low water-mark, but that which from time tatime shall be 
 between these two termini, so that the freehold shifts as the sea 
 recedes or encroaches. The ordinary limit of the sea-shore is th* line 
 of the medium high tide between the springs and the neaps(Z). 
 
 Different rights in the sea-shore may be vested in a subject, accord- 
 ing to the terms of the grant. The king may have granted to a sub- 
 ject the soil itself, or the general ' privilege of fishing, or of laying, 
 keeping and taking oysters on that spot(m). But the grantee of the 
 Crown must take subject to such prescriptive rights as may have been 
 acquired by subjects by immemorial usage and enjoyment(w), and to 
 the common law right of navigation where the grant is of the soil of a 
 navigable river(o). 
 
 The right of the Crown to grant a several fishery in a tidal river to 
 a subject is derived from the ownership of the soil, which is in the 
 Crown by the common law. Hence, if the water permanently changes 
 its channel, and flows over land of another, a several fishery in the 
 new channel cannot be claimed by the grantee of a several fishery in 
 the old, although the public right of navigation will continue(p). 
 407 Title to the soil of rivers or fresh-water lakes. — The soil of the bed of a non- 
 navigable river belongs prima fade to the owners of the land or of the 
 manors on either side, ad medium filum aqvMcj). Neither, however, is 
 entitled to use it so as to interfere with the natural flow o'f the stream ; 
 hence an encroachment by one landowner on his side of the stream is ac- 
 tionable at the suit of the other, although no special damage be proved(r). 
 So an injunction will be granted to restrain a riparian proprietor on 
 a tidal river from erecting a jetty, and so encroaching on the alveus 
 of a navigable stream(s). It does not appear to be clearly established 
 whether the soil of lakes, like that of fresh-water rivers, belongs in the 
 same way, to the respective owners of the land on either side, or 
 
 (J) Att.-Gen. v. Chambers, 4 De G. M. & G. 213. The general rule that the proprietors of 
 lands bordei-ing upon waters in which the tide ebbs and flows own only to high- water mark, 
 does not apply to a pond originally fresh, but which has become salt and influenced by the 
 tides, by reason of an artificial channel cut to tidal waters. The rights of the riparian pro- 
 prietors are not affected by the change. Wheeler v. Spinola, 64 N. Y. 377. 
 
 (m) Scratton o. Brown, 4 B. cSb C. 497. See ante, p. 209, m notia. 
 
 («) Ld. Denman, C.J., Mayor of Colchester v. Brooke, 7 Q. B. 374 ; ante, ch. 3. 
 
 (o) Gann «. Whitstable Free Fishers, .ffapro. 
 
 (pi Mayor, etc., of Carlisle ». Graham, L. E., 4 Exch. 361. See Duke of Northumberland 
 V. Houghton, L. E., 5 Exch. 127, as to the merger of a several fishery, originally granted by 
 the Crown previous to Magna Charta. 
 
 (g) See Crosley v. Liglitowler, L. K., 3 Bq. Ca. 279 ; Hubbard v. BeU, 84 ni. 110 ; Morgan 
 V. Iflng, 30 Barb. (N. Y.>9 ; Lorman e. Benson, 8 Mich. 18 ; Martin v. Nance, 3 Head (Tenn.), 
 
 649 ; Bowman's Devisees v. Wathren, 2 McLean, 376, and see cases cited in note , p. , 
 
 ante. 
 
 (r) Biokett v. Morris, L. E., 1 Scotch App. Ca. 47. 
 
 (») Att.-Gen. •/. Earl of Lonsdale, L. E., 7 Eq. Ca. 377. 
 
Sec. 2.] BT6BT TO SOIL OF TURNPIKE, ROADS, ETC. 349 
 
 wliether it belongs primd faek to the king in right of his prerogar 
 tive((!). 
 
 408 Of the title to waste unindosed land adjoining the sea-shore. — All unin- 
 closed waste land abutting on the sea-shore, and situate above the 
 high-water mark of ordinary spring-tides, belongs prima facie to the 
 owner of the adjoining property, although it is covered with beach and 
 sea-weed, and overflowed by the. waves at extraordinary spring- 
 tides(M). . 
 
 40£ Of the right to the soil of turnpike-roads and highways.- — The soil of a 
 turnpike-road is not vested in the trustees of the road. The trustees 
 have only the control of the highways, the ordinary rule- being that 
 the landowners on either side of the road are entitled to the soil of the 
 road, usq^ie ad medium filum vies ; and if a landowner owns the ?oil on 
 both sides of the road, he is entitled to the soil, of the. whole road(a;). 
 This is a presumption of law founded on the assumption that in mak- 
 ing a road for public convenience, the owners of the land on each side 
 of the road have contributed a portion of their land towards the forma- 
 tion of the road(y). "Where the owner of two parcels of land on either 
 side of a highway conveys them to a purchaser, the soil of the road 
 passes by presumption of law, although the conveyance is silent as to 
 the existence of the road, and although the particular measurement 
 of each parcel of land is given, which would exclude the road ; but 
 this presumption may be rebutted by circumstances showing that the 
 grantor did not intend to transfer to the grantee his right of owner- 
 ship in the soil of the highway. Words in an instrument of grant, 
 
 («) As to grants of a several fishery with livery of seizin, conveying a fteeholij interest in 
 the soil covered with the water, Marshall v. Ulleswater, S2 Law J., Q. B. 139. If a private 
 individual is the owner of the soil forming the bed of a navigable lake, he would be entitled 
 to sue any one who erected a pier running into the lake, or to knock down the pier, but so 
 long as it remains, the owners of land abutting on the lake have a right to use it for the pur- 
 pose of embarking and disembarking on the lake. Marshall v. Ulleswater Steam Navigation 
 Co., L. E., 7 Q. B. 166. A boundary upon a natural pond or lake carries title to low-water 
 mark, and not to its centre. But a boundary upon an artificial pond or lake, in the absence 
 of other controlling facts, carries title to the centre. Wheeler v, Spinola, 64 N. Y. 377. See 
 Ledyard v. Ten Eyck, 36 Barb. 102 ; Eice v. Ruddiraan, 10 Mich. 102 ; Warren v. Chambers, 
 25 Ark. 120 ; Angell on Watercourses, s. 41, etc. ; Canal Commissioners v. People, 5 Wend. 
 423, 446 ; Champlain & St. Lawrence E. E. Co. v. Valentine, 19 Barb. 484 ; Waterman v. John- 
 son, 13 Pick. 261 ; Bradley v. Eice, 13 Me. 198. 
 
 (u) Lowe V. Govett, 3 B. & Ad. 869. Hale, de jure Maris, c. 4, p. 12. Harg. Law Tracts. As 
 to land gained from the sea, Att.-Gen. v: Eees, 4 De G. & J. 63. 
 
 (X) Davison v. Gill, 1 Bast, 69. Marquis of Salisbury v. Gt. Northern Eailway Co., 28 Law 
 J., C. P. 63 ; 6 C. B., N. S. 208. Shei-man v. McKeon, 38 N. Y. 266. Bissell v. New York Cen- 
 tral E. E. Co., 23 N. Y. 61. Peek v. Smith, 1 Conn. 103. Chatham v. Brainard, 11 Conn. 60. 
 Seed V. Leeds. 19 Conn. 188. Perley v. Chandler, 6 Mass. 454, Eice v. Worcester, 11 Gray, 
 283. Taylor ». Ai-mstrong, 24 Ark. 102. Mendez v. Dugart, 17 La. An. 171. Buckman 
 V. Buckman, 3 Fairf 463. Holden v. Shattuok, 34 Vt. 336. Dubuque v. Majoney, 9 Iowa, 450. 
 
 (y) The same presumption applies to two conterminous parishes, where the boundary be- 
 tween them is a highway. Eeg. v. Strand Board of Works. 33 Law J., M. C. 33. 
 
350 TRESPASS ON REALTY. [Chap. 6. 
 
 as elsewhere, are to be taken in the sense which the common 
 usage of mankind has applied to them in reference to the subject- 
 matter of the grant. And if lands abutting upon a highway are 
 described in the grant as bounded by the highway, the right to the 
 soil, ad mediwm fllum mas, will be impliedly included in the grant, 
 unless the surrounding circumstances rebut the presumption(z). And 
 where the land intended to be conveyed is described by measurement 
 and color, on a plan annexed to, and forming part of, the conveyance, 
 the soil of the highway usque ad medium fllum passes by the convey- 
 ance, unless it is expressly excluded(a). 
 
 No legal presumption arises as to the ownership of soil in a road, 
 where the road is defined for the first time under a newly-created 
 authority, such as a board of commissioners for inclosing lands, acting 
 under the powers of an Act of Parliament(6). 
 
 410 The right to the soil of accommodation-ways and private roads depends 
 upon the history of the premises, and the evidence of acts of owner- 
 ship over the soil of the road. If nothing else appears than the exist- 
 ence of a private way running between the lands of two adjoining 
 proprietors, the jury may presume that the soil belongs half to the one 
 and half to the other. But that presumption may be rebutted by 
 evidence showing acts of ownership on the part of one only of such 
 adjoining proprietors(c), or by proof of a reservation of the soU of the 
 road by a grantor under whom the landowners on either side of the 
 road claim title(d). 
 
 411 Of the title to waste lands adjoining public highways. — ^Waste land ex- 
 tending along a public highway is presumed, in the first instance, to 
 belong to the owner of the adjoining land, and not to the lord of the 
 manor(e) ; but this presumption prevails only so long as proof to the 
 
 (a) Lord ». Commissioners of Sidney, etc., 12 Moore, P. C. C. 498. Bissell e. New York 
 Central R. R. Co., 23 N. T. 61 Jackson v. Anderson, 18 Me. 76. NewhuU v. Ireson, 8 Cush. 
 598. PhiUips ti. Bowers, 7 Gray, 24. Fisher v. Smith, 9 Gray, 444. HoUenbeok o. Rowley, 8 
 AH en, 473. Marsh v. Burt, 34 Vt. 289. ^ ., 
 
 And it has been further held, that where land is sold bordering onj' a highway, the grantee 
 will take to the middle of the street* on which the land is situated, although the land is not 
 described in the deed as bounded by the highway. Gear v. Barnum, 37 Conn. 229. Stark v. 
 Coffin, 105 Mass. 328. HawesviUe v. Lander, 8 Bush (Ky.), 679. 
 
 (a) Berridge v. Ward, 10 C. B., N. S. 415 ; 30 Law J,, C. P. 218. Simpson v. Dendy, 8 C. B., 
 N. S. 433. Dendy o. Simpson, 7 Jur. N. S. 1058. The same rule applies where lots are sold 
 by reference to a map, and designated as bounded on a street there laid down. Perrin «. 
 Hew York Central E. B., 36 N. Y. 120. 
 
 (6) Rex V. Hatfield, 4 Ad. & B. 158. Nor does the s.ame presumption. It seems, apply to 
 houses in a street abutting upon the highway. Beckett v. Leeds (Corporation of ), L. R., 7 
 Ch. App. 421. 
 
 (c) Holmes v. Bellinghara, 7 C. B., N. S. 388. 
 
 (d) Tottenham v. Byrne, 12 Ir. C. L. R. 388. 
 
 (e) Doe e. Pearsey, 7. B. & C. 307. 
 
HeC. 2.] BI0ST TO SOIL OF TOWING-PATBS, ETC. 351 
 
 contrary is wanting(/). In remote and ancient times, when roads 
 were frequently made through uninclosed lands, and when the same 
 labor and expense were not employed upon roads, and they were not 
 formed with that exactness which the exigencies of society now re- 
 quire, it was part of the law that the public, where the road was out 
 of repair, might pass along the land by the side of the road. This 
 right on the part of the public was attended with this consequence — 
 that although the parishioners were bound to the repair of the road, 
 yet, if an owner excluded the public from using the adjoining land, 
 he cast upon himself the onus of repairing the road. If the same 
 person was the owner of the land upon both sides, and inclosed both 
 sides, he was bound to repair the whole of the road ; if he inclosed on 
 one side only, the other being left open, he was bound to repair to the 
 middle of the road ; and where there was an ancient inclosure on one 
 side, and the owner of lands inclosed on the other, he was bound to 
 repair the whole {ante, pp. 274, 275). Hence it followed, as a natural 
 consequence, that when a person inclosed his land from the road, he 
 did not make his fence close to the road, but left an open space at the 
 side of the road, to be used by the public when occasion required. 
 This appears to be the most natural and satisfactory mode of explain- 
 ing the frequency of waste left at the sides of roads : the object was to 
 leave a sufficiency of land for passage by the side of the road when it 
 was out of repair (p-). 
 
 But the ordinary presumption, that a narrow strip of land lying 
 between the highway and the adjoining close belongs t» the owner of 
 the close, is either done away with or considerably narrowed, if the 
 narrow strip is contiguous to, or communicates with, open commons, 
 or larger portions of land ; for the evidence of ownership which ap- 
 plies to the large portijins, applies also to the narrow strip which com- 
 municates with them(^). 
 412 Of the right to the soil of towing-paths and the banks of rivers and canals. 
 — Navigation companies authorized by statute to set out towing-paths, 
 first give satisfaction to the owners and proprietors of lands made use 
 of for the purpose, do not, by forming a towing-path and giving satis- 
 faction to the owner of the land over which the path is formed, acquire 
 more than a right of way for towing, in the nature of a servitude or 
 easement. Statutory powers of this sort do not enable them to ac- 
 
 (/) Doe V. Hampson, 4 C. B. 273. Dendy v. Simpson, 18 C. B. 831. 
 
 {g) Steel v. Prickett, 2 Stark. 469. Headlara v. Hedley, Holt, N. P. C. 462. Doe v. Kemp, 
 2 B. N. C. 102. 
 (ft) Grose v. West, 7 Taunt. 42. 
 
352 TRESPASS ON SfiALTT. [Chap. 6. 
 
 quire the soil itself. LandoAyners, therefore, whose lands abut upon a, 
 navigable river or canal, along which a towing-path extends, have a 
 right to form wharfs on the soil of the towing-path, and to cross the 
 towing-path wherever they please, for the purpose of loading and un- 
 loading vessels, provided they do not interfere with the right of way 
 along the towing-path(i). Acts of ownership on the part of the pro- 
 prietors of a navigation company, exercised over the banks of a navi- 
 gable river, afford no evidence of the ownership of the so^ of such 
 banks being vested in the proprietors of the navigation company. 
 If the Act of Parliament under which the company is incorporated 
 gives the company no power to purchase land, that is against their, 
 claim to be proprietors of the soil(A:). 
 
 413 Of the right of property in trees and bushes. — According to the old 
 authorities^ the general property in trees is in the landlord, and the 
 general property in bushes is in the tenant, although if he exceeds 
 his right — as by grubbing up or destroying fences — he may be liable 
 to an action of waste. The tenant has the general property in the 
 cuttings of a hedge, whoever cuts it(^). 
 
 414 Of the ownership of trees standing in boundary hedges. — In an old case, 
 it is said " that if a tree grows in a hedge which divides the land 
 (vf A and B, and by the roots takes nourishment in the land of A and 
 also of B, they are tenants-in-common of the tree, and so it was 
 adjudged "(in). But this must be understood of fences of which the 
 adjoining owners, are also tenants-in-common ; for the general rule is, 
 that the ownership qf the tree follows the ownership of the hedge, and 
 the tree will be held to belong to the party on whose land the trunk 
 stands, without reference to the direction of the roots(m?»). By the 
 French law, " Trees which are found in a common hedge are common 
 like the hedge ; each of the two proprietors has the right to require 
 that they should be felled ;" and " he whose property is overshadowed 
 by the branches of his neighbor's trees may compel the latter to cut 
 off such branches. If it be the roots which encroach on his estate, he 
 has a right to cut them therein himself "(w), 
 
 (t) Badger v. South York E. Co., 1 EU. & EU. 347 ; 28 Law J., Q. B. 120. Monm. Canal & 
 Bail. Co. V. Hill, 4 H. & N. 427. 
 
 tk) They will, however, be liable for aooidents occurring from non-repair of the towing- 
 path, if they have power under their statutes to take or hire it fi-om the owner, and they do 
 so, although by parol only, and charge a toll for the use of the towing-path. Winch v. Thames 
 Conservators, L. B., 7 C. P. 468. HoUis o. GoldJlnch, 1 B. & C. 205. 
 
 [D Berriman v. Peacock, 9 Bing. 384. 
 
 ^m) Anon., 2Eolle's Rep. 265. Waterman v. Soper, 1 Lord Eaym. 737. Holder v. Coates, 
 M. & M. 112. GrllHn o. Bixby, 12 N. H. 454. Hoffman v. Armstrong, 46 Barb. (Jf. T.) 337. 
 
 (mm) See Hoffman v. Armstrong, 48 N. T. 201 ; Dubois v. Beaver, 26 N. Y. 123. 
 
 («) Cod. Civ. art. 672, 673. As to trees overhanging railways, see 31 & 32 Vict. c. 119, s. 24. 
 
Sec. 2.] TITLE TO BOUND ART- WALLS AND FENCES. 353 
 
 415 0/ tM right of property in boundary-walls and fences{o). — ^Evidence 
 of a common user by two adjoining proprietors of a boundary-wall 
 separating their two estates justifies the presumption, either that the 
 wall was originally built on land belonging in undivided moieties to 
 the owners of the respective premises, and at their joint expense, or 
 thart it had been agreed between them that the wall, and the land on 
 which it stood, should be considered the property of both as tenants- 
 in-common, so as to insure to each a continuance of the use of the 
 wall(p). " When a wall is common property, it may happen, either 
 that a moiety of the land on which it is built may be one man's, 
 and the other moiety another's, or the land may belong to the two 
 persons in undivided moieties." But " whenever the land on which a 
 boundary-wall is intended to be built belongs on one side to one party, 
 and on the other to the other party, and they between them agree to 
 build the wall, it would be prudent," observes Bayley, J., "to make 
 this bargain, that so long as there was to be a wall continuing on the 
 property, the land on which it was built, and the wall which stood 
 upon that land, should be taken to be the common property of the two, 
 and that the owners of the estates on each side should be tenants-in- 
 common of the undivided moiety of that land and of the wall, with 
 the power of adopting such remedies for partition as tenants-in-com- 
 mon may adopt ; for if the wall stood partly on one man's land, and 
 partly on another's, either party would have a right to pare away the 
 wall on his side, so as to weaken the wall on the other, and to pro- 
 duce a destruction of that which ought to be the common property of 
 the two"(g). If one adjoining owner erects a boundary-wall, which 
 also forms the external wall of the house of his neighbor, and places 
 an inscription on it stating that it is his wall, the owner of the house 
 will not obtain a title to such wall by adverse possession, although no 
 rent or acknowledgment has been paid for it for many years(r). 
 
 If one tenant-in-common of a wall destroys the wall which - is the 
 subject of the tenancy-in-common, that is an actual ouster and expul- 
 sion of the one by the other, so that the party expelled and injured 
 may maintain an action against the wrong-doer for the recovery of 
 damages ; but if the wall is pulled down for the mere purpose of re- 
 
 (o) As tc an oTerhanging cornice, see Whittaker v. Jackson, 33 Law J., Exch. 181. 
 
 (p) Wiltshire v. Sidford, 8 B. & C. 259n. For the statute law of Iowa in relation to party 
 walls, see Kev. Stat. ss. 1914-1935 ; Bertram v. Curliss, 31 Iowa, 48. 
 
 (g) Cubitt V. Porter, infra. 
 
 (r) Phillipson v. Gihbon, L. K., 6 Ch. App. 428. It appeared, in this case, that the owner of 
 the house had himself rebuilt the wall more than thirty years before the commencement of 
 the suit, but had replaced the inscription. 
 
 Ad. Vol. I.— 23 
 
354 TRESPASS ON REALTY. [Chap. 6. 
 
 building it, and providing a better and stronger wall, no action is, it 
 seems, maintainable. If an improper addition is made to the height 
 of the wall by one tenant-in-common to the injury of the other, the 
 latter may remove the heightened portion of the wall(s). Where a 
 building is placed against the wall by one of two tenants-in-common 
 of the wall, and the wall is heightened and carried up into a chimney, 
 this is evidence of an ouster of the other tenant-in-common, as the 
 altered wall and the old wall are not identical things, and the nature 
 of the property is substantially changed(i). 
 
 In general, where a boundary-wall is built at the joint expense of 
 adjoining proprietors under the provisions of a Building Act, so that 
 half the thickness of the wall stands on the ground of each proprietor, 
 the two proprietors are not tenants-in-common of the wall, but each 
 is entitled to the ordinary remedy for any injury done to the part of 
 the wall which stands on his own land(M). In the metropolis, party 
 walls are regulated by the Building Act, 18 & 19 Vict. c. 122(«). 
 416 Of the ownership of ditches and hedges. — "The rule," observes Law- 
 rence, J., " about ditching is this : No man making a ditch can cut 
 into his neighbor's soil, but usually he cuts it to the very extremity of 
 his own land ; he is, of course, bound to throw the soil which he digs 
 out upon his own land, and often, if he likes it, he plants a hedge on 
 the top of it ; therefore, if he afterwards cuts beyond the edge of th6 
 ditch, which is the extremity of his land, he cuts into his neighbor's 
 land, and is a trespasser ; no rule about four feet and eight feet has 
 anything to do with it "{y). A boundary-hedge, separating one estate 
 from another, belongs in general to the occupier who has been in the 
 habit of cutting and repairing the hedge. Proof of the exercise of 
 acts of ownership over the hedge is primd facie evidence of the property 
 in the hedge being in the person who has exercised such acts. In 
 some instances, the adjoining owners are tenants-in-common of the 
 hedge separating their respective properties, so that each has a right 
 to clip the hedge, but not to grub it mp(z). 
 
 By the French law, aU ditches between two estates are presumed 
 common, if there be no title or proof to the contrary. But it is proof 
 that a ditch is not common when the bank of earth thrown up is 
 
 (s) Cubitte. Porter, 8 B. & C. 257. Murray v. HaU, 7 C. B. 441. Murly t>. M'Dermott, 8 Ad. 
 & B. 138. 
 («) Stedman o. Smith, 8 Ell. & Bl. 1; 26 Law J., Q. B. 315. 
 («) Mutts V. Hawkinsi 5 Taunt. 22. 
 
 («) See Hunt v. Harri.s, 34 Law J., C. P. 249 ; and ante, p. 213. 
 (y) Vowles «. Miller, 3 Taunt. 137. 
 (a) Voyoe v. Voyce, Gow, 201. 
 
Sec. 3.] ACTIONS — LANDS AND TENEMENTS. 355 
 
 found only on one side of the ditch. The ditch, in such a case, is 
 deemed to belong exclusively to him on whose side the earth is found 
 to be thrown up. Every hedge which separates two estates is reputed 
 common to both, unless there be only one of the estates in an inclosed 
 condition, or unless there be vouchers or sufficient possession to prove 
 the contrary (a). 
 417 Title to a pew in a churoh. — Churchwardens are not justified in dis- 
 possessing any one of a sitting in a pew in a church which he has 
 enjoyed for some time, without giving notice of their intention, and 
 offering an opportunity for objection and explanation(6). See ante, 
 p. 135-6. 
 
 SECTION III. 
 
 OF ACTIONS FOR TRESPASSES UPON LANDS AND TENEMENTS. 
 
 418 Of actions against the hundred for damage done to tenements iy rioters, 
 — ^By 7 & 8 Geo. 4, c. 31, s. 2, it is enacted, that if any church or 
 chapel, house, stable, etc., or any building or erection used in any trade 
 or manufacture, or in conducting the business of any mine, or any en- 
 gine or machinery employed in any manufacture, or in working any 
 mine or any bridge, wagon-way, etc., or trunk for conveying minerals, 
 shall be feloniously demolished, pulled down, or destroyed, wholly or 
 in part, by any persons riotously assembled together, the inhabitants 
 of the hundred shall, if the damage done exceeds 30Z., be liable (s. 8) 
 to yield full compensation to the persons damnified by the offence, and 
 also for any damage which may at the same time be done to any fix- 
 ture, furniture, or goods, in any such church, chapel, house, or build- 
 ing. Under this statute a borough is liable to contribute, as part of 
 the hundred, to the damage done, notwithstanding the provisions of 
 the Municipal Corporation Act(c). But before an action can 'be main- 
 tained, the persons damnified, or such of them as have knowledge of 
 
 (o) Cod. Nap. liT. 2, No. 666-672. 
 
 (6) HorsfaU v. Holland, 6 Jur. N. S. 278. ^ 
 
 (c) Birley e. SaHbrd, 11 M. & W. 399. For the laws of New York providing for compen- 
 sating parties whose property has been destroyed in consequence of mobs or riots, see Laws 
 of 1855, ch. 428. For cases decided under the statute, see Ely v. Board of Supervisors of Ni- 
 agara Co., 36 N. Y. 297 ; Orr v. City of Brooklyn, 36 N. Y. 661 ; MoClure v. Supervisors of 
 Niagara Co., 30 Barb. (N. Y.) 594 ; Levy v. Mayor, etc. of New York, 3 Kob. 194 ; Sohiellina 
 V. Supervisors of Kings Co., 43 Barb. (N. Y.) 490 ; Ross v. Mayor, etc. of New York, 4 Rob. 49. 
 
356 TRESPASS ON REALTY. [Otap. 6. 
 
 the circumstances of the offence, or the servant or servants who had 
 the care of the property damaged, must, within seven days after the 
 offence, go before some neighboring justice of the peace, having juris- 
 diction over the locality of the offence, and state upon oath the names 
 of the offenders, if known, and submit to the examination of such jus- 
 tice touching the circumstances of the offence, and become bound by 
 recognizance to prosecute, etc.; and every such action must be com- 
 menced within three calendar months after the commission of the 
 offence. In an action against the hundred to recover compensation for 
 the felonious demolition of a house, building, or erection, the same 
 strictness of averment and proof is required as on the trial of an in- 
 dictment for felony((i). 
 
 No action can be maintained against the hundred in cases where 
 the damage done does not exceed 30Z., but the person damnified must 
 hand in a notice of claim to the high constable of the hundred, or, if 
 there is no high constable, to the chief constable or acting chief officer 
 of police of the county in which the hundred is situate(e), who is to 
 exhibit such claim to two justices of the peace, who are to appoint a 
 petty session for the purpose of hearing and determining such claim 
 (s. 8). 
 
 419 Parties to he made plaintiffs in actions for trespass. — Seirs-atrlaw. — 
 The heir-at-'law cannot maintain trespass for an injury to lands 
 descended to him without entry ; but, after entry, his right of posses- 
 sion relates back so as to support an action against a wrong-doer for 
 a trespass committed at an antecedent period(/). 
 
 420 Tenants-in-common. — An action is maintainable by one tenant in 
 common against his co-tenant, or the licensee of the latter, for digging 
 up and carrying away the soil of the close of which they are tenants 
 in common. In such an action, a plea that the close is not the close 
 of the plaintiff is not supported by proof that the plaintiff is tenant 
 in common of it, with others who authorized the trespass(^). One 
 
 (<J) Barwell v. Winteratoke, 14 Q. B. 708. 
 
 (e) 32 & 33 Vict. c. 47, s. S, and see s. 7. 
 
 (/) Harnett v. Earl of GnDdford, 11 Exch. 19 ; 24 Law J., Exoh. 281. This is not the rule in 
 New Hampshire. Dexter v. Sullivan, 34 N. H. 478. 
 
 {g) Wilkinson ». Haygarth, 12 Q. B. 837; 16 L. J., Q. B. 103. It is a general rale that one 
 tenant in common cannot maintain trespass guare clauaum /regit against his oo-tenant. 
 Booth V. Sherwood, 12 Minn. 426. Bennett v. Bullock, 35 Penn. St. 364. 
 
 But und6r the statutes of Maine a tenant in common of undivided lands may maintain 
 trespass quare cUmtum fregit against a co-tenant for cutting timber on the common estate 
 without notice, or pending a petition for partition. Mills v. Richardson, 44 Me. 79. 
 
 So where a line tree is destroyed by one of the adjoining proprietors, the other may main- 
 tain trespass against him, whether his interest be several, or as a tenant in common. Dubois 
 V. Beaver, 25 N. Y. 123. 
 
IBeC. 3«J ACTIONS — PARTIES. 357 
 
 tenant in common also may sue his co-tenant in common in trespass 
 for turning him or his servants off the land, or out of the house holden 
 in common(A). 
 421 Tenant and reversioner. — The actual occupier of real property is 
 always entitled to maintain an action for unjustiiiable trespasses 
 thereon ; but the owner, who has parted with the possession in favor 
 of a tenant or lessee, cannot maintain an action for trespass. But if 
 an injury is done to his reversionary estate, he is entitled to an action 
 on the case for damages. If a house or land is occupied merely by 
 the servant of the owner, the occupation of the servant is the occu- 
 pation of the owner {ante, pp. 335, 336), and the latter, being then 
 the occupier as well as the owner, may sue for any temporary trespass 
 or injury, rendering his occupation less profitable or commodious; 
 but where the land has been demised to a lessee, who has entered 
 thereon, and is clothed with the possessory interest, the lessee, and 
 not the landlord, is the proper party to sue for a trespass upon the 
 property, unless the wrongful act complained of imports a damage to 
 the reversionary estate(i). Where the injury is of a permanent nature, 
 and deteriorates the marketable value of the property, so that, if the 
 landlord or reversioner was to sell it, it would fetch less money in 
 the market, there is, as we have seen, a damage to the reversionary 
 estate, in respect of which the reversioner may maintain an action on 
 the ca8e(A). " The removal of the smallest portion of soil must, in 
 general, be esteemed an injury to the reversion, because it tends to 
 alter the evidence of title "(Z). 
 
 In the case of permanent injuries to buildings, from trespasses or 
 acts of negligence by strangers, the tenant is entitled to sue in respect 
 of the immediate residential injury, and the reversioner in respect of 
 the diminished saleable value of the property(w). Where trees have 
 been injured by a stranger, the lessor and the lessee may both sue in 
 
 (ft) Murray v. Hall, 7 C. B. 454; 18 Law J., C. P. 161. McGill t>. Ash, 7 Barr. 397. If one 
 tenant in common erects a building upon a portion of the laud held in common, this will be 
 such an ouster of the co-tenants as will entitle them to maintain trespass. Bennett v. Clem- 
 enoe, 6 Allen (Mass.), 10. 
 
 («) Dobson V. Blackman, 9 Q. B. 991. Tobias v. Cohn, 36 N. Y. 363. Wood v. WiUiams- 
 burgh, 46 Barb. (N. T.) 601. Lyfora v. Toothaker, 39 Me. 28. Holmes v. Seeley, 19 Wend. 
 007. Gilbert v. Kennedy, 22 Mich. 17. 
 
 (&) Ante, pp. 85, 173, 243, 243. As to injuries from the removal of fixtures. Hare V. Horton, 
 5 B. & Ad. 727. See Cnrtiss v. Hoyt, 19 Conn. 164. 
 
 (i) Per Cur., Alston v. Scales, 4 Bing. 4. 
 
 (n) Hosking v. Phillips, 3 Exch. 168 ; post, Damages. Van Densen r. Young, 29 N. Y. 9. 
 George v. Fisk, 32 N. H. 32. 
 
 A reversioner who has wrongfully regained possession of leased land may maintain tres- 
 pass against a mere stranger who has disturbed his possession. EoUins v. Clay, 33 Me. 182. 
 
358 TRESPASS ON REALTY. [Cl^ap. 6. 
 
 respect thereof; the lessor for the damage done to the body of the tree, 
 the lessee for the loss of the shade and fruit(o). So may the copy- 
 holder and the lord(p). But the reversioner cannot, as we have seen, 
 maintain an action against a stranger for entering upon land in the 
 occupation of his lessee, and with carts and hors6s trampling down the 
 soil and grass, though the entry be made in the exercise of an alleged 
 right of way, as the act is not attended with any permanent injury to 
 the reversion. "Such an act," observes Parke J., "done while the 
 premises were out on lease, would not be evidence of any right as 
 against the reversioner "(g). 
 
 If several persons are entitled to the reversion as joint-tenants, 
 co-parceners, or co-heirs in gavelkind, all of them should be joined, 
 as we have seen {ante, p. 85), as plaintiffs in an action for an injury to 
 the reversion(r). So, if there are several occupiers or tenants of the 
 injured property, all should be made plaintiffs in an action for damage 
 done to the possessory interest in the premises. Tenants in common, 
 also " should join in actions personal, as trespass in breaking into their 
 houses, breaking their inclosure or fences, feeding, wasting or befouling 
 their grass, cutting down their timber, fishing in their piscary, etc., and 
 shall recover jointly their damages, because in those actions, though 
 their estates are several, yet the damage survives to all, and it would 
 be unreasonable to bring several actions for one single trespass "(s). 
 422 Parties to be made defendants. — Actions for trespasses and injuries to 
 eal property may be brought either against the hand actually com- 
 mitting the injury, or against the person by whose order or authority 
 the act was done. A master is liable, as we have seen, for any act 
 done by his servant in the course of executing his orders ; and, there- 
 fore, where a master ordered his servant to lay some rubbish near his 
 neighbor's wall, but so that it might not touch the wall, and the ser- 
 vant used ordinary care in executing the orders of his master, but 
 some of the rubbish nevertheless ran against the wall, it was held, 
 that the master was liable in trespass(f). But to render the master 
 liable for the trespass of the servant, the servant must, as we have 
 seen (ante, p. 30), be acting in the execution of the master's business, 
 or for the master's benefit. 
 
 (o) Bedingfleld v. Onslow, 3 Lev. 209. 
 
 {p) Jefferson v. Jefferson, ib. 131. 
 
 (g) Baxter v. Taylor, 4 B. & Ad. 75. Ante, pp. 174, 175. 
 
 (r) Bao. Joint-Tenants, K. Deeringu. Moor, Cro. Eliz. 554. Ante, p. 244. 
 
 (») Bac. Abr. Joint-Tenants, K; post, ch. 20. 
 
 («) Gregory v. Piper, 9 B. & C. 591 ; 4 M. & E. 500. 
 
Sec. 3«J ACTIONS — PARTIES — PLEADING S, 359 
 
 If fences are allowed to go to ruin, and cattle escape and trespass 
 upon the adjoining land, the action for the injury must be brought 
 against the owner of the trespassing beasts, or the person who is by 
 law bound to uphold the fence(awfe, p. 149). An action for the non- 
 repair of fences cannot be supported against the landlord when the 
 land is in the possession of a tenant ; for it is, as we have seen, the 
 duty of the actual occupier to repair and maintain fences, and not 
 the duty of the landlord(M). 
 
 Where several persons have been jointly concerned in the commis- 
 sion of a trespass, they may, in general, be sued jointly as principals, 
 or the plaintiff may sue any of them separately at his election(«). 
 423 Declaration for trespass upon land — Venue. — The rule that the name 
 of the county from which the jury are to come to try the action is to be 
 stated in the margin of the declaration(posi, ch. 21), does not apply to 
 actions for trespass to land, where the place in which the trespass was 
 committed is described in the body of the declaration. The cause of 
 action for an injury to realty is local, and must, unless the venue is 
 changed by judge's order, be tried in the county where it arises, and 
 where the property is situate(.'!;) ; but any defect in naming the place 
 of trial, or laying the venue, is cured by the statute 16 & 17 Car. 2, 
 ch. 8(y). The close or place in which the trespass was committed 
 must be designated in the declaration byname, or abuttals, or other 
 description, or the plaintiff may be ordered to amend with costs, or 
 give such particulars as the court or judge may think reasonable(z). 
 The description should correspond with the state of the premises at 
 the time of the commission of the trespass, and not at the time of the 
 delivery of the declaration(a). It should be reasonably accurate, and 
 the name and situation of the close should be specified(&), and the 
 trespass must be proved to have been committed at the place named(c). 
 
 («) Cheetham v. Hampson, 4 T. E. 318. 
 
 (») Ld. Kenyon, C.J., Mitchell v. Tarbutt, 5 T. B. 651 ; post, oh. 20. Trespass guare clausum 
 /regit will lie against a railroad coi-poration or any other private corporation. Main v. 
 North-Eastem E. E. Co., 12 Eioh. Law (S. C), 82. 
 
 (3) Chapman v. Morgan, 2 Greene (Iowa), 374. And see Pike v. Elliott, 36 Ala. 69. 
 
 (y) Simmons v. LUlystoue, 8 Exch. 441; 22 Law J., Exch. 218. Warren o.Webb, 1 Tannt. 379. 
 
 (z) Eeg. Gen. 16 Vict. 18 ; 1 EU. & Bl. App. Ixxxii. See, to the contrary, Palmer v. Tuttle, 
 39 N. H. 486 ; Noyes v. Colby, 10 Poster (N. H.), 143. And see Broughton n. Bronghton, i 
 Eich. 104. 
 
 (») Humfrey ». London & North-Western E. E. Co., 7 Exch. 325 ; 22 Law J., Exch. 149. 
 
 (b) Crocker v. Orompton, 1 B. & C. 489. In Indiana and Alabama it has been held that an 
 allegation that a trespass was committed in a specified county is a BulUcient description of 
 the locus m quo. Jean v. Sandiford, 39 Ala. 317. Shipler v. Isenhower, 27 Ind. 36. And see 
 Hall V. Mayo, 97 Mass. 416 ; Eice v. Hathaway, Brayt. 231. 
 
 (c) Simmons v. Lillystone, empra. Wheeler v. Eowell, 7 N. H. 515. Manning v. M'Donnell, 
 3 Brev. 3. See Hall v. Mayo, 97 Mass. 416 ; Jean v. Sandiford, 39 Ala. 317 ; Knowles v. Dow 
 20 N. H. 135 ; Porter v. SuUivau, 7 Gray (Mass.), 441 ; King v. Dunn, 21 Wend. 253. 
 
a60 TMMSPASS ON REALTY. [Chap. 6. 
 
 Where there is a general district of land known by one general name, 
 and there are several occupiers in the same district, each person may 
 call his own part of the district by the general name(c?). 
 
 The plaintiff may allege generally, " that the defendant broke and 
 entered certain land of the plaintiff, called, etc., and depastured the 
 same with certain cattle "(e) If special damages has resulted to the 
 plaintiff from excavations made by the defendant in the soil of the 
 plaintiff, the nature of the damage should be stated(/). 
 
 If the plaintiff declares as reversioner for an injury done to his re- 
 version, the declaration must allege it to have been done to the dam- 
 age of the reversion, or must state an injury of such a permanent 
 nature as to be necessarily prejudicial thereto; and the want of such 
 an allegation is cause for arresting the judgment(^). 
 
 424 What may he given in evidence under the plea of not guilty. — In actions 
 for trespasses upon land, the plea of not guilty operates as a denial of 
 the defendant's having committed the trespass alleged in the place 
 mentioned, but not as a denial of the plaintiff's possession, or right of 
 possession, of that place ; which, if intended to be denied, must be 
 traversed specially. All other pleas in denial must take issue on some 
 particular matter of fact alleged in the declaration ; and all matters 
 in justification, and in confession and avoidance of the cause of action 
 must be pleaded specially^). 
 
 425 Of pleas denying the plaintiff's title or right of possession, — If the de- 
 fendant intends to dispute the plaintiff's right of possession of, or title 
 to, the land or messuage on which the trespass is alleged to have been 
 committed, he must plead a plea, alleging that such land or messuage 
 was not the land or messuage of the plaintiff, or a plea of liherwn ten- 
 ementum, which is a plea alleging that such close or land was the soil 
 and freehold of the defendant. Under the plea that the land or mes- 
 suage is not the plaintiff's, both the possession and title are in issue(i); 
 
 (d) Cooke V. Jackson, 9 D. & E. 496. 
 
 («) 16 & 16 Vict. oh. 76, Sohed. Wlietljer the heasts get there from being driven there by 
 the plaintiff, or whether they go there of their own accord, from want of proper custody 
 exercised over them, "is all one," ante, pp. 149, 327. 
 
 {/) AnU, pp. 87, 178. 
 
 ig) Baxter v. Taylor, 4 B. & Ad. 74. Jackson v. Fesked, 1 M. & S. 234, Althanse v. Bice, 4 
 E. D. Smith (N. Y. C. P.), 347. 
 
 (ft) Beg. Gen. Hill. Term, 16 Vict.; 1 Ell. & Bl. App. Ixxxl., Ixxxli.; post, ch. 21. See HiU 
 «. Morey, 26 Vt. 178; Todd v. Jackson, 2 Dutch. (N. J.) 525; Ward o. Bartlett, 12 AUen (Mass.), 
 419; Snider ». Myers, 3 W. Va. 195. 
 
 But it has been held that the defendant may, under the general issue, show a right of way 
 over the close. Strout v. Berry, 7 Mass. 385. Or soil and freehold in himself. Monumoi v, 
 Rogers, 1 Mass. 159. 
 
 (i) Jones v. Chapman, 2 Exch. 803; 18 Law J., Exch. 456; overruling Whittington v. Boxall, 
 5 Q. B. 143. 
 
Sec. 3.] PLEADINGS — LEAVE AND LICENSE. 361 
 
 but this is not the case with the plea of liberum tenementum, which 
 admits the plaintiff's possession, but denies his title(A). Under these 
 pleas, the defendant may show that the plaintiff is the trespasser, and 
 not the defendatit(?). 
 
 426 Of the plea of liberum tenementum, or plea of freehold. — The plea of li- 
 h&rwrn tenem,entum, is a plea alleging that the close or land in which the 
 trespass was committed was the soil and freehold of the defendant. This 
 plea, as it has justly been observed, though held valid on account of 
 long usage, is bad in reasoning, because the defendant may be a tres- 
 passer, though he is himself the freeholder ; and to make the plea a 
 consistent defence, it has been held that it admits such a possession in 
 the plaintiff as would enable him to maintain the action against a 
 wrong-doer, and to assert a freehold in the defendant, with a right to 
 the immediate possession as against the plaintiflf(m). The plea was origi- 
 nally invented for the purpose of driving the plaintiff to prove his title 
 to the land in dispute. And if the declaration goes on to charge the 
 defendant with having expelled the plaintiff from the dwelling-house, 
 and seized and removed his goods, the plea covers and justifies the 
 expulsion and removal of the goods, as well as the breaking and en- 
 tering the house(w) ; but such a plea is no answer to aii assault upon 
 the person(o). 
 
 42Y Replioation — Estoppel. — To a plea of liberum tenementum the plaintiff, 
 may reply, that the defendant ought not to be admitted to plead the 
 plea, because, etc. (showing some ground of estoppel) ; and the de- 
 fendant must answer the replication by a rejoinder : but if a party 
 means to insist on an estoppel, he must take the first opportunity of 
 doing so which the pleadings afford him ; if he fails to do this, he 
 leaves the matter at large, so that the jury may decide upon the evi- 
 dence before them, without regard to an estoppel(p). If an estoppel 
 cannot be pleaded it may be relied on nevertheless at the trial(g'). 
 
 428 Of the plea of leave and license — Equitable defence. — The form of the 
 plea of leave and license is, that the defendant did what is complained 
 
 (h) Slocomlie v. Lyall, 6 Exch. H9. Gilchrist v. McLaughlin, 7 Ired. 310. Keener v. Kauff- 
 man, 16 Md. 296. But a plea that the close was the close and soil of the defendant, is not a 
 plea of liberum tenementum, and the defendant has only to prove the right of possession. 
 MiUison v. Holmes, 1 Carter (Ind.), 45. See Appleby v. Obert, 1 Harr. 336. 
 
 (I) Burling ». Bead, 11 Q. B. 908; 19 Law J., Q. B. 291. 
 
 (m) Ryan ». Clark, 14 Q. B. 71; 18 Law J., Q. B. 269. 
 
 (ji) Meriton v. Coombes, 9 C. B. 787.; 19 L. J., C. P. 336. Taylor ». Cole, 1 Smith's L. C. 119- 
 127, 6th ed. 
 
 (o) Roberts v. Taylor, 1 C. B. 117. Tribble v. Frame, 3 Monr. 13. 
 
 (p) Feversham v. Emerson, 11 Exch. 385 ; 24 Law J., Exoh. 264. 
 
 (q) Whittaker v. Jackson, 23 Law. J., Exch. 181. 
 
362 TBESPASS ON BEALTT. [Chap. 6. 
 
 of by the plaintifif's leave(?'). Under this plea it may be shown that 
 the plaintiff granted to the defendant a right to enter upon his land, 
 or granted him a lease thereof, or a license to occupy, or leave to eriter 
 upon and take possession of the locus in quo, and expel the plaintiff 
 therefrom(s). Proof may be given under this plea of an exception of 
 timber-trees in a lease made by the defendant to the plaintiff, or a 
 reservation in a parol demise of hedges, trees, and thorn-bushes, with 
 the lop and top, giving the defendant a right to eijter upon the land, 
 for the purpose of cutting and carryiflg away the trees or the loppings 
 of the hedges and bushes(i) ; or it may be shown that the plaintiff took 
 the defendant's goods, and carried them on to his own land ; whereupon 
 the defendant entered upon the plaintiff's land, with his (implied) 
 leave, and carried them back to the place from whence the plaintiff 
 took theni(M). If the plea does not extend to and cover the whole of 
 the trespasses to which it is pleaded, the plaintiff will be entitled to 
 judgment(a;). Whenever a person has been induced to lay out money 
 upon the land of another, upon the faith of a verbal agreement, that 
 in consideration of the expenditure the person laying out his money 
 shall enjoy an easement, privilege, or profit upon the land, the priv- 
 ilege cannot in equity be withdrawn, as we have seen, by the land- 
 lord, without tendering full compensation for the expenditure(y) ; but 
 the verbal agreement or parol license is not pleadable, it seems, by 
 way of equitable defence to an action for trespass, inasmuch as, to 
 constitute a good equitable defence, the fact must be such as to entitle 
 the defendant to absolute and unconditional relief, or to a perpetual 
 injunction(?). 
 429 Special pleas of matters in confession and avoidance^ — Matters of excuse. 
 — ^All matters in confession and avoidance are required to be specially 
 pleaded(a), such as the defence that the defendant's cattle escaped 
 
 (r) 15 & 16 Vict. a. 76, Sched. B., No. 44. 
 
 («) Kavanagh v. Gudge, 7 M. & Gr. 316 ; 7 Sc. N. E. 1025. That a license must be specially 
 pleaded to be available, see Hill v. Morey, 26 Vt. 178 ; Hollenbeck v. Kowley, 8 ABen (Mass.), 
 473 ; Stambaugh v. HoUabaugh, 10 Serg. & E. 357 ; Gambling v. Prince, 2 N. & M. 138 ; Het- 
 fleld V. Central E. E. Co., 5 Dntch. (N. J.) 571. 
 
 Proof of a lease wiU not support a plea of license. Johnson v. Carter, 16 Mass. 443. 
 
 («) Hewitt V. Isham, 7 Exoh. 77 ; 21 I/aw J., Exoh. 36. 
 
 (m) Vin. Abr. Tekspass, la. Patrick v. Coleri'ok, 3 M. & W. 485. As to breaking open an 
 office to get at books and papers, see Borridge v. Nioholetta, 6 H. & N. 383 ; 30 Law J., Exch. 
 145. See Chase ». Jefferson, 1 Houston (Del.), 267. 
 
 (x) Barae ». Hunt, 11 East, 451. 
 
 (y) Laird v. Birkenhead Bail. Co., Johns. 500. Unity Joint Stock Banking Assoc, v. King, 
 25 Boav. 79 ; 27 Law J., Ch. 585. Ante, pp. 186, 187. 
 
 (a) Hyde J). Graham, 32 Law J., Exch. 27. Wakley o. Froggatt, 33 Law J., Exch. 6. Addl 
 son on Contracts, ch. 28, s. 2, 6th ed. But see Allen v. Walker, L. E., 5 Exch. 187. 
 
 (ffl) Eeg. Gen. Hil. Term, 16 Vict. ; 1 EU. & Bl. App. Ixxxi., Ixxxii. 
 
Sec. 3.] ACTIONS — PLEADINGS. 863 
 
 from the defendant's land, and trespassed on the land of the plaintiff, 
 through the neglect of the plaintiff to repair fences which he was 
 bound by contract or by prescription to repair and maintain. Pleas 
 of this sort must show how the obligation to repair arises(6). 
 
 430 Pleas jusUfying a trespass — Every defendant who justifies his enter- 
 ing or remaining upon the land of the plaintiff against his will, and, 
 therefore, prvma facie, against right, is bound to show, on the face 
 of his plea, such circumstances as establish his right in abridgment 
 of the general rights of property((;). If he justifies his entry in the 
 exercise and enjojrment of a profit a prendre, or an easement {ante, p. 
 96), he must set forth in his plea the foundation of his right, showing 
 whether he claims by grant or by prescription, or under a mere personal 
 license of pleasure — which extends only to the individual licensee, and 
 cannot be exercised by his servants — or under a license of profit, which 
 enables his servants to justify under it(d). 
 
 If the defendant claijns under a particular estate, he must in his 
 plea aver the continuance of that estate. Thus, if he derives his title 
 from a tenant-for-life, he must aver and prove the continuance of the 
 life interest(e). Every plea of justification in trespass must, of course, 
 extend to and cover the whole of the trespasses intended to be justi- 
 fied(/) ; but it need not be pleaded to acts which are not relied upon 
 as trespasses, but are mere matters of aggravation, and not of sub- 
 stantive charge(p'). Where the declaration charges the defendant 
 with breaking and entering the plaintiff's house, and expelling him 
 therefrom, a plea of justification, showing a good cause for the break- 
 ing and entering, is a full answer to the declaration, for the breaking 
 and entering are the gist of the action, and the expulsion is only 
 matter of aggravation. If the plaintiff means to insist on the expul- 
 sion as making the defendant a trespasser ab initio, he must new 
 assign it(^). 
 
 431 Justification of trespass under the powers and provisions of an Act of 
 Parliament. — ^Where the plaintiff complained that the defendant had 
 built a bridge which encroached upon and projected over the land of 
 the plaintiff, it was held that the defendant might plead generally 
 
 (6) Faldo V. Eidge, YelT. 74, 75 ; ante, p. 149. 
 (c) Hayling v. Okey, 8 Exch. 645. 
 
 {d ) Ante, pp. 96, 97. Wiokham V. Hawker, 7 M. & W. 78. Moore v. Earl of Plymouth, 1 
 Moore, 34B ; 3 B. & Aid. 6(j. Bartlett v. Prescott, 41 N. H. 493. 
 (e) Dayrell v. Hoare, 12 Ad. & E. 368. 
 (/) Cnrlewis v. Laurie, 12 Q. B. 640. 
 
 (^) Pratt ». Pratt, 2 Exch. 413. Davison o. Wilson, 11 Q. B. 903. 
 (ft) Taylor v. Cole, 3 T. K. 297 ; 1 Smith's L. C. 119-127, 6th ed. 
 
364 TRESPASS ON KEALTT. [Chap. 6. 
 
 that the several acts, matters, and things of which the plaintiff com- 
 plained were lawfully done by the defendant, in exercise and by 
 virtue of the powers given to the defendant by an Act of Parliament, 
 made, etc., and intituled, etc.(i)- When the defendant justifies the 
 demolition of a house under the powers and provisions of the Metrop- 
 olis Local Management Act, or of a portion of a house projecting 
 beyond the general line of the street under the Metropolis Local Man- 
 agement Act (25 & 26 Vict. c. 102) ss. 75 and 107(A-), it must be shown 
 that the person damnified had an opportunity of being heard before 
 the board prior to the exercise of the power(Z). 
 
 432 Plefis justifying the 'breaking and entering a dwelling-house without war- 
 rant{m) to make an arrest for felony, or to prevent the commission of 
 murder, must show, in the first case, that a felony had been com- 
 mitted, and that there was reasonable ground for believing that the 
 felon was in the house(w) ; and, in the second case, that the life of 
 some person inside the house was really in danger ; that there were 
 calls for assistance; that the door was fastened; and that it was 
 necessary to break it open and enter the house, and render assistance 
 for the preservation of life(o). 
 
 433 Of pleas of justification under a prescriptive title. — ^When the defendant 
 justifies, under a prescriptive right to enter and take a profit of the 
 soil (ante, p. 112, et seq.), he must set forth in his plea an enjoyment as 
 of right, and without interruption for the full period of thirty years 
 before the commencement of the SLCiion{p). And when he claims only 
 an easement, he must set forth a similar enjoyment for the period of 
 twenty years. The Prescription Act, 2 & 3 Wm. 4, c. 71 {ante, p. 138), 
 enacts (s. 5) that in all pleadings where, before the passing of the Act, 
 the party claiming might bylaw have alleged his right generally, 
 without averring the existence of the right from time immemorial, such 
 general allegation shall be deemed sufficient ; and if the same shall 
 be denied, all the matters mentioned and provided in the Act, which 
 are applicable to the case, shall be admissible in evidence to sustain 
 
 (t) Beaver v. Mayor, etc.', of Manchester, 26 Law J., Q. B. 311. Watkins ». Gt. Northern 
 Bail. Co., 16 Q. B. 961. As to the replication to this plea, see Brine ». Gt. West. Bail. Co., 31 
 Law J., Q. B. 101 , and j)o»«, ch. 16. 
 
 (S) 18 & 19 Vict. c. 120, 8. 76. Bratton o. St. George's, Hanover Square (Vestry of), L. B. 13 
 Eq. Ca. 839. 
 
 (0 Cooper V. Wadsworth Board, etc., U C. B., N. S. 180. 
 
 (m) As to justification under warrant and in execution of legal process, see poBt, ch. 18. 
 
 (n) Smith v. Shirley, 3 C. B. 142. 
 
 (o) Handcock v. Baker, 2 B. & P. 260. 
 
 (p) Jones V. Price, 3 Sc. 376 ; 2 B. N. C. 52. Clayton v. Corhy, 2 Q. B. 813. Holford r. Han- 
 kinson, 6 Q. B. 584. Cooper v. Hubbnck, 12 C. B., N. S. 4fie. 
 
Sec. 3.] PLEADINGS— RIGHT OF WAT. 365 
 
 or rebut such allegation ; and that in all actions and pleadings wherein 
 it would have been necessary, before the passing of the Act, to allege 
 the right to have existed from time immemorial, it shall be 8uflS.cient 
 to allege the enjoyment thereof as of right, by the occupiers of the 
 tenement, in respect whereof the same is claimed, for such of the 
 periods named in the Act as may be applicable to the case ; and if 
 the other party intends to rely on any proviso, exception, incapacity, 
 disability, contract, agreement, or any matter of fact or of law not 
 inconsistent with the simple fact of enjoyment, the same shall be 
 specially alleged and set forth in answer to the allegation of the claim- 
 ant {ante, p. 140). A person who pleads a right or privilege in gross, 
 not annexed or appurtenant to an estate in land {ante, p. 115), must 
 «. show something more than that he is in possession as occupier. He 
 must show that he is either heir or assignee of the person to whom the 
 right is supposed to have been grante«i(Q'). 
 
 The nature of the right should be correctly set forth on the face of 
 the plea ; and if the exercise of it is limited to a particular purpose, 
 if it is a right, for example, to enter upon land for the purpose of dig- 
 ging stones and sand for the necessary repair of a dwelling-house, it 
 should be so stated, and that the dwelling-house was out of repair(r). 
 When the defendant justifies under a plea of a right of common, he 
 must by his plea set fofth the nature of the right, and show whether 
 he claims by grant or by prescription. If the right be subject to re- 
 striction or qualification as to the number of the cattle, or the time of 
 enjoyment, it must be so stated(s). If the right claimed be a right of 
 common by prescription for all commonable cattle, levant and couchant 
 upon a particular farm {ante, p. 125), the defendant should set forth 
 by his plea that, at the time of the alleged trespass, he was possessed 
 of a messuage, farm, or land, the occupiers whereof, for thirty year^ 
 before the commencement of the action, enjoyed, as of right, and with- 
 out interruption, common of pasture over the land of the plaintiff for 
 all their commonable cattle, levant and couchant upon the messuage, 
 farm or land of the defendant at all times, or at all usual or customary 
 times of the year, as the case may be, and that the alleged trespass 
 was a user by the defendant of the said right of common(i). 
 434 Pleas of justificatwn in the exercise of a right of way. — When the 
 defendant justifies under a plea of a right of way, he should show the 
 
 (S) Bailey ». Stevens, 13 C. B., N. S. 91 ; 31 Law J.. C. P. 228. AnU, p. 119. 
 (r) Peppin ». Shakespeare, 6 T. K. 748. 
 (s) 1 Wms. Saund. '.8, n. i, 346b. 
 (<) 15 & 16 Vict. 0. 76, Sohed. pi. 47. 
 
€566 TRESPASS ON REALTY. ' [Chap.-6. 
 
 nature of the right, and whether it is claimed by grant or by prescrip- 
 tion, or as a way by necessity {ante, p. 133, et seq.) (m), setting forth in 
 the last case the circumstances whereby the land over which the way 
 is claimed became chargeable with the servitude(iZ!). When the plea 
 sets forth a title by prescription, it usually states that the defendant, 
 at the time of the alleged trespass, was possessed of a messuage or 
 land, the occupiers whereof, for twenty years before the suit, enjoyed, 
 as of right and without interruption, a way on foot and with horses 
 and carriages, and cattle, as the case may be, backwards and forwards 
 from a certain public highway over the land of the plaintiff to the land 
 of the defendant, at all times of the year, for the more convenient 
 occupation of the messuage and land of the defendant, and that the 
 alleged trespass was a user by the defendant of the said way(y). The 
 plea need not name or describe by metes and bounds the lands an^ 
 closes in respect of which the right is claimed. A general description 
 is sufficient ; and if the plaintiff wants detailed information, he must 
 apply for particulars(0). The nature of the right should be correctly 
 stated ; and if the enjoyment of it is limited to particular times or 
 periods, or to particular purposes, it should be so stated in the plea(a). 
 There is one difference between pleading a public and a private way. 
 In the former case, it is not necessary to set out the termiiii ; in the 
 latter, both must be set out with certainty. It is not necessaryj how- 
 ever, to set out the intervening closes over which the way passes(6). 
 
 To an action of trespass for deviating from a highway and tramp- 
 ling down the plaintiffs inclosure, a plea showing that the plaintiff 
 himself stopped up the highway, so that the defendant could not pass, 
 wherefore the defendant went over the plaintiff's close, doing as little 
 damage as he could, constitutes an answer to the action(c). , 
 
 435 Replications traversing the prescriptive right set up hy the defendant's 
 pleas. — The fact of the defendant's having the right claimed by his 
 plea may be put in issue by a replication traversing the allegation of 
 the right as set forth in the plea. If the right is claimed by grant, 
 and the answer is that the grant has ceased to operate, the replication 
 must show in what way the grant has ceased to operate(d). Though 
 
 («) Howton «. rrearson, 8 T. E. 60. Bnokby «. Cowles, 5 Taunt. 311. ' 
 
 (K) Ballard v. Harrison, 4 M. & S. 392. Proctor ti. Hodgson, 10 Exch. 824 
 (y) 16 & 16 Vict. c. 76, Sched. 46. Jones f>. Price, 3 B. N. C. 52 ; 3 Sc. 376. 
 (s) Holt V. Daw, 16 Q. B. 995. 
 
 (a) Higham v. Eabett, 5 B. N. C. 624. Bartlett r. Prescott, 41 N. H. 493. 
 (J) Simpson e. Lethwaite, 3 B. & Ad. 233. 
 (c) Absor 17. French, 2 Show. 28. 
 (<i) Parry v. Thomas, 5 Exch. 41. 
 
Sec. 3.] PLEADINGS— EIGBT OF WAY. 367 
 
 a prescription pleaded be larger than is necessary for the defendant's 
 justification, the plaintiff must nevertheless traverse the whole of it. 
 Since the Prescription Act, a plea setting up a right to a flow of water 
 through a watercourse, and a right to enter upon the adjoining land 
 for the purpose of cleansing and scouring the watercourse, is held to 
 be a plea of the enjoyment of one entire prescriptive right, and is to 
 be treated as one entire thing, and not as setting up two separate 
 prescriptions. If a man pleads a prescriptive right to turn on cows, 
 also a right to turn on horses, and also a right to turn on sheep, the 
 plea sets up one entire right, and the plaintiff should traverse the 
 whole(e). 
 436 Traverse of the enjoyment as of right and without interruption. — When 
 the enjoyment as of right and without interruption is traversed by the 
 plaintiff's replication, the defendant must show an uninterrupted 
 rightful enjoyment, and his claim may be answered by proof of a 
 license, written or parol, for a limited period, falling short of the 
 period relied on. Any evidence negativing the continued enjoyment 
 as of right is admissible under this issue ; and every time that leave is 
 asked for and obtained there is a break in the continuance of the 
 enjoyment(/), because each asking of leave is an admission that, at 
 that time, the asker had no right. Hence it follows that, not only 
 asking leave, but an agreement commencing within the period, may 
 be given in evidence under the general traverse, notwithstanding the 
 words of the fifth section of the Prescription Act ; for the party can- 
 not and does not rely on it as an answer to an enjoyment as of right, 
 which he confesses, nor as«avoiding any such enjoyment during the 
 time covered by the agreement, but as showing that there was not, at 
 the time when the agreement was made, an enjoyment as of right, and 
 so the continuity is broken, which is inconsistent with the simple fact 
 of enjoyment during the forty or twenty 'years(g'). 
 
 If the plaintiff chooses to reply, and sets up a tenancy for life, he 
 excludes the time of that tenancy, and drives the defendant to show 
 thirty years' enjoyment, either wholly before the tenancy for life, if it 
 be still subsisting, or partly before and partly after, if it be ended. 
 But it has been said, " What if there had been an interruption for two 
 years during the tenancy for life, and within thirty years before the 
 action, is the plaintiff to be deprived of the benefit of such interrup- 
 
 (e) Peter p. Daniel, 5 C. B. 668. 
 
 (/) Monmouth Canal Co. v. Harford, 1 C. M. & R. 631. 
 
 [g) TlcMe V. Brown, i Ad. & E. 383. Bright v. Walker, 1 C. M. & E. 219. Ante, p. 154, et seg. 
 
568 TJRESPASS ON REALTY. [Chap. 6. 
 
 tion ? " The answer is, " No : although the tenant for life cannot, by 
 acquiescence, burthen the estate, he may, by resistance, free it ; and 
 if the plaintiff chooses to avail himself of that resistance, he may tra- 
 verse the enjoyment as of right for thirty years, and show the inter- 
 ruption." The defendant will not then be allowed to give the tenancy 
 for life in evidence, in order to avoid the effect of the interruption(A). 
 
 437 Replications traversing the enjoyment of a right of wan/. — Under a 
 replication denying that the defendant had used a way for forty years 
 as of right and without interruptibn, the plaintiff is at liberty to show 
 the character and description of the user and enjoyment during any 
 part of the time, as that it was used by stealth, or in the absence of 
 the occupier of the close, and without his knowledge, or that the land 
 was let on lease, and that the user and enjoyment were without the 
 privity of the landlord, and that the latter had no means of knowing ^ 
 what was done upon the land to the prejudice of the inheritance, and 
 could not therefore have prevented it (ante, p. 135), or that the enjoy- 
 ment was a precarious enjoyment, by leave and license, or any other 
 circumstances which negative the fact that it was a user and enjoy- 
 ment as of right(j). 
 
 All acts showing that the defendant's user, although as of right and 
 without interruption for the period specified, was not such a user as 
 would, before the Prescription Act, have been sufficient to establish a 
 claim by prescription or grant, must be replied specially, and cannot 
 be given in evidence under a traverse of the right of way alleged in 
 the plea(A). 
 
 438 Facts and ci/rcumstances which must be specially replied, and cannot be 
 given in evidence under a general traverse of the enjoyment as of right and 
 without interruption for the periods named in the Prescription Act. — By 
 the fifth section of the Prescription Act (ante, p. 140), it is enacted that 
 if the party resisting the claim intends to rely on any proviso, excep- 
 tion, incapacity, disability, contract, agreement, or other matter there- 
 inbefore mentioned, or on any cause or matter of fact or of law not 
 inconsistent with the simple fact of enjoyment, the same shall be 
 specially alleged and set forth in answer to the allegation of the party 
 claiming, and shall not be received in evidence on any general traverse 
 or denial of such allegation. " The greatest difficulty," observes Lord 
 
 (ft) Clayton v. Corty, 2 Q. B. 825. 
 
 (i) Beasley v. Clarke, 3 Se. 263. 
 
 (*) Kinloch v. NeviUe, 6 M. & W. 795. Where the defendant justifies a trespass trader the 
 plea of a right of way, the plaintiff may traverse the alleged right, and at the same time newly 
 assign for other trespasses committed extra viam. ChesweU ». Chapman, 42 N. H. 47. 
 
Sec. 3.] PLEADINGS — PRESCRIP'IIVE TITLE. 369 
 
 Denman, " arises from the language of the concluding paragraph of 
 this fifth section of the Prescription Act, and more particularly from 
 the words, ' or any cause or matter of fact or of law not inconsistent 
 with the simple fact of enjoyment.' As all these matters are required 
 to be specially pleaded, and forbidden to be given in evidence under 
 a general traverse of the enjoyment as of right, it is plain that they 
 are treated by the legislature as consistent with such an enjoyment ; 
 and as, by the rules of pleading and of logical reasoning, every allega- 
 tion by way of answer which does not deny the matter to which it is 
 proposed as an answer is taken to confess it, we must conclude that 
 the legislature used the words ' as of right ' in such a sense as that a 
 party confessing the enjoyment as of right for forty years, or 
 twenty, as the case may be, may account for and avoid the effect of it 
 by alleging, in the one case, a consent or agreement, provided it be 
 ty deed or writing (see sec. 2), and in the other, any contract, etc., 
 written or parol (see sec. 5). It follows that the words 'as of right' 
 cannot be confined to an adverse right from all time, as far as evidence 
 shows ; for if they were so confined, such enjoyment, once confessed, 
 could not be avoided by replying that it was held by contract which is 
 not adverse. Again, as the legal right to a way cannot pass except 
 by deed, it is plain that the words ' enjoyment as of rignt' cannot be 
 confined to enjoyment under a strict legal right, for then a * consent'or 
 agreement' in ' writing,' not under seal, of which the second section 
 speaks, could not account for such enjoyment. The words, therefore, 
 must have a wider sense ; and yet they must have the same sense as 
 the words ' claiming right thereto,' in the second section, otherwise 
 there will be incongruities in the construction of the Act. It seems, 
 therefore, that the enjoyment as of right must mean an enjoyment had, 
 not secretly or by stealth, or by tacit sufferance, or by permission 
 asked from time to time on each occasion, or even on many occasions, 
 of using it, but an enjoyment had openly, notoriously, without partic- 
 ular leave at the time, by a person claiming to use it, without danger 
 of being treated as a trespasser, as a matter of right, whether strictly 
 legal by prescription and adverse user, or by deed conferring the 
 right, or though not strictly lawful to the extent of excusing a trespass, 
 as by a consent or agreement in writing, not under seal, in case of a 
 plea for forty years, or by such writing, or parol consent or agree- 
 ment, contract, or license, in case of a plea for twenty years {ante, 
 p. 139). - According to this view of the Act, a license in writing must 
 be replied to a plea of forty years' enjoyment, if it cover the whole 
 Ad. Vol. I.— 24 
 
370 TBESPASS ON RiSALTT. [Chap. 6. 
 
 time, and the same of a parol license, in case of a plea for twenty 
 years"(Z). 
 
 439 Replication of the existence of a tenancy/ for life dwring part of the period 
 of enjoyment relied upon hy the plea. — Where there has been a thirty 
 years' notorious enjoyijient of a profit a prendre during a tenancy for 
 life had with the knowledge and acquiescence of the ownpr of the fee, 
 so as to be an enjoyment as of right within the statute against the 
 inheritance {ante, pp. 143, 144), the tenancy for life must be specially 
 pleaded by the reversioner, in order»to • exclude such thirty years' 
 enjoyment from the computation of the prescriptive period under the 
 statute. Thus where, in an action of ti^espass, the defendant pleaded 
 an uninterrupted user and enjoyment of a profit jl prendre for thirty 
 years under s. 1 of 2 & 3 Wm. 4, c. 71, and the plaintiff, by his repli- 
 cation, traversed the enjoyment, and the defendant, at the trial, 
 proved enjoyment for thirty years next before the action, it was 
 held that the plaintiff was not at liberty to prove a tenancy for life 
 during part of those thirty years, as he had not set it up by his 
 replication(TO). 
 
 440 Rejoinder traversing the fact of the existence of the tenancy for life 
 during part of the period of enjoyment. — If a tenancy for life during 
 the thirty years' period be replied and traversed by the rejoinder, 
 the defendant may insist that the thirty years' enjoyment alleged 
 in the plea is made up of time preceding and following the tenancy 
 for life(w). 
 
 441 Evidence at the trial — Proof on the part of the plaintiff. — If the 
 plaintifi" in his declaration has alleged that he is possessed of a close, 
 and proves possession either of the surface or of the subsoil and 
 minerals beneath the surface, he sustains his declaration(o). Under 
 the plea of not guilty, the plaintiff must be prepared to prove the 
 commission, by the defendant, his servants or agents, of the trespass 
 of which he complains(p). Where it was proved that the plaintiff 
 was tenant of certain rooms in the defendant's house, and that the 
 
 • defendant unlawfully locked the door and kept him out, it was held 
 that the jury might infer that there had been an actual entry by 
 the defendant into the plaintiff's rooms, so as to support an allegation 
 in a declaration that the defendant broke and entered the rooms of 
 
 (I) Per Cur., Tickle v. Brown, i Ad. & E. 382. 
 
 (m) Pye v. Mumford, 1] Q. B. 675. 
 
 (TJ) Clayton v. Corby, 2 Q. B. 813, 
 
 (o) Cox V, Glue, ante^ p. 75. 
 
 ip) Ante, p. 358. Com. Dig. Tkespass. 
 
Sec, 3.] PLE40INGS — EVIDHNCM. 37X 
 
 the plaintiff and expelled him theTefrom(g'). To fix the defendant 
 with a trespass committed by the hand of another, it must be proved 
 that the act was done by command of the defendant, or that it was 
 done for his benefit, and that ,he subsequently adopted and ratified 
 the act(r). 
 
 Where the declaration alleged that the defendant entered the 
 plaintifi"'s dwelling-house, and continued therein for eight days, it 
 was held that the plaintiff , was entitled' to show a trespass committed 
 by the defendant in the dwelling-house on any of those days, and 
 that the plaintiff need not prove that the defendant continued there 
 the whole time ; but, when various subsequent acts of trespass are 
 given in evidence, it ought to appear that they were all in continu- 
 ation, or in furtherance, of the original wrongful act(s). 
 442 Proof under a traverse of the plaintiff's possession, or right of posses- 
 sion, of the loeus in quo. — If the defendant, by his plea, denies the 
 plaintiff's possession, or right of possession, of the locus in quo, the 
 plaintiff must be prepared with general evidence of actual or con- 
 structive possession at the time of the commission of the alleged 
 trespass. If the soil and freehold of the locus in quo are proved to 
 be in the plaintiff, the possession is also presumed to be in him, unless 
 there be some evidence to the contrary(^), for possession follows the 
 property when there is no actual possession in another person(M). 
 Actual(MM) or constructiye('!)) possession, without proof of any title to 
 the soil and freehold, is quite sufficient to support an action against a 
 wrong-doer ; for he who commits a trespass upon the possession of 
 another, being himself a wrong-doer, has no right to put the other 
 party to proof of title. A lessee of the vesture or herbage, or a pur- 
 chaser of growing crops, who has a right to the use of the land for 
 
 (q\ Lane v. Dixon, 3 C. B. 776. 
 
 (r) Ante, pp. 30-34 ; post, oh. 20, s. 2. 
 
 («) Percival o. Stamp, 9 Exoh. 174. 
 
 (i) Parke, B., Hebberfc ». Thomas, 1 C. M. & E. 86*. 
 
 (m) Eex e.' Mayor, etc., orLondou, 4 T. E. 26. Terpenning o Gallup, 8 Clayke (Iowa), 74. 
 Snider ». Myers, 3 W. Va. 195. M'Gran v. Bookman, 3 Hill (S. C,), 265. Safford v. Basto, 4 
 Mich. 406. Shipman o. Baxter, 21 Ala. 456. Gillespie e. Dew, 1 Stew. 229. Aikin v. Buck, 1 
 Wend. 466. Warren v. Cocliran, 10 Foster (N. H.), 379. 
 
 (K«) Brown e. McCloud, % Head (Tenn.), 280. Catterlin ». Douglass, 17 Ind. 213. Albin v.. 
 Lord, 39 N. H. 196. Eogan o. Perry, 6 Wis. 194. Black v. Grant, 50 Me. 364. Barstow «. 
 Sprague, 40 N. H. 27. Hunt ». Eich, 38 Me. 195. Tyson v. Shuory, 5 Md. 540. Linard v. 
 Crosslai»d, 10 Texas, 462. Chandler b. Walker, 1 Foster (N. H.), 282. Moor v. Campbell, 13 
 >f . H. 208. Inskeep c. Shields, t Herring. 345 ; Barnstable «. Thatcher, 3 Met. 239. Larue i) 
 Russell, 26 lad. 386. 
 
 (») Teri»ennmg ». Gallup, 8 Clarke (Iowa), 74. Cohoon v. Simmons, 7 Ired. 189. Graham 
 V. Houston, 4 Dev. 232. Leadbetter o. Fitzgerald, 1 Pike, 448. Wilson ». Bushnell, id. 465. 
 Davis e. Clancy, 3 M'Cord, 422. Bulkleyc. Dolbeare,7Conn. 2iJ3. But see Stean K.Anderson, 
 t Harring. 2<» ; Webb », Sturtevant, 1 Scam. 181. 
 
372 TRESPASS ON BEALTY. [Chap. 6. 
 
 bringing the crops to maturity, and has, consequently, an interest in 
 the soil, may maintain an action for a trespass upon his close or land, 
 against any person who wrongfully comes upon the land, or interferes 
 in any way with the growing crops(a;) ; but a purchaser of crops arrived 
 at maturity, who has bought them with a view to their immediate 
 severance as chattels, and has no interest in the soil, cannot maintain 
 an action for a trespass upon the land, but must confine his cause of 
 action to a claim for damages for an injury to goods and chattels(2/). 
 
 Very slight evidence of possession is sufficient to establish a p'rimA 
 facie title to sue for an injury to realty, such as the occupation of the 
 soil with stones and rubbish, which have been placed thereon by order 
 of the plaintiff, and kept there for some short time without molesta- 
 tion, or the building of a wall, or a dam, mound, or fence, which goes 
 on for some weeks without interruption, and is then knocked down(0) ; 
 or the inclosure or cultivation of a piece of waste ground, the mowing 
 of the grass thereof; or the pasturing of a cow thereon ; for mere 
 occupancy of land, however recent, gives a good title to the occupier, 
 whereon he may recover as against all who cannot prove an older and 
 better title in themselves(a). The digging of pits in a common, and' 
 , throwing out heaps of earth, are prima facie proof of ownership of 
 " the heaps cast out, so as to support an action S-gainst a wrong-doer for 
 carting away the heaps(6). 
 
 A mere intruder may have a possession sufficient to enable him to 
 maintain an action against a person who does an injury to that 
 possession ; but he cannot maintain any action in which it would be 
 necessary to prove title(c). 
 
 To maintain the action, however, there must in all cases be proof, 
 
 {X) Crosby v, Wadsworth, 6 East, 609. See Eoads v. Orerseers of Tnimpington, L. E., 6 Q. 
 ' B. 1)4; DoUoffu. Danforth, 43 N. H. 219. 
 
 [y) Parker v. Stanilanfl, 11 East, 366. Evans v. Roberts, 5 B. & C. 837. 
 
 («) Every v. Smith, 26 Law J., Bxch. 345. Dyson v. CoUiok, 5 B. & Aid. 60O ; 1 D. & K. 225. 
 But see Allen v. Suseng, 1 Cold. (Tenn.) 204 ; Tappan v. Barnham, 8 Allen (Mass.), 65. 
 
 (a) Catteris v. Cowper, 4 Taunt. 547. Matson v. Cooke, 6 So. 1S4 ; 4 B. N. C. 392. Posses- 
 sion of land under a levy is suflicient to maintain trespass against a mere stranger. Blaisdell 
 V. Roberts, 37 Me. 239. See Cressy v. Sawyer, 18 N. H. 95. 
 
 The cutting of wood and timber on a tract of woodland for over twenty yeara, under a 
 ciaim of title, will support an action of trespass against one having no title. Kilbom v. 
 Rewee, 8 Gray, 415. And see Rogan v. Perry, 6 Wis. 194. 
 
 But a mere occupant of land cannot maintain trespass against the true owner, Merriam p. 
 Willis, 10 Allen (Mass.), 118. Inskeep v. Shields, 4 Harring. 345. Nor can the ])erson having 
 the title bring trespass quare clausum fregit against one having actual possession. Vance v. 
 Beatty, 4 Rich. 104. Amick v. Frazier, Dudley, 340. But the owner qf I'eal estate, if in pos- 
 session, may maintain trespass against one also in possession and claiming title as a tenant 
 in common with the owner. Hunting v. Russell, 2 Cush. 145. 
 
 (6) Northam v. Bowden, 11 Exch. 72. 
 ! (0) Harpers. Charlesworth, 4 B. & C. 689. Hurd v. West, 7 Cow. 752. 
 
Sec. 3.] ACTIONS— EVIDENCE. 373 
 
 either of title or of actual or constructive possession by the plaintiff 
 at the time the trespass was coinmitted(c?). Where, therefore, the 
 plaintiff held some marsh-land under a tenant for life, so that his in- 
 terest ceased on the death of the tenant for life, and at the time of the 
 determination of the life-interest, and down to the time of the com- 
 mission of the trespass, and the commencement of the action, the 
 plaintiff had no servants or cattle, or anything upon the land to show 
 that he continued in possession of it, it was held that there was no 
 proof that he was possessed of the land, and that his action was not 
 maintainable(e). 
 
 Where certain commissioners of sewers placed a dam in a public 
 navigable river, the soil or bed of which was not vested in them, it 
 was held that they had no such possession of the dam as would enable 
 them to maintain an action against a wrong-doer for pulling it down(/). 
 But if it be proved that contractors or commissioners of public works 
 have got the permission of -the owner of the soil for the erection of 
 their works, or it be shown that they or their servants were in the ac- 
 tual possession of the works at the time of the commission of the tres- 
 pass, this will be sufficient to enable them to maintain the action(p'). 
 
 Where a landowner gave the plaintiff license or permission to build 
 a bridge on his land, for the use of the public, and the plaintiff built 
 the bridge, and the defendant afterwards removed the parapets and 
 carried away the stones, it was held that, on the severance of the 
 stones from the land, they became chattels, the property in which was 
 vested in the plaintiff, and that he was entitled to maintain an action 
 against the defendant for carrying them away (A). 
 
 Navigation commissioners authorized by statute ,to make a river 
 navigable and form towing-paths, on making compensation to the ad- 
 joining landowners, have no such possession of the soil of the towing- 
 path, or of the artificial river-banks formed by deepening the river, 
 and throwing out the soil from the bed to the sides of the stream, as 
 will enable them to maintain an action for a trespass for cutting down 
 trees growing in the soil of the towing-path or the banks, although 
 
 (d) See Harrison v. Blackburn, 34 L. J., C. P. 109; Halligan v. Chicago and Rock Island E. 
 K. Co., 15 111. 55S; Vance v. Beatty, 4 Kich. 1P4; Church v. Meeker, 34 Conn. 421; Eidgely v. 
 Bond, 17 Md. 14; Dejarnett v. Haynes, 23 Miss. 600; Congregational Society v. Baker, 15 Vt. 
 119; Richardson v. Palmer, 38 N. H. 212; Weitzler v. Marr, 46 Peun. St. 463; Brown ». Thomas 
 26 Miss. 3S4. 
 
 (e) Brown v. Notley, 3 Exch. 221; 18 Law J., Exch. 39. 
 {/) Duke of Newcastle v. Clark, 8 Taunt. 621. 
 
 (jf) Dyson v. Collick, 5 B. & Aid. 600. 
 (A) flarrispn v. Parker, 6 East, 154. 
 
374 TRESPASS ON REALTY. [Chap. 6. 
 
 they may have been in the habit of repairing, mowing, and trimmpg 
 the banks, and exercising acts of ownership over them(i). 
 
 Proof of the possession of the key of a building is no proof of the 
 possession of the building itself(A). 
 
 If the plaintiff has come into the possession of the land after the 
 trespass was committed, the trespass is not a trespass against him,' 
 and he cannot maintain an action in respect of it(^), unless it is a con- 
 tinuing trespass(m). 
 
 443 Proof ly the reversioner. — When the action is brought by the rever- 
 sioner in respect of some injury to his reversionary estate, proof of 
 the receipt of rent by him will be prima fade proof of his title to the 
 reversion. Thus, in an action by the reversioner for cutting down 
 trees on land in the possession of his tenant, proof of payment of rent 
 by the latter to the plaintiff is prima fade evidence of the plaintiff 
 being the reversioner, and of the trees being his property(w). 
 
 444 Heir-at-law. — To sustain an action by an heir-at-law for trespasses 
 committed upon land descended to him, where he is not in possession 
 of the land, but the action is brought against a trespasser who contests 
 his title, there must be proof of entry by the heir, and, after entry, 
 his right of possession relates back, so as to support an action against 
 a wrong-doer for a trespass committed at an antecedent period(o). 
 
 445 Proof of disseisin and re-entry. — If one disseises me, and during the 
 disseisin he cuts down the trees or 'grass, or the corn growing upon 
 the land, and afterwards I re-enter, I shall have an action of trespass- 
 against him for the trees, grass, corn, etc. ; for, after my regress, 
 the law, as to the disseisor and his servants, supposes the free- 
 hold always continued in me(p). By his re-entry the disseisee is 
 remitted to his first possession, as if he had never been out of 
 possession(g'). A person, therefore, who has the freehold and a 
 
 (i) HoUis V. Goklflnch, IB. & C. 218. Ante, pp. 107, 361. 
 
 (k) Revett v. Brown, 5 Bing. 7. 
 
 {() Pilgrim v. Southampton, etc., Kail. Co., 18 Law J., C. P. 332. 
 
 (m) Holmes c. Wilson, 10 Ad. & B. 503. 
 
 {») Jayne ». Price, ante, p. 333. Uaintry v. Brooklehurst, 3 Exoh. 209. 
 
 (o) Barnett v. Earl of Guildford, 24 Law J., Exch. 281 ; 11 Exch. 19. In New Hampshire, 
 an heir or devisee may maintain trespass without iirst making an entry. Dexter v. Sullivan, 
 34 N. i-i. 478. 
 
 (p) Liford's case, 11 Co. Rep. 51a. Dewey ». Osbom, 4 Cow. 329. King «. Baker, 25 Penn. 
 St. 604. Cleveland v. Jones, 3 Strobh. 479, note. And see Abbott v. Abbott, 51 Me. 575 ; Cut- 
 - ting V. Cox, 19 Vt. 517. 
 
 In Now Hampshire, a disseisee having a right of entry as against his disseisor, may main 
 tain trespass quare clausum /regit against the disseisor continuing in possession, for acts sub 
 sequent to the orignal disseisin, without first making an actual entry. Carter V. Beals, 44 N. 
 H. 403. 
 
 (a) Holcome i>. Rawlins, Moore, 461. 
 
Sec. 3. J EVIDENCE FOB TBE DEFENCE. 375 
 
 right to the possession of land may, by a peaceable entry upon the 
 land, acquire sufficient possession of it to enable him to maintain an 
 action for a trespass against any person who, being in possession at 
 the time of his entry, wrongfully continues upon the laud(f). It is 
 not necessary that the person who makes the entry should declare 
 that he enters to take possession. It is sufficient if he does any act to 
 show his intention, and, having regained constructive possession by 
 his peaceable entry upon the unlawful possession of the occupier, and 
 being entitled to treat the latter as a trespasser, all those who come 
 upon the land without title, after such vesting of possession, are tres- 
 passers, and liable to be sued as such. If a landlord, having a right 
 to the possession of land on the expiration of a lease, sends his agent 
 to the land to demand possession, and the agent enters and makes the 
 demand, this is a sufficient entry to clothe the landlord with the con- 
 structive possession, so- as to enable hi'm to sue in trespass all persons 
 Who subsequently come upon the land by the authority of the tenant(s). 
 446 Evidence for the defence. — Under a traverse of the allegation in the 
 declaration, that the close was the close of the plaintiff, the defendant 
 is at liberty to show title in himself, or some other person under whose 
 authority he claims to have acted(i). 
 
 If the defendant relies upon a plea of liberum tenementum {ante, 
 p. 361), he must prove that the land whereon the alleged trespass was 
 committed was his own soil and freehold, and that he was entitled to 
 the possession of it as against the plaintiff. By this plea the defend- 
 ant admits, as we have seen, that the plaintiff is in possession, and 
 that he himself is, prima facie, a wrong-doer ; but he undertakes to 
 show a title in himself which shall do away with the presumption 
 arising from the plaintiff's possession. He may do this either by 
 showing title by deed in the usual way, or by proving a possessory 
 title for twenty years(M). If, under this plea, the defendant establishes 
 a title to that part of the close on which the alleged trespass wa? com- 
 mitted, he will be entitled to a verdict ; for he is not bound to prove a 
 title to the whole close, unless he has upon the record expressly under- 
 taken to prove the whole close to be his soil and freehold(a;). 
 
 When the plaintiff has in his declaration described by name or by 
 
 (r) Butcher v. Butcher, 7 B. & C. 402 ; 1 M. & E. 220. Litchfield v. Eeiidy, 5 Hxoh. 939. 
 
 (s) Hey V. Moorhouse, 8 So. 168 ; 6 B. N. C. 53. 
 
 (i) JbnesB. Chapman, 2 Exch. 812. See Gilbert v. Felton, 5 Gray (Mass.), 40(1; Jewett v. 
 Foster, U Gray (Mass.), 495 ; Miller v. Decker, 40 Barb. (N. Y.) 228 ; Beach ». Livergood, 15 
 Ind. 496. 
 
 («) Brest ». Lever, 7 M. & W. 695. 
 
 (3!) Smith V. Eoyston, 8 M. & W. 386. Phillips V. Phillips, 1 N. J. 42. 
 
376 TRESPASS ON REALTY. [Chap. 6. 
 
 abuttals the close in which, as he alleges, the trespass was committed, 
 and the defendant pleads liberum tenemenimn generally, the defendant 
 cannot, by showing that he himself is possessed of a close of the same 
 name and in the same vill, turn the plaintiff round, and prevent him 
 from proving a trespass in his own close, as named in the declaration(«/). 
 The defendant must make out his title to the freehold on the very spot 
 described in the declaration ; and, on his proving a prima, facie right 
 to enter the close because it is his freehold, it will be competent to the 
 plaintiff to prove that it has been demised to him, and to show his 
 lease, if he have one(0). Where separate trespasses are alleged to have 
 been committed in three different closes, specifically described in the 
 declaration, and the defendant, by his plea, says, in effect, that each 
 of thehi was his own soil and freehold, the issues will be taken dis- 
 tributively, so that the plaintiff may have a verdict as to one close, 
 and the defendant as to another(a). 
 447 Proof of leave and license. — If the defendant relies upon a plea of 
 leave and license, he < must prove either an express permission from 
 the plaintiff to the defendant to come upon the land(6), or circumstan- 
 ces from which such a permission may fairly be implied(c). If, after 
 a parol license to use a way has been granted, the licensor locks a gate 
 across the way, this is a revocation of the license, and the licensee 
 cannot lawfully break open the gate to use the way(d). A licensee 
 can of course, take no better title or authority than the licensor him- 
 self possesses ; and, therefore, if one tenant in common gives to the 
 defendant license or permission to dig and carry away soil, or brick- 
 earth, or turf, from the estate holden in common, this will give the 
 defendant no right or title as against the other co-tenant in common, 
 and will afford no answer to an action brought by the latter for a tres- 
 pass(e). If the license or permission of the wife, daughter, or servant 
 of the plaintiff has been obtained by the defendant, this will be no 
 evidence of a license from the plaintiff, unless the surrounding cir- 
 cumstances show that the wife, daughter, or servant had the plain- 
 tiff's express or implied authority to grant the license(/). Under a 
 general plea of leave and license, the defendant is bound to prove a 
 
 (y) Cooker v. Crompton, 1 B. & C. 491. Lempriire v. Humphrey, 3 Ad. & E. 186. 
 
 (a) Harvey v. Brydges,'l4 M. & W. 441 ; 1 Exoh. 261. 
 
 (a) Phythian i). White, 1 M. & W. 223. 
 
 (6) Karanagh v. Gudge, 7 M. & Gr. 316. 
 
 («) Ditoham v. Bond, S Campb. 624. Martin «. Houghton, 45 Barb. (N. T.) 258. 
 
 (d) Hyde v. Graham, 33 Law J., Exch. 27. See Jamieson v. Milleman, 3 Duer (N. Y.), 255. 
 
 <«) Willjinson v. Hagarth, 12 Q. B. 846. 
 
 (/) Tayler v. Fisher, Cro. Eliz. 246. Holdringahaw v. Eag, ib. 876. 
 
Sec. 3.] PROOF OF LEAVE AND LICENSE. 377 
 
 license co-extensive with all the acts of which the plaintiff complains ; 
 for if some of those acts are not covered and authorized by the license, 
 the plaintiff will be entitled to damages in respect of them. A license 
 to a defendant to have the key of a house, and to enter it when he 
 pleases, will not authorize the defendant to enter the house otherwise 
 than by the door, in the ordinary way. If, therefore, the defendant, 
 having lost the key, enters the house by a window, he commits a tres- 
 pass ; and if evil-disposed persons, following his example, get into the 
 house through j^e same window, and rob the house, the defendant 
 will be responsible for the damage done(5'). 
 
 Where a man is licensed to do a thing, it necessarily implies that 
 he may do everything without which the thing authorized to be done 
 cannot be done (ante^ pp. 104, 105). If, therefore,' the plaintiff has 
 authorized the defendant to sell furniture and effects in the plaintiff's 
 house, the license extends to all such assistants as may be necessary 
 to enable the defendant to effect the sale and remove the goods(A). 
 A plea of leave and license is not supported by proof that the plain- 
 tiff sold to the defendant certain goods and chattels which were depos- 
 ited on the plaintiff's premises, and that the defendant entered upon 
 the premises to remove the goods, for there is no implied authority to 
 a purchaser to enter upon the vendor's land and help himself to the 
 goods. There must be an express agreement to that effect(i). 
 
 A license obtained by wilful misrepresentation and deceit is a mere 
 nullity, and will not justify or excuse a trespass by a defendant who 
 was a party to the misrepresentation(A). And if there has been a 
 mistake and misunderstanding between the parties without fraud, the 
 license will be a nullity(Z), but the misunderstanding will go in reduc- 
 tion of damages in an action for the unintentional trespass. Under a 
 replication denying the fact of the license, the plaintiff may prove 
 that it was revoked, with notice to the defendant prior to the commis- 
 
 ig) Ancaster v. Milling, 2 D. & E. 714. 
 
 (7i) Dennett v. Grover, Willes, 195. 
 
 (i) Williams i>. Mon-is, 8 M. & W. 488. McLeod ». Jones, 105 Mass. 403. A sale of chattels, 
 •which are at the time upon the land of the seller, will authorize an entry upon the land to 
 remoTB them, if by the express or implied terms of the sale, that is the place where the pur- 
 chaser is to take them. Id. Nettleton v. Sikes, 8 Mete. 34. Giles v. Simouds, 15 Gray, 441. 
 Drake v. Wells, 11 Allen, 441, McNeal v. Emerson, IS Gray, 384. Wood v. Mauley, 11 Ad. 
 and El. 34. See Long v. Buchanan, 27 Md. 502. A license is implied because it is necessary 
 in order to carry the sale into complete efTect, and is therefore presumed to have been in con- 
 templation of the parties. It forms- part of the contract of sale. McLeod u. Jones, 105 Mass. 
 403. But there is no such inference to be drawn when the property, at the time of sale, is not 
 apon the seller's premises, or where by the tei-ms of the contract it is to be delivered else- 
 where. Id. 
 
 (ft) Koper V. Harper, 4 B. N. C. 20. 
 
 (I) Bridges v. Blanchard, 1 Ad. & E. 551. See Davies v. Marshall. 10 C. B., N. S. 897, 
 
378 TRESPASS ON BEALTT. [Chap. 6. 
 
 sion of the trespass(TO). A parol license to enjoy an easement over or 
 upon the soil and freehold of another is at once determined, as we have 
 seen, by a transfer of the property, and the grantee of the license is 
 consequently a trespasser, if he afterwards enters upon the land in the 
 exercise and enjoyment of his supposed right, although he has received 
 no notice of the transfer(w). 
 
 448 Proof of pleas of justification. — If the defendant has pleaded a plea 
 justifying the trespass in the exercise of a privilege, profit a prendre, 
 or easeitient, he must prove his right or title to the enjoyment of the 
 incorporeal hereditament, either under an express or implied grant 
 {ante, p. 101, et. seq.), or by prescription (awte, p. 133, et. seq.) ; and he 
 must make out his justification as to that part of the close named in 
 the declaration in which the trespass is proved to have been com- 
 mitted(o) ; but it is not necessary, in support of pleas of user and 
 enjoyment under the Prescription Act, to show an actual exercise of 
 the right in the very spot, when it is parcel of a larger tract. It is 
 sufficient to show user and enjoyment over the larger tract under such 
 circumstances, that it may reasonably be inferred that the right 
 extended over the whole of the .larger tract, including the spot in 
 questionfp). 
 
 449 Proof of right of way — Pleas of justification. — If the defendant justi- 
 fies in the exercise of a right of way {ante, pp. 104, 105, 143, 164, 169), 
 he must prove a right co-extensive with the right claimed(g'). If he 
 proves a larger and more extensive right than he claims, but the right 
 claimed is included in the more extended right proved, there is, as 
 we have seen, no variance. Thus a plea of a right of foot-way is sup- 
 ported by proof of a right of way for carts or carriages, as a carriage- 
 way always includes a foot-way(7-). A plea of a right of way in the 
 occupiers of certain premises may be established by proof that the 
 defendant is seised of a freehold or copyhold estate in such premises, , 
 and that they are in the occupation of a tenant to whom he has demised 
 them ; for a landlord may be constructively an occupier so as to give 
 him a right to use a way appurtenant to his own premises, although 
 those premises are in the possession of a tenant. The landlord of a 
 tenement to which a right of way is appurtenant may, while the tene- 
 ment is in the occupation of a tenant, lawfully use the way to remove 
 
 (m) Adams o. Andrews, 15 Q. B. 291. Barnes v. Hunt, 11 East, 451 ; wale, pp. 98, 99. 
 
 (n) WaUls V. Harrison, anU, p. 120. 
 
 (o) Bassett v. Mitchell, 2 B. & Ad. 105. Wood v. Wedgewood, 1 C. B. 277. 
 
 (p) Peardon v. Underbill, 16 Q. B. 123. 
 
 (?) Brunton v. Hall, 1 Q. B. 792, 
 
 (r) Dalies e. Stephens, 7 C. & P. 671 ; tinU, pp. 181, 182. 
 
Sec. 3.] EVIDENCE FOB DEFENCE — RIGHT OF WAT. 379 
 
 an obstruction, and to assert the right of way, or to view waste, or to 
 demand rent, or for any other purpose connected with the exercise of 
 his rights or duties as a landlord(s). 
 
 A justification of trespass, under a custom for all the inhabitants of 
 a particular town to walk and ride over a close of arable land at all 
 seasonable times in the year was held bad, because it appeared that 
 the trespass was committed when the corn was standing, and it was 
 held that "seasonable time'" was partly a question of law and partly 
 of fact(i). 
 450 Proof of deviations extra viam in the case of private ways. — When a 
 way has once been assigned, or a prescriptive right to go in any par- 
 ticular direction established, the course or direction of the way cannot 
 be altered by one party without the consent of the other. A grant of 
 a right of way to and from a particular dwelling-house, coach-house, 
 and stables, will not enable the defendant to go to and from an adjoin- 
 ing spot which he can reach from the same line of road. If there be a 
 grant of a way to a particular corner of a field, the grantee can go to 
 no other part(t<.). Where T had a way over the close of H, and H 
 ploughed and sowed his close, leaving a way in an unploughed place 
 in the same close, it was held that T was not bound to use the new 
 unploughed way, but was entitled to go where the ancient waiy was. 
 H may, however, use the new way as long as it lies open ; but if the 
 owner afterwards stops up the new way, he has no right to remove the 
 obstruction and pass along it(a;). In the case of a public highway out of 
 repair, passengers have a right to go upon the adjoining land, but this 
 is not the case with a private way. If the passenger deviates, he com- 
 mits a trespass(2/). 
 
 If a man has a right of way to a' close called A, he cannot justify 
 using the way to go to A, and from thence to another close of his own 
 adjoining to A{z). 
 
 (s) Proud v. Hollis, 1 B. & C. 9 ; 2 D. & E. 31. A defence to an action of trespass quare 
 clausum /regit may be sustained by proof of a right of way over tlie premises from the plain- 
 tiff's p'antor, before tlie conveyance of the premises to the plaintiff. Walker v. Newhouso, 
 14 Mo. 873. 
 
 (t) Bell V. Warden, Willes, 202. Mounsey v. Israay, ante, p. 122. 
 
 («) Banning ». Burnett, 8 Exch. 193. Sisull v. Glennister, 33 Law J., C. P. 185. See Daven- 
 son V. Lamson, 21 Pick. 72 ; Shroder v. Brennoman, 23 Penn. St. 348. 
 
 («) Home V. Widlake, Yelv. 141 ; Noy, 128. Keignolds v. Edwards, WiUes, 283. See ante, 
 p. IM. 
 
 (y) Taylor v. Whitehead, 2 Doug. 747. BuUard v. Harrison, 4 M. & S. 393. Miller v. Bristol, 
 12 Pick. 550. Holmes v. Serly, 19 Wend. 607. Capers v. M'Kee, 1 Strobh. 165. Williams v. 
 Safford, 7 Barb. 309. Bakeman v. Talbot, 31 N. Y. 366, 372. CampbeU V. Kace, 7 Cush. 408. 
 State V. Northumberland, 44 N. H. 631. 
 
 (iS) 1 EoU. Abr. 391. (CHIMIN. Pkivate) cited AUan v. Gomme, 11 Ad. & E. 770. 
 
380 TRESPASS ON REALTY. [Chap. 6. 
 
 45 1 Proof of a public right of way. — Nothing done by a lessee, without 
 the knowledge or consent of the owner of the fee, will, as we have 
 seen {ante, pi 269), give a right of way to the public ; and the public 
 can take no larger or more extensive right of way than the owner of 
 the fee thinks fit to grant or to allow. " They must take secundum 
 formam doni, and if they cannot take according to that, they cannot 
 take, at all. If a restriction cannot by law exist as to a public way, 
 then the grant is only a license revocable." Where, therefore, a land- 
 owner suffered the public to use for*several years a road through his. 
 estate for all purposes except that of carrying coals, it was held that 
 this was either a limited dedication of the road to the public or no 
 dedication at all, but only a license revocable ; and that a person car- 
 rying coals along the road, after notice not to do so, was a trespassex(a). 
 
 452 Proof of a right of way over vacant or waste strips of land extending 
 alongside a private thoroughfare. — " When," observes Lord Tenterden, 
 " I see a space of fifty feet, through which a road passes between in- 
 closures set out under an Act of Parlianaent, I am of opinion that, 
 unless the contrary be shown, the public are entitled to the whole of 
 that space, although, perhaps, from economy, the whole may not have 
 been kept in repair. If it were once held that only the middle part, 
 which carriages ordinarily run upon, was the road, you might by 
 degrees inclose up to it, so that there would not be room left for two 
 carriages to pass. The space at the sides is also necessary to afford 
 the benefit of air and sun "(p). A highway board, therefore, or other 
 authority having jurisdiction over a high-yvay set out under an Enclos- 
 ure Act, are justified in cutting down trees growing on the space 
 between the highway as actually used, and its boundary as set out in 
 the Enclosure Act, but not, it seems, in selling them, as against the 
 owner of the soil in which they grew(c). 
 
 453 Proof of entry on the plaintiff's land for the purpose of depositing 
 thereon the plaintiff's own goods, or removing therefrom the goods of the 
 defendant. — In Rolle's Abridgment it is said, " If a man comes into 
 my close with an iron bar and sledge, and there breaks my stones, 
 and after departs and leaves the sledge and bar in my close, in an 
 action of trespass for taking and carrying of them away, I may jus- 
 tify the taking of them and putting them in the close of the plaintiff 
 
 («) Marquis of Stafford v. Coj-ney, 7 B. & C. 257. As to proof of dedication of way, seo 
 ante, p. 265, et seg. 
 
 (6) Rex V. Wright, ante, p. 272. 
 
 (c) Turner v. Eingwood Highway Board, L. E., 9 Bq. Ca. 418. See Phifer v. Cox, 31 OJiio 
 St. 248 ; Cole v. Drew, 44 Tt. 49. 
 
Sec. 3.] EVIDENCE FOB DEFENCE — RIGBT OF WAT. 381 
 
 himself next adjoining, especially giving notice of it to the plaintiff, 
 inasmuch as they were brought into my close of his own tort ; and in 
 such case of tort I am not. bound to carry them to the pound, but may 
 well remove the wrong done to myself by them by tort of the plain- 
 tiffed). An entry on the plaintiff's land may be justified on the 
 ground that the plaintiff took the defendant's goods and carried them 
 on to his own land, wherefore the defendant entered upon the plaintiff's 
 land and took his goods back again(e) ; but the entry is not j ustifiable 
 from the mere fact of the plaintiff's goods being on the defendant's land. 
 It must be shown that they came there by the plaintiff's act(/). 
 
 454 Of the damages recoverable in actions for trespasses upon real property. — 
 All damages which naturally result from the wrongful act of the de- 
 fendant, and are directly traceable thereto, may be recovered by the 
 plaintiff, if he claims them in the declaration(^). Where the plaintiff, 
 being desirous of letting his house, placed the key under the control 
 of the defendant, and, the key having been carried away, the defend' 
 ant got a ladder and entered the house through a bed-room window, 
 which had no fastenings, and showed some strangers over the house, 
 and a few nights afterwards the house was entered, apparently by the 
 same window,, and valuable property of the plaintiff was stolen, it was 
 
 * held that, the defendant was responsible in an action of trespass for 
 the loss the plaintiff sustained by the robbery(^). 
 
 455 Trespasses on land after notice or warning not to trespass. — Surrounding 
 circumstances of aggravation will materially influence the amount of 
 damages to be recovered for a trespass upon land. Where the plain- 
 tiff, a gentleman of fortune, was shooting upon his estate, and the 
 defendant, a banker and magistrate, and member of parliament, went 
 up to the plaintiff and told him he would join his shooting party, and 
 the plaintiff declined, and ordered him off his land, and gave him 
 notice not to shoot there; but the defendant swore that he would 
 shoot there, and did so, and threatened and defied the plaintiff, and 
 the jury gave 500Z. damages, the court refused to disturb the verdict. 
 "I do not know," observes Gibbs, C.J., "upon what principle we can 
 grant a rule for a new trial in this case, unless we were to lay it down 
 
 (O) Cole V. Maundy, 1 Eoll. Abr. Trespass, 1 pi. 17, p. '666. Roa». Sheward, 3 M. & W. 426. 
 
 (e) 3 Vin. Abr. Trespass, 1. As to breaking open a door to get at books and papers, see 
 Burridge v. Nicholetts, 30 Law J.,Exoh. 145; Blades v. Higgs, ib. C. P. Z^,post, p. 330; 
 ante, p. 9. 
 
 (/) ratriok v. Colerick, 3 M. & W. 485. Anthony v. Haney, 1 M. & So. 300 ; 8 Biug. 186 
 Williams v. Morris, S M. & W. 4S8. See MoLeod v. Jones, 105 Mass. 403. 
 
 [g) Ante, pp. 90, 91, 185 ; and posi, ch. 22. 
 
 (A) Anoaster v. Milling, 2 D. & E. 714. 
 
382 TBHSFASS ON RXJALTY. [Chap. 6. 
 
 that the jury are not justified in giving more than the absolute pecun- 
 iary damage that the plaintiff may sustain. Suppose a gentleman 
 has a paved walk in his paddock before his, window, and that a man 
 intrudes and walks up and down before the window, and remains 
 there after he has been told to go away, and looks in while the owner 
 is at dinner, is the trespasser to be permitted to say, ' Here is a half- 
 penny for you, which is the full extent of all the mischief I have 
 done,' would that be a compensation ? "(i). 
 
 Where a landlord entered upon premises demised to his tenant, 
 without asking the leave of the latter, and sold the timber-trees 
 standing in the hedge-rows, and caused them to be felled, cut up, 
 and removed, and great damage was done to the growing crops of 
 the tenant, and the latter brought an action against the landlord for 
 damages, and recovered 100^. beyond the net value of the whole of 
 the crops, the court declined to interfere to have the amount of dam- 
 ages reconsidered, although they were of opinion that the jury had 
 taken an exaggerated view of them(A). 
 456 Damages in respect of trespasses in dwelling-houses. — The law guards 
 with great jealousy and watchfulness the peaceable possession by 
 every man of his dwelling-house, and enables all who have been 
 disturbed in the enjoyment thereof to recover substantial damages 
 from every wilful and intentional intruder, though no actual pecuniary 
 damage can be proved to have been done in point of fact either to 
 property or the person(Z). " Rights of action of this sort are given,' 
 observes Lord Denman, "in respect of the immediate and present 
 violation of the possession of the plaintiff, independently of his right 
 of property ; they are a.n extension of that protection which the law 
 throws around the person, and substantial damages may be recovered 
 in respect of such rights, though no loss or diminution in the value of 
 property may have occurred "(m). 
 
 (i) Merest w. Harvey, 5 Taunt. 441. 
 
 (i) Williams v. Carrie, 1 C. E. 847. See Bousall v. McKay, 1 Hoaston (Del.), 520. Exem- 
 plary damages may be given in an action of ti'espass quare clausum /regit, where there are 
 such circumstances ol' aggravation, of insult," or of malice, as would warrant the recovery 
 of such damages in any other form of action. Perkins v. Towle, 43 N. H. 220. Nagle «. 
 Mullisou, 34 Penn. St. 48. St. Peter's Church v. Beach, 26 Conn. 355. Major v. PuUiam, 3 
 Dana, 684. See Druse i>. Wheeler, 22 Ifich. 439. 
 
 But the right to award exemplary damages does not depend on whether the entry was 
 malicious or otherwise. Devaughn v. Heath, 37 Ala. 595. Goetz v, Ambs, 27 Mo. 28. 
 
 But iir no case can vindictive damages be recovered from the estate of a deceased tres- 
 passer, no matter how aggravated the trespass may have been. Wright i^. Donnell, 31 
 Texas, 291. 
 
 (J) Sears v. Lyons, 2 Stark. 318. 
 
 (m) Kogers v. Spenoe, 13 M. & W. 581. 
 
Sec. 3.] DAMAGES RECOVERABLE. S8B 
 
 Ab7 . Assessment of da/mages in cases of injury to buildings. — The amount 
 of damages to be recovered in an action of tort for the wrongful and 
 malicious demolition of a house in the actual occupation of the owner, 
 seems to be peculiarly for the consideration of a jury. The question 
 for them to determine is, what sum of money will repair the injury 
 done to the plaintiff by the loss of his house, and what sum will be 
 required to replace the house, as nearly as practicable, in the situ- 
 ation and state in which it was at the time of the commission of the 
 injury(w). 
 
 458 Assessment of damages for digging and carrying away coal and earth. — 
 In an action for a trespass in taking away the plaintiff's coal, he is 
 entitled to recover the value of the coal at the time of its severance 
 from the soil, and the trespasser cannot claim any deduction there- 
 from in respect of the expense incurred by him in getting or severing 
 the coal(o), unless there is a real disputed title, or the defendant has 
 taken the coal inadvertently under a bona fide belief that he had a 
 right to do so, in which case the jury may give such an amount only 
 as the plaintiff would have obtained from the defendant on a sale 
 of the coal(j)). This value is .the sale price at the pit's mouth, after 
 deducting the expense of carrying the coals from the place in the 
 mine where they were got to the pit's mouth(g'). The plaintiff is also 
 entitled to compensation for any damage done beyond the removal of 
 the coal, e.g., for all injury done to his soil by digging, and for the tres- 
 pass committed in dragging the coal along the adit of his mine, 
 etc.(r). The estimate of the loss from the removal of the coal depends 
 upon the value of the coal at the time of its severance from the soil ; 
 and the defendant has no right to any deduction in respect of royalty 
 payable by the plaintiff to the mine-owner on coals got from the mine(s). 
 Where an action was brought for digging into the • plaintiff 's close, 
 and' caiTying away therefrom large quantities of earth, soil, etc., it 
 was held that the plaintiff was entitled, by way of compensation, to 
 what the land was worth to him, and not to the amount which would 
 be required to enable the plaintiff to replace the soil which had been 
 taken away(<), 
 
 («) Duke of Newcastle v. Hundred of Broxtowe, 4 B. & Ad. 282. 
 
 (o) Martin v. Porter, 5 M. & W. 352. See Lynvi Co. v. Brogden, L. K., 11 Eq. C.a. 188 ; Phil- 
 lips V. Homfray, L. K., 6 Ch. App. 770. 
 
 (/)) Wood V. Morewood, 3 Q. B. MOn. See Hilton v. Woods, L, E., 4 Eq. Ca. 432 ; Jegon v. 
 Vivian, L. K., 6 Ch. App. 742. 
 
 (5) Lynvi Co. v. Brogden, Phillips v. Homfi-ay, supra. 
 
 (r) Jegon v. Vivian, supra. 
 
 («) Wild V. Holt, 9 M. & W. 672. Morgan «. Powell, 8 Q. B, 288, 
 
 If) Jones V. Gooday, 8 M. & W. 146. Mueller o. St. Louis, etc., R. R. Co., 81 Mo. 262. 
 
384 TEBSPASS ON MEALTT, [Chap. 6. 
 
 459 Assessment of damages in respect of trespasses by diseased cattle.— li, in 
 consequence of an unlawful entry of diseased cattle into the plaintiff's 
 close, the plaintiff's cattle have become infected with the disease, this 
 is a matter of aggravation of damages, and may be recovered, if 
 claimed in a declaration for the trespass(M). 
 
 460 Assessment of damages where the plaintiff has no certain or determinate 
 interest in the property. — If the plaintiff is oifly tenant on sufferance or 
 tenant at will, the damages may be merely nominal. Where a tres- 
 pass, of which the plaintiff complaiaed, consisted in pulling down a 
 wall between the close of the plaintiff and an adjoining close of the 
 defendant, in doing which a few bricks and some mortar fell upon the 
 plaintiff's land, and no evidence was given as to the nature of the 
 plaintiff's interest in the premises, and the jury gave Is. damages, it 
 was held, that as the plaintiff had not proved that he had any interest 
 in the land beyond that which results from the bare possession, he had 
 not shown himself to be entitled to any greater damages than the 
 jury had given(a;). ' But where the plaintiff proves that he is in the 
 actual occupation and possession of the land and crops growing thereon, 
 he will be entitled to recover exemplary damages from the trespassers 
 who wrongfully enter upon the land, and trample down and injure the 
 crops, although he is only tenant-at-will ; for if a stranger subvert 
 land leased at will, the lessee may bring an action against him and 
 have damages for the profits ; and the lessor may have another actibn, 
 and recover damages for the destruction of the land(y). But as the 
 injury consists of two parts, an injury to a temporary right in the 
 lessee and to the permanent freehold of the lessor, the damages must 
 be assessed with reference to their several interests ; for where different 
 persons have distinct rights in the subject-matter of a trespass, the 
 compensation must be to each in proportion to the injury he has re- 
 ceived. One of them cannot claim that part of the compensation 
 which belongs to another ; nor can the satisfaction made to one be a 
 bar to an action brought by the other(z). 
 
 46 1 Apportionment of damages as between tenant and reversioner {a). — In the 
 case of injuries to trees, the damages from the immediate loss of the 
 
 («) Anderson v, Backton, 1 Sti*. 192. Bamum v. Van Dusen, 16 Conn. 200, 
 
 (X) Twyman v. Knowles, 13 C. B. 224. 
 
 (y) 2 EoU. Abr. 551. 
 
 («) Charabie, J., AttersoU v. Stevens, 1 Taunt. 194. The damages which a plaintiff may 
 lawfully recover in an action of trespass must be appropriate to the tenure by which he holds ; 
 and he cannot lawfully recover any damages except such as affect his own right. Gilbert v. 
 Kennedy, 22 Mich. 6. 
 
 (o) Ante, pp. 91, 92, 165, 255, 256. 
 
Sec. 3.] DAMAGES BECOVMRABLE — CO-TRESPASSERS. 385 
 
 shade and fruit of the trees are recoverable by the occupier or lessee ; 
 the damage from the loss of the timber and body of the tree falls to 
 the reversioner(6). To entitle the reversioner to damages, it must be 
 shown that the trespass or injury for which he sues is of a permanent 
 nature ; for he is not entitled to sue, as we have seen {ante, pp. 70, 
 145), in respect of mere temporary trespasses, where the repetition of 
 the act, without interruption, would not destroy any right of the 
 reversioner, or establish any adverse right against him ; but if the 
 injury complained of is a damage to the inheritance, so that if the 
 reversioner wanted to sell the reversion, the injury would lessen the 
 value of it, substantial damages are recoverable. In an action for an 
 injury to the plaintiff's reversionary interest, by pulling down a house 
 in the occupation of the plaintiff's yearly tenant, it was held that the 
 diminution in the saleable value of the premises was the true criterion 
 of damage, and that the jury should consider how much less the land 
 was worth in consequence of the loss of the house(c). The cutting and 
 carrying away soil is a permanent injury to the reversioner, and an 
 infringement upon his proprietary right, though no actual damage be 
 done to the land((^). 
 
 462 Damages recoverable from one of several co-trespassers. — Where, in an 
 action for a trespass by the defendant, with horses, etc., upon the 
 plaintiff's land,' it appeared that the defendant was the huntsman of 
 the Berkeley hounds, and that he followed the hounds, accompanied 
 by a large concourse of persons on foot and on horseback, over the 
 plaintiff''s land, and destroyed the fences, and injured the crops, Lord 
 Ellenborough held that the defendant was answerable for the whole of 
 the damage, and directed the jury not to estimate the damage accord- 
 ing to the mischief which the defendant had individually occasioned 
 by his trespass, but according to the aggregate amount of mischief 
 done by him, and his co-trespassers, and the hounds((3). 
 
 463 Damages recoverable from tenants who hold over wrongfully after the 
 expiration of a notice to quit. — Where a tenant holds over, after the ex- 
 piration of a notice to quit, the landlord is entitled to recover from him 
 any reasonable damages and costs that may have been sustained by 
 him in an action at the suit of a person to whom he had contracted to 
 let the premises, but to whom he was prevented from delivering pos- 
 
 (6) Bedingfleld ». Onslow, 3 LeT. 211, 
 
 (c) Hosking v. Phillips, 3 Exch. 108. 
 
 (d) Alston V. Scales, 2 M. & Sc. 6 ; 9 Bing. 3. 
 
 (e) Hume v. Oldaore, 1 Stark. 352 ; and see post, oh. 2£. 
 
 Ad. Vol. I.— 25 
 
386 TBJESI'ASS ON REALTY. [Chap. 6. 
 
 session througli the wrongful act of such tenant(/). If the premises 
 have been sublet, and the subtenant holds over against the "will of 
 the tenant, the landlord can recover against the. tenant as damages 
 the value of the premises for the time he is kept out of possession, 
 and the costs of ejecting the under-tenant(5'). 
 464 Trespass for mesne profits. — The action of trespass for mesne profits 
 is consequential to the recovery in ejectment(^), for as no damages are 
 recoverable in ejectment except between landlord and tenant(i), nor 
 any costs where judgment is obtainetl for want of appearance(A), aiid 
 as by bringing ejectment the claimant treats the person in possession 
 as a trespasser from the day mentioned in the writ, and cannot there- 
 fore sue him for rent under an agreement(Z), or for use and occupation 
 subsequent to that period(?w), the person entitled to the possession of 
 the land would be without remedy to recover the profits of the land, 
 from the date of the service of the writ to the time of the delivery of 
 the land by the sheriff, were it not for this action. In cases between 
 landlord and tenant, indeed, mesne profits are recoverale on the trial 
 of the ejectment upon proof of the claimant's title, that the defendant 
 or his attorney was served with due notice of trial, and of the amount 
 of mesne profits due ; but this case is specially provided for by the 
 214th section of the statute above referred to(M) ; which proceeds to 
 enact that nothing shall prevent any landlord from bringing an action 
 for the mesne profits that have accrued from the date of the verdict to 
 the day of delivery of possession of the premises. And in cases other 
 than between landlord and tenant the rule is as above stated. 
 
 In this, action accordingly the plaintiff is entitled to recover, 1st, 
 compensation for the use and occupation of the premises recovered 
 during the time they were actually or constructively occupied by the 
 defendant(o) ; 2ndly, compensation for any special damage that the 
 plaintiff may be legally entitled to in respect of the trespasses, pro- 
 vided it has been claimed in the declaration, as if the defendant has 
 shut up an inn (being the premises in question) and has thereby de- 
 stroyed the custom(p) ; and lastly, the costs of the action of eject- 
 
 (/) Bramley v. Chesterton, 2 C. B., N. S. 605. 
 
 ig) Henderson v. Squire, L. E., 4 Q. B. 170. 
 
 (7() Lord Mansfield, C. J., in Aslin v. Parker, 2 Burr. 608, 
 
 (»•) 15 & 16 Vict. 0. 76, s. 214. 
 
 {li\ Ibid, sched. A., Nos. U, 15. 
 
 (!) Jones v. Carter, 15 M. & W. 718. 
 
 (m) Birch v. Wright, 1 T. B. 378. 
 
 (n) And see Smith v. Tett, 9 Exch. 307. 
 
 (o) Doe V. Harlow, 12 A. & E. 40. See Doe v. Challis, 17 Q. B. 166. 
 
 (p) Dunn V. Large, 3 Dougl. 335. 
 
Sec. 3.] ACTION FOB MESNE PROFITS. 387 
 
 ment(g'). The damages under the first head, however, are not con- 
 fined to the mere rent of the premises, but the jury may give more if 
 they please, as for the plaintiff's trouble in the recovery of the prem- 
 ises, etc.(r). 
 
 The action may be brought, although proceedings in error upon the 
 ejectment may be pending(i), and the production by the plaintiff of a 
 judgment by default in a previous action of ejectment for the same 
 premises is sufficient evidence of the plaintiff's title from the date of 
 the writ(i), and also, as it seems, of the defendant's possession of the 
 premises at that date(M). If, however, ftie plaintiff seeks to recover 
 mesne profits from a day anterior to that on which possession Was 
 claimed in the writ of ejectment, he must be prepared to prove his 
 title in the usual way(a;). The action is a local one(2/), and may be 
 brought by one tenant in common against his co-tenant(z). The de- 
 fendant, if in possession by his under-tenant, is not liable for the 
 wrongful holding over of such sub-tenant(a), unless he has author- 
 ized it(6). 
 465 Prevention of trespasses hy injunction. — The Court of Chancery will 
 not grant an injunction against a temporary trespass by a wrong-doer, 
 inflicting no permanent injury upon the property, and being only a 
 source of temporary annoyance of discomfort, as there is ample remedy 
 at common law for such injuries, and the wrong-doer may at once be 
 turned off the land(c). But whenever trespasses have been repeated 
 again' and again, so as to become a nuisance, an injunction will be 
 granted against the persevering wrong-doer((i). Neither will the court 
 interfere to protect a dry, strict legal title to property held for the 
 benefit of the public, where the holder has no beneficial enjoyment 
 therefrom, and no real substantial injury has been done to the prop- 
 erty(e). But where the trespasser comes upon the land in the posses- 
 sion of the plaintiff or his tenants, and commits acts of destructive 
 
 (g) Pearse v. Coker, L. E., 4 Exoh. 92; 38 Law J., Exoh. 82. • 
 
 (r) Goodtitle v. Tombs, 3 Wils. 121. 
 
 (s) Donford v. EUys, 12 Mod. 138. 
 
 (t) See Wilkinson ii. Kirby, 15 C. B. iSO. 
 
 (M) Peai-se v. Colcer, supra. 
 
 (X) See ]3arnett v. Earl of Guildford, 11 Exoh. 32. 
 
 (I/) Cole on Ejectment, p. 638. 
 
 («) Goodtitle o. Tombs, supra. 
 
 (a) Mansfield, C.J., Burneii. Eichardson, i Taunt. 720. 
 
 (6) Doe V. Harlow, supra. 
 
 (c) Mortimer «. Cottrell, 2 Cox, 205. Att.-Gen. v. Hallett, 16 M. & W. B81. Jerome v. Boss, 
 7 Johns, oh. 315. Smith v. Pettengill, 15 Vt. 82. 
 
 (d) Coulsonw. White, 3 Atk. 21. McGune v. Palmer, 5 Eob. (N. T.) 607. Stevens ». Beek- 
 man, 1 Johns. Ch. 318. Hart v. Mayor of Albany, 3 Paige, 2i3. 
 
 (e) Wandsworth Board of Works v. S. W. Eail. Co., 31 Law J., Ch. 854. 
 
388 TRESPASS ON BBALTT, [Chap. 6. 
 
 trespass, either by mining, or quarrying, or cutting down timber with- 
 out a color, or shadow, or pretence of title, and the property may be 
 destroyed before you can arrest the proceedings at law, there is a case 
 for ata. injunction(/). Whenever, also, the trespass is of such a nature 
 that irreparable injury will be caused by the repetition of it, and the 
 defendant repeats, or threatens to repeat it, an injunction will be 
 granted to restrain him from so doing. Thus, where the defendant 
 Ihad removed stones protecting the plaintiff's sea-wall, and an action 
 of trespass has been brought, and dteiages recovered, and the defend- 
 ant after that began again t5 remove stones, and by so doing exposed 
 the plaintiff's land to inundation, the court granted an injunction(p'). 
 
 But the court will not interfere, at the suit of an owner of property, 
 to restrain a mere stranger from vexatiously distraining on, or other- 
 wise molesting, his tenants in possession of the property(A), unless the 
 defendant is a pauper, and the wrongful acts are of such a nature that 
 the recovery of damages at law would not constitute an adequate 
 remedy(j). And when the assistance of the court is not invoked for 
 the protection and preservation of property from depredation by a 
 trespasser, but<to prevent the enjoyment of a privilege, such as a right 
 of way claimed on one side and denied on the other, the court will not 
 interfere by injunction but leave the'parties to their legal remedy. 
 
 Thus, where a tramroad had been made by the defendants across the 
 farm of the plaintiff, with the license and permission of the occupying 
 tenant, but without the knowledge and consent of the plaintiff, who 
 resided at a distance, and the plaintiff filed a bill for an injunction to 
 prevent the defendants from entering upon the land and using the 
 tramway, the court refused to interfere. "The thing here com- 
 plained of," observes the Lord Chancellor, " has been done. The tram- 
 road has, with the leaTO of the tenant in possession, been completed, 
 and the court is asked by the bill to restrain the defendants, who, hav- 
 ing finished the undertaking, are now in the daily use and occupation 
 of it, from continuing so to use it, and from interrupting the servants 
 and workmen of the plaintiff in their attempts to destroy it. In other 
 words, the court is virtually asked to eject the defendants, and author- 
 ize the plaintiff's themselves to take possession of the tramroad. The 
 
 (/) V.-C. Wood, in Talbot (Earl) v. Hope Scott, 1 Kay & J. 113. Thomas v. Oaldey, 18 Ym. 
 186. Cowper (Earl) v. Baker, 17 Ves. 128. Lonsdale (E.arl) v. Cnrwen, 3 Bligh, 168, n. See 
 Livingston v. Livingston, 6 Johns. Ch. 497 ; Scudder v. Trenton Dela-yare Tails Co., Saxton, 
 Wi ; Irwin v. Davidson, 3 Ired. Ch. 311 ; West Point Iron Co. v. Eeymert, 45 N. T. 703. 
 
 (ff) Chalk V. Wyatt, 3 Mer. 688. 
 
 (ft) Best V. Drake, 11 Hare, 369. 
 
 (i) Hodgson ». Duoe, 2 Jur. N. S. 1014. 
 
iSeC. 3.] REMEDY BT INJUNCTIOIT. 389 
 
 case originally may have iDeen a case of waste — waste occasioned by 
 the cutting of the tramroad and the laying the iron rails over the 
 plaintiff's land ; but what is now claimed by the defendants is simply 
 a right of way ; and if they are not entitled to that right, they are 
 mere trespassers, and the plaintiffs have their proper legal remedy 
 against them as such "(^■). 
 
 However, in cases where irreparable injury would be caused before 
 the right could be properly determined at law, the Court of Chancery 
 will interfere by injunction to restrain trespasses by a stranger (/). 
 
 (S) Deere v. Guest, 1 Myl. & Cr. 522. 
 
 (l) Load. & North- West. Ewy. v. Lauo. & Yorkshire Eway., L. E., 4 Eq. Ca. 174. West 
 Point Ii-OQ Co. V. Eeymert, 45 3Sr. Y. 703. 
 
CHAPTER VII. 
 
 OF TRESPASS AND CONVERSION OF CHATTELS— TITLE TO CHATTELS. 
 
 Section I. — Of trespass and conversion of chattels. — Trespass upon personalty — 
 Conversion of chattels — Wrongful destruction of chattels — Conversion by pur- 
 chasers without 'title — When a demand and refusal must be proved — Demand 
 of goods not in the possession of the defendant — Demand of goods in the 
 hands of public officers, etc. — Conversion of chattels by railway companies 
 and bailees — Conversion of bUls, notes, and negotiable securities — Conversion 
 by one of several partners, joint-tenants, or tenants in common — Conversion 
 of trust property — Conversion by parties claiming a lien upon chattels — 
 Extinguishment of liens. 
 
 Section II. — Of the title to chattels personal. — Title to chattels which have been 
 increased in value by a wrong-doer — Title to timber severed from the inheri- 
 tance — Title to chattels by finding — Title to game and animals ferse naturae — 
 Title of the hunter and the fisherman— Title by gift — Right to deeds, leases, 
 bonds, and securities — Right of property in letters sent by post — Right of 
 possession of deeds and securities as between trustee and cestui que tnist — 
 Title by purchase in market overt — Title by private sale— Colorable trans- 
 fers — Title of innocent purchasers from fraudulent vendors — Title to chattels 
 in the hands of bailees — Title by delivery order, or by purchase from sheriffs — 
 Title to bills and notes — Title to the property of bankrupts — Contracts or 
 dealings with the bankrupt without notice — Executions levied on the property 
 of bankrupts — Transfers of propei-ty by bankrupts constituting an act of 
 bankruptcy — Reputed ownership of bankrupts — Possession of chattels by 
 manufacturers, workmen, depositaries, factors, and commission agents for 
 sale — Possession by bankrupt cestui que trust and bankrupt trustees — Goods 
 in the apparent possession of the bankrupt — Title to trust property — Altera- 
 tion of the right of property in chattels after recovery of judgment in an action 
 for a conversion of them. 
 
 Section III.— Remedies for the wrongful conversion o/'cAaMeZs.— Recapture of 
 goods wrongfully seized or stolen — Parties to actions for a conversion — Joinder 
 of parties — Staying proceedings — Pleadings, defences, and evidence — When 
 the defendant is estopped from disputing the title of the plaintiff— Evidence 
 under pleas of justification — Assessment of damages. 
 
392 CONVERSION OF CSATTELS. [Chap. 7. 
 
 SECTION I. 
 
 OP TRESPASS AND CONVERSION OF CHATTELS. 
 
 466 Trespass upon personalty.— li one man meddles with the goods and 
 chattels of another, either by laying hold of, removing, or carrying 
 away inanimate things, or by striking, chasing, or driving cattle, sheep, 
 and domestic animals in which the owner has a valuable property, he 
 is guilty of a trespass, and is responsible in damages, unless the 
 act can be justified on the ground that it was done in necessary self- 
 defence of the person, or of property, or of one's absolute or relative 
 rights, or in obedience to some legal or personal authority, or can be 
 excused on the ground that it was the result of inevitable accident, or 
 was caused by the iiegligent or wrongful act of the plaintiff himself(a); 
 as where a man wrongfully suffers his cattle to trespass upon my land, 
 or leaves thereon corn or hay which he ought to have removed, and 
 his cattle get injured, or his corn or hay is eaten by my beasts. In 
 these cases he has no remedy for the injury, as it was caused by his 
 own default(6). 
 
 If a. man's goods and chattels obstruct me in the exercise of my 
 right of way, I have a right to remove them. If he places a horse 
 and cart in the way of the access to my house, or before my door, so 
 that I cannot drive up to it, I have a right to lay hold of the horse 
 and lead him away, and, if necessary, to whip him to make him move 
 on(c). So, if a person's goods are placed on my ground, I may law- 
 fully remove them(c^) ; and if his cattle or sheep come upon my land, 
 I may chase them and drive them oni{dd). "Where the defendant with 
 a little dog chased the plaintiff's sheep out of his grounds, where they 
 were trespassing, and the sheep went into another man's land next 
 adjoining, and the dog pursued them there, and the defendant did his 
 
 (a) Ante, pp. 2, 24-2a ; pdSt, ch. 8. CONTKiEUTOKY Negligence. 
 
 (5) Webb V. Paternoster, Godb. 232, pi. 401. Parmer ». Hunt, Brownl. 220. 
 
 (c) Slater v. Swann, 2 Str. 872. So if a person liitch a horse to my shade tree, I may law- 
 fully remove him to a safe place. Oilman v. Emery, 54 Me. 460. But otherwise ifthe horse 
 is hitched to a posiTto the use of which the owner of the horse has an equal right with myself. 
 Bruch V. Carter, 3 Vroom (N. J.), 654. 
 
 (d) Cole V. Maundy, Roll. Abr. Trespass, 1, pi. 17, p. 566. Rea v. Sheward, 2 M. & W. 426. 
 Grier v. Ward, 23 Geo. 146. 
 
 ((M) A person may lawfully turn a horse trespassing on his land into the highway, without 
 becoming liable for its subsequent loss. Humphrey v. Douglass, 10 Vt. 71 ; Id. 11 Vt. 22. 
 Cory ti. Little, 6 N. H. 213. 
 
Sec. 1.] TSBSFASS ON PERSONAL PROPERTY. 393 
 
 best to recall his dog, but the dog could not be recalled at once, and 
 the plaintiff sued the defendant for cliasing and worrying his sheep, 
 it wa,s held that the action was not maintainable, as the defendant 
 had not incited the dog to chase the sheep after they had left his pre- 
 mises, but he had done his best to call the dog ofF(e). But the chasing 
 of .trespassing beasts with a mastiff dog is unlawful, and if any damage 
 is done to them by such a dog, the plaintiff will be responsible for a 
 trespass(/). 
 
 If a dangerous animal is let loose by a man who is acquainted with 
 its ferocious disposition, and the animal bites or otherwise violently 
 injures another, an action for a trespass is maintainable against the 
 person who set it free(p'). 
 
 If a dog chases conies in a warren, or game in a preserve, or deer 
 in a park, or sheep in a fold, he may be killed by the owner of the 
 animal to prevent their destruction(^), but not after the chasing is 
 discontinued and the peril has ceased(j). 
 
 If a chattel has been lost by one man and found by another, the 
 finder has an implied license or authority from the owner to take the 
 chattel and keep it for his use(A). But though the taking of a chattel 
 may be lawful in the first instance, yet if the person who has taken it 
 abuses it, uses it, or wastes it, he may render himself a trespasser ab 
 initio, and , disable himself from justifying or excusing the original 
 taking, as well as any of his subsequent dealings with the property(Z). 
 467 Conversion of chattels. — If a man, who has no right to meddle with 
 goods at all, takes them and removes them from one place to another, 
 an action may be maintained against him for a trespass, but he is not 
 guilty of a conversion of them, unless he removed the goods for the 
 purpose of taking them away from the plaintiff, or of exercising some 
 dominion or control over them for the benefit of himself or of some 
 
 (e) Mitten v. Faudrye, Poph. 161, cited i Burr. 2094. The owner of laud may rightfully set 
 a dog on trespassing cattle, unless there is something in the size, character or habits of the 
 dog, or in the mode of setting him on which would negative the idea of ordinary care or 
 prudence in so &oing. Wood v. La Eue, 9 Mich. 158. Davis v. Campbell, 23 Vt. 236. But 
 where a person fails to exercise reasonable care in driving out trespassing cattle, he will be 
 liable to the owner for injuries thereby occasioned. Totten v. Cole, 33 Mo. 138. See James v. 
 Caldwell, 7 Yerg, 38 ; Painter v. Baker, 16 ni. 103. 
 
 (/) King V. Rose, 1 Freem. 347. See ante, p. 30. 
 
 ig) De Grey, C.J., 3Wils. 410. Leame «. Bray, ante, p. 2. Marsh V. Jones, 21 Vt. 378. 
 McCaskill v. Elliot, 5 Strobh. 196. But see Stumps v. Kelly, 22 ni. 140. 
 
 (ft) Wadhurst v. Damme, Cro. Jac. 45. Barrington v. Turner, 3 Lev. 28. King v. Kline, 6 
 Barr. 318. Brown v. Hobnrger, 52 Barb. (N. Y.) 15. 
 
 (i) Janson v. Brown, 1 Campb. 41. Wells v. Head, 4 C. &P. 568. 
 
 (4) Isack V. Clarke, 1 Eoll. Hep. 130. 
 
 (!) Oxley v. Watts, 1 T. B. 12. Attack v. Bramwell, 32 Law J., Q. B. 146. And eeepoat, 
 ch. 11, s. 1. 
 
394 CONVERSION OF CHATTELS, ' [Chap, 7. 
 
 other person(m). Thus, where the plaintiff and defendant, who were 
 porters on the custom-house quay, had each small boxes in a hut on 
 the quay, for storing small parcels of goods until they could be put on 
 board ship, and the plaintiff placed some goods in the hut in such a 
 manner that the defendant could not get to his box without removing 
 them, which he accordingly did, but forgot to put them back again, 
 and the goods were lost, it was held that the defendant had a right 
 to remove the goods, and so far was in no fault ; but as he had not 
 returned them to the place where he found them, there might be 
 ground .for an action for a trespass in meddling with them, but that 
 there was no conversion of them, as the defendant had not in anywise 
 disturbed the plaintiff's dominion or ownership over the prop- 
 erty (w). 
 
 It has never yet been held that the single act of removing a chattel, 
 independent of any claim over it, either in favor of the person himself 
 or any one else, amounts to a conversion of the chattel. If a gate has 
 been wrongfully erected by the plaintiff, so as to obstruct the de- 
 fendant's right of way, and the defendant pulls down and carries 
 away the gate and places it on his own land, in a convenient situation 
 for the plaintiff to fetch it away, if he thinks fit so to do, this does not 
 amount to a conversion of the gate(o). " Suppose," observes Rolfe, 
 B., "I, seeing a horse in a ploughed field, thought it had strayed, and, 
 under that impression, led it back to pasture, it is clear that an action 
 would lie against me for a trespass ; but would any man say that this 
 amounted to a conversion of the horse to my own use "(p) ? "Scratch- 
 ing the panel of a carriage would be an act of trespass, but no con- 
 version of the carriage "(g). But any asportation of a chattel for the 
 use of the defendant or some third person is a conversion of it, because 
 it is an act inconsistent with the general right of dominion which the 
 ovmer of the chattel has in it, who is- entitled to the use of it at all 
 times and in all places. 
 
 If a man has possession of my chattel and refuses to deliver it up, 
 knowing or having the means of knowing that I am the owner of it, 
 this is an assertion of a right inconsistent with my general dominion 
 over the chattel, and the use which at all times and in all places I am 
 entitled to make of it, and consequently amounts to an act of conver- 
 
 (m) See Talke v. Fletcher, 34 Law J., C. P. 146. Sparks v. Purdy, 11 Mo. 219. 
 
 (n) Bushel v. MiUer, 1 Str. 129. 
 
 (o) Houghton V. Butler, 4 T. E. 3S4. 
 
 ip) Fouldes r. Willoughby, 8 M. & W. 651. 
 
 (2) Aldevson, B., ib. 349. 
 
Sec. 1.] WSAT AMOUNTS TO. 395 
 
 sion(r). Therefore, if a man who is intrusted with the goods of an- 
 other puts them into the hands of a third person, contrary to orders, it 
 is a conversion. So if the pawnee of goods, with a power of sale, sells 
 them before the day stipulated for the exercise of the power of sale has 
 aTrived(s). If a person, without my permission, take my horse to ride, 
 and leave it at an inn, this is a conversion ; for though I may nave the 
 horse on sending for him, and paying for the keeping of him, yet it 
 brings a charge on me, and it is different from the case of a misde- 
 livery of goods merely owing to a mistake(i). If a vendor who has 
 sold goods on credit resells the goods before the day of payment has 
 arrived, he is guilty of a conversion(M). And so he is, though the pur- 
 chaser make default in payment, unless he has given the purchaser 
 due notice of his intention to sell(«). However, if a person has ob- 
 tained possession of goods under color of a pretended contract of sale 
 on credit, and with the preconceived intention of never paying for 
 them, it is competent to the vendor to consider the contract as a nullity, 
 and treat the fraudulent purchaser as a person who has tortiously got 
 possession of the goods{i/). If a man enters the house of another, and 
 takes an inventory of his goods, and gives him notice that they are 
 distrained for rent and will be sold, this is evidence of a conversion(2). 
 So if a man takes the property of another without his consent, by abuse 
 of the process of the law, this is an act of conversion (a). And if a 
 person aids and assists in the sale of goods under a fraudulent and 
 
 (r) Baldwin ». Cole, 6 Mod. 212. Burroughs v. Bayne, 6 H. & N. 296 ; 29 Law J., Exch. 18S. 
 See Boyce v. Brockway, 31 N. Y. 490 ; Cobb v. Dows, 9 Barb. (N. Y.) 242 ; Everett v. Coffln, 6 
 Wend. 603; Williams v. Merle, 11 Wend. 80; Saltus «. Everett, 20 Wend. 267 ; Hoffmann. 
 Cason, 22 Wend. 285 ; CowcU v. Hill, 4 Denio, 323 ; Allen v. Crary, 10 Wend. 349 ; Murray v. 
 Burling, 10 Johns. 175 ; Hutchinson v. Bobo, 1 Bailey, 546 ; Fuller v. Tabor, 39 Me. 519. 
 
 («) Johnson v. Stear, 33. Law J., C. P. 130. Pigott v. Cubley, ibid. 134. See Lawrence v. 
 MaxweU, 53 N. T. 19. 
 
 [t] Syeds D. Hay, 4 T. E. 264. Tear t>. Fi-eebody, 4 C. B., IT. S. 263. A person who hires a 
 horse to go to a particular place or to go a specified distarioe, and who goes to another place 
 or a gieater distance, is guilty of a couTcrsion of the horse. Pish v. Ferris, 5 Duer, 49. Lucas 
 V. Trumbull, 15 Gray (Mass.), 306. Disbrow v. Tenbroecli, 4 E. D. Smith (N. Y.), 397. Camp- 
 bell V. Stokes, 2 Wend. 137. WheelockB. Wheelwright, 6 Mass. 104. Woodman v. Hubbard, 5 
 Foster (N. H.),"67. Homer ». Thwing, 3 Pick. 492. jind the same rule applies to one who bor- 
 rows a carriage to be used in a particular place, and sends it heavily loaded to another place. 
 Hart V. Skinner, 16 Vt. 138. But the receipt of payment for such use, with full knowledge of 
 all the facts, will be a bar to an action of trover based on the wrongful use. Eotch v. Hawes, 
 12 Pick. 138. 
 
 (M) Chinnery v. Viall, 28 Law J., Exch. 180 ; 5 H. &. N. 293. Martindalew. Smith, 1 Q. B. 389. 
 
 (x) Pageji. CowasjeeEdulgee,L. E.,1 P. C. 0.127. ^/oriiori therefore if the vendor retakes 
 possession of the goods and resells them. S. C. 
 
 iy) Ferguson v. Carrington, 9 B. & C. 59. Ash v. Putnam, 1 Hill, 302. Hunter v. Hudson 
 Eiver I. &M. Co., 20 Barb. 494. Eoot r. French, 13 Wend. 570. And see Nichols ». Pinner, 18 
 N. Y. 295 ; Gage v. Eppersen, 2 Head (Tenn.), 669. 
 
 (a) Neilan v. Hanny, 2 Car. & K. 710. Needham v. Eawbone, Q. B. 771 n. 
 
 (a) Grainger v. HiU, S So. 577 ; 4 B. N. C. 221. See Sanborn v. HamUton, 18 Vt. 590 ; Cham- 
 bers V. Lewis, 28 N. Y. 454. 
 
396 CONVERSION OF CHATTELS [Chap. 7. 
 
 void warrant of attorney, he may render himself responsible for a con- 
 version of the property (6). 
 
 If a sheriff sells more goods than are sufficient to satisfy an execu- 
 tion, he is liable for a conversion in , respect of the excess. Whether 
 he has sold more than was necessary is a question of fact in each par- 
 ticular case(c). If a judgment-debtor, against whom execution is 
 issued, has a qualified interest only as a bailee in goods seized by the 
 sheriff, and the sheriff, having no notice of the qualified interest, sells 
 them absolutely, he is not, it seems, guilty of the conversion by the 
 mere act of selling. It must be shown that he parted with the posses- 
 sion of the goods, and caused them to be used and damaged by the 
 purchaser((i). If a landlord distrains and carries away goods, and, 
 after selling enough to satisfy the rent in arrear, returns the surplus 
 to the demised premises from whence they were taken, there is no 
 conversion by the landlord of any part of the property, he having 
 dealt with it no otherwise than he was by law entitled to do(e). 
 
 A mere negligent dealing with goods by a bailee to whom they have 
 been delivered {post, ch. 9), is not a conversioii of them. He may be 
 liable to an action for negligence, but not to an action for a conversion, 
 which only lies where some dominion is asserted by the defendant over 
 the chattel, the subject of the action. One who ta.kes possession of 
 goods unlawfully, which are in consequence lost to the owner, is, to a 
 certain extent, guilty of a conversion ; but where there is no unlawful 
 taking of possession or assertion of dominion over the goods, although 
 the goods may b.e destroyed, there is no conversion. If the goods of 
 one man are consigned to another, whether rightfully or wrongfully, 
 the consignee is justified in depositing them in a place of safe custody, 
 and their destruction there without his default, cannot make him 
 gaiilty of a conversion(/). 
 468 Wrongful destruction of chattels. — ^Every wilful and wrongful destruc- 
 tion of a chattel, or wilful and wrongful damage to it, whereby the 
 owner is deprived of the use of it in its original state, is a conversion 
 of it. Thus, the taking of wine from a cask, and filling the cask up 
 with water, is a conversion of all the wine(^). If a bailee of a cask of 
 
 (6) BiUiter v. Young, 6 Ell. & Bl. 1. 
 
 (c) Aldred «. Constable, 6 Q. B. 381. See Dezell v. Odell, 3 Hill, 21S ; Dearrey ». Fox, 22 
 Bavb. 623 ; Fitzgerald v. Blake, 42 Barb. 513. 
 
 (d) Lancashiio Wagon Co. v. Fitzhugh, 6 H. & N. 502 ; 30 Law J., Exch. 231. See MoCoue- 
 gliy V. McCaw, 31 Ala. 417. 
 
 («) Evans v. Wright, 2 H. & JST. 527 ; 27 Law J., Exch. 50. 
 (/) Heald v. Carey, 11 C. B. 993. 
 
 {g) Richardson v. Atkinson, 1 Str. 577. Dench v. Walker, U Mass. BOO. See Young e. 
 Mason, 8 Pick. 551. 
 
Sec. 1.] BT PUBCHASERS WITHOUT TITLE. '397 
 
 wine consumes part of the wine, this, as against him, is a conversion 
 of the whole of the wine ; but he cannot himself set up 9,nd rely upon 
 it as a conversion of the whole, so as to enable him in any way to take 
 advantage of his own wrong(A). But to constitute a conversion by rea- 
 son of the destruction of chattels by the defendant, it must be shown 
 that he destroyed them with the intention of taking to himself the 
 property in them, or deriving some benefit from them, or with the inten- 
 tion of depriving the plaintiff of the possession or use of them ; for if 
 the defendant, finding property belonging to the plaintiff encumber- 
 ing his close, destroys it in endeavoring to remove it, without intend- 
 ing needlessly and wantonly to effect its destruction, this is no conver- 
 sion of the property(4). 
 
 469 Fixtures severed from the inheritance so as to become personal chat- 
 tels, may be made the subject of an action for a conversion, but not 
 whilst they are annexed to the freehold, and form part of the realty(A). 
 
 470 Conversion of chattels hy purchasers without title. — According to Lord 
 Holt, the very assuming to one's self the property and right of dis- 
 posing of another man's goods is a conversion of them(M) ; " and cer- 
 tainly," observes Lord Ellenborough, "a man is guilty of a conversion 
 who takes my property by assignment from another, who has no 
 authority to dispose of it ; for what is that but assisting that other in 
 carrying his wrongful act into effect "(Z). And if such person acts as 
 
 (ft) Patteson, J., Philpott ». Kelley, 3 Ad. & E. lOS. 
 
 (i) Simmons v. Lillystone, 8 Exoh. 442 ; 22 Law J., ib, 317. 
 
 ge) Colegrave v. Dies Santos, 2 B. cS C. 78. Tifft v. Horton, 53 N. T. 377. Smith v. Bensen, 
 1 Hill, 176. Fiyatt ». SulliTan Co. , 6 id. US. Eussell ». pichavds, 1 Fairf. 429. Ford «. Cobb, 
 20N.Y. 344. Adams ». Goddard, 48 Mo. 212. Overton u. WiUiston, 31 Penn. St. 155. Schu- 
 chardt i>. Mayor, etc., of New York, 53 N. Y. 202, 210. 
 
 (Jtk) Gilman v. HiU, 36 N. H. 311. Webber v. Davis, 44 Me. 147. Dickey v. Franklin Bank, 
 32 id, .572. 
 
 (I) M'Combie o.Davies, 6East, 540. Carey «. Bright, 58 Penn. St. 70. Cooiier ». Newman, 
 45 N. H. 339. Gilmore v. Newton, 9 Allen (Mass.), 171. Anderson v. Nicholas, 28 N. Y. 600. 
 Deering v. Austin, 34 Vt. 330. Newkirk v. Dalton, 17 111. 413. Hills v. Snell, 104 Mass. 173. 
 
 A purchase in good faith from one who has no title and no right to transfer the property, 
 wiU not constitute a defence to an action of conversion. Id. 
 
 Aa a general rule, any unauthorized appropriation of personal chattels will be sufficient of 
 itself to enable the true owner to maintain an action for their conversion. But this rule is 
 not applicable where the act of appropriation can be jiistiiied as having been authorized in 
 any manner by the owner of the property. Hills v. Snell, 104 Mass. 173. 
 
 Thus, when upon a conditional sale the property is delivered and time given for compli- 
 ance with the condition, one who purchases and resells the property before tlie right to per- 
 fect the title, by such compliance, has been terminated, is not liable for a conversion to the 
 general owner who subsequently resumes his right to its possession. Vincent v. Cornell, 13 
 Pick. 291. 
 
 When the owner has given to another, or permitted him to have, control of the property, 
 no one can be held responsible in tort for its conversion who merely makes such use of the 
 property, or exercises such dominion over it as is warranted by the authority thus given. 
 Strickland v. Barrett, 20 Pick. 415. Burbank v. Crooker, 7 Gray, 158. Chase v. Blaisdell, 4 
 Minn. 90. 
 
398 CONVERSION OF CHATTELS. [Chap. 7 
 
 agent for another who subsequently, although without a knowledge 
 that the sale was illegal, adopts it, the latter wiH also be liable(7w). 
 
 47 1 When a demand and refusal must be proved, in order to establish a con- 
 version. — When the chattels of the plaintiif have not been wrongfully 
 taken possession of by the defendant, but have come into his hands in 
 a lawful manner, he cannot be made responsible for a conversion of 
 them until they have been demanded of him by the owner, or the 
 person entitled to the possession of them, and he has refused to 
 deliver them \rg{mm). Whenever, therefore, the goods of one man 
 have lawfully come into the hands of another, the owner, or person 
 entitled to the possession of them, should go himself, or send some 
 one with a proper authority, to demand and receive them ; and if the 
 holder of the goods then refuses to deliver them up, or permit them to 
 be removed, there will be evidence of a conversion(n) ; for " whoever," 
 observes Holt, C.J., "takes upon himself to detain another man's 
 
 * goods from him without cause, takes upon himself the right of dis- ' 
 posing of them," and is guilty of a conversion(o). The demand and 
 refusal do not in themselves constitute the conversion. They are evi- 
 dence of a conversion at some previous period(^). 
 
 472 What 'is a sufficient demand and refusal. — If, when goods are de- 
 manded, the person in possession of them refuses to deliver them 
 except upon a condition which he has no right to impose(g), such as 
 the giving a receipt in writing for the goods(r), that is tantamount to 
 an absolute refusal, and he is guilty of a conversion. If the person in 
 
 (m) Hilbery v. Hatton, 33 Law J., Excli. 190. Whether an agent who had merely negotiated 
 the sale to a third person would also be liable, gueere, see Fowler v. Hollins, L. E., 7 Q. B. 
 016. 
 
 (mm) Yeager v. Wallace, 57 Peim. St. 3S5. Carleton v. Lovejoy, 64 Me. i45. Sherry v. ■ 
 Pioken, 10 Ind. 375. Polk v. Allen, 19 Mo. 467. Hall v. Eobinson, 2 N. Y. 293. 
 
 Where the original taking was tortious, no demand or refusal is necessary before coru- 
 mencing an action of trover. Farrington v. Payne, 15 Johns. 431. Moses v. Walker, 2 Hill. 
 (X. Y. C. P.) 536. Yeager v. Wallace, 67 Penn. St. 3S5. Pilsbury v. Webb, 33 Barb. (N. Y.) 
 213, Paige v. O'Neal, 12 Cal. 483. Davis v. Webb, 1 McCord, 213. Jones v. Dugan, id. 428. 
 Woodbury v. Long, 8 Pick. 643. 
 
 Either a wrongful taking, an illegal assumption of o>vnership, an illegal use or misuse, or 
 a wrongful detention of chattels, will constitute a conversion ; but it is in the last case only 
 that a demand and refusal is necessary to show a conversion. Glaze v. McMiUion, 7 Port. 
 279. St. John v. O'Connell, id. 466. Where an actual conversion is shown, a demand and 
 refusal are not necessary. Earle v. Van Buren, 2 Halst. 344. Tompkins v. Haile, 3 Weud. 
 406. isfe wsum o. Newsum, 1 Leigh, 86. Jewett v. Partridge, 3 Fairf. 243. Hines ». McKin- 
 ney, 3 Mo. 3S2. Dunnahoe v. Williams, 24 Ark. 264.- Esmay v. Fanning, 9 Barb. 176. 
 
 [n] Thorogood v. Kobinson, 6 Q. B. 772. Magee v. Scott, 9 Cush. (Mass.) 148. Jessop ». 
 Miller, 1 Keyes (N. Y.), 321. 
 
 (o) Baldwin v. Cole, 6 Mod. 212. 
 
 (p) Wilton V. Girdlestone, 6 B. & Aid. 847. Jessop v. Miller, 1 Keyes (N. Y.), 331. State V. 
 Patten, 49 Me. 383. Munger v. Hess, 28 Barb. (N. Y.) 75. Hill v. CoveU, 1 N. Y. 522. 
 
 (g) Davis v. Vernon, 6 Q. B. 450. Cobbett v. Clutton, 2 C. & P. 471 
 ,' (r) Bamett v. Crye. Pal. Co., 2 F. & F. 443. 
 
Sec. l.J DEMAND AND REFUSAL. 399 
 
 possession of the goods says, when the goods are demanded of him, 
 that he shall do nothing but what the law requires, and does not pro- 
 duce or tender the goods, this is evidence of a conversion of them(s). 
 But though he at first refuses, if he afterwards, and before a writ ia 
 issued against him, goes to the plaintiff and offers to deliver them up 
 to him, the effect of the previous refusal is done away with, and there 
 is then no evidence of a coiiversion();). If the demUnd is for the 
 delivery of an article to the plaintiff in some particutlar state and con- 
 dition, a refusal to comply with the demand is not necessarily a 
 conversion, as the defendant may not be bound, or may be totally 
 unable, to deliver the article in the state required(M). 
 
 So, if the demand is too large; if the plaintiff, being entitled to 
 demand five beasts, requires seven, and the defendant refuses to give 
 up seven, such a refusal is no evidence of a conversion of the five 
 which were never demanded(a;). If the goods are not in the possession 
 and under the control of the defendant, he is not guilty of a conversion in 
 refusing to deliver them(i(;a;). If, therefore, at the time of the demand, 
 they have been distrained or attached under legal process, and are in 
 the actual custody of the law, it is no longer in the defendant's power 
 to deliver them up, and he cannot be made responsible for a conver- 
 sion(2/). So where a mortgagee of a vessel demanded possession of it, 
 and it was accordingly delivered to him, but at the time of delivery 
 money was owing to the crew for wages, and the crew took proceed- 
 ings against the vessel in the Admiralty Court, and the mortgagee 
 had in consequence to pay money to regain possession of the ship, it 
 was held, nevertheless, that he could not recover in an action of 
 trover(z). 
 
 " Authorities are riot wanting to show that a party is not guilty of a 
 conversion because he does not at once restore the chattel, where it is 
 not at the moment in his possession and under his own immediate 
 
 (e) Davies ». Nicholas, 7 C. & P. 339. 
 
 (* Hayward v. Seawarrl, 1 M. & Sc. 459. 
 
 (u) Eushworth v. Taylor, 3 Q. B. 700. 
 
 (K) Abington v. Lipscomb, 1 Q. B. 780. 
 
 (XX) Robinson v. Hartridge, 13 Fla. BOX. Kelsey «. Griswold, 6 Barb. 486. AVhitney ». Slau- 
 son, 30 Barb. 276. Andrews ». Shattuck, 32 Barb. 396. Tillmore v. Horton, 31 How. (N. Y.) 
 424. Bucli; v. Ashley, 37 Vt. 475. Johnson v. Couillard, 4 AUen (Mass.), 446. 
 
 A demand and refusal to deliver will not render a person guilty of conversion of chattels 
 which, at the time of the demand, are not in existence. Salt Springs National Bank ». Whee- 
 ler, 48 N. Y. 492. The accidental loss or destruction of a chattel by one lawfully in pos- 
 session, is not a conversion. lb. Dwight v. Benton, 1 Pick. 50. Cairns v. Bleeker, 12 Johns. 
 300. Jervis v. JoUiffe, 6 Johns. 9. 
 
 i]l) Verrall v. Eobinson, 2 C. M. & E. 495. Stiles v. Davis, 1 Black (U. S.), 101. Jenner v. 
 Jolliffe, 9 Johns. 387. See Eogers v. Weir, 34 N. Y. 463. 
 
 \,z) Johnson v. Boyal Hail Steam Packet Co., L, E., 3 C. P. 3S. 
 
400 CONVMRSION OF CHATTELS. [Chap. 7. 
 
 control "(a). The ground of the action of trover is a wrongful conver- 
 sion, and there must be some evidence to show the defendant to be a 
 tort-feasor. "Where, therefore, all that appeared was that some wine- 
 warrants, the property of the plaintiff, came to the hands of the 
 defendant in her representative character as administratrix of her 
 deceased husband, that she handed them over to her attorney, and, 
 when the plaintiff demanded them, said they were in her attorney's 
 hands, it was held that this was no evidence of a conversion(6). 
 
 If there be a demand in words, and* also a demand in writing, both 
 being perfect, either of them may be proved as evidence of the con- 
 version(c). 
 
 473 Goods not in the possession of the defendant at the time of the demand. — 
 A man cannot be made a bailee {post, ch. 9) of goods against his will, 
 and, therefore, if things are left at his house, or upon his land, with- 
 out any consent or agreement on his part to take charge of them, he is 
 not thereby made a bailee of them((i) ; and if the goods are demanded 
 of him, and he says he will have nothing whatever to do with the 
 goods, such a declaration in answer to a demand of the goods, 
 is no evidence of a conversion of them(e). Where the defendant, 
 on entering into possession of some premises which he had taken 
 on lease, found thereon some timloer which had been deposited there 
 by the permission of the previous occupier, and the plaintiff, to whom 
 the timber belonged, demanded it of the defendant, who said, "If 
 you will bring any one to prove it is your property, I will give it to 
 you, and not else ; " it was held that this qualified refusal, taken in 
 connection with the' surrounding circumstances, and the absence of all 
 evidence of any intermeddling with the timber by the defendant, did 
 not amount to evidence of a conversion(/). 
 
 474 Goods found. — If a man finds goods and the owner comes and 
 demands them, and the finder says that he will not deliver them to 
 him until he is satisfied that he is the owner of them, and keeps the 
 good no longer than is reasonably necessary to enable him to make 
 due inquiry, this is no conversion of the property(g'). 
 
 475 Goods deposited in the hands of public officers, servants and bailees. — 
 Any officer of the customs having the charge or custody of any goods 
 
 (o) Wilde, C.J., Towne v. Lewis, 7 C. B. 611. 
 (!)) Canot v. Hughes, 2 So. 663 ; 2 B. N. C. 448. 
 
 (c) Smith V. Young, 1 Campb. 439. 
 
 (d) Lethbridge v. Phillips, 2 Staik. 544. 
 
 (e) Hawkes v. Dunn, 1 Cr. & J. 527, See Bowman v. Eaton, 24 Barb. 528. 
 (/) Green v. Dunn, 3 Camp. 216. n. 
 
 ig) Isack v. Clarke, 1 lloll, Bep. 130. 
 
Sec. l.J GOODS IN POSSESSION OF THIRD PERSONS. 401 
 
 which have come to his hands under the laws relating to the customs, 
 may refuse delivery thereof until proof shall be given to his satisfac- 
 tion that the freight due upon the goods has been paid(A). Where 
 goods, which have been left at sea, are deposited in the hands of an 
 admiral or public officer, to be kept in his custody until salvage has 
 been paid, and he refuses t.o give them up until it is ascertained 
 whether salvage is due or not, such qualified refusal does not amount 
 to a conversion(t). A servant, who has been intrusted with the custody 
 of goods by his master, does not do his duty if he gives them up on 
 the demand of a stranger, without a previous application to his mas- 
 ter for instructions. A refusal, therefore, by a servant to deliver up 
 goods he has received from his master, without an order or authority 
 from the latter, is a qualified, reasonable and justifiable refusal, and 
 no evidence of a conversion(4). The servant has a right to say, " I 
 received the goods from my master, and he ought to have an opportu- 
 nity of admitting or rejecting your title, and of giving his instructions 
 to me in the matter" (post, s. 2); but if, after having had an oppor- 
 tunity of receiving, or having received, the instructions of his master, 
 he sets up, or relies upon the title of the latter, and gives an absolute 
 and unqualified refusal to deliver up the goods, he will then, if the 
 person demanding the goods be entitled to the possession of them, be 
 guilty of a conversion(Z). 
 
 If the owner of goods has delivered them to a bailee (post, ch. 9) to 
 keep for him, so that the bailee has received the goods under a valid 
 title, and the bailor, subsequently to the bailment, has, by bill of sale, 
 transferred all his interest to a stranger,'who demands the goods 
 of the bailee, and the latter refuses to deliver them up until he has 
 had time to receive the directions of the bailor, there is no evidence 
 of a conversion(m). In an action for a conversion of chattels, it was 
 held by Lord Kenyon, that where the demand of the things for which 
 
 (&) 22 & 23 Viet, c 37, o. 2. Trover may be maintained against a collector of customs who 
 wrongfully detains the goods of an importer, and the officer cannot defend himself under the 
 instructions of the secretary of the treasury. Fiedler v. Maxwell, 2 Blatohf. Ct. Ct. 652. A 
 post-master who' improperly detains a newspaper, although under the color of the laws of 
 the United States, will be guilty of conversion, and may be proceeded against even in a jus- 
 tice's court. Teal ti. Felton, IN. Y. 637 ; id. 12 How. (U. S.) 284. 
 
 Ifi Clark ». Chamberlain, 2 M. & W. 83. K erford v. Mondel, 28 Law J., Exch. 303. 
 
 Ill) Alexander v. Southey, 6 B. & Aid. 2iO. Mires v. Solebay, 2 Mod. 245. Where an agent 
 comes into the possession of personal property for his principal, he is not bound to deliver it 
 to the rightful owner ; and a demand and refusal, thus explained, is no evidence of a con- 
 version. Carey v. Bright, 58 Penn. St. 70. Sec Hunt v. Kane, 40 Barb. (N. Y.) 638. 
 
 (Z) Lee V. Eobinson, 25 Law J., C. P. 249. 
 
 (m) Lee v. Bayes, 18 0. B. 607 ; 25 Law J., C. B. 249. Europ. & Austr. E. M. Co. i;. R. M. 
 St. P. Co.,30Law J.,C. P. 247. Sheridan ». New Quay Co., 4 C.B.,N. S. 618. Dowda. Wads- 
 worth, 2 Dev. 130. 
 
 Ad. Vol. I.— 26 
 
405i CONVERSION' OF CHATTELS [Chftp. 7.' 
 
 tbe action is brought is not made by the owner, who deposited them 
 with the defendant, but by another person on his account, and the 
 defendant refuses to deliver them, on the ground that he does not 
 know whether the things belong to him or not, and therefore keeps 
 them until that is ascertained, or that the person who applies is not 
 properly empowered to receive them, or until he is satisfied by what 
 authority he applies, that is not such a refusal as is evidence of a con- 
 version(??). And if the defendant has a honafide doubt as to the title 
 of the claimant, it must be shown |hat a reasonable ti-nie was given 
 him for clearing up that doubt(o). 'But if he sets up the title of his 
 bailor, and affirms him to be the owner, or gives an absolute, unqual- 
 ified refusal to deliver up the chattels, there is, as we have seen, evi- 
 dence of a conversion(p). Where a pony-chaise was delivered to a 
 workman to be painted, and the latter deposited it in the hands of a 
 person who refused to deliver it up to the owner, unless the latter 
 either produced the person who placed the chaise in his hands, or an 
 order from him for its delivery, it was held that the owner was en- 
 titled to the possession of his property, without doing either the one 
 or the other(g'). 
 
 If a bailor has no title at the time of the bailment, the bailee can 
 have none, for the bailor can give no better title than he has himself(r). 
 The right to chattels personal, therefore, may be tried in an action 
 against the bailee ; but the situation of the bailee, in cases of dis- 
 puted ownership to goods in his hands, is not one without remedy. 
 He is not bound to ascertain the right. He may tile a bill of inter- 
 pleader in a court of equity(s) ; or if he is sued in the superior courts, 
 or the county palatine courts, he may obtain relief under the 1 & 2 
 Wm. 4, c. 58 {post, ch. 9, s. 2), which enables defendants sued in those 
 courts to obtain a stay of proceedings in the action until the rights of 
 the adverse claimants are ascertained by a judicial decision in the 
 manner therein provided. If the bailee forbears to adopt one or other 
 
 (») Solomons v. Dawes, 1 Esp. 82. Bockley ». Howard, 2 Brevard, 94. Blanbensbip v. 
 Ben-y, 28 Texas, 448. Robertson v. Crane, 27 Miss. 3B2. Ingalls v. Balkley, 15 111. 224. Kog» 
 ers V. Weir, 34 N. Y. 463. 
 
 (o) PiUot V. Wilkinson, 32 Law J., Exch. 201 ; 34 ibid. 22. Kogers v. Weir, St N. T. 463. 
 
 i.p) Pillot V. Wilkinson, supra. Woodley v. Coventry, 2 II. & C. 164. Rogers ». Weir, ;!4 
 N. Y. 463. Robertson v. Crane, 27 Miss. 362. Ball v. Linoy, 48 N^. Y. 6. Bat the rnle is otbei-- 
 ■wise where the chattel is not at the time of the demand in the possession of the bailee, as 
 where it has been stolen tVom him. Buck v. Asl^ey, 37 Vt. 475. 
 
 (3) Buxton V. Baughan, 6 0. cSfc P. 674. 
 
 (r) Biddlo v. Bond, 6 B. & S. 225; 34 Law J., Q. B. 137. fiall ». Linoy, 48 N. Y". 6; Story's 
 JSq. Jnr. S 805. Kedfleld on Car. } 712. Batat v. Hartley, L. R., 7 Q. B. 594. 
 ' («) See Sablicioh v. Russbll, L. R., 2 Bq. Ca. 441. 
 
See. l.J BY RAILWAY COMPANIES — BILLS OR NOTES. 408 
 
 of these modes of proceeding, and makes himself a party in the matter 
 by retaining the goods for the bailor, he must stand or fall by the title 
 of the latter(<). 
 
 476 Fraudulent deposits. — If the deposit of goods with a bailee has been 
 made in furtherance of a fraud, and the bailee has notice of the fraud, 
 the assistance of the Court of Chancery may be obtained for the pur- 
 pose of enabling the bailee to keep possession of the goods, and pre- 
 vent the owner of them from obtaining the benefit of a fraud(M). 
 
 477 Conversion of goods by railway companies. — If goods are brought by 
 mistake, and without right, and delivered at a railway station, the 
 station-master has no right to detain them after demand by the owner, 
 and the tender of any reasonable expense due upon them. Where, 
 therefore, a station-master said, in answer to a demand of some goods, 
 " The goods were brought to our station by an intermediate line, which 
 has no right to send goods here, and I shall send them back," it was 
 held that the railway company was liable for the conversion of the 
 goods(a!). But in order to fix the company, it must be shown that the 
 wrongful act was done by their authority ; that is by some person act- 
 ing for them within the scope of his authority (2/). 
 
 478 Conversion of bills and notes. — A man who holds a bill of exchange 
 for a particular purpose has no right, without authority, to go and 
 receive money on the bill, and if he does so, he is responsible for a 
 conversion of the instrument(z). If, therefore, a till of exchange or 
 negotiable security is delivered into the hands of an agent or man- 
 datory, that he may get it discounted, and he neglects to do so, and 
 pays away the bill or note in furtherance of hisown purposes, he is 
 responsible for a conversion of the security(a); but if he pursues the 
 
 (*) JLd. Tenterden, Wilson v. Anderton, 1 B. & Ad. 456. Atkinson o. Marshall, 12 Law J., 
 Exoli 117. Kogersc. Weir, 34 N. V. 463. 
 
 (K) Hant r. Maniere, 34 Law J. , Ch. 142. 
 
 (X) Rooke e. Mid. Bail. Co., 16 Jur. 1069. 
 
 (y) Glover c. Lond. & N.-W. Ewy., etc., 6 Exeli. 06. Where baggage is wrongfully detained 
 by a railroad company, a demand of an agent of the company, who is charged with the whole 
 duty of receiving, keeping, and delivering property will he sufficient, and a demand of the 
 directors unnecessary. Cass ». New York and New Haven B. K. Co. , 1 E. D. Smith (N. Y. 
 C. P. ) , 522. A mere delay in delivery by the company will not amount to a conversion. Briggs 
 c. New York Central E. "n. Co., 28 Barb. (N. Y.) 615. 
 
 (z) Alsager r. Close, 10 M. & W. 583. 
 
 («) Cranch ». White, 1 B. N. C. 414. Atkins v. Owen, 4 Ad. & E. 819. The maker of a nego- 
 tiable promissory note can maintain an action for its conversion against a person, who, 
 liefore it has any legal inception wrongfully negotiates it to a bona fide holder for value. 
 Deeke- ». Mathews, 12 N. Y. 313. So an action of trover may be maintained against one who 
 purchases a note with knowledge of the claim of another thereto, and collects it. Allison v. 
 King, 25 Iowa, 56. So the maker of an accommodation note may maintain trover against the 
 payee, who, after it has been discounted and taken up according to agreement, subsequently 
 claims to hold it as a valid instrument against the maker. Park ». MoDaniels, 87 Vt. 594. So 
 
404 CONVERSION OF CHATTELS [Chap. 7. 
 
 authority given him, and gets the hill discounted, but misapplies the 
 proceeds, he is not responsible for the conversion of the security, but 
 for the misapplication of the money(6). 
 
 If a 'person takes a bill or note after it becomes due, or under such 
 circumstances of suspicion as should have prompted inquiry, he takes 
 it with all its infirmities, and with the risk of its having been lost or 
 stolen(c). 
 479 Conversion of lost or stolen bank-notes or negotiable securities. — If a bill 
 of exchange, bank-note, or promissory note is lost, and the finder 
 refuses to deliver the instrument to the owner on demand, he is guilty 
 of a conversion of it, and is responsible in damages to the extent ol 
 the full value of the security. If the instrument is payable to bearer, 
 
 , and the finder, before any demand is made upon him, delivers the 
 note to another, he is exempt from all further responsibility in respect 
 of it(d). If the person to whom it is transferred took the note with 
 knowledge of the infirmity of the title of the person from whom he 
 received it(e), or if it is transferred to him for the mere purpose of 
 enabling him to sue upon it, and he has given no value for the instru- 
 ment, he will have no better title than the person from whom he has 
 received it(/), and will be responsible for a conversion if he fails to 
 deliver it up to the owner on demand. But if he is a bona fide holder 
 for value, and took and discounted the note without any knowledge 
 that the person froHi whom he received it had no title to it, he becomes 
 the lawful owner of the instrument, and may retain it or pay it 
 away(5'). If he has given full value for the instrument, that is in 
 
 ' general conclusive evidence of bona fides. If, on the other hand, he 
 has paid a small sum for a bank-note of large value, payable on 
 demand, that would be evidence the other way(/i). The whole burthen 
 
 the maker of a note may maintain trover against the payee who refases to deliver np the note 
 on demand after it has hoen fully paid, or who, after such payment, disposes of the note. 
 Stone V. Clough, 41 N. H. 290. But see Lowremore ». Berry, 19 Ala. 130. 
 
 So where an agent has authority to receive a note payable to his principal, in discharge of 
 a debt due the latter, but takes it payable to himself, he ivill be liable for the conversion of 
 the note after demand and refusal. McNear ». Atwood, 5 Shop. 434. 
 
 Where a note has been delivered to an agent to be negotiated and is pledged by him for a 
 loan to himself at an unlawful rate of interest, and the pledgee has sold the note on non-pay- 
 ment of the loan, the owner of the note may, alter demand and refusal, maintain trover 
 against the pled,ffee. Keutgen v. Parks, 2 Sandf. (N. Y.) 60. 
 
 (6) Palmer v. Jai-main, 2 M. & W. 282. See Neale v. Weare Bank, S Allen (Mass.), 202. 
 
 (c) Goggerley v. Cuthbert, 2 B. & P. N. E. 170. 
 
 (d) Canot v. Hughes, ante, p. 400. 
 
 (e) Bum V. Morris, 2 Cr. & M. 579. Marsh v. Marshall, S3 Pcnn. St. 396. 
 (/) Bailey v. Bidwell, 13 M. & W. 73. 
 
 («■) Miller v. Eace, 1 Burr. 452 ; 1 Smith's L. C, 6th cd., 468. Gi-ant v. Tanghan„3 Barr. 
 1524. Lawson v. Weston, 4 Esp. 57. 
 ) (ft) Eaphael v. Bank of England, 17 C. B. 173. De Witt v. Perkins, 22 Wis. 473. 
 
Sec. l.j BY PARTNERS, JOINT-TENANTS, ETC. 405 
 
 of impeaching the title of the holder of the instrument falls upon the 
 plaintiff, who disputes that title(i). It is enough for him to show that 
 he lost the instrument, or that it has been stolen from him, and that 
 immediately after the loss or the robbery it was found to be in pos- 
 session of the defendant(A:). The latter is not bound, from proof of 
 those circumstances alone, to account for his possession of the secu- 
 T\tj{l). But if the note is one of unusual value, and is found in the 
 possession of the defendant immediately after the loss, and the latter 
 declines to say from whom he received it, or to give reasonable infor- 
 mation of the circumstances under which he became possessed of it, 
 he would be required to prove that he gave value for the instru- 
 menent(m) ; and if it was payable to bearer on demand, and he 
 gave much less than its real value, and took it from a total stranger, 
 without making an inquiry, and under circumstances which ought to 
 have aroused suspicion in the mind of any prudent person, this will ' 
 be evidence to show that he took it with knowledge of the infirmity 
 of the title of the person from whom he received it, and to fix him 
 with that infirmity of title. Gross negligence and want of caution 
 are not in themselves sufficient to defeat the title of the holder, where 
 he has given value for the security(w.) ; but gross negligence may be 
 evidence of mala fides, though it is not the same thing(o). 
 
 In the case of stolen notes, if the possession is recent, and the 
 surrounding circumstances such as to show that the defendant, stole 
 the note, or received it into his possession knowing it to have- been 
 stolen, the plaintiff' cannot maintain his action unless he has prose- 
 cuted for the felony {ante, pp. 41-42). In all cases he shmild use 
 diligence to apprise the public of his loss(^). i 
 
 480 Conversion of chattels by one of several partners, joint-tenanis, ot] tenants- 
 in-common. — The authorities seem to show that one partnerlor joint- 
 tenant of a chattel cannot maintain an action against his co-tenant 
 for a conversion of the chattel, in consequence of his having taken 
 upon himself to sell the subject-matter of the joint ownership by sale 
 
 (j) Wore. Co. Bank v. Doroh. & Milt. Bank, 10 Cush. 489. Wyer o. Doroh., etc., Bank, H 
 Cash. 51. 
 
 (i) Miller v. Race, supra. 
 
 it) King V. Milsom, 2 Campb. 5. 
 
 (m) Bailey ». Bidivell,13 M. &. W. 76. 
 
 (n) Bayley, J. , Backhouse v. Harrison, B B. & Ad. 1105. Eaphael v. Bank of England, 17 C. 
 B. 161, ovemiling Snow v. Leatham, 2 C. & P. 317. Snow v. Peacock, 11 Moore, 286; 3 Bing. 
 405; and Easley v. Crockfovd, 3 M. &. So. 701; 10 Bing. 243. And see post, a, 2, Title to bills 
 and notes. 
 
 (0) Goodman v. Harvey, 4 Ad. & E. 876. Arbouin v. Anderson, 1 Q. B 504. 
 
 (i>) Beokwith v. Corrall, 11 Moore, 837; 3 Bing. 444. 
 
406 CONVERSION OF CHATTELS. [Chap. 7./ 
 
 not in market' overt, as the sale under such circumstances only trans- 
 fers to the purchaser the vendor's interest in. the chattel, and renders 
 the purchaser co-tenant only with the other part-owners; but if the 
 chattel be destroyed or sold in market overt, so as to transfer the 
 entire property in the chattel to the purchaser, and oust the other 
 part-owners of their poprietary rights, the sale would then amount to ■ 
 a conversion of the property, and the vendor would be answerable in 
 damages to his other co-tenants(5). 
 
 In Littleton (sect. 323) it is said that, "if two be. possessed of chat- 
 tels personal in common, and one take the whole to himself out of the 
 possession of the other, the other has no remedy but to take this from 
 him who hath done the wrong, to occupy in common^ etc., when he 
 can see his time "(''')• " This section of Littleton," observes Maule, J., 
 "as it seems to me, is to be understood thus — that there may be dis- 
 positions of the subject-matter of the tenancy in common which will 
 amonut to a conversion, if done by a stranger, that are not so if done 
 by a tenant in common. But I do not think that it therefore follows 
 that no dealing with the thing by one of two tenants in common, 
 which does not amount to a total annihilation of it, can be a conver- 
 sion as against his co-tenant. It may be that the co-tenant may, if he 
 think fit, follow the thing and make title to it, notwithstanding its sale 
 and delivery to a third person. But it does not follow that where one 
 tenant in common has dealt with the chattel to an extent exceeding 
 his authority, as where he sells it out and out to a purchaser who car- 
 ries it away, it would militate against a true understanding of the 
 older authorities to hold that the co-tenant may treat that as a conver- 
 sion "(s). 
 
 (?) Crosswell, J., Mayheiv v. Herrick, 7 C. B. 249. Barnardiston ti. Chapman, cited 1 East, 
 121. Wheeler ». Wheeler, 33 Mo. 347. Smyth v. Taukei-sley, 20 Ala. 212. Wilson v. Eeed, 3 
 Johns. 175. Hyde v. Stone, 9 Cow. 231. Gilbert v. Dickerson, 7 Wend. 4S0. Haines v. Mo- 
 Narry, 4 Humph. 3oiJ. Weld v. Oliver, 21 Pick. 5m. Cowlos v. Garrett, 30 Ala. ,141. White 
 V. Osborn, 21 Wend. 72. ' 
 
 (r) See Holiday v. Camsell, 1 T. R. 058. 
 
 (s) Mayhew v. Herrick, 7 C. B. 229. It is a general rule Uiat one tenant in common, or 
 joint owner of property cannot maintain an action of trover against another, unless an actua' 
 destruction of the property or something equivalent is shown. Reston.w. Morris, 1 Dutch. (N. 
 J.) 173. Lucas ». Wasson, 3 Dev. 398. Campbell e. Campbell, 2 Murph. 65. Strong «. Colter 
 13 Min. 82. Williams v. Nolen, 34 Ala. 167. Hunt «. Darling, 14 Vt. 214. St. John v. Stand 
 ring, 2 Johns. 463. Seldon v. Hickock, 2 Cal. 166. Wilson v. Heed, 3 Johns. 175. Merserean 
 V. Norton, 16 Johns. 179. 
 
 If a tenant in common assumes and exercises exclusive ownership of the common property, 
 repudiating the rights of the co-tenant, he is guilty of a conversion. Swartwout v. Evans, 37 
 111. 442. If he is bound by contract to divide the common property at a specified place, but 
 appropriates it all to his own exclusive use under a claim of exclusive right, and under cir- 
 cumstances which render a division in the manner contemplated- by the contract impossible, 
 he is guilty of conversion. Kipley v. Davis, 15 Mich. 75. 
 
Sec. l.J TRUST PROPERTT. 407 
 
 If one of two partners carries off the pairtnershlp property, and 
 pledges it without the knowledge or assent of the other, this is not a con- 
 version of the property by the pledgor, and does not render him liable to 
 be sued by his co-partner, as he has a right to pledge to the extent of his 
 limited interest, and tO' create a lien upon the partnership property(^). 
 Where one of two partners became banltriipt, and the solvent partner 
 directed the defendants to sell some partnership property in their 
 hands, and the defendants sold it and received the proceeds of the 
 sale, it was held that the assignees of the bankrupt partner had no 
 right to recover any of the proceeds of the sale from the defendant by 
 action at law, but that they must proceed for an account in the court 
 of bankruptcy or in a court of equity(M). 
 
 Wherever the act done by the one tenant in common operates as a 
 total destruction of the thing held in common, there is then a wrong 
 done' to the other tenant in common, in respect of which an action is 
 maintainable. " If one of two tenants be of a dove-house, and the 
 one destroys the old doves, whereby the flight is wholly lost, the other 
 tenant in common shall have an action for a trespass "(«) "for there 
 can be no tenancy in common of a thing destroyed"(2^). 
 48 1 Conversion of trust property. — Every person who fraudulently receives 
 or possesses himself of trust property is converted by the Court of 
 Chancery into a trustee for the parties beneficially interested in such 
 property, and they have the same rights and remedies against him as 
 they would be entitled to against an express trustee who had ft-audu- 
 lently committed a breach of trust(z). 
 
 If he mixes the common property with other property in such a manner that ft cannot be 
 distinguished, and sells the whole mass, he will be guilty of a conversion of thashare of the 
 co-tenant. Redington v. Chase, 44 N. 11. Hi. 
 
 So if two persons voluntarily mingle grain in a common bin, they become tenants in com- 
 mon of the grain ; and if one sells the whole mass, he is liable to his co-tenantfiu an action 
 of trover. Nowlen v. Colt, 6 Hill, 461. ' 
 
 So, where one of two joint owners of a promissory note sells or destroys it, orjdelivers it up 
 to the maker to be cancelled or destroyed without the authority of the other, ha is guilty of a 
 conversion of the note. Winner «. Penniman, SH Bid. 163. 
 
 Where two tenants in common of a quantity of grain have agreed to divide if, amth.ive set- 
 tl3d the amount belonging to-each, but without effecting an actual separation, the tenancy in 
 common is severed by the apportionment, and one to whom a portion hasJoeen allotted but 
 not delivered, may maintain an action for the conversion of that portion ii/the possession of 
 his former co-tenant after a demand for its possession and a refusal to delj^-er it. Lobdell v. 
 StoweU, 51 N. Y. 70. 
 
 (t) Jones ». Brown, 25 Law J., Exch. 345. Fennings ». Ld. Grenville, ifraunt. 248. Buthe 
 would, it seems, be entitled to an action of account under the 4 Anne, CJIS, a. 27. Jacobs ». 
 Seward, L. E. , 5 Eugl. & Ir, App. 464. 
 
 («) Morgan v. Marquis, 9 Exch. 145. Edwards v. Hooper, U M. & ^^^ 363. See 32 & 33 
 Vict. c. 71. 
 
 [X) Co. Litt. 200a, 200b. 
 
 (y) 14 Vin. Abr. 516, JOINT-TENANTS. 
 
 (z) Eolfe-». Gregory, 34 Law J., Ch. 274. 
 
408 CONVERSION OF CHATTELS. [Chap. 7 
 
 482 Right of lien. — If a defendant, having a lien upon goods {post, cb. 
 9), refuses to deliver them up on demand, and claims to retain them 
 on grounds quite distinct from a claim of lien, his refusal will be evi- 
 dence of a conversion, and the existence of the lien will be no answer 
 to an action for the conversion of the property(a). But a person does, 
 not waive his right of lien merely by omitting to mention it when the 
 goods are demanded; and if he claims a right to detain them, in respect 
 of two separate sums claimed to be due to him, atid he has a lien only 
 in respect of one of those sums, his refusal is no evidence of a conver- 
 sion, unless the sum in respect of which the lien exists is tendered(6). 
 "Where a person," observes Alderson, B.. "has no right of property 
 in goods in his possession, but merely a right of lien, he has no right 
 to sell them ; and if he does sell the goods, he thereby puts an end to 
 his lien "(c) ; but where goods have been deposited as security for a 
 loan of money to be repaid on a day certain, there is an implied power 
 of sale in case of default in payment on the day named(c?). An 
 unauthorized dealing with a pledge will not, it seems, revest the 
 property in the pledgor, so as to entitle him to bring trover or detinue 
 for the article pledged, though it may give him a special action of tort 
 for any damage actually caused by such unauthorized proceeding(e). 
 And it has been held in equity, that a lender of money on the security 
 of railway stock has no right to realize the security during the cur- 
 rency of the loan, and that, if he does so, the owner may recover from 
 h^m the price he got for the stock, if it is to his interest to do so(/). 
 
 (a) Cannee «. Spauton, 8 Sc. N. E. 714 ; 7 M. & Gr. 903. Dirks v. Eichards, 5 Sc. N. E. 534 ; 
 iM. & Gr. 574. Weeks v. Goode, 6 C. B., N. S. 367. See Heine v. Anderson, 2 Duel- {N. Y.), 
 318 ; Eveiettu. Coffin, 6 Wend. 003. Seo Holbrook v. Wright, 24 Wend. 169 ; Everett v. Sal- 
 tus, 15" Wend, 474. 
 
 (6) ScarJfe v. Morgan, 4 M. & W. 281. Kerford v. Mondel, 28 Law J., Exch. 303. In order 
 to constitute a conversion of goods by parties wlio have a right to a lien for a general balance 
 beyond the charges on the goods, there must be a refusal to deliver after a demand and tender 
 on the part of the owner. Wagenbiast v. McKean, 2 Grant's .Cas. (Penn.) 393. 
 
 Where there is no lien against goods except for freight and expenses, an offer to pay these 
 charges, and a demand and refusal of the goods, is sufficient evidence of a conversion. Id. 
 
 («) Whif e V. Spettigue, 13 M. & W. 608. 
 
 (d) PigotD. Cilbley, 15C. B.,N. S. 701 ; 33 Law J., C. P. 134. Addison on Contracts, 6th ed., 
 ch. 9, s. 2. See Story on Bailments, s. 308. 
 
 (6) Donald v. SSickling, L. E., 1 Q. B. 585. Halliday v. Holgate, L. E., 3 Exch. 299. 
 
 (/) Laugton v. Waite, L. E., 6 Eq. Ca. 165. The case of Lawrence v. Maxwell, decided by 
 the Court of Appeals of New York, is a valuable illustration of the principles stated in the 
 text, and one of great importance in settling the rights of pledgor and pledgee of collateral 
 securities. The action was brought for the alleged conversion of certificates for four hundred 
 shares of Atlantic Mail Steamship Company's stock, delivered by the plaintiff to the defend- 
 ant, a gold and stock broker, as security against any loss which the latter might sustain on 
 purchases and sales of gold, to be made on account of the former. The transactions resulted 
 in a loss of Sll,600.22, whicli amount the plaintiff tendered to the defendant and demanded -a 
 return of the certiflcates. The defendant replied that he could not deliver them as they 
 were not in his possession. Upon the trial the defendant offered to prove a custom and 
 
Sec. 1.] EIGHT OF LIBN. 409 
 
 Where the plaintiif had agreed to buy of the defendant a stack of 
 hay for 86?., to be paid for when taken away, and to be removed by 
 the 31st of May, and part only of the hay was paid for, and removed 
 by the time appointed, whereupon the defendant, in the month of 
 August following, cut up and consumed the residue of the hay, and 
 the plaintiff afterwards tendered the unpaid- purchase-money, and de- 
 manded the hay, and sued the defendant for converting it to his own 
 use, it was held that the defendant's lien on the hay was determined 
 by the act of conversion ; that from the moment the defendant used 
 the hay in a manner inconsistent with his claim of lien, his lien ceased, 
 and a right of possession accrued to the purchaser(p'). Where, how- 
 ever, some apples which had been sold by the defendant to the plain- 
 tiff at an agreed price, to be paid on a given day, were deposited in 
 a kiln in an outhouse on the defendant's premises, and the key of the 
 kiln was given by the defendant to the plaintiff, but the defendant 
 kept the key of the outer door of the outhouse, and, the day of pay- 
 ment being passed, the defendant gave the plaintiff notice to take and 
 pay for the apples, and, no attention being paid to this notice, the 
 defendant carried them g-way and resold them, and the plaintiff then 
 brought an action for a conversion of them, it was held that the de- 
 fendant was entitled to a verdict under a plea denying the plaintiff's 
 right of possession of the apples(A). 
 
 usage, known to the plaintiff, by -which broters may use by hypothecation or otherwise, 
 securities received by them as a margin on similar transactions. The court held that " prop 
 erty pledged may, with the assent of the pledgor, express or implied, be used by the pledgee 
 in any way consistent with the general ownership and ultimate rights of the former to have 
 the property when the lien shall be discharged ; that whatever right the pledgee may have, 
 ceases the instant the obligation of the pledgor is discharged and the pledge is thereupon 
 released ; that if property is then lawfully out of the possession of the pledgee, it is his duty at 
 once to regain the possession and restore it to tlie pledgor ; and a neglect or refusal to do this 
 renders him liable to an action as for a conversion of the property ; and that an authority in 
 the pledgee to sell the pledge is Inconsistent with the contract of bailment, and a custom or 
 usage will not avail thus to vary the terms of the agreement." Lawrence v. Maxwell, 53 
 S. Y. 19. 
 
 (g) GuTT o. Cuthbert, 12 Law J., Exch. 309. 
 
 (ft) Vilgate V. Keeble, 3 M. & Gr. 100 ; 3 Sc. N. K. 368. 
 
410 CONVERSION OF CSATTELS. [Chap. ?• 
 
 SECTION II. 
 
 OF THE TITLE OF CHATTELS PERSONAL(t). 
 
 483 Title to things altered hy a wrong-doer. — If a man takes away the 
 chattel of another, either by design or accident, and alters it, or im- 
 proves it, he has no right to detain it from the owner until his 
 alterations and improvements have been paid for. If a man wrong- 
 fully takes away my carriage, and without any authority from me, 
 sends it to a coachmaker to be repaired or painted, I am entitled to 
 the possession of my carriage without paying for the repairs or paint-- 
 
 (i) As to title by bill of sale, see Addison on Contracts, 6th ed., p. 136, et seg.i Massey v. 
 Sladen, L. B., 1 Exch. 13; Mercer v. Peterson, L. E., 3 Bxch. 101. As to goods in the 
 " apparent possession " of the assignor within the meaning of the Bills of Sale Act, 17 & 18 
 Vict. c. 86, s. 7, see Hobinson v. Briggs, L. R. , 6 Exch. 1, and post, p. 410. As to "What is a biU 
 of sale requiring registration or not, see Johnson v. Ossenton, 33 L. J. , Exch. 76 ; Byerley v. 
 Prevost, L. R., 6 C. P. 144. As to priority between two holders of bills of sale, see Exparte 
 Allen, L. E., 11 Eq. Ca. 209. As to title to ships, see Addison on Contracts, 6th ed., pp. 136-8, 
 254, 255 ; Johnson v. Eoyal Mail Steam Packet Co., L. E.. 3 C. P. 38. 
 
 [j) Hiscox V. Greenwood, 4 Esp. 174. " It is an elementary principle in the law of all civilized 
 communities, that no man can be deprived of his property except by his own voluntary act, 
 or by operation of law. The thief who steals a chattel, or the trespasser who takes it by 
 force, acquires no title by such wrongful taking. The subsequent possession by the thief or 
 the trespasser is a continuing trespass ; and if during its continuance, the wrong-doer enhances 
 the value of the chattel by labor and skill bestowed upon it, as by sawing logs into boards, 
 splitting timber into rails, making leather into shoes, or iron into bars, or into a tool, the 
 manufactured article still belongs to the owner of the original material, and he may retake it 
 or recover its improved value in an action for damages. And if the wrong-doer sell the 
 chattel to an honest purchaser having no notice of the fraud by which it was acquired, the 
 purchasser obtains no title from the trespasser, because the ti'espasser had none to give. 
 The owner of the original material may still retake it in its improved state, or he may recover 
 its improved value. But if the chattel wrongfully taken, afterwards come into the hands of 
 an innocent holder, who beliving himself to be the owner, converts the chattel into a thing 
 of different species, so that its identity is destroyed, the original owner cannot reclaim it. In 
 a case of this kind the change in the species of the chattel is not an intentional ^vTong to the 
 . original owner. It is therefore regarded as a destruction or consumption of the original 
 materials, and the true owner is not permitted to trace their Identity into the manufactured 
 article, for the purpose of appropriating to his own use the labor and skill of the innocent 
 occupant who -svrought the change ; but he is put to his action for damages as for a thing con- 
 sumed, and he may receiver its value as it was when the conversion or consumption took 
 place." Buggies, J., in Silsbury v. McCoon, 3 N". Y. 379. See, also, Wetherbeo v. Green, 22 
 Mich. 311 ; Britts v. Lee, 5 Johns. 348 ; Curtis v. Groot, 6 Johns. 163 ; Chandler v. Edson, 9 
 Johns. 362 ; Hyde v. Cookson, 21 Barb. 101 ; Baker v WTieeler, 8 Wend. 508 ; Snyder v. Veaux, 
 2 Eawle, 427 ; Riddle ». Driver, 12 Ala. 690 ; Eyder ». Hathaway, 21 Pick. 305 ; Sedg. on 
 Dam. 484. 
 
 Where a wilful trespasser takes a quantity of corn from the owner and converts it into 
 whiskey, the property is not changed, and the owner may recover the value o'f the whiskey 
 in an action of trover. Id. The same rule has been applied where a wilftil trespasser con- 
 verted a tree into shingles. Betts v, Lee, 5 Johns. 319. Or into charcoal. Curtis v. Groat, C 
 Johns. 169. Or into plank or boards. Browne. Sax, 7 Cow. 95. Wingate ». Smith, 20 Me. 287. 
 But where timber to the value of twenty-flve dollars is sold by one having no title thereto, to 
 
Sec. 2.] TIMBBIi — TITLE BY FINDING. 411 
 
 ' Where the defendant and the plaintiff being at play, the plaintiff 
 thrust his money into the defendant's heap, and so intermingled the 
 coins that it became impossible to separate them, it was adjudged that 
 the whole heap belonged to the defendant ; and Coke, J.C., said, " The 
 law is, that if J. T. have a heap of corn, and J. D. will intermingle his 
 corn with the corn of J. T., the latter shall have all the corn, because 
 'ihis was done by J. D. of his own wrong "{k). And this x;ase was put 
 jy Anderson : " If a goldsmith be melting of gold in a pot, and as he 
 ,'.H melting it I will 'cast gold of mine into the pot, which is melted 
 altogether with the other gold, I have no remedy for my gold, but have 
 lost it ; and if a man take my garment and embroider it with silk or 
 gold, or the like, I may take back my garment ; but if I take the silk 
 from you, and with this face or embroider my garment, you shall not 
 take my garment for your silk which is in it, but are put to your action 
 for taking of the silk from you "(Q. 
 
 484 Title to timber severed from the inheritance. — Whenever timber-trees 
 are severed from the freehold, either by the act of G-od, as by tempest, 
 or by a trespasser and by wrong, the timber belongs to the person who 
 has the first estate of inheritance, whether in fee or in tail ; and he 
 may bring an action for the conversion of it, or file a bill against the 
 wrong-doer for an account. If, therefore, the tenant-for-life cut down 
 timber, the timber belongs to the person entitled to the first estate of 
 inheritance(TO). But if the wrong-doer has himself the first estate of 
 inheritance, the Court of Chancery will not allow him to take advantage 
 of his own wrong, but will direct the value of the timber to be investei^ 
 and accumulated for the benefit of the remaindermen who may after- 
 wards become entitled to the property(w). 
 
 485 Title to chattels hy finding. — The finder of a lost article is entitled to 
 
 a purchaser having no knowledge ol' the defect of title, and who subsequently manufactures 
 the same into hoops of the value of seven hundred dollars, the title to the timber is changed 
 by the substatial change of identity, and the actual owner cannot maintain replevin for the 
 hoops. Wetherbee i. Green, 22 Mich. 311. 
 
 (i-) AVarde v. Eyre. 2 Bulstr. 323. See Stephenson v. Little, 10 Mich. 433 ; Wetherbee ». 
 Green, 22 Mich. 311 ; .lart v. Ten Byck, 2 Johns. Ch. 62 ; Gordon v. Jenney, 16 Mass. 465 ; 
 Treat v. Barber, 7 Con.\. 280 ; Barron </. Cobleigh, 11 N. H. 561 ; Robinson v. Holt, 39 JST. H. 
 657 ; Roth v. Wells, 29 N, Y. 486 ; Beach v. Schmultz, 20 111. 185 ; Willard v. Rice, 11 Mete. 493 ; 
 Jenkins v. Steanka, 19 Wis. 128 ; Hesseltine v. StockweU, 30 Me. 237. 
 
 If a. person fraudulently or wrongfully take logs which are the property of another, and 
 manufacture them into boards, and then so intermingle them with other boards of his OAVn so 
 that they cannot be distinguished, the owner of the logs may maintain replevin or ti-over for 
 the whole pile of boards. Wingate v. Smith, 7 Shep. 287. See Root v. Bonnema, 22 Wis. 639. 
 
 (I) Anon., Poph. 38. See Wetherbee v. Green, 22 Mich. 311. 
 
 {»!) Bewick v.- Whitfield, 3 P. Wms. 263. Whitfield v. Bewit, 2 P. Wms. 241. 
 
 (») Powlett V. Duchess of Bolton, 3 Ves. 377. Tallit v. TuUit, Ambl. 370. Dave v. Hopkins, 
 2 Cox, 110. 
 
412 CONVERSION OF CHATTELS. [Chap. 7. 
 
 the possession of it as against all persons except the real owner, but he 
 must be an " innocent finder," and must not have taken possession of 
 the property feloniously or fraudulently, knowing, or having the means 
 of knowing, the owner of it, and neglecting to deliver it up to him(c<). 
 Where a chimney-sweeper's boy found a jewel, and carried it to a 
 goldsmith's shop to know what it was worth, and delivered it into the 
 hands of the goldsmith's apprentice,' who, under the pretence of weigh- 
 ing it, took out the stone, and offered the boy three-halfpence for it, 
 which the boy refused, and insisted upon having the jewel back, where- 
 upon the apprentice delivered him the socket without the stone, and 
 an action was brought against the master for a conversion of the jewel, 
 it was ruled " that the finder of a chattel, though he does not by such 
 finding acquire an absolute property or ownership, yet he has such a 
 property as will enable him to keep it against all but the rightful 
 owner, and, consequently may maintain an action for the conversion 
 of it"(p). 
 
 "Where the plaintiff, on leaving the defendant's shop, picked up a 
 small parcel which was lying on the shop-floor, and showed it to the 
 shopman, and the parcel, on being opened, was found to contain bank- 
 notes, and the plaintiff requested the defendant to keep the notes, and 
 deliver them to the owner, and the defendant advertised for the owner, 
 and after the lapse of three years, no owner appearing to claim them, 
 the plaintiff applied to the defendant for the notes, offering to pay the 
 expenses of the advertisements, and to indemnify the defendant against 
 apy claim in respect of the notes, and the defendant refused to deliver 
 them up, it was held that the plaintiff was entitled to recover them, 
 or the value of them, and that the circumstance of the notes being 
 found by the plaintiff inside the defendant's shop, in the defendant's 
 own house, did not give the defendant any right to detain them as 
 against the plaintiff, who found them there(g). 
 486 Title lo wild birds and ani-mals ferm naturas — Right of the hunter to the 
 game he kills. — So long as animals ferm naturcB remain upon a man's 
 land they belong to him, but the moment they leave his land his pos- 
 sessory property is gone ; and this is so, even if they be hunted out of 
 his land by a trespasser, and although they be killed by the trespasser 
 on another man's land. The property in wild grouse is not absolute 
 in any one. So long as the wild' bird is upon a man's .land he has a 
 
 (o) Buckley v. Cross, 33 Law J., Q. B. 129. 
 
 (J)) Ai-mory v. Delamirie, 1 Str. 505. Mathews v. Havsell, 1 E. D. Smith (N. T.), 393. Clark 
 V. Malory, 3 Harring. 68. McLaughlin v. Waite, 9 Cow. 670. 
 (g) Bridges V. Hawkesworth, 21 Law J., Q. B. 75. 
 
Sec. 2.] TITLE TO GAME, FISB, ETC. ' 413 
 
 possessory property in it, but as soon as it flies or goes off his land, 
 his property is gone(r). If A starts a hare in the ground of B, and 
 hunts it and kills it there, the property continues all the while in ]3 ; 
 but if A starts a hare in the ground of B, and hunts it into the ground 
 of C, and kills it there, the property has been held to be in A, the 
 hunter, although he is liable to actions of trespass on the lands both 
 of B and C{s). • Where rabbits were snared and killed in Lord Exeter's 
 land by poachers, and were sold by them to a dealer ,in game, it was 
 held that the rabbits were the property of Lord Exeter, on whose land 
 they were started and killed, and not the property of the dealer in 
 game(i). And where rabbits are bred in a warren, the owner of the 
 warren has a right of property in the rabbits so long as they remain 
 on his land, but as soon as they leave his land his right of property 
 in them is gone(M). 
 
 Where the Bishop, of London granted to the defendant a lease 
 of land for a term of years, excepting the trees and the herons and 
 shovellers making their nests in the trees, and the defendant, during 
 the lease, took some of the herons, and the bishop brought an 
 action of trespass against him, it was held that he was entitled to 
 recover the value of the herons ; for although they were ferm naturw, 
 he had an interest in them by reason of the trees in which they 
 built(i«). 
 487 Title of the fisherman to the fish he harpoons or nets. — If a whale has 
 been struck by a harpooner, the whale, so long as the harpoon remains 
 in the iish, and the line continues attached to it, and also continues 
 in the power or management of the striker, is a fast iish, though 
 during that time it is struck by a harpooner of another ship ; and if 
 the whale afterwards breaks from the "first harpoon, but continues fast ; 
 
 (r) Eigg V. Lonsdale, 1 H. & N. 923, afflraiing Lonsdale v. Eigg, H Bxoh. 65i ; 25 Law J., 
 Exch. SI. Otherwise where the wild bird has been wholly or partially tamed. Amory v. 
 Flj'n, 10 Johns. 103. 
 
 (s) Holt, C. J., Sutton o. Moody, ILd.Eaym. 250. Churchward «. Studdy, U East, 249. But 
 in order to vest the title in the hunter the animal pursued must be actually in his control at 
 the time of the taking. Butler v. Newkirk, 20 Johns. 75. The mere fact of pursuit with the 
 probability of immediate capture, will not vest the title in the hunter as against a third party 
 who kills and carries away the animal pursued. Pierson v. Post, 3 Caiues, 175. 
 
 A swann of wild bees belongs to the person who first hives them ; but if they fly from the 
 hive of the owner to the lands of another, the former retains a qualified property in them so 
 long as he can keep them in view, and possesses the power to pursue anrl identify them. 
 Goff». Kilto, 15 Wend. 550. Until bees have been hived and reclaimed they belong to the 
 owner of the lands upon which they are found. Gillet v. Mason, 7 Johns, lii. Ferguson v. 
 Miller, 1 Cow. 243. • 
 
 {t) Blades v. Higgs, 12 C. B., N. S. 501; 31 Law J., C. P. 151; 32 ib, 1S2; 3A ib. QGO (Uom. 
 Proc). 
 
 («) Bro. Abr. Property, pi. 4. Hadesden v. Gryssell, ante, p. 131. 
 
 (») Bishop of London's case, 14 Hen. 8, f. 1. See Ci/mmouwealth v. Chaoo, 9 Pick, 16 
 
414 CONVERSION OF CSATTELS. [Chap. % 
 
 to the second, "the second harpoon is called a friendly harpoon, and 
 the fish is the property of the first striker, and of him alone. But 
 if the first harpoon or line breaks, or the line attached to the harpoon 
 is not in the power of the striker, the. fish is a loose fish, and will 
 become the property of any other person who strikes and obtains xt{y). 
 But although the harpoon comes out of the fish, or is detached from 
 the line, yet if the whale is so entangled in the rope as to give the 
 first strikers the same power over it as if the harpoon was fixed, the 
 fish will still continue a fast fish, ^nd be the property of the first 
 strikers(z); and if the fish is unlawfully liberated by the wrongful 
 ' interference of a third party, who afterwards harpoons it and secures 
 it, it will, nevertheless, be the property of the first strikers(a). But 
 if the interference of such third party takes place before the fisher- 
 man n as got the fish into his power, or under his dominion and 
 control, there can be no right of property in or title to, the fish(6). 
 Thus, where the plaintiff, whilst fishing for pilchards, had nearly 
 encompassed a vast quantity of fish with a net, and would have cap- 
 tured the whole of them but for the interference of the defendant, 
 who came with boats and sailors, and drove the fish into his own nets 
 and captured them, it was held that the plaintiff could set up no title 
 to the fish, as he never had them under his dominion and control, but 
 ought to have sued the defendant for interfering with his nets, and 
 unjustifiably preventing the plaintiff from exercising his occupation 
 and calling of a fisherman, and catching the fish(c). 
 488 Title to chattels hy gift. — If a verbal gift has been made of a piece of 
 plate, or other valuable chattel, to a person to whom it has been de- 
 livered to be kept, the verbal gift, unaccompanied by any transfer of 
 possession, cannot, it has been held, transfer any property in the 
 chattel to the donee. There must be either an actual manual delivery, 
 if the chattel is capable of manual occupation and delivery, or a con- 
 structive delivery, if the article is bulky and incapable of manual 
 transfer(cc) ; or there must be a deed of gift under seal, in order to 
 
 (y) Littledale v. Scaith, 1 Taunt. lAZ, note (a). Aberdeen Arctic Co. v. Sutter, 6 Law T. K.; 
 N. S. 229; 10 W. E. 516, H. L. 
 
 (z) Hogarth v. Jackson, M. & M. 58. 
 
 {a) Sktnnei' v, Chapman, M. & M. 59, n. 
 
 (6) Erie, J., StBTcns v. Jeacocke, 11 Q. B. 741. 
 
 (0) ' Younjr v. Hichens, 6 Q. B. 606. See the Sea Fisheries Act, 1868, 31 & 32 Vict. c. 45. 
 
 (CO) Carleton v. Lovejoy, 54 Me. 445. Hanson v. MiHett, 55 Me. 184. Pooler v. GuUkey, 27 
 Texas, 355. Caas-nell «. Ware, 30 Ga. 267. Reed ».«Spaulding, 42 N. IX. 114. Mechling's 
 Appeal, 2 Grant's cases (Penn.), 157. ICidder v. Kiddei', 33 Penn. St. 268. Wheatloyn. 
 Abbott, 32 Miss. 343. Ives ». Owens, 28 Ala. 641. Noble w. Smith, 2 Johns. 52. Grang-iac ». 
 Ai-den, 10 Johns. 293. Cook v. Husted, 12 Johns. 188. Huntington v. Gilmore, 14 Barb. 243. 
 Hunter ». Hunter, IP Barb. 631. Woodruff ». Cook, 25 Barb. 505. i 
 
Sec. 2.] TITLE DEEDS, LEASES, BONDS, ETC. 415 
 
 clothe the donee with the ownership and right of possession of the 
 chatt^((i). However, although the property in the chattels may not 
 pass at law, an agreement not under seal may be sufficient to create 
 such an equitable interest in them, as to justify the sheriff in not 
 eizing them, while in the possessioii of the apparent owner, under a 
 •writof ^/a.(e).. ♦ 
 
 489 Title to clothes by hiring/ and service. — "Where the plaintiff had been 
 hired as a servant by the defendant, at thirty guineas a year and a 
 suit of clothes, and had, on entering the service, been provided with 
 the clothes, it was held that they did not become his property, and 
 that he could not sue his master for detaining them until he had 
 served a year(/). 
 
 490 0/ the right to the possession of grants of arms, title-deeds, leases, bonds, 
 and securities. — A. deed of grant of arms from the Heralds' College is a 
 sort of family document in which every member of the family whose 
 claim to arms is dependent upon it, has an interest. Whatever mem- 
 ber of the family, therefore, has got possession of it is entitled to keep 
 it, but may be called on to produce it(^). But if the grant is taken 
 out at the joint expense of three members of a family, the deed be- 
 longs to the survivor. The owner of a freehold estate has, in general, 
 a right to the title-deeds, the right to the deeds following the right to 
 the lands. Where, therefore, a man conveyed his freehold estate by 
 way of mortgage to the plaintiff, and handed over to the plaintiff 
 forged and counterfeit title-deeds, and then deposited the genuine 
 deeds with a banker as security for a loan, and the plaintiff brought 
 an action against the banker for the deeds, it was held that he was 
 entitled to recover them(^). The tenant for life has a right to the title- 
 deeds of the estate, and may maintain an action against a remainder- 
 man who has them in his possession and refuses to give them up(i) ; 
 but on the death of the tenant for life the remainderman is entitled to 
 the deeds(A). A lessee, to whom a lease has been delivered, has aright 
 to the possession of the lease, both during the term and after its ex- 
 piration, so that the lessor has no right to claim possession of it from 
 
 (<f) Irons p. SmaUpieoe, 2 B. & AM. 551. Shower v. Pilok, I Exoh. 478 ; 19 Law J., Exch. 
 113. Connor v. Traivick's adm'rs, 37 Ala. 289. 
 
 (c) Brown ». Bateman, L. 11., 2 C. P. 272. 
 
 (/) Crooker v. Molyneux, 3 C. & P. 470. 
 
 iff) Stubs V. stubs/I H. & C. 257 ; 31 Law J., Exch. 610. 
 
 (ft) Newton v. Beek, 3 If. & N. 220; 27 Law J., Exch. 272. 
 
 (i) AUwood V. Haywood, 32 Law J., C. P. 153. See Newton v. Newton, L. E., 4 Ch. App. 
 143. And as between trustee and cestui que trust, see Stanford v. Eoberts, L. R. , 6 Ch. App. 307. 
 
 ^k) Easton v. London, 33 Law J., Exch. 34. 
 
416 CONVERSION OF CEATJELs [Chap. 7. 
 
 the lessee(Z). The obligee of a bond also, to -whom the bond has been 
 delivered, is not bound to deliver it up to the obligor on being tendered 
 the amount due upon it. The obligor is entitled to an acquittance or 
 an acknowledgment of the receipt of the money due upon the bond, 
 but not to the possession of the instrument itself(m). Neither is the 
 payee of a note not negotiable bound to deliver up possession of the 
 ^ note to the maker on receiving the amount due upon it(rj). 
 
 49 1 Right to the possession of documents and securities for 'money as between 
 trustee and cestui qtie tritst. — The person entitled to the beneficial in- 
 terest in a contract or security for money is, in general, entitled to the 
 custody of the document or writing by which the beneficial interest or 
 money is secured. If, therefore, the defendant has obtained posses- 
 sion of a policy of insurance to which the plaintiff is equitably entitled, 
 he is responsible for a conversion of the property if he fails to restore 
 it after demand, as the person entitled to the equitable interest in the 
 document is legally entitled to the custody of it(o). 
 
 492 The right of property in letters is in the receiver, or person to whom 
 they are addressed and delivered, so far as regards the paper on 
 which they are written. If, therefore, they get back into the hands 
 of the writer, the receiver is entitled to have them returned to him ; 
 but he has no right to publish them without leave from the writer(p). 
 
 493 Title to chattels hy purchase in market overt. — ^At common law the right 
 of property in things sold is changed permanently by a sale in market 
 overt(g), so that whoever buys goods and chattels in the open, public, 
 legally constituted market, acquires an indefeasible title to the chattels 
 so purchased, unless he buys with knowledge of an infirmity of title 
 an the part of his vendor. But in order to put a check upon the 
 transfer of stolen property, and induce persons who have been robbed 
 to do their duty to society by prosecuting and convicting the thief, it 
 is enacted by the 24 & 25 Vict. c. 96, s. 100, re-enacting the 7 & 8 
 Geo. 4, c. 29, s. 57, that if any person guilty of any such felony or 
 
 , misdemeanor as is mentioned in the Act, in stealing, taking, obtain- 
 ing, extorting, embezzling, converting, or disposing of, or in know- 
 ingly receiving, any chattel, money, valuable security, or other property 
 
 (Z) Hall V. Ball, 3 M. & Gr. 243. Elworthy v. Sandfoid, 34 Law J., Exch. 42. 
 
 (m) Littledale, J., in Wain v. Bailey, 10 Ad. & E. 618. 
 
 («) Wain o. Bailey, supra. 
 
 (o) Oliver o. Oliver, 11 C. B., ST. S. 139; 31 Law J., C. P. 4. 
 
 (p) Watson V. Maclean, E. B. & E. 77. See Woolsey v. Judd, 4 Dner. (N. T. S. S.), 379; Eyro 
 c. Higbee, 15 How. (N. Y.) 45; Grigsby o. Breckeniidgc, 2 Bush (Ky.), 480. 
 
 (8) See Crane v. London Dock Co., 33 Law J., Q. B. 22.4. As to the s.ile of a ship formerly 
 engaged in acts of piracy, or of goods taken by pirates, to third persons, see Beg. v. McClev- 
 erty, L. E.,3P. C. C. 673. 
 
Sec. 2.] BY PURCHASE IN MARKET OVERT. 417 
 
 whatsoever, shall be indicted for such offence on behalf of the owner, 
 his executor, etc., and convicted thereof, the property shall be restored 
 to the owner, or his representative ; and the court before whom any 
 person shall be tried for any such felony or misdemeanor shall have 
 power to award restitution thereof. The order of restitution, however, 
 is not necessary to revest the right of property in the person robbed, 
 under the above section, and to enable him to follow goods sold in 
 market overt(/'). / 
 
 During the interval between the coinmission of the felony and the 
 conviction the purchaser has a prima fetde title, liable to be defeated 
 by the conviction'(s) ; and persons who purchase during that period, 
 and have the good fortune to sell again before the conviction, cannot 
 be subjected to an action for taking or converting the stolen property. 
 Thus, where the plaintiff', who had been robbed of some sheep, and 
 was prosecuting the thief, gave notice of the robbery to the defendant, 
 who had purchased the sheep in market overt, -not knowing them to 
 have been stolen, and required the defendant to deliver up the sheep 
 to him, which the defendant refused to do, and sold the sheep again 
 before the conviction of the felon, it was held that the defendant was 
 not responsible for a conversion. " The plaintiff," observes Buller, J., 
 " could not demand the sheep of the defendant, merely because they 
 had been stolen from him, for it was not then certain that the felony 
 would be followed by a conviction of the offender." The plaintiff must 
 prove that the sheep were his property, and that while they were so 
 they came into the defendant's possession, who converted them to his 
 
 (r) Scattergood v. Silvester, 15 Q. B. Bll ; 19 Law J., Q. B. 447. 
 
 («) Peer v. Humphrey, 2 Ad. & B. 4^6. The English doctrine that the owner of stolen prop- 
 erty cannot bring his action against the thief or the purchaser from him until after the con- 
 viction of the thief for the larceny, and that an action will not lie against a, hana Jide pur- 
 chaser of stolen goods in market overt if he has parted with the goods previous to the con- 
 viction of the thief, does not prevail in the State of New York. In that State the doctrine that 
 the private injury is merged In the public wrong has been abolished by statute, and the Eng- 
 lish doctrine of markets overt has not been adopted. Therefore the owner of goods feloni- 
 ously taken may bring his action to recover the .property or its value without showing a con- 
 viction of the thief, and notwithstanding that the purchaser has parted with the property 
 previous to the conviction. Hoffman ». Caron, 22 Wend. 285, n. 
 
 The English doctrine has also been repudiated in New Hampshire, Massachusetts, Ken- 
 tucky, South Carolina, Connecticut, Illinois, and Indiana, and probably in the majority of the 
 other States. See PettingiU v. Hideout, 6 N. H. 454 ; Cross v. Guthery, 2 Root, 90 ; Piscataqua 
 Bank v. Turnley, 1 Miles, 312 ; Patton v. Freeman, Coxe, 113 ; Hepburn's Case, 3 Bland, 114 ; 
 Allison V. Farmer's Bank of Virginia, 6 Rand. 223 ; White v. Tort, 3 Hawks, 251 ; Robinson «. 
 Culp, 1 Const. R. 231 ; Story ». Hammond, 4 Ohio, 376 ; Ballon v. Alexander, 6 Humph. 433 ; 
 Blassingame v. Glaves, 6 B. Mon. 38 ; Newkirk ». Dalton, 17 Bl. 413 ; Boston, etc. v. Dana, 
 1 Gray, 83 ; Short v. Barker, 22 Ind. 148 ; Statutes of Maine of 1814, ch. 102. 
 
 In support of the English docti'ine, see Martin v. MartiA, 25 Ala. 201 ; Foster v. Tucker, 3 
 Greenl. 458 ; Boody v. Keating, 4 Greeul. 164 ; Bell v. Troy, 35 Ala. 184 ; Hutchinson v. Bank 
 of Wheeling, 41 Penn. St, 291. 
 
 Ad. Vol. I.— 27 
 
418 CONVEBSION OF CHATTELS. [Chap. 7. 
 
 use. But here the plaintiff's property did not revest in him till after 
 the conviction of the felon ; and from the time of the conviction the 
 defendant has never had possession of the sheep(<). 
 
 494 Title to chattels by private sale and transfer. — A person who buys goods 
 by private contract, and not by public sale in market overt, acquires 
 no better title than that possessed by his immediate vendor. If he 
 purchases, at a sheriff's sale or a pawnbroker's auction, property 
 which the sheriff or the pawnbroker had no right to sell, he acquires 
 no title as against the true owner of such property(M). Whenever, 
 therefore, a purchaser buys of the servant or agent of the owner out 
 of market overt, he takes the risk of the servant's having sold without 
 
 - authority ; and if the servant had no authority to sell, and the purchaser 
 refuses to give up the subject-matter of the sale on demand to the 
 master, he is guilty of a conversion(a;) ; but where the owner of good 
 has intrusted another with the possession of goods in order that he 
 may sell them, and the person so intrusted sells contrary to the secret 
 instruction of the owner, the purchaser will nevertheless acquire a 
 perfect and complete title by the sale(2/). 
 
 A purchase of stolen property out of market overt does not convey 
 any right of property in the thing sold to the purchaser, although he 
 may have purchased hond fide for a valuable consideration, and with- 
 out notice of the felony. A person, therefore, who has been robbed 
 may follow the stolen property, and is entitled to recover it from tond, 
 fide purchasers who have not bought it in the open public market, 
 although the thief has not been convicted of the felony. In like man- 
 ner, if the property has been pledged with a pawnbfoker, or any other 
 person, he may sue the pawnbroker, or other pledgee, for detaining or 
 converting the property, although he has not prosecuted the thief nor 
 taken any steps to put the criminal law in motion(z). But if the 
 pawnbroker or pledgee received the goods knowing them to have been 
 stolen, the owner of the property cannot then maintain an action 
 against the latter until he has prosecuted for the felony. 
 
 (<) Horwood V. Smith, 2 T. E. 756. Gimson v. Woodfall, 2 C. & P. «.. 
 
 (») Farrant ». , 3 Stark. 130. Chapman v. Speller, 14 Q B. 621 ; 19 Law J., Q. B. 239. 
 
 Morely v. Attenhorough, 3 Bxch. 500. Williams ». Merle, 11 Wend. 81 ; Eoberts v. Dillon, 3 
 Daly (N. T. C. P.) 50 ; Spaulding v. Brewster, 50 Barb. (N. Y.) 142 ; Basset e. Green, 2 Dnval, 
 (Ky.) 660 ; Carter v. Simpson, 7 Johns. 535 ; Carpenter V. Stilwell, 11 N. T. 61 ; Wood o. 
 Colvin, 2 Hill (N. Y.), 566. 
 
 (a!) Metcalfe v. Lumsden, 1 C. & K. 309. See Cooper v. Newman, 45 N. H. 339 ; Gilmore v. 
 Newton, 9 Allen (Mass.), 171 ; Derving e. Austin, 34 Vt. 330 ; Woster o. Sherwood, 25 N. Y. 
 278 ; Saltus V. Everett, 20 Wend. 267. 
 
 (y) Addison on Contracts, 6th ed., p. 162. 
 
 («) White V. Spettigue, 13 M. & W. 608. Lee v. Bayes, 18 C. B. 599. 
 
Sec. 2.] COLORABLE, TRANSFERS. 419 
 
 Whenever by a contract of sale, made either by the plaintiif in per- 
 son, or through the medium of his agent, both the right of property 
 and the right of possession of the thing sold have passed to the plain- 
 tiff, he is entitled to maintain an action for the unlawful taking, de- 
 taining or converting of the thing which has thus become his own prop- 
 erty. Where the plaintiff commissioned her brother to buy a cow for 
 her when he should meet one which he thought would suit her, and 
 the brother bought a cow, and as it was being driven home, and before 
 the plaintiff knew of or had assented to the purchase, the cow was 
 seized by a creditor of the brother, it was held that the plaintiff waj 
 entitled to maintain an action of trespass for the seizure of the cow, 
 it being her property(a). 
 
 When specific ascertained chattels have been sold at a fixed price, 
 the seller is bound to deliver them whenever they are demanded, upon 
 payment of the price ; but the buyer has no right to the possessior^ 
 of the chattels until he pays or tenders the price, unless the goods are 
 sold upon credit(&). Where a debtor shipped goods on board a vessel 
 at Newcastle, to be delivered to his creditor, the plaintiff, in London, 
 and forwarded to the latter a receipt, signed by the mate, acknowl- 
 edging the receipt of the goods on board, to be delivered to the plain- 
 tiff, it was held that the property and right of possession in the goods 
 vested in the plaintiff so as to entitle him to maintain an action 
 against a defendant for the non-delivery of the goods(c). Whether 
 the property in goods, to which something remains to be done before 
 they are ready to be delivered, passes to the buyer at the time of the 
 • sale, or on the completion of the goods, depends on the intention of the 
 
 parties(d). 
 495 Colorable transfers. — If a transfer of property has been actually 
 effected either by a deed of transfer or by actual delivery, it is not 
 competent to either of the parties to the transfer to set up or show that 
 it was done for the purpose of effecting a fraud on third persons. Acts 
 done may be valid as between the parties, though void as to others. 
 Thus, an assignment made for the purpose of defeating one of several 
 creditors is a good deed as between the parties, but void as against 
 creditors ; but if there has been no actual transfer of the property, but 
 only a deposit of chattels, in the hands of a bailee, for the purpose 
 of defeating a creditor, the depositary cannot set up the fraudulent 
 
 (o) Thomas ». Phillips, 7 C. & P. 573. Payne v. Brander, 2 Stark. 568. 
 
 (ft.) Bloxam v Saunders, 4 B. & C. 948. 
 
 (C) Erans ». Niohol, 4 So. N. B. 63 ; 3 M. & Gr. 614. 
 
 (d) Toung V. Matthews, L. E., 2 C. P. 127. 
 
420 CONVERSION OF CHATTELS. [Chap. 7. 
 
 character of the deposit in order to deprive the plaintiff of goods which 
 are his property, and to which the depositary has no semblance of 
 title(e). 
 496 Tith of innocent pwchase/rs from frcmduLeat vendors. — A contract for 
 the sale of goods, though obtained by fraud, is perfectly good if the 
 person defrauded thinks fit to rely upon it and ^force it; brat the 
 latter may, if he pleases, as soon as he discovers the fraud, and before 
 the rights of innocent third parties have intervened, disaflB.rm and 
 annul the contract(/), and treat the person who has been guilty of the 
 fraud as a tort-feasor. If a vendor has parted with the possession 
 of goods in fulfilment of a contract of sale, obtained by fraud on the 
 part of the purchaser, he cannot, after the goods have been re-sold, 
 and passed into the hands of a bona fide sub-purchaser, disafBrm the 
 contract, and annul the title of the latter to the property ; for where 
 one of two innocent persons must suffer, it is considered to be more 
 just that the burthen should fall upon the vendor who parted with 
 the possession of his goods, who trusted to a lie, and was the victim 
 of his own credulity; rather than upon the bona fide sub-purchaser, 
 who trusted to the actual possession of the goods by the person with 
 whom he dealt. "If this were not so," observes Jervis, C.J.,' "goods 
 at all tainted by fraud might be followed through any number of 
 bona fide purchasers — a most inconvenient and absurd doctrine ; for a 
 vendor who does not choose to avail himself of means of inquiry 
 would thus, by trusting the vendee, be giving him unlimited means 
 of defrauding the rest of the world "((/). 
 
 But if the relation of vendor and vendee does not subsist between 
 the original owner and the person who commits the fraud, and 
 the goods have been obtained by false pretences, and afterwards 
 disposed of to a bona fide purchaser by sale not in market overt, the 
 latter does not acquire a title to the goods as against the person who 
 has been defrauded(^). Where, therefore, the plaintiff had sold a 
 quantity of tartaric acid, to be delivered to the order of their pur- 
 chaser, and one Anderson came to the plaintiffs and represented 
 himself to be a sub-purchaser of the acid, and upon the strength of 
 such representation obtained a delivery-order from the plaintiflfe, and 
 
 (c) Bowes V. Poster, 2 H. & N. 779 ; 27 Law J., Exch. 262. 
 
 (/) SeeClough». L. &K.-W. Kwy., L. K.,7Exeh. 26; Lloyd «. Brewster, 4 Paige 537. 
 
 (ff) White ». Grarden, 10 C. B. 927. Sheppard v. Slioolbred, Car. & M. 63. Saltus v. Everett, 
 20 Wend. 267. Mowry ». Walsli, 8 Cow. 243. Root V. Trench. 13 Wend. 572. Andrew v. 
 Dieterrich, 14 Wend. 31. 
 
 (*) Higgins V. Burton, 26 Law J., Exoh. 342. Kobinson o. Douchy, 3 Barb. (N. T.) 20. But 
 see rassett v. Smith, 23 N. Y. 252. 
 
Sec. 2.] TITLM BY DELIVESr OBDER. 421 
 
 got possession of the acid and pledged it with the defendants, it was 
 held that the defendants could make no title to the acid through 
 Aijderson, who had obtained the transfer of the acid to himself 
 without authority and by false pretences, and that mere possession 
 of chattels, with no further indicia of title than a delivery-order, ia 
 not sufficient to entitle a bona fide pawnee of the person fraudulently 
 obtaining possession from the true owner to resist the claim of the 
 latter in an action for a conversion of the property(i). 
 
 497 Transfers of chattels in the hands of bailees. — If the owner of a chattel 
 or negotiable security places it in the hands of A, with directions to 
 hand it over to B for 5's use, that does not have the effect of trans- 
 ferring the property to B. The direction remains countermandable 
 by the remitter until it is executed either by the actual delivery of 
 the chattel or money to the remittee, or by some binding engagement 
 entered into between the agent and the remittee, which gives the 
 latter a right of action against the former(^). "The transaction 
 amounts to no more than a mandate from a principal to his agent, 
 which can give no right or interest to a third person in the subject 
 of the mandate. It may be revoked at any time before it is executed, 
 or at least before any engagement is entered into with a third person 
 to execute it for his benefit. And it will be revoked by any disposi- 
 tion of the property inconsistent with the execution of it "(A). But as 
 soon as the person holding the chattel enters into a binding engage- 
 ment with the third person to hold it for him, he cannot afterwards 
 contest the title of the latter(?). If the defendant has led the plaintiif 
 to believe that he would act as a warehouseman or bailee of the goods 
 for the plaintiflf, and after that parts with them to another, he will be 
 guilty of a conversion(m). 
 
 498 Title by delivery-order. — The mere possession of a dock-warrant, 
 delivery-order, or warehouse-keeper's or wharfinger's receipt for goods, 
 or any other documentary evidence of title to chattels, is no stronger 
 evidence of title and ownership than the actual possession of the goods 
 themselves. And if by means of a delivery-order fraudulently obtained 
 and presented to a warehouse-keeper, merchandise has been trans- 
 ferred in the warehouse-keeper's books of transfer into the name of 
 the wrong-doer, the latter cannot thereby convey a valid title by sale 
 
 (i) Kingsford v. Merry, 1 H. & N. 503. See Brower v. Peatody, 13 N. T. 121. 
 
 (i) Brind v. Hampshire, 1 M. & W. 373. Williams v. Eyerett, U East, 690. 
 
 (li) Scott V. Porcher, 3 Mer. 663. 
 
 (i) Stonard v. Dunkin, 2 Campb. 344. 
 
 (nt) Hawkes v. Dunn, 1 Cr. & J. 527. 
 
422 CONVERSION OF CHATTELS. [Chap. 7. 
 
 or by pledge(w). But this is otherwise in the case of a negotiable 
 instrument, such as a bill of lading for delivery of certain goods to 
 order or assigns, and therefore a person, who has obtained such a bill 
 by fraud, can confer a valid title to the goods on a third person to 
 whom he has indorsed the bill of lading for value, and who has no 
 notice of the fraud(o.) As between several innocent indorsees of the 
 same bill of lading, however (where the bill of lading has been drawn 
 in triplicate, and two of them have b^n indorsed to one person and 
 the remaining one to another), the title of the first indorsee in point of 
 time will prevail(p). 
 
 499 Title hy purchase from the sheriff. — The ordinary course is cases of 
 seizure of goods by a sheriif under a fl. fa., is for the sheriff to sell by 
 auction or by bill of sale j but the law does not require the sale to be 
 made in any particular manner. If the sheriff has the goods valued, 
 and then delivers them by way of sale to the execution creditor for the 
 amount of the valuation, this is a good sale of the property to him(g). 
 In ordinary cases of sales by sheriffs there is no implied warranty of 
 title on the part of the sheriff to the property he sells(r). In an inter- 
 pleader suit between a claimant under a bill of sale from the sheriff 
 and an execution creditor, proof of the bill of sale, with some evidence 
 of a previous seizure of the chattels by the sheriff, is sufficient prima 
 fade evidence of the title of the claimant(s), 
 
 500 Title to hills, notes, and cheques. — Bank-notes are treated as money or 
 cash in the ordinary course of business by the common consent of 
 mankind. If, therefore, a man finds a bank-note, and pays it away 
 bond, fide in the ordinary course of business, the owner has no remedy 
 for the recovery of the lost property ; but if he demands the note whilst 
 it still remains in the hands of the finder, the latter will, as we have 
 seen, be responsible for the non-delivery of ii{t). In the case of the 
 loss of a bill, note, or cheque, by theft or accident, if the instrument 
 
 (b) Boyson «. Coles, 6 M. & S. U. Kingslbrd v. Merry, 1 H. & N. 503. Godts r. Rose, 25 
 Law J., C. P. 61. Addison on Contacts, ch. 6, 6th ed. See Brower v. Peabody, 13 N. T. 
 121 ; Commercial Bank of Eoohester v. Colt, 15 Barb. 606. 
 
 (0) Pease v. Gloahec, L. E., 1 P. C. C. 219. See "The Argentina," L. E., 1 Adm. & Eccl. 
 370 ; Coventry ». Gladstone, L. R., 4 Eq. Ca. 493 ; Draoachi v. Anglo-Egyptian Navigation 
 Co., L. E., 3 C. P. 190 ; Eogers v. Comptoir d'Escompte de Paris, L. E., 2 P. C. C. 393 ; 38 L. 
 J., P. C. 30. Dows V. Greene, 24 N. T. 638. 
 
 (B) Meyerstein v. Barber, L. E., 1 C. P. 38 ; 2 ibid. 661 ; 4 Eng. & Ir. App. 317. See Addi- 
 son on Contracts, 6th ed., p. 814 ; Shepherd v. Harrison, L. E., 4 Q. B. 196 ; Ibid. 493 ; 5 Engl. 
 & Ir. App. 116. 
 
 (3) Hernaman v. Bowker, 11 Bxch. 760. 
 
 (r) Morley v. Attenborough, ante^ p. 418. 
 
 (») Hornidge v. Cooper, 27 Law J., Exch. 314. 
 
 (() Miller v. Eace, Grant v. Vanghan, ante, p. 404. 
 
Sec. 2.] TITLE TO PROPERTY OF BANKRVPTS. 423 
 
 be assignable by mere delivery, the thief or finder may confer a title 
 by transferring it to a person who takes it lona fide, and who. gives 
 value for it without notice of any infirmity of title at the time he 
 receives it. But if the instrument is assignable only by indorsement, 
 neither the thief nor the finder can make a valid indorsement(M). And 
 whenever a person discounts, or receives into his possession by way of 
 deposit, a bill, or note, or negotiable security, knowing that the person 
 from whom he receives it is not the owner of it, he cannot lawfully 
 detain it from the true owner(a!). 
 
 When a bill, note, or cheque has been proved to have been stolen or 
 lost, or to have been obtained by fraud, this affords a presumption 
 that the thief or the finder, or the fraudulent possessor, of the security 
 would dispose of it, and would place it in the hands of another person 
 to sue upon it ; and such proof on the part of the defendant casts upon 
 the plaintiff the burthen of showing that he gave value for the note(y). 
 Negligence on the part of a person taking a negotiable security, and 
 giving value for it, does not fix him with the defective title of the person 
 passing it to him {ante, p. 405). If, therefore, a cheque payable to 
 bearer is lost, and is tendered a few days after the loss to a shopkeeper 
 in payment of goods purchased, and the shopkeeper takes it without 
 any inquiry, and without any knowledge of the name or address of 
 the person tendering the cheque, he will, nevertheless, be entitled to 
 recover the amount from the maker, unless the latter can prove that 
 the shopkeeper knew that the cheque was a lost cheque at the time he 
 ~ took it(z). 
 501 Title to the 'property of bankrupts. — ^By the 32 & 33 Vict. c. 71(a) all 
 the "property" of a person who has been adjudged bankrupt, ex- 
 cept property held by him in trust, his tools, wearing apparel, and 
 bedding, to the value of 20Z., vests, until the appointment of a trus- 
 tee(6), in the registrar of the court, and on such appointment passes 
 
 (») Johnson v. Windle, 3 Sc. 608 ; 3 B. N. C. 225. Whistler t> Forster, 32 Law J., (J. P. 169. 
 Jones V. Nellis, 41 111. 482. Bayley on Bills, 6th ed., p. 138. As to cheques payable to order, 
 see 16 & 17 Viot. c. 59, s. 19. 
 
 (K) LOTOU ti. Martin, 4 Taunt. 799. Born V. Morris, 2 Cr. & M. 579. 
 
 (y) Bailey v. Bidwell, ante, p. 405. 
 
 (z) Ld. Kenyon, LawBon v. Weston, 4 Esp. 57. Eaphael v. Bank of England, 17 C. B. 161. 
 " The oases of Gill v. Cnbitt, 3 B. & C. 566, and Down v. Hailing, 4 B. & C. 330, which were 
 considered to have gone far to overrule the case of Lawson v. Weston are no longer law; and 
 the opinion of Ld. Kenyon is set up and supported by all the lawyers." Ld.Brougham in 
 Bank of Bengal v. Macleod, 7 Moore, P. C. C. 35; Bank of Bengal v. Fagan, ib. 72. WUles, J., 
 17 0. B. 175. Watson v. Russell, 3 B. & S. 38. 
 
 (a) Amended as to absconding debtors by SS & 34 Vict. c. 76. All the principal statutes on 
 the subject of bankruptcy are repealed by the 32 & 33 Vict. c. 83. 
 
 (6) Or trustees, see s. 83. 
 
424 CONVMMSION OF CHATTELS. [Chap. 7. 
 
 to and vests in the trustee (ss. 15, 17, and 83:(c) ; and where any con- 
 veyance or assignment of property is required to fee registered,, the, 
 certificate of the appointment of the trustee may be registered instead 
 (s. 83). The term property includes money,, goods, thdnga in action(^X 
 la^nd(e), and every description, of property whether real(e) or personal; 
 also obligations, easements, and every description of estate, interest, 
 oj; profit, present or future, vested or contingent,, arising out of or in- 
 cident to property as above defined (s. 4). These words would include 
 an option to take a lease(/); but not, it seems, the chance of an 
 appointment under a will(^), ; and the right of nomination to an eccle- 
 siastical benefice is expressly excepted (s. 15). For the purpose of 
 acquiring or retaining possession of the property of the bankrupt, the 
 trustee is in the same position in all respects as a receiver appointed 
 by the Court of Chancery (s. 20). In the case of stocks^ shar_es, oa; 
 other property transferable in the books of any company, the right to 
 tra,nsfer such property may be exercised by the trustee in bankruptcy 
 to the same extent as the bankrupt himself might have exercised- it 
 (s. 22). 
 502 LeasekoMs — Onerous property. — ^Under the acts previous to the Act 
 of 1869, it was held that the general assignment of a bankrupt's prop- 
 erty did not vest ieaseholdfi- in the assignee until acceptance(A):; 
 although at common law such would be the effect of an assignment 
 {e.g. for the benefit of creditors), under which the assignee had acted, 
 and he would, therefore, be li9,ble under such a deed foi? the rent(j) ; 
 but by the 32 & 33 Vict. c. 71, s. 23, it is now provided, that when the 
 property of a bankrupt, acquired by the trustee in bankruptcy, con- 
 sists of lands of any tenure burdened with onerous covenants, of un- 
 marketable shares, of unprofitable contracts, or other property unsale- 
 able, or not readily saleable by reason of its binding the possessor to 
 the performance of some onerous act, or to the payment of money, the 
 trustee may disclaim such property(A-), although he Hiay have taken 
 possession of it or endeavored to sell it, and upon such disclaimer the 
 
 (c) Nor would it be divested by an order to stay proceedings under s. 80. See ATacdonald v. 
 Thompson, L. E., 4 C. P. 7i?, deo)ded under Uie llOtli sectiop of 21 & 25 Vict. o. 13t, now re- 
 
 (d) See s, 2a. 
 
 (e) As to copyhold property, see s. 22. As to estates in taU, see s. 25. 
 
 (/) See Buckland v. Fapillon, L. B., 1 E<x. Ca. 477; 2 Ch. App. 67. And see s. IS, as to powers 
 exerciseable by bankrupt. 
 
 (g) Be Vizard, L. E., 1 Eq. Ca. 667. 
 
 (ft) Copeland v. Stephens, 1 B. & Aid. 593. 
 
 (i) White V. Hunt, L. B., 6 Exch. 32. 
 
 (*) See Ex parte Lyuvi Coal, and Iron Co., L. B., 7 Ch. App. 28. Be Wilson, L. B., 13 Eq. 
 Ca. 186. 
 
Sec. 2.] TITLE TO FBOPEBTT OF BANKRUPTS. 425 
 
 lease shall be deemed to have been suprende]?ed(M), the contract de^ 
 termined, or the shares forfeited, from the date of the order of adjudi- 
 cation ; or, if real property, it will revert to the person entitled on the 
 determination of the estate of the bankrupt therein. The persons 
 interested in such property in reversion or remainder, however, are 
 entitled to call upon the trustee to disclaim within a certain time, and 
 he will not be entitled to disclaim afterwards (s. 24). 
 503 Contracts or dealings with the btinkrupt without notice. — The title of the 
 trustee to the property of the bankrupt has relation back to the act of 
 bankruptcy, so that the property ceases to be his, and becomes the 
 property of his trustee from the time of the commission of the act of 
 bankruptcy (ss. 11 & 15)(Z). But the harsh effect of this doctrine is 
 modified by ss. 94 & 95(to), which enact, that all conveyances, trans- 
 fers, delivery of goods, contracts, or dealings, by, with, or to, any 
 bankrupt, made in good faith and for valuable consideration before 
 the date of the order of adjudication, shall not be deemed invalid, 
 provided the person so dealing with the bankrupt had not at the time 
 thereof notice of any act of bankruptcy committed by the ' bankrupt. 
 and available against him for adjudication. As against persons, there- 
 fore, having notice of the act of bankruptcy and not being, conse- 
 quently, within the protection of this clause, the title of the trustees 
 will have relation back to the time of the act of bankruptcy(w), unless, 
 perhaps, the adjudication of bankruptcy is the act of the court, under 
 s. 125, in consequence of a liquidation by arrangement having become 
 impracticable, and without any creditor's petition having been pre- 
 sented, and possibly in cases where the creditor's petition is founded 
 on the debtor's own declaration, duly filed, admitting his inability to 
 pay his debts(o). "Where a guarantee society, in pursuance of an agree- 
 ment between them and the bankrupt, entered into his house and 
 seized his goods, without any knowledge of his having committed an 
 
 {hk) But this does not apply to rent due between the date of the adjudication and the dis- . 
 claimer by the trustee in bankruptcy ; and it seems that as between the lessor and the lessee, 
 the latter is still liable for the rent. Smyth v. North, L. E., 7 JBxoh. 242. 
 
 (i) The title of a trustee under a liquidation by arrangement (see s. 125) relates back in a 
 similar manner': Ex parte Duignan, L. E., 11 Eq. Ca. 604 ; 6 Ch. App. 605 
 
 As to the distinction between liquidation by arrangement, and a composition deed under 
 B. 126, see Ex parte Birmingham Gas Light and Coke Co., L. E., 11 Bq. Ca. 204 ; Ex parte 
 Sheriff of Middlesex, L. E., 12 Eq. Ca. 207. 
 
 (m) These are substantially a re-enactment of s. 133 of 12 & 13 Vict. o. 106. 
 
 («i) See Fawcett v. Eearae, 6 Q. B. 28 ; Exley v. Inglis, L. E., 3 Exch. 247 ; 37 Law J., Exoh. 
 145. 
 
 (o) Sect. 6. And see Stevenson v. Newnham, 13 C. B. 301 ; Monk v. Sharp, 2 H. & N. 548 ; 
 27 L. J., Exch. 29. But see Jones v. Harber, L. E., 6 Q. B. 80 ; Exparte Duignan, L. E., 6 Ch. 
 App. 605. 
 
426 CONVERSION OF CHATTELS. [Chap. 7." 
 
 act of bankruptcy, it was held that this was a "transaction" pro- 
 tected by the 1.33d section of the repealed Act (12 & 13 Vict. c. 106), 
 and that the assignees could not maintain an action against the 
 guarantee company for the entry and seizure(p). 
 
 504 Title to chattels purchased from a hanlcrupt after an act of bankruptcy. — 
 If a man buys goods of a bankrupt, and pays over the price to the lat- 
 ter with knowledge of the act of bankruptcy, he will have no title to 
 the goods as against the trustee ; but if he had no notice of the act 
 of bankruptcy at the time he paid the money, the transaction will be 
 protected by the above sections. A trustee in bankruptcy does not, 
 by sending in a bill of parcels or invoice of goods purchased, neces- 
 sarily ratify a dealing between the bankrupt and a third person as a 
 sale. It may amount only to a qualified offer on their part to adopt 
 the transaction as a sale, provided the defendant will pay for the 
 
 I goods, so as to leave it open to them to maintain an action for the 
 conversion of the property if the defendant will not pay the money 
 demanded(g'). But if the trustee unreservedly adopts the transac- 
 tion as a valid contract of sale, he cannot afterwards treat a refusal 
 to re-deliver the goods as a conversion(r). 
 
 505 Transfer of property hy bankrupts constituting an act of bankruptcy — 
 Fraudulent pref6rence{s). — If there be a voluntary conveyance of prop- 
 erty by a man who is indebted at the time, which conveyance would 
 have the effect of delaying or defeating the payment of creditors, such 
 conveyance is stamped with the character of fraud(i). Every convey- 
 ance for an antecedent debt is a voluntary conveyance, and when it 
 is made to the prejudice of other creditors, it becomes a fraudulent 
 conveyance and an act of bankruptcy(M), and avoidable by the trustee 
 in bankruj)tcy(c). Again, if a man hands over property for payment 
 of his creditors, except under pressure, he makes a voluntary prefer- 
 ence, and that is an act of bankruptcy(a!). And the handing over 
 property, even under pressure, may be an act of bankruptcy, for the 
 
 {p) Erehl v. Great Central Gas Co., L. R., 5 Exch. 289. The word " transaction " is not 
 used in the late act ; the words are " contract or dealing " only. As to the sufficiency of a 
 seizure in such a case, see Brewin v. Short, post, p. 430. 
 
 (g) Valpy v. Sanders, 5 C. B. 893 ; 17 Law J., C. P. 249. 
 
 (r) Edwards v. Hooper, 11 M. & W. 863. 
 
 (s) See 33 & 34 Vict. c. 76. 
 
 (<) Young V. Fletcher, 34Law J., Exoh. 154. Marks ». Feldman, L. E., 4 Q. B. 481 ; 5 ibid. 275. 
 
 («) Jones V. Harher, L. E., 6 Q. B. 77 ; Ex parte Cohen, L. B., 7 Ch. App. 20. See Ex parte 
 Hawker, L. E., 7 Ch. App. 214 ; He Wood, L. E., id. 302. 
 
 («) Heilbut V. NeviU, L. E., 5 C. P. 478. 
 
 {x) Lacon v. LilTen, 32 Law J., Ch. 315. Addison on Contracts, 6th ed., p. 156. Bills v. 
 Smith, 34 Law J., Q. B. 68. 
 
•Sec. 2.] ACTS OF BANKRUPTCY— FRAUDULENT PRE FEBENOE. 427 
 
 6th section(y) provides, that if an execution for a debt of more than 
 50^. be levied by seizure and sale of the goods of a trader, he is to be 
 deemed to have committed an act of bankruptcy. But a hona flda 
 transfer of all a person's property to secure a past debt and a future 
 advance is not an act of bankruptcy(2), although the advance is for 
 the purpose of satisfying an existing debt(a), and there be power to 
 seize all after-acquired property(6). Nor is a bona fide transfer of all 
 the trader's property, under pressure, unless a fraudulent preference, 
 voidable by the trustee, in cases vrhere there is no relation back of 
 his title(c). An assignment by a debtor of his property to a trustee 
 for the benefit of his creditors, is an act of bankruptcy (d). And so is 
 the filing of a petition for liquidation biy arrangement under s. 125(e). 
 The 6th section of the Act enacts that any fraudulent conveyance, 
 gift, delivery, or transfer {i.e., a conveyance or transfer fraudulent in 
 fact, e.g., without consideration), by a "debtor of his property or any 
 part thereof, shall be an act of bankruptcy ; and the 92nd section 
 enacts that every conveyance or transfer of property or charge thereon, 
 etc., except to a purchaser, payee, or incumbrancer in good faith and 
 for valuable consideration(/), made by any person unable to pay his 
 debts as they become due from his own money, in favor of any cred- 
 itor or in trust for him, with a view of giving such a creditor a prefer- 
 ence over the other creditors, shall be deemed fraudulent and void as 
 against the trustee in bankruptcy, if the person making such convey- 
 ance, transfer, etc., become bankrupt within three months afterwards. 
 It has been held, however, that this section has not altered the law 
 with respect to fraudulent preferences, and that it is still necessary, 
 in order to constitute a fraudulent preference, that the conveyance or 
 transfer be made voluntarily and in contemplation of bankruptcy, and 
 that, if made upon pressure, the intention of the bankrupt to prefer 
 one creditor to another is not material(p') ; and further, that if the 
 payment be made without any view of preferring one creditor to 
 
 (y) Which is a re-enactment of the 24 & 36 Vict. v. 134, a. 73. See Woodhonse v. Murray, 
 L. E., 2 Q. B. 634 ; 4 ibid. 27. 
 
 (») Allen e. Bonnett, L. E., 6 Ch. App. 577. See Be Colemere, L. E., 1 Ch. App. 128 ; Ex 
 parte Foxley, L. E., 3 Ch. App. 515. But under certain circumstances It may be. Ex parte 
 Fisher, L. E., 7 Ch. App. 636. 
 
 {a) Lomax v. Buxton, L. E., 6 C. P. 107. 
 
 (6) Hutton V. Cruttwell, 1 B. & B. 15. 
 
 (c) Jones V. Harber, L. K., B Q. B. 77. 
 
 (d) Sec. 6. And see Ponsford v. Walton, L. E., 3 0. P. 167 ; Ex parte Squire, L. E., 4 Ch. 
 App. 47. 
 
 (c) Ex parte Duignan, L. E., 11 Eq. Ca. 604 ; Ch. App. 605. 
 
 (/) Ex parte Blackburn, L. E., 12 Eq. Ca. 358. 
 
 ig) Ex parte Craven, L. E., 10 Bq. Ca. 648 ; L. E., 6 Ch. App. 70. 
 
428 coNVERSToisr of chattels. [Chap. 7.- 
 
 another^ it is not a fraudulent preference, altboug'liij made ■withoaaifi 
 pressure by a person unable to pay his debts as they became due(A-). 
 506 Executions levied on th& property of hankrupts. — The 6th section of 
 the Act further provides, that any execution, for 50L and upwards, 
 levied by seizure and sale on the property of a trader, shall be an a«t 
 of bankruptcy ; and the 87th section provides that the sheriff or bailiff 
 of the County Court shall in such cases retain the proceeds of the sale 
 in their hands for a period of fourteen days, in trust to pay them over 
 to the trustee in bankruptcy, if a petition for adjudication or liquida- 
 tion by arrangement(!i) be presented within that time ; but if no peti- 
 tion be presented, then to the execution creditor(w). Subject, however, 
 to the above provisions, any execution against the bankrupt's land or 
 goods, executed in good faith, by seizure in case of land, and by seizure 
 and sale in case of goods, before the adjudication, and without notice 
 of any previous act of bankruptcy, is valid (s. 94). 
 
 Where an execution has been levied, but between the time of the 
 seizure and sale a trustee in bankruptcy or in liquidation has beem 
 appointed, the title of the latter will prevail by relation over that of 
 the execution creditor, if the act of bankruptcy preceded the seizure, 
 although the sale has been delayed by an injunction, under s. 13(A) j 
 a fortiori, therefore, if the seizure has been completed by sale, it will 
 not be defeated by notice of an act of bankruptcy committed subse» 
 quently to the seizure(Z). If the creditors of the debtor prefer to 
 accept a composition under s. 126, the execution creditor will be 
 entitled to the proceeds of the execution(m). 
 
 The notice, which the execution creditor must have, must be of an 
 act of bankruptcy committed previous to the seizure(«), and it must 
 convey specific information as to the acts constituting the act of bank- 
 ruptcy. A notice, stating circumstances which may or may not amount 
 to an act of bankruptcy, is insufficient(o). 
 
 (ft) Exparte BoUand, L. E., 7 Ch. App. 24. 
 
 (i) Exparte Key, L. B., 10 Eq. Ca. 432. 
 
 (M) "If the goods remain unsold in the hands of the sheriff at the time of the appointment 
 of the trustee in bankruptey he is entitled to them against the execntion creditor. Ex parte 
 Rayner, L. R, 7 Ch. App. 325." 
 
 (4) Ex parte Veneas, L. E., 10 Eq. Ca. 419. Slater o. Finder, L. E., 6 Exch. 228. 7 id. 95. 
 Ex parte Bailey, L. E., 13 Eq. Ca. 314. Ex parte Buignan, L. E., 11 Eq. Ca. 604 ; 6 Ch. App. 
 605. Exparte Rocke, L. R., 6 Ch. App. 795. 
 
 (J) Ex parte ToiihuTiter, L. R., 10 Eq. Ca. 425 " But the goods must have heen seized before 
 the act of bankruptcy, for the mere delivery of a lyrit oifi. fa. to the sheriff before the act of 
 bankruptcy is not sufficient as against a trustee in banltraptcy appointed subsequently. Ex 
 parte Williams, L. E., 7 Ch. App. 314." 
 
 (m) Exparte Sheriff of Middlesex, L. E., 12 Eq. Ca. 207. 
 
 (71) Exparte Todhunter, L. R., 10 Eq. Ca. 426. 
 
 (o) Evans v. Hallam, L. R., 6 Q. B. 713. 
 
yec. 2.] REPUTED OWNERSHIP BY BANKRUPTS. 429 
 
 507 Title of trustee in bankruptcy to property settled or transferred by bank- 
 rupt. — By s. 91 of the Act(p), it is further provided that any settle- 
 ment, conveyance, or transfer of property made by a trader, shall be 
 void against the trustee, if the settlor becomes bankrupt within twro 
 years from the date of the settlement or transfer, and shall also be void 
 if the settlor becomes bankrupt within ten years, unless at the date of 
 the settlement the settlor was able to pay all his debts without the aid 
 of the property comprised in it. But this section does not apply to 
 settlements or transfers made before and in considertion of marriage, 
 nor to a purchaser or incumbrancer in good faith and for valuable con- 
 sideration, nor to settlements, etc., made on the settlor's wife or 
 children, of property which has accrued to him in right of his wife after 
 naarriage. Any covenant or contract made by a trader in considera- 
 tion of marriage for the future settlement of property in which he 
 had not at the time of the marriage any interest vested or contingent, 
 is also void against the trustee, if the property has not been transfer-' 
 red, or money, etc., paid before the bankruptcy; but this does not 
 apply to property to which the bankrupt becomes entitled in right of 
 his wife. 
 
 508 Title to chattels of which a bankrupt was reputed owner at the time of 
 his bankruptcy. — By s. 15 of the Act(g') it is further enacted, that the 
 property of the bankrupt, divisible amongst his creditors, shall com- 
 prise all goods and chattels being at the commencement of the bank- 
 ruptcy in the possession, order, or disposition of the bankrupt, with 
 the consent and permission of the true owner, of which goods and 
 chattels the bankrupt is the reputed owner, or of which he has taken 
 upon, himself the sale, or disposition as owner(r) ; but no chose in 
 action, other than debts due to the bankrupt in his trade or business, 
 are to be deemed goods and chattels within the section. This section 
 probably extends to chattels which were in the order and disposition 
 of the bankrupt at the time of his committing any act of bankruptcy 
 capable of supporting the adjudication, though such act be prior to the 
 act on which the adjudication is founded(s). But it would not, semble, 
 oust the jurisdiction of the courts of common law or Chancery to 
 decide what goods were in the reputed ownership of the bankrupt or 
 not(i). 
 
 {p) This section is in substitution of B. 126 of 12 & 13 Vict. o. lOB. 
 
 (g) WTiich is substantially a re-enactment of 12 & 13 Vict. c. 106, s. 125. 
 
 (r) See Homsby v. Miller, 28 L. J., Q. B., 99. 
 
 (s) See Stanefleld v. Cubitt, 2 De G. & J. 222. 
 
 (0 See Mather i». Lay, 2 J: & H. 374 ; Graham v. Furber, 14 C. B. 167 ; 23 Law J., C. P. 10. 
 
430 ■ CONVERSION OF CHATTELS. [Chap. 7. 
 
 509 Recovery of possession of the goods by the true owner before notice of the 
 act of bankruptcy. — If, before the adjudication and without notice of an 
 act of bankruptcy, the true owner has actually taken the goods out of 
 
 » the possession, order and disposition of the bankrupt, his title will 
 prevail over that of the trustee(M). If, before the adjudication, and 
 after the act of bankruptcy, the owner has, bond fide and without 
 notice of the act of bankruptcy, done anything which before an act 
 of bankruptcy would have been sufficient to determine his permission 
 and consent to the goods remaining in the possession, order and dispo- 
 sition of the bankrupt, so that a subsequent act of bankruptcy would 
 not have subjected the goods to be dealt with under the clause respect- 
 ing reputed ownership, his title will prevail, although he had not, 
 before notice, succeeded in obtaining the actual possession of the goods* 
 If, before the date of the adjudication, and before notice of an act of 
 bankruptcy, he has bona fide demanded the goods, and, communicating 
 with the bankrupt, has done that which shows that the goods did no 
 longer, with his consent and permission, remain in the possession, 
 order, and disposition of the bankrupt, his title will not be defeated 
 by a prior secret act of bankruptcy. But a mere intention to demand 
 the goods, and to get possession of them, is not a " dealing" within 
 the meaning of the statute(a;). And if his consent has not been with- 
 drawn, and it appears that, at the time he got back his goods, he was 
 cognizant of an act of bankruptcy having been committed by the 
 bankrupt, the title of the trustee will prevail, and will relate back to 
 the period of the commission of such aet of bankruptcy(y). 
 
 510 What things are comprehended under the words "goods and chattels." — 
 These words extend only to chattels personal, and do not embrace 
 chattels real, leases, or. interests in land, or fixtures and things 
 attached to the freehold ; and choses in action, other than trade debts, 
 are expressly excepted by the section(z). The object of the legisla- 
 ture was to prevent traders from gaining a delusive credit by a false 
 appearance of substance, which may be caused by the possession of 
 personal chattels, as the possession and ownership generally go 
 together; which is not the case with regard to land and fixtures 
 
 («) Graham e. Furber, 14 C. B. 134. 
 
 (x) Brewin v. Short, 5 Ell. & Bl. 237. Young v. Hope, 2 JiXoh. 109. Pariente ». Pennell, 2 
 Mood. & Koh. 578. 
 
 (y) Fawcett ». Fearne, Q. B. 28. Heslop ». Baker, 8 Exoh. 423 ; 20 Law J., Exoh. 350. 
 
 {z) This was otherwise under the former statutes ; see Honjblower v. Proud, 2 B. & Aid. 
 827. As to trade debts, see Cooke ». Hemming, L. K., 3 C. P. 334 ; Leslie v. Guthrie, 1 B. N. 
 C. 697. 
 
Sec. 2.] REPUTED OWNERSHIP BY BANKRUPTS. 431 
 
 annexed to the realty(a). But moveable machinery in buildings, all 
 kinds of personal property in possession, shares in newspapers(6), and 
 in public companies whose shares are made personal estate(c), stock in 
 the public funds, patents for inventions, and all personal property 
 assignable by deed at common law, would come within the section, 
 511 yfhat possession is within the statute. — The possession of the'goods and 
 chattels by the bankrupt must be a possession as reputed owner, with 
 the consent of the real owner. A mere temporary custody, or the 
 mere possession without reputation of ownership(d), or the possession 
 with reputation of ownership, but against the will or without the knowl- 
 edge of the true owner, will not vest the property in the trustee(e). 
 " There has been no case, or ever will be, wherein a court of law or 
 equity will do so severe a thing as to subject the property of one man 
 to the debts of another without prodf of the consent* of the real owner 
 to leave them in the power of the bankrupt (possession only not 
 being suflELcient), or a laches in letting them remain there so as to 
 get him a false credit"(/). Therefore the property of infants in the 
 hands of traders, who deal with it as the reputed owners, would not 
 pass to the trustee for the benefit of creditors, by reason of the inca- 
 pacity of infants to give their consent and permission within the 
 intent and meaning of the statute(^). But if the real owner be 
 of full age, and capable of acting for himself, it should be made 
 notorious "to the world in which the bankrupt moves,'' that the lat- 
 ter holds the property adversely, and without the consent and per- 
 mission of such owner(A), or thQ, latter should have done all that can 
 reasonably be expected of him to obtain possession of the property 
 prior to the bankruptcy (i). If the goods have been placed in the 
 possession of the bankrupt by a person who was himself only the 
 bailee, the consent of the latter to the bankrupt's possession is not 
 the consent of the true owner(^'). 
 
 (a) Horn v. Baker, 9 East, 215. Barclay, ex parte, 25 Law J., Bankr. i Lloyd, ex parte, 3 D. 
 & C. 787. Wilson, ex parte, i ib. 143. Coombs v. Beaumont, 5 B. & Ad. 73. Hubbard v. Bag- 
 shaw, 4 Sim. 338. Boydell v. M'Michael, 1 C. M. & E. 177. 
 
 (6) See Longman v. Tripp, 2 B. & P. N. E. 67. 
 
 (c) Ex parte Union Bank of Manchester, L. E., 12 Eq. Ca. 354. * 
 
 (d) Trismall v. LoTegrove, 6 L. T. E., N. S. 339 ; 10 W. E. 527. 
 
 (e) Eichardson, ex parte. Buck, 488. Lingham v. Bigga, 1 B. & P. 88. Oliver v. Bartlett, 1 
 B. & B. 273. 
 
 (/) Ld. Hardwicke, West v. Skip, 1 Ves. sen. 243. Parke, B., Belcher v. Bellamy, 17 Law 
 J., Exch. 222 ; 2 Exch. 310. 
 (g) Ld. Eldon, Viner». Cadell, 3 Esp. 89. 
 (ft) Best, J., in Ex parte Enderby, 2 B. & C. 398. 
 (i) Smith V. Topping, 6 B. & Ad. 674. 
 (J) Fraser v. Swansea Navigation, etc., 1 Ad. & E. 354. 
 
482 CONVERSION OF GffATTSLS. [Chap. 7. 
 
 612 RepufaUen of cmntrsMp. — ^Where the bankrupt has once been the 
 actual and visible owner of goods and chattels, and has made over 
 all his right and interest in them to a third person, either absolutely 
 or by way of mortgage, and remains in possession of the things so 
 transferred, the continuance of possession, if not a badge of fraud, 
 raises an irresistible presumption of the continuance of ownership (A) ; 
 so that if the goods are not taken out of the possession of the mort- 
 gagor before the mortgagee had notice of an act of bankruptcy(Z), 
 they would pass to the trustee. This is the case where a trader 
 mortgages his furniture, goods and chattels, and stock-in-trade, and 
 the mortgaged property is let to him by the mortgagee to be used 
 for hire, or is allowed to remain in his hands notwithstanding the 
 mortgage, and continues in his possession at the time of the adju- 
 dication(m) ; where the tenant of a mill gives his landlord by deed 
 a lien upon the fixtures and machinery of the mill(w) ; where the 
 goods and chatties of a trader are taken in execution by a creditor, 
 and the latter receives an assignment of them from the sheriff, and 
 allows the goods to remain in the trader's dwelling-house, and to be 
 used by him for hire, down to the time of the adjudication(o) ; where 
 a person, who is forbidden to trade in his own name, ships, and ware- 
 houses, and deals with goods in the name of the bankrupt, the latter 
 not being a commission agent for sale, and the course of dealing not 
 being according to the ordinary usage of trade(p) ; where a share- 
 holder in a joint-stock company, or a railway company, deposits the 
 certificates of the shares with the creditor as a security for the repay- 
 ment of money advanced, undertaking to execute a transfer of the 
 shares when called upon, and the shares continue standing in his name 
 in the books of the company, notwithstanding the assignment or 
 deposit of the certificates, and no notice of the assignment has been 
 given to the company(g'). But if the company does not permit trans- 
 
 (k) Castle, ex parte, S M. D. & De G. 12t. 
 
 («) Young V. Hope, 2 Exoh. 105. 
 
 (m) Kyall v. Eo^^es, 1 Ves. sen. 360. Kirkley v. Hodgson, 1 B. & C. 598. Freshney ». Car- 
 riok, 1 H. & N. 6a. Hams, In re, 10 Ir. Ch. E. 100. Spackman v. Miller, 12 C. B., N. S. 659 ; 
 31 Law J., C. P. m. 
 
 («) Shuttleworth v. Hernaman, 1 De G. & J. 322. 
 
 (o) Lingham ». Biggs, 1 B. & P. 82. Bryson v. "Wylle, lb. 83, n. (a). Lingard r. Messiter, 
 1 B. & C. 312. 
 
 IP) Gordon v. E. I. Co., 1 T. R. 228. 
 
 (?) Nutting, exparte, 2 M. D. & De G. 302. VaUanoe, ea;;)or«e, 2Deao. 354. Lane. Can. Co., 
 exparte, 1 D. & C. 423. Boulton, exparte, 20 Beav. 178. Ux parte Union Bank of Manclies- 
 ter, L. E. , 12 Eq. Ca. 354. The same rule has been held to apply, under the repealed statutes, 
 to the deposit by way of mortgage of a policy of insurance, where no notice, or no sufficient 
 notice, has been given to the company. Greene. Ingham, L. E.,2CP. 525. Edwards «. 
 
Sec. 2.J EEPUtED OWNERSHIP BT BANKRUPTS. 433 
 
 fers to be made by shareholders without the -production of the certifi- 
 cates of the proprietorship of the shares, and these certifi.cates are not 
 in the possession or under the control of the bankrupt, there will be 
 no reputation of ownership, from the circumstance of the shares con- 
 tinuing to stand in his name(?'). And if the change of ownership has 
 been made notorious to " the world in which the bankrupt moves," the 
 presumption of ownership from the continuance of possession will be 
 rebutted(s). If it is notorious that furniture in the possession of a 
 bankrupt never was his property, but was hired by him with the house 
 in which he resides, there will be nO reputation of ownership from his 
 possession of the furniture(<). Nor does the clause apply to the case 
 where a person becomes a dormant or secret partner of a firm in part- 
 nership, and permits the partnership stock, furniture, and effects to be 
 in the possesssion and under the control of the ostensible partners^ 
 who become bankrupt, for there must be a real as distinguished from 
 an apparent owner(M). Goods and furniture belonging to a woman 
 who has passed herself ofif in the world as the wife of a bankrupt 
 have been held to be in his possession, as reputed owner(a;). But riot 
 goods in the possession of a bankrupt and his wife belonging to the 
 trustees of his wife's marriage settlement(2/) ; nor the goods of the 
 son of a bankrupt, who lives in the' same house with the bankrupt, 
 although the goods have been used and dealt with by the latter(0). 
 Where a notorious custom^ exists in a trade for the buyer of chattels, 
 e.g., live stock, to leave them in the possession of the seller till it is 
 convenient for him to remove them, the presumption of ownership will 
 not arise(a). 
 513 Things sold by the bankrupt, and left in his possession — Rem materials 
 of manufacture. — If the bankrupt gets his living by buying and sell- 
 ing goods and chattels, and it is a known custom of trade for the ven- 
 dor to keep possession after a sale of the things purchased, until the 
 purchaser carts them away, or ships them off to their place of destina- 
 
 Maa-tin, L. R., 1 Eq. Ca. 121. And see Ex parte Caldwell, L. B., 13 Eq^ Ca. 188. As to what is- 
 sufflcient notice, see Ex parte Agra Bank, re Woi-oester, L. E., 3 Ch. App. 555. 
 
 («•) Morris v. Cannan, 31 Law J., Ch. 425. Harrison, eoc parti, 3 Deao. 196. 'Masterman, 2 
 Mont. & Ayr. 212. Langmead, 20 Beav. 26. Littledale, 6 De G., M. & G. 714 ; 24 Law J., 
 Bankr. 9. Boulton, 1 De G. & J. 179. Eiohardson, ex parte, 3 Deac. 503. Addison on Con 
 tracts, 6th ed., 259. 
 
 (s) Mailer v. Moss, 1 M. & S. 335. 
 
 («) Shaw, In re, 8 Law. T. K., N. S. 336. 
 
 (M) Reynolds v. Bowley, L. E., 2 Q. B. 41 ; S. (7. in error, p. 474. 
 
 (a;) Mace v. Cammel, Lofft, 782 ; Cowp. 232. 
 
 (y) Simmons v. Edwards, 16 M. & W. 838. See Ashton v. Blackshaw, L. 6., 9 Eq. Ca. 610. 
 
 («) Uavis V. Living, 1 Holt, 275. 
 
 (o) Priestley v. Piatt, L. E., 2 Exch. 101. See post, p. 438. 
 
 Ad. Vol. I.— 28 
 
434 CONVERSION OF CHATTELS. [Chap. 7. 
 
 tion, possession under such circumstances will not raise a presumption 
 of ownership. Thus it has been held that goods in the possession of 
 a person at the time of his bankruptcy subject to a bill of sale, which 
 entitles him to possession until the debt is demanded, and default 
 made in payment, are not in his order and disposition(6). Also, if, 
 after the sale, the bankrupt removes the articles away from the rest of 
 his stock-in-trade, and puts them away in his cellars, warehouses, or 
 into some private place of deposit, and there sets them apart for the 
 purchaser, and enters the sale in his books, they are no longer, after ■ 
 such appropriation has been made, in the possession, order, or disposition 
 of the bankrupt within the meaning of the statute, " for they are not 
 then in the possession of the bankrupt under such circumstances as to 
 deceive the creditors by the appearance of their forming part of that 
 stock to which they might give credit "(c) ; but if the things are left 
 upon the bankrupt's premises undistinguishable from his stock-in-trade, 
 in order that they may be re-sold for the benefit of the buyer, they 
 will be in the possession of the bankrupt as reputed owner, unless it 
 it be shown that the latter acts as a commission agent for the sale of 
 goods, or it is a custom of trade for property to remain on the premises 
 of the trader to be resold(d). " It is the usage," observes Parke, B., 
 " of clock makers to have clocks of other persons in their shops, both 
 for repair and for sale, and a man has no right to infer, from finding 
 a clock there, that it is the property of the clock-maker. No inference 
 ought to be drawn either that it is or is not his, and, it being uncer- 
 tain, there is no reputed ownership "(e). 
 
 If a ship-builder, or manufacturer of steam-engines and machinery 
 contracts for the building and sale of a specific vessel, or steam-engine, 
 or mass of machinery, to be paid for by instalments as the work pro- 
 ceeds, and several instalments of the purchase-money are paid by the 
 purchaser, so that the right of property in the chattel, so far as it has 
 been completed, vests in the purchaser, and the builder or manufac- 
 turer becomes bankrupt, the unfinished chattel in his hands is not in 
 his possession, order, or disposition, as the reputed owner, for it is the 
 known custom of such trades for the manufacturer to be paid from 
 time to time as the work progresses, and it is in general notorious that 
 the builders and manufacturers of such articles are not themselves the 
 
 (() Ex parte Eoman, L. B., 12 Eq. Ca. 698. Secus, if the bill of sale be not registered, 
 Ashton V. Blackshaw, L. K., 9 Eq. Ca. 510. 
 (c) Marrable, Ex parte, 1 Gl. & Jam. 402. Dover, 2 M. D. & De G. 259. 
 (<f) Thaokthwaite v. Cook, 3 Tannt, 487. Shaw o. Harvey, 1 Ad. & E. 920, 
 (e) Hamilto.. v. Bell, 10 Exch. 546 ; 24 Law. J., Exch. 4C. 
 
Sec. 2.] BKPUTEP OWNERSHIP BT BANKRUPTS. 435 
 
 owners of them, and the trade could never be carried on if such pay- 
 ments by purchasers were not protected(/). And with regard to 
 property not capable of manual occupation and delivery, such as a 
 ship building on the stocks, a haystack in a meadow, timber in a 
 timber-yard, or oil, wine, or corn in stores and warehouses, the rule 
 is, that if the bankrupt has sold such property bomi fide, and received 
 the purchase-money, and made such a delivery as the subject-matter 
 of the sale is capable of, and placed the property at the disposal of 
 the purchaser prior to the act of bankruptcy, it is not in the bank- 
 rupt's possession, order, or disposition within the statute, and does not 
 pass to the trustee(g'), although it has not been removed from the 
 bankrupt's premises, provided it has remained there after the sale no 
 longer than was reasonably necessary to enable the purchaser to fetch 
 it away(A). But the transfer of the right of property must be com- 
 plete. If the thing sold is in the hands of a third person, or if it is 
 on board a vessel at sea, the bill of lading, delivery-order, or whatever 
 documents of title may be necessary to establish the transfer of the 
 ownership, must have been delivered to the purchaser prior to the 
 adjudication(i) ; and in the case of transfers and assignments of ships, 
 the provisions of the Registry Acts must be complied with, and actual 
 possession taken of the vessel oii the first practicable opportunity. 
 514 Goods and chattels which hd/ee never been the property of the bankrupt. — 
 Where it is shovni that the property in possession of the bankrupt at 
 the time of the adjudication never belonged to him at all, and was 
 confided to him only for a temporary and special purpose, slighter cir- 
 cumstances will rebut a presumption of ownership arising from pos- 
 session than in those cases where the property originally belonged to 
 him, and has been subsequently sold and mortgaged without any 
 change of possession(A:). If goods and chattels have been sent pursu- 
 ant to order, for the inspection and approval of an intended purchaser, 
 and the latter becomes bankrupt with the goods in his hands before 
 any contract of sale has been made, the goods so sent are not in his 
 possession as reputed owner(Z). Whenever the possession, taken in 
 connection with the custom and usage of trade, and the surrounding 
 circumstances, " is consistent with the fact of a person being absolute 
 
 (/) Clarke v. Spence, 4 Ad. & E. 448. Woods v. Eussell, 5 B. & Aid. 942. Holdemess e. 
 Eankin, 2 De G. F. & J. 258. Watte, Ex parte, 32 Law J., Bankr. 36. 
 [g) Hauton v. Moore, 7 T. K. 71. Brown v. Heathoote, 1 Atk.'159. 
 (ft) Fljn V. Mathews, 1 Atk. 185. Parke, B., Belcher v. Bellamy, 17 Law J., Exoh. 222. 
 (fl Belcher v. Capper, 4 M. & Gr. 651. LemprWre v. Pasley, 2 T. E. 496. 
 (i) Wiggins, Ex parte, 2 D. & C. 270. 
 (I) Gibson v. Bray, 8 Taunt. 76 ; 1 Moore, 619. Ashton, In re, 1 Fonh. N. H. 258. " 
 
486 I CONVERSION OF CHATTELS. [Chap. 7. 
 
 owner, and ^Isp pf his not being al)splute owner, the mere possession 
 ought not to raise an inference in the mind of any cautious person 
 acqiiainted with the usage, that the person in possession is the 
 pwner '"{m). Therefore, when there exists a Qustom which is known, 
 that property standing in the name of a m^n in the boo]?:s of a public 
 company may only tie his nominally, while the real right to it may be 
 in another person, the reputation of o-vynership does npt attaph to the 
 mere nominal possession. This is the cage with money in the funds 
 and shares in railway companies stan'^ng in the name of a person as 
 trustee(w). Where it i^ the known custom and usage at a watering- 
 place for houses to be taken ready furnished as well as unfurnished, 
 aiid for carriages and horses to be let by the job, day, week, or month, 
 the mere possession of furniture by the tenant of a house, or of a car- 
 riage and horses by an inhabitant, wUl of itself raise no presuniption 
 of ownership in the possessor(o). 
 
 Whenever the custom to hire as well as to buy the plant, machinery, 
 and implements used in the trade which the bankrupt carried on, is 
 shown to be so general and notorious in the trade that those who had 
 dealings with the bankrupt, "the world in which he moved, might 
 reasonably be provoked to inquire, before giving the bankrupt credit, 
 whether he was the owner of them or not," there is no piifesuniption 
 of ownership from the possession of them. This is the cEise in the 
 coal-mining trade, where it is the notorious custom of the owners of 
 collieries to demise, not only the colliery, but also the steam-engines, 
 plant, and machinery necessary to get out the cpal ; in the cpal-light- 
 er.age trade, where it is the custom for the owners of barges and light- 
 ers used to discharge coal to let such lighters out to hire, and to suffer 
 the names of the hirers to be paii^ted upon them ; also in the brewing 
 trade, where it is the notorious custom of brewers to hire their vats, 
 barrels, coppers, and brewing utensils ; and, in the. hosiery a)p,d lace 
 trade, where it is the notorious custom for stocking-frames and masses 
 of machinery to be let out to hire to the working hosiers, weavers, and 
 mechanics. But the custom must be shown to be general and noto-. 
 rious in the trade, otherwise the presumption of ownership arising 
 from the possession and use of such things will not be rebutted(p). 
 515 Possession hy manufacturers, workmen, aud depositaries. — Possession 
 
 (m) Abtott, C.J., in Storer v. Hunter, 3 B. & C. 37G ; Parke, B., 24 Law J., Exoh. 46. 
 (n) Watkins, Ex parte, 4 D. & C. 87. Stewart, Ex parte, 34 Law J., Oil. 6. 
 (o) Burton ». Hughes, 9 Moore, 334. 
 
 {p) storer v. Hunter, 3 B. & C. 368. Watson ». Peaohe, 1 So. 149. Horn v. Baker, 9 East, 
 239. Hotnsby 0. Miller, 1 EU. & Bl. 192; 28 Law J., Q. B. 99. 
 
Sec. 2.] REPUTED OWNERSHIP BY BANKRUPT FACTORS. 437 
 
 Iby manufacturers and worTimeu of goods and! chattels, and of raw 
 materials furnished to them by their employers to be manufactured, 
 worked up, or repaired, in the way of their trade, raises no presump- 
 tion of ownership within the statute. This has been held to be the 
 case with the timber of the carpenter, delivered to him to be converted 
 into wagons ; the cloth of the taiilor, sent to him for the purpose of 
 being made into garments ; the gold of the goldsmith, sent to him to 
 be worked up in the course of his trade ; carriages sent to the coach- 
 maker to be repaired, and machinery and chattels manufactured and 
 made to order, and left on the manufacturer's premises after they have 
 been paid for by the employer or purchaser, that they may be altered or 
 repaired, or in order that the purchaser may send for them and convey 
 them away(g'.) Possession by depositaries in the ordinary course of 
 trade, where it is the custom for persons to let out vaults, stores, 
 warehouses, and rooms for the purpose of receiving, storing, and 
 taking care of pictures, furniture, or merchandise, for hire and reward, 
 is not a possession by such depositaries as reputed owners of the goods 
 intrusted to them for safe keeping. G-oods and chattels held by the 
 bankrupt at the time of his bankruptcy as a security for the repay- 
 ment of money advanced by him to the owners thereof, are not in 
 the reputed ownership of the bankrupt, but the trustee is entitled 
 to all the right of the bankrupt over them. Goods deposited in the 
 hands of a bankrupt for a specific purpose, or to be applied in a 
 particular way in the ordinary course of trade, and held by him no 
 longer than is reasonably necessary to carry into effect the trust 
 reposed in him, are not in his reputed ownership; nor a sum of 
 money in a bag, purse, or box, deposited in the hands of a bailee 
 for a special purpose, and set apart by the latter, and kept distinct 
 from his own monies and effects ; but if the money is taken out of 
 the bag or box and used by the bailee, and mixed with his own 
 monies, it will form part of his general estate, and the amount will 
 be a debt due from him to the bailor, which must be proved under 
 the bankruptcy(?'). 
 516 Possession, sale, and disposition of chattels hy factors and commission 
 agents for sale in the ordinary course of their trade and business is not 
 a possession, sale, etc., by them as reputed owners, although they sell 
 
 (2) Collins V. Forlies, 3 T. B. 323. Carruthers v. Payne, 2 M. & P. 429. Bartram v. Payne, 
 3 C. & P. 177. Wilkins v. Bromhead, 7 Sc. N. K. 931. 
 
 (r) Parke v. Eliasou, 1 Bast, 551. Thompson v. Giles, 2 B. & C. 431. Sadler v. Belcher, 2 
 M. Sc Eob. 489. Zinok ». Walker, 2 W. Bl. 1154. Jombart v. Woollett, 2 Myl. & Cr. 389. 
 Tooks V. Hollingworth, 5 T. K. 227. Taylor v. Plumer, 3 M. & S. 575. 
 
438 CONVERSION OF CHATTELS. [Chap. 7. 
 
 their own goods as well as the goods of other persons, and all are con- 
 founded and mixed together, so that it is impossible to tell which 
 goods belong to them and which belong to their customers. Persons 
 selling goods on commission must have the goods of other people in 
 their possession whilst carrying on their calling, and their possession 
 is known not to be necessarily their own possession as owners. If it 
 is the custom of shopkeepers in certain trades to receive the goods of 
 third persons, and expose them for sale in their shops for a certain 
 hire or commission paid by the owners of such goods, the things so 
 received for sale, and the contracts made concerning them, are not, in 
 case of their bankruptcy, in their possession as reputed owners. Book- 
 sellers and publishers,, for example, who publish and sell books on 
 commission for the authors and owners thereof, have not the reputed 
 ownership of the books they sell, although the books are mixed with 
 their own books, and are not to be distinguished from their general 
 stock-in-trade(s) ; nor coach-makers, who receive and exhibit in their 
 shops and warehouses coaches for sale(i) ; nor watch and clock-makers, 
 who receive watches to be repaired and sold for their customers(M). 
 But if it is not the custom for persons carrying on the trade exercised 
 by the bankrupt to sell goods on commission, or if the whole stock-in- 
 trade of a retail dealer is furnished to him by a wholesale house, and 
 he trades therewith apparently on his own account, such stock-in-trade 
 and goods will be in his possession, order, or disposition as reputed 
 owner(a;). 
 
 The fact of the bankrupt's having been intrusted with the goods as 
 a commission agent for sale, may be proved by oral evidence, although 
 the agreement for the deposit and sale of the goods has been put into 
 writing(2/). If the goods have been sold by the factor, and not paid 
 for at the time of his bankruptcy, the owner or principal should give 
 notice to the purchaser of the position in which he stands, and require 
 the price to be paid to himself; and if, after such notice has been 
 received, the purchaser pays over the money to the bankrupt factor, 
 or his trustee in bankruptcy, the payment will be no answer to an 
 action by the principal for the money. If, after the bankruptcy, the 
 trustee receives the money, it may be recovered from him by the prin- 
 cipal(0). If the factor has sold the goods, and received money by way 
 
 (») vniitfleld V. Brand, 16 M. & W. 282. 
 
 (t) Carruthers v. Payne, 2 M. & P. Ml. 
 
 («) Hamilton v. Bell, 10 Exch. 545. 
 
 (X) Livesay v. Hood, 2 Campb. 83. Shaw v. Harvey, 1 Ad. & E. 920. 
 
 (y) Whitfield v. Brand, supra. 
 
 (z) Fauli, Ex parte, 'i Beac. 169. Murray, Ex parte, Coote's B. li. r>79. 
 
Sec. 2.] POSSESSION by bankrupt trustees. 439 
 
 of payment which is ear-marked, and can be identified, or which he 
 has put into a bag, box, or parcel, set apart for his principal or em- 
 ployer, the money thus set apart is not in his possession, order, or dis- 
 position as reputed owner ; but if it has been mixed with the general 
 monies of the bankrupt, it will form part of the bankrupt's estate, to 
 be administered by the trustee, and the principal must then come in as 
 a creditor upon the estate for the amount as a debt due to him from 
 the bankrupt at the time of his bankruptcy(a). 
 
 517 Non-consent of the true owner. — ^We have already seen that if the 
 owner has demanded back his goods prior to the act of bankruptcy, 
 they are not in the possession of the bankrupt with his consent after 
 the demand has been made. Goods obtained by fraud before the act 
 of bankruptcy, and remaining in the bankrupt's possession at the time 
 he becomes bankrupt, are not in the possession, order, and disposition 
 of the latter with the consent of the owner. If, therefore, the bank- 
 rupt has obtained possession of goods through the medium of a fraud- 
 ulent and pretended purchase, never intending to pay for them, and 
 then becomes bankrupt, with the goods in his possession, they may be 
 reclaimed by the vendor, as there is no true and apparent owner, in 
 such a case, within the meaning of the statute, and no consent and 
 permission by the former, the transaction being a cheat, and fraudu- 
 lent altogether on the part of the buyer(6). 
 
 518 Possession by a bankrupt cestui que trust. — Possession by the bankrupt 
 of furniture belonging to the trustees of his wife's ante-nuptial marri- 
 age settlement, is not a possession, by him, with the consent of the 
 true owner, within the meaning of the statute(c); nor possession by 
 the bankrupt's wife of cows and stock-in-trade, held by trustees under 
 a bond flde settlement for her separate use, unless the bankrupt has 
 himself traded with the trust property, and got it into his own hands(d). 
 
 519 Possession by bankrupt irustees{e). — It was mentioned, ante, p. 344, 
 that goods and chattels of which the bankrupt is possessed as trustee, 
 do not pass to the trustee "in bankruptcy as his own ggods ; nor is his 
 possession of them a possession with the consent and permission of the 
 true owner within the meaning of the statute. This is the case with 
 
 (a) Damas, Exparte.iYes. sen. 585; 1 Atk. 232. Scott v. Surman, Willea, 400. Tooke ». 
 Hollingworth, 5 T. K. 237. Godfrey v. Fnrzo, 3 P. Wms.185. WUtecomb v. Jacob, 1 Salk. IBO. 
 Smith ». Hudson, 34 Law J., Q. B. 145. 
 
 (6) Load V. Green, 15 M. & W. 216. 
 
 (c) Simmons v. Edwards, 16 M. & W. 838. 
 
 (d) Jai-mau v. WooUoton, 3 T. R. 618. Haselinton v. Gill, ib. 820, u. (a). Martin, Ex parte, 
 19 Ves. 493. 
 
 (e) See s. 117 as to the appointment of a new trustee in place of a bankrupt trustee. Tate 
 Lee on Bankruptcy, pp. 445-447. 
 
440 CONVERSION OF CHATTELS. [Chap. 7. 
 
 re^pfcjj to ppsseagion by trustees of government stock- and shares m 
 the public funds, and joint-stock companies, etc., whether the trust 
 does or does not appear upon the bank books, or the books or register 
 of the compa!ny(/). However, where the trust has not been created by a 
 third person, but \fj the cestui que trust, or person benefi.Gia,lly inter-- 
 ested hirnself, who has clothed the bankrupt trustee with.the apparent 
 ownership of shares in a public company, by buying them in the name 
 of the latter, and procuring him to be registered as a shareholder, and 
 I)ermitting him to have possession of the scrip certificates, and to 
 attend the meetings of the company, and vote as owner, there may be 
 an apparent ownership with the consent of the true owner, within the 
 mischief of the statute, for a delusive credit may be occasioned by a 
 secret trust of that description(g'). So property of testators and intes- 
 tates, held by executors and administrators, in the ordinary course of 
 their adminisitration, is held, by them as trustees, and does, not, there- 
 fore, pass to the trustee for the benefit of creditors in case of their 
 bankruptcy(A). But if they are allowed to continue in possession of 
 
 , the tru^t property for several years, and to trade with it, to all appear- 
 ance, on their own account, by the persons who are entitled to dispute 
 their possession, and call them to account, the property will be deemed 
 to have been in the possession of such executors, etc., as reputed own- 
 ers, with the consent of the true owners, within the statute(i). 
 
 A seizure by a sheriff, under an execution a,gainst a bankrupt, of 
 the gopds and chattels of a. third person in the possession, order, and 
 disposition of the bankrupt, with the consent of the true owner, does 
 not in any way withdraw the goods, from the possession, order, or dis- 
 position of the bankrupt, so as to interfere with the title of the 
 trustee(A), 
 
 520 Goods in the appwrent possession of the bankrupt within the Bills of Sale 
 Act.— By the 17 and 18 Vict. c. 36 (the Bills of Sale Act, 1854), s. 1, 
 it is enacted that all bills of sale not duly filed, etc., according to the 
 Act, shall be void as against assignees of bankrupts, sheriff's ofiicers, 
 etc., so far as regards the property in, or right to the possession of, the 
 chattels comprised in the bill of sale, which, at the time of the bank- 
 ruptcy shall be in the possession, or apparent possession of the bank- 
 
 (/) Eogers, Ex parte, 25 Law J., Baukr. 41. Witham, Ex parte, 1 M. D. & De G. 624. Pin- 
 kett V. Wright, 2 Hare, 120. Ex parte Stewart, 34 Law J., Ch. 6. 
 (g) Burbridgff, Ex parte, 1 Deac. 142. Ord, Ex parte, ib. 170. 
 
 (ft) Ld. Mansfield, Howard v. Jetnmett, 3 Burr. 1369. Ludlow ». Browning, 11 Mod. 139. 
 (i) Fox V. Fislier, 3 B. & Aid. 136. Tliomas, Ex parte, 3 M. D. & De G. 40. 
 (i) BanoW v. BeU, 5 EU. & 131. 540 ; 25 Law J., Q. B. 3. 
 
Sec. 2.] TITLE TO TRUST PBOPERTT, ETC. 441 
 
 rupt(?) ; and by s. 7, it is provided that personal chattels shall be 
 deemed to be in the " apparent possession " of the pei^^on making the 
 bill of sale, so long as they shall remain in any house, mill, warehouse, 
 etc., land, or other premises occupied by him, or shall be used and 
 enjoyed by him in any place whatsoever, notwithstanding thaA formal 
 possession thereof may have been taken by, or given to, some other 
 person. Where the holder of am unregistered bill of sale of furniture 
 took formal possession of the goods, by sending in a man to take pos- 
 session, who remained in the house, but did, not remove the furniture, 
 or interfere with its use by the bankrupt, and subsequently put up 
 placards announcing an auction of the furniture, but nothing appeared 
 in the placards to show that it was not a sale made by the bankrupt 
 himself, it was held that the goods remained in the apparent owner- 
 ship of the bankrupt, within the above Act, and passed to the trustee 
 in bankruptcy(«2). The mere fact of the goods remaining in the house, 
 however, is not of itself fatal to a bill of sale, if they have ceased at 
 the date of the bankruptcy to be in the actual or apparent possession 
 of the bankrupt(w). 
 
 52 1 Title to trust -property. — A trustee can never assert a title of his own 
 trust property. He may destroy that property, and render himself 
 
 , responsible in consequence ; if it be stock, he may sell the stock, and 
 invest the proceeds in other property. If he destroy the trust fund 
 by paying away the money, the trust is at an end ; but if he invests 
 it in other property, and that can be traced, he is still in possession of 
 the trust property, and to that he can never assert a right. If a person 
 having trust property and property of his own chooses to mix the two 
 together, the whole becomes trust property, subject to this, that what- 
 ever he can distinguish as his own he can take out ; whatever he cannot 
 distinguish remains for the benefit of the trust until that trust is satis- 
 fied. Property has been frequently identified through a long course 
 of dealings and transactions as being the original assets, which may 
 be followed and clothed with the original trust(o). 
 
 522 Bight of property in things taken and converted after recovery of judg- 
 ment in an action for the conversion of them. — The recovery of judgment 
 by a plaintiff in an action for the wrongful taking and converting his 
 goods and chattels has the effect of transferring the property of the 
 
 (i) "See Ex parte Cohen, L. E., 7 Ch. App. 20. 
 
 (m) Ex parte Lewis, L. K., 6 Ch. App. 636. Ex parte Hooman, re Vining, L. E., 10 Eq. Ctt. 
 63, aec. 
 in) Gough «. Everard, 2 H. & C. 1. See a»(e, p. llOj n.(<). 
 (o) Frith V. Cartland, 34 Law J., Ch. 301. 
 
442 CONVERSION OF CHATTELS. [Chap. 7. 
 
 goods converted from the plaintiff to the defendant if the judgment 
 has been satisfied. The plaintiff, by recovering damages for the 
 wrong, loses his right of property in the chattel that has been con- 
 verted, and this transfer of the right of property dates back, by rela- 
 tion, to the time of the conversion. The damages recovered by the 
 plaintiff against the defendant are regarded as the price of the goods, 
 " so that the defendant hath now the same property therein as the origi- 
 nal plaintiff had, and this against all the world "(p). Having once 
 recovered judgment and satisfaction in respect of the goods, the 
 plaintiff' cannot recover again the same thing against somebody else. 
 His further remedy is altogether gone, and his claim satisfied. By 
 damages recovered is meant damages paid(g'). 
 
 SECTION III. 
 
 REMEDIES FOR THE WRONGFUL CONVBRSION OF CHATTELS. 
 
 If a man's goods are taken by an act of trespass, and are subse- 
 quently sold by the trespasser and turned into money, the person 
 thus deprived of his goods may bring an action for the trespass, or, 
 waiving the trespass, he may sue for the conversion of the property, 
 or, waiving the tort altogether, he may sue for money had and 
 received(r). 
 523 Recaption of goods wrongfully seized or stolen. — If J. has actual pos- 
 session of a chattel, and B takes it from him against his will, A may 
 use as much force as is necessary to defend his right and enable him 
 to retake the chattel ; and if a chattel has been seized and carried 
 away by a person who has no color of title to it, and the owner comes 
 and demands it, and the trespasser refuses to give it up, the owner 
 may use force sufiicient to enable him to retake his property(«). A 
 person, therefore, who has been robbed is entitled to retake the stolen 
 
 [p) Per Cur. Adams o. Bronghton, Andr. 19; 6 M. & Gr. 640, ii. Byles J., Edmonson v. 
 NuttaU, 34 Law J., C. P. 102. Thuret v. West, 31 N. Y, 210. Osterhont v. Roberts, 8 Cow. 
 43. Foremen v. Neilson, 2 Rich. Eq. 287. Barb v. Fish, 8 Blackf. 481. Morris v. Berkley, 2 
 Rep. Con. Ct. 228. Hepbnm v. Sewell, 5 Har. & J. 211. 
 
 (g) Sanders ». Egerton, 2 Brevard, 45. Miller «. Manice, 6 Hill, 114. Brlnfemead ». Harri- 
 son, L. R., 6 C. P. 584, overmling the dictum of Jervis, C.J., In Bnckland v. Johnson, IS C. 
 B. 163. 
 
 (r) Rodgers v. Maw, 15 M. & W. 448. Neat v. Harding, 6 Exoh. 349. 
 
 (<) Blades v. Higgins, 10 C. B., N. 8. 713; 30 Law J., C. F. 347; 84 ib. 286. Beze. Mitton, 
 8 C. & P. 31. 
 
Sec. 3.] REMEDY BY ACTION — FABTIES. 443 
 
 property wherever he can find it, provided the person in possession 
 of it has not acquired a title to it by purchase in market overt, 
 ■without notice of the robbery. He is not justified in committing 
 an assault, or a breach of the peace in order to possess himself of 
 the property, unless he finds it in the hands of the thief or the felo- 
 nious receiver ; but he must watch his opportunity for recovering pos- 
 session, and if he is unable peaceably to retake it, he must pursue his 
 remedy by writ of restitution, or by action. If there has been no 
 alteration of the right of property in the thing stolen, by sale in 
 market overt, he may at once demand it from the person in possession 
 of it ; and if the latter refuses to deliver it up to him on demand, he 
 may bring his action ; but he cannot, as we have seen, sue the thief 
 himself, or the felonious receiver, until he has done his duty to society 
 by prosecuting the felon (ante, p. 41). 
 
 The remedy, by way of action, for the recovery of the stolen prop- 
 erty, or for damages for its detention or conversion, is confined, as we 
 have seen, to those persons who had it in their possession at the time 
 of the conviction of the thief or afterwards {ante, p. 416). 
 524 Of the plaintiffs in actions of trespass and conversion. — The person in 
 whom the general property in a personal chattel is vested may main- 
 tain an action of trespass for the taking or injuring of the chattel by a 
 stranger(i), although he has never had possession in fact, for the » 
 general property draws to it the right of possession(M). A person 
 entitled to the temporary possession of chattels for a particular purpose 
 may also maintain an action for a trespass, or for the conversion of 
 such chattels against any person who takes possession of them, without 
 having any color of right so to do(a;). He may be entitled to sue the 
 
 («) Beaty v. Gibbons, 16 East, 116. Smith v. James, 7 Cow. 328. Hughes v. Giles, 1 Haw. 
 26. Thorp v. Burling, 11 Johns. 285. 
 
 («) Bro. Abr. TKESPASS, pi. 303, 346 ; Latch. 2U. One having the right and title to a prom- 
 issory note which has never been actually delivered to him, may maintain an action for its 
 conversion. Wininger v. Banning, 7 Minn. 274. The assignee of stock already converted 
 may maintian an action for its conversion. Genet v. Howland, 45 Barb. (N. Y.) 560. But see 
 Overton v. Williston, 31 Penn. St. 165 ; Clark v, Glidden, 39 Me. 448. An administrator may 
 maintain trover for goods which have never been in his possession. Kerby v. Quinn, 1 Eice, 
 264. Hill V. Brennan, 1 Eice, 285. See Parrott v. Uubignore, Charlt. 261 ; Kirby v. Clark, 1 
 Boot, 389 ; Towle v. lovet, 6 Mass. 394. So where goods situated at A, are given at B, and 
 converted by a stranger before the donee can take possession, the latter may maintain an 
 action for the conversion. CoUis v. Bowen, 8 Blackf. 262. A vested legal interest is sufficient 
 to support the action. Pope v. Tucker, 23 Geo. 484. Thompson «. Ford, 7 Ired. 418. 
 
 (a!) Burton v. Hughes, 9 Moore, 339. Sutton v. Buck, 2 Taunt. 307. 'The possession of goods 
 under a bill of lading for the purpose of securing advances thoreon, is sufficient to maintain 
 the action as against one showing no better title. Adams v. O'Connor, 100 Mass. 515. Burke 
 V. Savage, 13 Allen, 408. See Fitzhugh v. Wiman, 9 N. Y. 659. An agistor of cattle may 
 mamtam trover for their conversion. Betts v. Monser, Wright, 744. An officer by attaching 
 goods acquires such a special property in them as will authorize him to maintain trover for 
 
444 coNVMESioN OF CHAffE^LS. , [Chap. 7. 
 
 owner, if he has a rigM as against the latter to the temporary- posses- 
 sion of the chattel, and the owner refuses to deliver it up on demand(y). 
 An auctioneer has a special property as bailee in goods and chattels 
 which are put into his possession for the purpose of sale, wJiether such 
 goods and chattels be in his own rooms, or in the house of another 
 person ; but this is not the case with regard to fixtures. An employ- 
 ment to sell fixtures only authorizes him to sell the right of detaching 
 and removing the fixtures ; he has no possession of them as chattels, 
 unless it was intended that he should have possession of them after 
 they were detached. "Where, therefore, fixtures sold by an auctioneer 
 were to be deitached and removed by the purchaser, it was held that 
 the auctioneer could not maintain an action for their wrongful 
 removal(z). 
 
 If a timber-tree growing on land demised to a tenant is cut down, 
 the property in the tree is in the lessor, and he may maintain an 
 action against any persen who carries it away(a) ; but the lessee has 
 sufficient possession and special property in him to enable him to main- 
 tain an action for the conversion of the timber. Property in the hands 
 of very young children is in the constructive possession of the father 
 and master of the house ; but watches and books given by a parent to 
 a school-boy or apprentice, and taken away from home, are the prop- 
 erty of the boy ; and if they are taken away, detained, or converted 
 by a wrong-doe:r, the boy, and not the parent, is the proper person to 
 sue for the injury(6). 
 
 If the owner of chattels has, by contract, parted with the possession 
 of them for a certain time, and has only a reversionary interest, he 
 cannot sue a wrong-doer for trespassing upon or converting the prop- 
 erty(c), unless the bailee, or person clothed with the right of possession, 
 has, by some wrongful act of his own, determined the bailment, or the 
 
 their conversion. Lathrop v. Blaie, 3 Foster (N. H.), 38. Brownell v. Mancliester, 1 Pick. 
 232. Caldwell v. Eaton, 5 Mass. 399. Blackley t. Slieldon, 7 Johns. 32. And the owner of 
 property attached but not removed from his possession, may maintain trover against a third 
 person converting the property pending the attachment. Mussey v. Perkins, 36 Vt. 690. 
 
 Possession, even if wrongfully^ obtained, is a sufficient title as against a mere stranger. 
 Carter v. Bennett, 4 Florida, 283. But see Tuley v. Tucker, 6 Me. 583 ; Coffin v. Anderson, i 
 Blackf. 395. 
 
 [y) Roberts v. Wyatt, 2 Taunt. 268. Thus, the pledgee of a promissory note, who has 
 delivered it up to the pledgor under an agreement for a return of the same or another note, 
 may maintain an action against such pledgor for a conversion of the note on his refusal to 
 return the note or another. Way v, Davidson, 12 Gray (Mass.), 465. So a bailee for hii'e may 
 maintain trover against the bailor for a conversion. Bowen v. Coker, 2 Kich. 13. 
 
 (s) Davis V. Danks, 3 Exch. 435. 
 
 (a) Berry v. Heard, Cro. Car. 242. 
 
 (6) Hunter v. Westbrook, 2 C. & P. 578. 
 
 (0) Gordon v. Harper, 7 T. B. 13. Bradley v. Copley, 1 C. B. 698. 
 
Sec. 3.] REMSDT ST ACTION-r-PARTIES. 445 
 
 privity of the Ijailment has been destroyed by the act of a wrong-doer 
 in taking the goods out of the possession of the baileer, and selling 
 them, or converting them to his own use((^). But although the bailor 
 cannot sue for a trespass or for a wrongful conversion of the property, 
 yet he may maintain an action on the case against a wrrong-doer, who 
 by negligence or misconduct has caused the goods to be destroyed or 
 permaneijtly injured(e). 
 
 Every hirer has the use, not the dominion, of chattels demised to 
 him, and therefore, when he alters or changes the nature of the prop- 
 erty, or does anything to destroy its identity, his right of using it is at 
 an end, the bailment is determined, and an action is maintainable for 
 the vsTongful conversion of the property(/).- " If I lend to one my 
 sheep to tathe his, land, or my oxen to plough the land, and he killeth 
 the cattle, I may well," observes Iiittleton, "have an action of trespass 
 against him, notwithstanding the lending." " And the reason," saith. 
 Coke, "is that when the bailee, having but a bare use of them, taketh 
 upon him as owner, to kill them, he loseth the benefit of the use of 
 them"(p;). If the hirer of chattels sends them to an auctioneer to be 
 sold, this is a conversion of the goods to his own use, which at once 
 determines the bailment, and the owner has an immediate right of 
 possession, and may at once sue for the recovery of the goods, or for 
 damages for the- loss of them(^). 
 
 If the goods of the plaintiff have been let to hire to a tenant, and 
 have been distrained for rent whilst in the possession of the latter, and 
 impounded, the plaintiff, nevertheless, retains his right of property in 
 the goods, whilst they continue in the custody of the law, and in case 
 of pound breach against those who take an;d convert the goods(i). 
 
 Where the owner of a furnished house puts a person into the posses- 
 sion of the house to manage a business for him, at a certain agreed 
 rate of remuneration, and gives him the use of the furniture, the occu- 
 pier is the mere servant of the owner, his possessioiii of the furniture 
 is the possession of the master, and tte latter is entitled to, take it 
 
 (d) See post, oh. 9 ; Scott v. Newington, 1 M. & Kob. 2S2. See Lovejoy v. Jones, 10 Foster 
 (N. H.), 161 ; Harvey v. Epes, Vi, Grat. (Va.) 153. 
 
 (c) Mears. u. Lond. & South- West. Rail. Co., 11 C. B., N. S. 850 ; Sil Law J., C. P. 221. Tan- 
 cred V. Allgood, 4. H. & N. 438 ; 28 Law J., Exoh. 362. Hall v. Piokard, 3 Campb. 186. 
 
 (/) Biyant v. Wardell, 2 Exoh. <t82. Hoiroyd, J., in Earrant ». Thompson, 5 B. & Aid, 829. 
 Eenn v. Bittleston, 7 Exch, 159. 
 
 (^) Co. Litt. 67a-67b. 
 
 (ft) Loesohman v. Maohin, 2 Stark. 312. A refusal to return borrowed property to the house 
 of the owner, although a breach of duty, does not amount to a.oonverslon, if the bon'ower 
 make no claim to the property and no objection to the owner taking it. Earrar «. EolUnfl, 87 
 Vt. 295. 
 
 (8) Turner v. Ford, 15 M. & W. 215. 
 
446 CONVERSION OF CBATTELS. [Chap. 7. 
 
 away at any time(i). A mere gratuitous bailment of a chattel to 
 another {post' ch. 9.) does not remove the chattel out of the possession 
 of the bailor, and does riot prevent the latter from suing a third per- 
 son who takes and converts the chattel, with or without the authority 
 of the bailee. If goods are bailed by A to B, to be kept by the latter, 
 and B bails them to C, who uses and wastes the goods, C is liable to 
 an action at the suit of A for the recovery of compensation for the 
 damage Bustained(Z). If the owner of a chattel gives a gratuitous 
 permisssion to another to take the chattel and use it, he may, never- 
 theless, maintain an action against a stranger who takes, damages, or 
 converts the chattel, whilst it is being used by the person to whom it 
 has been lent(«i). 
 
 525 Joinder of joint-owners as plaintiffs — Joint-tenants and tenants in com- 
 mon of chattels. — ^When several persons are joint-owners of a chattel, 
 they must all be joined as plaintiffs in an action for the conversion of 
 it (see ante, pp. 84, 244, '65Q){'mm). Where some engravings had been 
 mortgaged to the plaintiff, and the plaintiff and the mortgagor, after 
 execution of the mortgage, placed the engravings in the hands of the 
 defendant in their joint names, to be sold by him by a public lottery 
 or rafB.e, which failed for want of subscribers, and the mortgagor 
 being greatly in debt, absconded, and the plaintiff then demanded 
 the engravings, but the defendant refused to deliver them to him 
 alone, without an indemnity, it was held by Jervis, C.J., that the re- 
 fusal was right, and that the plaintiff had no ground of action in 
 respect thereof against the defendant(w). But it has been held, that 
 if one tenant in common of a personal indivisible chattel bring an 
 action for the conversion of it against a stranger, if the stranger doth 
 not plead the tenancy in common in abatement, he can have no benefit 
 of it in evidence on the general issue(o), and the plaintiff will be enti- 
 tled to recover damages in proportion to the extent* and value of his 
 interest, and the damage he has sustained(^). 
 
 526 Parties to be made defendants. — Every person who aids and assists in 
 the act of conversion is responsible for the entire damage that has 
 been sustained, although he acted only as the friend of another wrong- 
 
 (ft) Bertie v. Beaumont, 16 East, 36. Mayhew v. Suttle, White ». Bailey, ante, pp. 335, 336. 
 (?) 12 Ed. 4, fol. 13, pi. 9 ; fol. 9, pi. S. 
 
 (m) Lotan v. Cross, 2 Campb. 465. Nieolls v. Bastard, 2 C. M. & E. 659. Tamer o. Ford, 16 
 M. & W. 212. Manders v. WiUiams, I Exoh. 343. 
 (mm) Haslcell v. Jones, 11 Shep. 222. 
 
 («) Burke v. Bryant, C.B. Sittings after Trinity Term, 1852. And see post, ch. 9, s. 2. 
 (o) King, C. J., Bamardiston v. Chapman, cited 6 T. E. 770. 
 {p) Dookwray v. Dickenson, Skin. 640. Addison v. Oyerend, 6 T. E. 770. 
 
Sec. 3.] SEMEDT BT ACTION — PARTIES. 447 
 
 doer, the real principal in the transaction, or is merely a servant obey- 
 ing his master's orders, and had no idea of committing any wrongful 
 act himself. It is no answer that he acted under authority from 
 another, who had himself no authority in the matter(g'). Every mas- 
 ter and employer is, of course, responsible for a conversion by his 
 servant acting in obedience to his master's orders, or in the execution 
 of his duty to his employer. Thus, if a ship-owner gives orders or 
 directions to his ship-master to detain goods shipped on board, the 
 ship-owner will be responsible for everything done by the ship-master 
 whilst acting in obedience to his orders(r). And if a pawnbroker's 
 servant, in the execution of his master's business, refuses to deliver 
 up a pawn to the pawnor, on tender of the money due on it, the 
 refusal of the servant is the refusal of the master, and the latter is 
 responsible in damages for a conversion(s). However, no petition 
 of right can be maintained against the Crown for the act of the 
 captain of a man-of-war in seizing a vessel wrongly supposed to 
 be engaged in the slave trade(<). The remedy for the ship-owner is 
 in the Court of Admiralty(M), with an appeal to the Privy Council('!)). 
 If a man has intermeddled with the goods of a deceased person for 
 the purpose of preserving and administering his estate, and has 
 thus made himself executor de son tort, he may be sued for a tres- 
 pass and conversion by the rightful administrator, when he has 
 obtained letters of administration ; but if no injury has been sus- 
 tained by the estate, nominal damages only would be recoverable(a;). 
 In order to recover against se^?eral persons for a joint-conversion 
 it must be proved that all concurred in some joint act of conver- 
 sion(a;a;). If the facts exclude a joint conversion by all the defendants, 
 but show separate acts of conversion, in which some have partici- 
 pated and others not, some of the defendants may be found guilty 
 and others may be acquitted, for several may be joined as defend- 
 
 er) Parter ». Godin, 2 Str. 813. Stephens v. Elwall, 4 M. & S. 261. Gage v. Whittier, IT 
 N. H. 312. Fiedler v. Maxwell, 2 Blatch. Ot. Ct. 552. Thus the instructions of the Secretary 
 of the Treasury is no defence in an action of trover brought by an importer of goods against 
 a collector of customs who unlawfully detains them. Id. 
 
 (r) Schuster v. McKellar, 7 Ell. & Bl. 70* ; 26 Law J., Q. B. 288. 
 
 («) Jones V. Hart, 2 Salk. 441. See Chambers v. Lewis, 28 N. Y. 464. 
 
 («) As to the seizure of a ship contrary to the provisions of the Foreign Enlistment Act, 
 1870, see the provisions of that_Act, 33 & 34 Vict. c. 90 ; see s. 28. 
 
 (») Tobin V. The Queen, 33 Law J., C. P. ra9. 
 
 («) Casanova ». The Queen, L. E., 1 P. C. Ca. 269. 
 
 (K) Elworthy v. Sandford, 34 Law J., Exch. 42. 
 
 (XX) White V. Demary , 2 N. H. 546. But to constitute a joint conversion the acts of the oct- 
 eral wrong-doers need not be cotemporaneous, if their acts and purposes all tend to the same 
 result. Cram ». Thissell, 35 Me. 86. 
 
448 TRESPASS AND CONVERSION- OP CHATTELS. [Chap. 7. 
 
 ants in an action for conversion, and one only may be found guilty(j'). 
 Where a ship-captain, bona flde intending to execute the duties of his 
 employment, made a mistake in disposing of the cargo, which amounted 
 to a conversion of it, it was held that there was a joint-conversion 
 by the master and ownter(z). If a married woman is guilty of a con- 
 version of chattels, she and her husband may be joined as defend- 
 ants(a). Where some sheriff's officers, being authorized to seize the 
 goods of A, by mistake took the goods of the plaintiff and lodged 
 them in the defendant's stable, and when the plaintiff came and de- 
 manded the goods, the defendant's wife, in the defendant's absence, 
 refused to give them up, saying " I am told -I shall be borne harmless," 
 it was held that both the husband and wife were responsible for a con- 
 version(6). 
 
 527 Of the staying of proceedings on the deliver ff of the chattels to the plain- 
 tiff. — In actions for the conversion of goods and chattels, the defendant 
 may, in certain cases, where no special damage is alleged, or, if alleged, 
 where it is merely colorable, obtain an order for a stay of proceedings 
 on the terms of the delivery of the goods to the plaintiff, and the pay- 
 ment of nominal damages and costs(c). In an action for the conversion 
 of a packet of letters, the defendant was allowed to stay proceedings 
 as to one of the letters, upon delivwing it up to the plaintiff and pay- 
 ing costs((^). But where there is any uncertainty, either as to the 
 quantity, or quality, or value, of the things which have been converted, 
 or when damages have been sustained over and above the value of the 
 goods, the court, or a judge will not interfere to stay the proceedings 
 upon the delivery of the goods to the plaintiff(e). 
 
 528 Declarations for a trespass, or for the conversion of chattels. — 'Whenever 
 the goods and chattels of one man have been .vsTongfully taken and 
 carried away by another, the wrong-doer may be sued either for a 
 trespass or for a conversion of the chattels(ee). If the chattels have 
 come. lawfully into the possession of the defendant, and there was no 
 trespass in the taking- of them, but the defendant fails to deliver them 
 
 ^y^\ NieoU v. Glennie, 1 M. & S. 589. Ante, pp. 246, 359. Powers e. Sawyer, 40 Me. 160. And 
 see Pattee v. Gilmore, 18 N. H. 460 ; Lockwood V. Bull, 1 Cow. 322. 
 («) Bwbank v. Nutting, 7 C. B. 808. , 
 
 (a) Keyworth v. HiU, 3 B. & Aid. 688. See Knowing v. Manly, 49 N. T. 192. 
 (») Catterall v. Kenyon, 3 Q. B. 310. 
 
 (c) Chitty'3 Arch. Pr. 1367, llth ed. 
 
 (d) Earl v. Holderness, 4 Biug. 462. 
 
 (e) Tucker v. Wright, 11 Moore, 503. Whitten v. Puller, 2 W. Bl. 901. Ollvant v. Berino, 1 
 Wils. 23. Gibson v. Humphrey, 1 Cr. & M. 544. Lucas v. Lond. Dock Co., 4 B. & Ad. 378. 
 See Rank ». Rank, 6 Barr, 211 ; Hibbard «. Stewart, 1 Hilt. (N. Y. C. P.) 207. 
 
 (ee) Presoott v. Wright, 6 Mass. 20. Peirco o. Benjamin, 14 Pick. 356. Thorp v. Burling, 11 
 Johns. 28S. 
 
Sec. 3.] ACTIONS — PLEADINGS — EVIDENCE. 449 
 
 within a reasonable time after they have been demanded by a plain- 
 tiff entitled to the possession of them, the declaration should be for a 
 conversion of them. A declaratioti for a trespass upon personal prop- 
 erty alleges, either that the defendant seized and took certain goods 
 and chattels of the plaintiff, and damaged and destroyed them, or de- 
 prived the plaintiff of the use of them, or that he shot at and lamed 
 the plaintiff's dog, and greatly injured it, or that the defendant drove 
 his horse s^nd cart against the horse and carriage of the plaintiff, and 
 greatly damaged them, and deprived the plaintiff of the use of them, 
 and obliged him to hire another horse and carriage, etc., as the case ' 
 may be, claiming damages in each case. A declaration for the wrong- 
 ful conversion of the plaintiff's chattels by the defendant simply al- 
 leges " that the defendant converted to his own use, or wrongfully 
 deprived the plaintiff of the use and possession of the plaintiff's 
 goods" describing them(/). 
 
 Where a tenant, during his tenancy, whilst removing a dung-heap,^ 
 dug into and carried away a quantity of virgin-soil beneath the dung- 
 heap, it was held that the soil, so soon as it had been severed from the 
 freehold, vested in the landlord as a chattel, so as to enable him to 
 declare against his tenant for a trespass de bonis aBportatis, or for a 
 conversion of chattels(p'). 
 529 What may be given in evidence under the plea of not guilty. — In actions 
 for a trespass, or for converting the plaintiff's goods, the plea of not 
 guilty operates as a denial of the defendant's having committed the 
 wrong alleged by taking or converting the goods mentioned, but not 
 of the plaintiff's property therein, and no other defence than such 
 denial is admissible under that plea(A). Wherever, therefore, the 
 defendant allows that he meddled with goods which were the property, 
 and in the possession, of the plaintiff, he is presumed to b.e a tres- 
 passer, and if he has any matter of justification, or any authority, 
 general or particular, express or implied, from the plaintiff, this must 
 be specially pleaded. Therefore, where an action was brought against 
 the defendant for unmooring the plaintiff's barge, it was held that the 
 defendant could not, under the plea of not guilty, give in evidence 
 facts and circumstances showing that he was justified in so doing; 
 ench as that the barge was in the greatest danger of being carried 
 
 (/) 15 & 18 Vict. 0. 76, Schcd. B. 28. Holmes v. Hodsaa, 8 Hoore, 379. See Decker v. 
 Mathews, 12 K. Y. 313. 
 
 {g) Iliggon V. Mortimer, 6 C. & P. 61fi ; ante, pp. 282, 356, 3Si. 
 
 (ft) Eeg. Gen. Hil. Term. 16 Vict., 1 Ell. & Bl. App. Ixxxi. See Pembcrton f). Smitli, 3 Head 
 (Teiin.)18. . 
 
 Ad. Vol. I.— 29 
 
450 TRESPASS AND CONVERSION OF CHATTELS. [Chap. 7. 
 
 away by floating ice, and that the defendant, being employed gener- 
 ally by the plaintiff to look after his barges, removed the barge from 
 a place of danger to a place of safety(i). 
 
 The plea of not guilty in actions for the conversion of chattels puts 
 in issue the wrongful character of the act, so that if the defendant 
 detained them in the exercise of a legal right consistent with the fact 
 of the right of property being in the plaintiff, the true character of the 
 detainer and the existence of the right may be given in evidence 
 under the plea of not guilty. The demand and refusal of the goods 
 are not in themselves an actual conversion, but only evidence of ii(J). 
 Any fact, therefore, explanatory of the demand and refusal is receiv- 
 able in evidence under the plea of not guilty, because it goes directly 
 to show that there was no conversion at all : such as the fact that the 
 defendant has a lien upon the chattel in his hands, or that he and the 
 plaintiff were joint-owners of the chattel, and that what the defendant 
 did was in the exercise of his legal rights as jointr owner with the 
 plaintiff(A), or that the defendant had some qualified right in it, and 
 has only dealt with the article in the manner in which he was entitled 
 to deal with it in the exercise of his legal right(^). But a defence to 
 the effect that the chattels had been given by the defendant to the 
 plaintiff, subject to a condition not performed, whereupon they again 
 became the property of the defendant, whereupon the latter retook 
 them, and claimed to keep them as his own property, is not admissible 
 under the plea of not guilty(wi). 
 530 Pleas denying the plaintiff's right of jtroperty in, or his right to the 
 possession of, the chattel. — If the defendant intends to dispute the 
 plaintiff's title to, or his right to the possession of, the chattel taken 
 or converted, he must plead a plea, alleging that the goods and chat- 
 tels taken or converted were not, at the time of the alleged conversion, 
 the property of the plaintiff, or that the plaintiff was not then entitled 
 to the possession of them(wTO). Under this plea the defendant is at 
 liberty to set up any circumstances, showing that the plaintiff has no 
 
 (i) Milman v. Dolwell, 2 Campb. 378. 
 
 ij) Hunger v. Hess, 28 Barb. 76. Salt Springs National Bank v. Wheeler, 18 N. T. 492. Eol)- 
 inson v. Ilartridge, 13 riorida, 501. Tale v. Saunders, 16 Vt. 243. MoiTis v. Thomson, 1 Bich- 
 artlson, 65. Lookwo'od ». Bull, 1 Cow. 322. Buck v. Ashley, 37 Vt. 475. Ellis v. Wire, 33 
 Ind. 127. 
 
 (t) Higgins V. Thomas, 8 Q. B. 908. 
 
 {I) Young V. Cooper, 6 Exch. 259 ; 20 Law J., Exch. 136. Parke, B., in Kyuaston v. Croocb, 
 14 M. & W. 272. Wilkinson v. Whalley, 5 M. & Gr. 590. Verrall v. Kobinson, 2 C. M. & E. 
 495. Drew v. Spaulding, 45 N. H. 472. 
 
 (m) Jones v. Davies, 6 Exch. 663 ; ante, pp. 88, 180. 
 
 (mm) But see Coffin v. Anderson, 4 Blackf. 395. 
 
Sec. 3.] ACTIONS — PLEADINOS — EVIDENCE. 451 
 
 . property in, or right of possession of, the goods, in respect of which 
 he is entitled to maintain the action against the defendant. A plea, 
 den3n.ng that the goods are the goods. of the plaintiff, puts in issue the 
 plaintiff's property in, as well as his right to the possession of, the 
 goods(re). If the defendant has, by contract, acquired a right to take 
 and carry away the chattel, the contract may be given in evidence 
 under a plea denying that the chattel was at the time of the seizure 
 the chattel of the plaintiff(o). Under this plea it is competent to the 
 defendant to show that the plaintiff had parted with the property 
 before the cause of action arose, or that the defendant had a lien upon 
 the goods, as a right of lien on the part of the defendant is inconsistent 
 with a right of possession on the part of the p]aintiff(i3), or that the 
 title to the goods had become vested in a trustee or trustees under a 
 bankruptcy(9'), or that the plaintiff's title has been defeated by matter 
 subsequent to the bailment(r). In an action against trustees of a 
 bankrupt for the conversion of chattels, the defence that the goods 
 were at the time of the bankruptcy in the order and disposition of the 
 bankrupt, with the consent of the true owner, and that the title to the 
 goods vested in the trustees, is admissible under a plea of not pos- 
 sessed(s). 
 
 A plea of the previous recovery of judgment by the plaintiff' in an 
 action for the conversion of the property brought against some third 
 person, under whom the defendant claims, is, as we have seen, an 
 answer to the action(^). 
 531 Pleas of justifleation. — If the defendant intends to justify the taking 
 of the goods on the grounds distinct from any question of title or 
 right of property or possession, he must set forth his ground of justi- 
 fication in a special plea ; such as, that the goods and chattels men- 
 tioned in the declaration were wrongfully upon the defendant's land, 
 encumbering the same, and doing damage there to the defendant, 
 whereupon the defendant took the goods and carried them to the 
 plaintiff's land, and deposited them there, doing no damage to them 
 that (iould be reasonably avoided(M) : or if the plaintiff complains of 
 
 ^n) Harrison v. Dixon, 12 M. & W. 142. 
 
 (o) Eieliards e. Symons, 8 Q. B. 90. 
 
 (p) Dorrington ». Carter, 1 Exch. 566. Lane ». Tewson, 12 Ad. & E. 116, n. Barton ». 
 Brown, 5 M. & W. 298. Owen e. Knight, 4 B. N. C. ,«. 
 
 (?) I.eake v. Loveday, 5 Sc. N. E. 921 ; 4 M. & Gr. 972. Howartii v. Tollemache, lb. 329. 
 
 (r) ilartin, B., Thorne v. Tilbury, 3 H. & N. 539 ; 27 Law J., Exch. 407 ; post, ch. 21. 
 
 <«) Heslop c. Baker, 8 Exch. 411 ; 22 Law J., Exch. 333. Isaac v. Belcher, 6 M. & W. 139. 
 
 «) Ante, pp. 441, 442. The defence of a valid release to a co-trespasser may also be pleaded 
 in bar. Montgomery v. Irwin, 24 Ark. 640. As to the plea of former recovery, see Miller v, 
 JIaaicc, 6 Hill, 114. 
 
 (K) Cole V. Maundy, Bea e. Steward, 2 M. & W. 426. 
 
■452 TESSPASS AND CONVSBSZOlfi, [Chap, 7. 
 
 the shooting of his dog by the defendant, the -latter ftiay justify the 
 trespass or conversion of the anitflalj ori the ground that the dog was 
 trespassing on the defendant's land in porsuit of and worrying' the 
 plaintiff's sheep, or hunting and ehasing the defendant's deer, and 
 that the defendant had no means of protecting his sheep or deer from 
 inj ury but by shooting the dog, and that he therefore shot it(a;). 
 
 532 Evidence at the trial — Proof ly the plaintiff.— To enable a plaintiff 
 to maintain an action and recover damages for a seizure or^ conversion 
 of chattels, he must show that the seizure waswroTngful, &ud that he 
 has been damnified by it(y). He must, therefore, give some general 
 evidence of his right to the chattel, and of the wrong done to him by 
 the defendant in taking it away ; for if there is no proof of his halving 
 ever been in possession of the Chattel,' or of Ms having any right to 
 the possession of it, there is no proof of any wrong having been done 
 to him, nor any evidence of any cause of action,' noir anything to 
 support the material averments of the plaintiff's deelaration(z). "Where 
 the plaintiff proved that the defendant seized some chairs and tablfes 
 in a house which was not the plaintiff's house, and carried them away, 
 and the only plea on the record was a plea of not guilty, it was held 
 that the plaintiff must, nevertheless, give some general evidence of 
 Ills right to the possession of the chairs and tables to Constitute a 
 cause of action, and establish the tott or wrong charged in the declar- 
 iitioii(fl). If in a declaration for a trespass in •^nteiirtg' a house and 
 seizing goods there is no allegation that the goods belonged to the 
 plaintiff, nor any admission to that effect on the record, there is no 
 disclosure of any cause of actidn(5). Possession of chattels, however, 
 is prima facie proof of ownership, and mere proof of possession will 
 entitle a plaintiff to recover in an action of trespass or troVer against 
 a wfong-doer(c). . . ^ 
 
 533 Proof of constructive possession of chattels.^^li a man cuts down wood 
 
 (a:) BaiTingtou v. Turner, 3 Lev. 28. 
 
 (J/) Tanered v. Allgood, 4 H. & N. 438; 28 Law J., Exoh. ^621. 
 
 {z) Cliitnnon v. Patch, 5 B. & C. 897. To supJjoM an action Of ta-oivetj the pliriihtitf nMSt prcr^e 
 property, and tlie right of possession in himself, and a conversion by the defendant of the 
 thing to his own use. Salt Springs National iSanl: v. Wheeler, 48 N. Y. 498i Ficqnet v. M'Eay, 
 2 Blackf. 46."i. See Stephenson v. Little, 10 Mich. 433; Vanderburgh v. Bassett, 4 Maine, 242. 
 
 If the defendant has a color of title, the plaintiff niost sbcnv title as well as possession. 
 Fightmaster v. Beasley, 7 J. J. Marsh. 410. 
 
 To sustain the action it must also be shown that the articile Sued for is of some valae. Miller 
 „. Hcigue, 2 Hill (S. C), 592. See SterllHg*. Garritee* 18 Md. 468. 
 
 (re) Formari v. Dawes, Car. & M. 129. 
 
 ((;) Pritchard V. Long, 9 M. & W. 666. 
 
 (c) Webb «. Fox, 7 T. K. 307. See post, p. 465 j Jones «. Sinolairt 3 N. H. 319; Derby »>. 
 Giillup, 5 Minn. 119; Duncan v. Spear, 11 Wend. 64; Tining v. Baker, 5S Me. S44; Bnrk, |i. 
 Savage, 13 AUen (Mass.), 408; Burt ». Dtitoherj 84 N;Y, 493. - 
 
Sec. 3.] '■ ACtrOKS — pleadi^&s — evidence. 433 
 
 ot rushes, and stores thera on the grouad ready to be carried away, 
 the things so severed from the realty are in the actual possession of 
 the person who has cut them down, and proof that the act of sever- 
 ance has been committed by the plaintiff is sufficient prima facie 
 evidence of title to enable the plaintiff to maintain an action against 
 another person for seizing them and carrying them away, and the 
 primd faciis title cannot be disputed under the plea of not gmlty{d). 
 Proof that the plaintiff dug Out ore, or sand and gravel, and piled it 
 in hieaps on the ground, is pi-imd facie proof that he is entitled to the 
 heaps(e). Proof that the plaintiff is the owner of a vessel taking in 
 cargo is pntnd fade evidence that the plaintiff is the owner of the 
 cargO(/). If the plaintiff shows that he has a right to the possession 
 of chattels, this will enable him to maintain an action for dainages 
 without proof that he has ever had actual possession of them, or that 
 he is the owner of them'; for a factor to whom goods have been con- 
 signed by the owner fcJrsale, ?ind who has never received them, may 
 ihaintain an action for the conversion of them(^). There may be a 
 constructive possession of chattels in respect of the right of property 
 being actually vested in the plaintiff. Such is the case in an action 
 of trespass by the lord for an estray or wreck taken by a stranger 
 before seizure by the lord, where the right is in the lord, and a con- 
 structi^re possession in respect of the thing being within the manor of 
 which he is lord. So the executor has the right immediately on the 
 death of the testator, and the right draws after it a constructive pos- 
 Session(^). If trees growing on land demised to a tenant are cut 
 down by the latter, or fixtures attached to a dwelling-house are 
 severed by the tenant, the landlord has an immediate right of 
 possessibn of the trees and fixtures so severed from the inheritance ; 
 they are his goods and chattels, and if they are taken away from 
 the demised premises he may maintain an action for the conversion 
 of them(i)i- 
 
 However/ wh^re there was an absolute assignment of goods by 
 deed, with a covenant to pay a certain debt on demand, and a proviso 
 for redemption on payment of the debt, and a further proviso that 
 
 ((f) Rackham v. Jessup, 3 Wils. 332. 
 
 (e) Npithani v. Bowden, 11 Exoh. 79;' 24 Law J. Exch. 238. Rowe v. Brenton, 8 B. & C. 737. 
 
 (/) Branckcr w^ Molynenx, 3 M. & Gi". 84. 
 
 (gi Ej-re,'C.J., Fowler ». Down, 1 B. ft P. 47. 
 
 (7t) Smith *; Miles, IT. R. 480. ' 
 
 (i) Pan-ant v. Thoftipjon, 6 B. & Aid. 828. A mortgagor may maintain trover against the 
 mortgagee Or His aseigMee fdr sale of timber cot on the mortgaged premises after payment 
 of the Hioi-t^ge. • IIntchiTi*».King,-l:"Wrtll. (U. S.) 63. And the wrongfal cutting of timber 
 without carrying it away is a conversion. Sanderson e. Haverstick, 8 Barr, 234. , 
 
454 TEESPASS AND CONVERSION. [Chap. 7. 
 
 the assignor should continue in possession until default, and before 
 any default made the goods were taken in execution and sold by the 
 sheriff, it was held that the assignee had not such a right of immedi- 
 ate possession as would entitle him to maintain an action against the 
 sheriff for a conversion of the goods(A-). 
 
 534 Proof of title of trustees of bankrupts, executors, and nominal parties. — 
 In all actions by and against trustees of bankrupts, or executors, or 
 administrators, or persons authorized by, statute to sue or be sued as 
 nominal parties, the character in which the plaintiff or defendant is 
 stated on the record to sue or be sued is not in issue unless it is 
 specially denied(Z). . The Bankrupt Act, 32 & 33 Vict. c. 71, s. 10, 
 makes the London Qixzette conclusive evidence of the debtor having 
 been duly adjudged a bankrupt, and of the date of the adjudication, 
 in criminal as well as civil proceedings('m). 
 
 535 Proof of conversion. — It is necessary for the plaintiff in an action 
 for the conversion of chattels to prove either that the defendant unlaw- 
 f urly meddled with the plaintiff's goods, and removed them from some 
 place where they had been depositied by the plaintiff, and that the 
 goods had since then been lost to the plaintiff, or that the chattels 
 came to the hands of the defendant wrongfully, or by a tortious taking, 
 or that the defendant has unlawfully exercised dominion over them, 
 to the prejudice of the plaintiff, or that there has been a wrongful de- 
 struction of the chattels {ante, p. 396). If the property came lawfully 
 into the possession of the defendant, or under his dominion and con- 
 trol, there must then, as we have seen, be proof of a demand and 
 refusal of the property by a party entitled to make the demand, and 
 have possession of the chattels {ante, pp. 398, 399). 
 
 The refusal must, as we have seen, be an absolute refusal, and not 
 a qualified conditional refusal, amounting only to an objection to 
 deliver the goods, until the plaintiff's title to them has been ascer- 
 tained {ante, p. 400). If the plaintiff complains of the conversion of 
 a bank-note or negotiable security, he must show that the defendant 
 got the note under circumstances which give him no title to hold the 
 
 (le) .Bradley «. Copley, 1 C. B. G85. 
 
 (!) Beg. Gen. Hil. Term, 1853, 1 Ell. & Bl. App. Ixxix. 
 
 (to) SeeB. v. Levi, 34 Law J., M. C. 174. "But the Go«e«e is not evidence whether the bank- 
 rupt was a trader or not at the time of adjudication ; and the trustee, therefore, in a case of dis- 
 puted title to goods between him and the execution creditor is not concluded by the Gazette 
 from showing that the bankrupt was in fact a trader at the date of adjudication, although the 
 adjudication was made against him as a non-trader. Revell V. Blake, L. K.,7 C. P. 301." 
 And see as to proof of proceedings in bankruptcy by production of records sealed with the 
 seal of the court, a. 107 
 
Sec. 8.] REMEDY BY ACTION— DEFENCE. 455 
 
 note as against the plaintiff {ante, pp.' 403, 404). Any admission on 
 the part of the defendant that the plaintiff's property had come into 
 his hands, or under his control, and had then been wrongfully dealt 
 with by him, will be evidence of a conversion. Thus, where a defend- 
 ant, in answer to a demand made upon him by the plaintiff for the 
 delivery of a bill of exchange, said that he could not give it up, because 
 it had been burnt, it was held that this was evidence of a conversion 
 by him of the bill(w). 
 536 Evidence for the defence. — The defendant cannot, as we have seen, 
 set up any right or title to the subject-matter of the action in answer 
 to a prima facie case on the part of the plaintiff, unless the right of 
 possession or right of property has been put in issue by the pleadings 
 (ante, p. 450) ; but he may, as we have seen, under the plea of not 
 guilty, show that he has a lien on the goods, and detains them in the 
 exercise of such right of lien, or that he is joint-owner of the goods 
 with the plaintiff, or has some limited or temporary right or interest in 
 them, and has therefore a right to keep them (ante, pp. 408, 449). 
 When goods have been taken from the actual possession of the plain- 
 tiff, and the defendant fails in establishing any title in himself to the 
 property, so as to justify the seizure, he will not be allowed to set up 
 a jus tertii, and deny the plaintiff's title to the goods ; for, as against 
 a wrong-doer, possession is title, and the presumption of law is that 
 the possession and ownership of chattels go together, and that pre- 
 sumption cannot be rebutted by evidence that the right of property 
 was in a third person, offered as a defence by one who admits that he 
 had no title and was a wrong-doer when he took or converted the 
 goods(o). A wTong-doer, therefore, in actual possession of goods, the 
 
 («) M'Kewon v. Cotching, 27 Law J., C. P. il. A conversion consists of the appropriation 
 of tlie tiling to tlie party's oVn use and beneficial enjoyment, or in its destruction, or in exer- 
 cising dominion over it in defiance of the plaintiff's right, or in withholding it under a claim of 
 title. Salt Springs National Bank v. Wheeler, 48 N. Y. 493 ; 1 Greenl. Ev. 5. 842. 
 
 The accidental loss or destruction of an article by one lawfully in its possession has never 
 been held to be a conversion. Salt Springs National Bank v. Wheeler, 48 N. T. 492. Cairns 
 V. Bleeker, 12 Johns. 300. Jorves o. JoUill'e, G Johns. 9. 
 
 The refusal by a bailee to give up property upon demand which has been stolen from him, 
 and which is not within his control, is not a conversion nor evidence of a conversion. Buck 
 V. Ashley, 37 Vt. 475. See Robinson v. Ilartridge, 13 Florida, 501. 
 
 So of the accidental loss of goods by a can-ier. Dwight v. Benton, 1 Pick. 50. 
 
 But where the direct wrongful act of the defendant has deprived the plaintiff of the posses- 
 sion of his property, it is immaterial whether the defendant has kept, destroyed or delivered 
 it to a third person. Uavis v. Taylor, 41 111. 405. 
 
 (o) Heath ». Milward, 2 Sc. 160 ; 2 B. N. 0. 100. Carter v. Johnson, 2 M. & Bob. 265. Ash- 
 more V. Hardy, 7 C. & P. 505. Bourne v. Fosbrooke, 34 Law J., C. P. 1C4. Weymouth v. 
 Chicago, etc., E. R. Co., 27 Wis. 550. Harker v. Dement, 9 Gill, 7. Duncan v. Spear, 11 Wend. 
 64. Hoyto. Van Alstyne, 15Barb. 668. Gerber ». Monie, 56 Barb. 652. 
 
 But see Rotan v. Fletcher, 15 Johns. 207; Schermerhorn v. Van Volkenburgh, 11 Johns. 529; 
 Kennedy v. Strong, 14 Johns. 128 ; Glenn v. Garrison, 2 Harr. 1 ; Smoot v. Cook, Z W. Va. 172. 
 
456 s'SBSj'Ass.AKD coJVVMRsrqjv. .^ [Chap. 7.. 
 
 property of another, can recover their value in an action against 
 another wrong-doer who takes the goods from him(p). 
 
 537 When the defendant is estopped from disputing the title of the plaintiff. 
 — If the defendant has by deed admitted the title of the plaintiff to 
 -the chattels in respect of which the action is brought, he will be 
 estopped from disputing it at the trial(9). If he, has accredited the 
 title of some third person to the goods, and so induced the plaintiff to 
 buy from the latter, he will be estopped from setting up any title in 
 himself(r). ' If the owner of goods parts with the possession of them, 
 and knowingly suffers his bailee to deal with the goods as owner, and 
 culpably and negligently stands by and allows a third. person to acquire 
 an interest in the goods on the faith and understanding, of a fact which 
 he can contradict, and does not contradict, he will be afterwards" 
 estopped from disputing the fact in an action against the person whom 
 he has himself assisted in deceiving. Thus, if A, the owner of goods, 
 stands by and permits B to sell them to C, without giving any notice 
 to C, of his being the real owner of the goods, he will be estopped 
 from disputing (Ts title under the sale(s). 
 
 Where the plaintiff, in order to protect his personal effects from 
 his creditors, delivered the actual possession of them to the defend- 
 ant, and, in order that the latter might appear to be the true owner, 
 made a priced invoice of the articles, and gave a receipt to the 
 defendant for the amount as on a sale, it was nevertheless held that 
 the plaintiff, as between himself and the defendant, was not estopped 
 from showing the real character of the transaction, so as to entitle 
 him to recover back the goods from the defendant. Here no deed 
 of transfer had been executed, and the jury found that there was 
 no sale and no intention of transferring the right of property in the 
 things to the defendant. "And," observes Martin, B., "it is perfectly 
 true that if an act be done, the party caimot avail himself of his 
 own fraud to undo it; but here the act is not done, as the jury 
 expressly find there was no sale at all to the defendant," and no 
 transfer whatever of the property in these goods to him(i). 
 
 538 Evidence under pleas of justification. — If the defendant has placed 
 a plea of justification on the record, all the material averments of the 
 
 ip) Jefl'riea v. Gt. West. Eail. Co., 5 Ell. & Bl. 806 ; 25 Law J., Q. B. 107. 
 (9) Wiles V. Woodward, 5 Exch. 557. See Keimedy v. Strong, 11 Johns. 128; and see Bar 
 wick ». Wood, 3 Jonos' Law (N. C), 306. 
 {r) Waller e. Drakeford, 1 Ell. & Bl. 753. 
 {e) Gi;egg c. WcUs, 10 Ad. & E. 98. 
 (*) Bowes V. Foster, 2 H., & X. 779 ; 27 Law J , Eycli. 262. 
 
Sec. 3^] RSitEDT ST AeTION'^—DAifAG^S. ' 45f 
 
 plea should be proved. If the defendant justifies the shooting of ql 
 dog,- on the ground that the animal was hunting and chasing deer 
 in a park, or conies in a rabbit-warren, sheep in a fold, or fowls in 
 a poultry-yard, he must prove that the dog was in hot pursuit at the 
 time he shot ii{u). But if a man allows his sheep or his fowls to 
 escape from his own land, and trespass upon his neighbor's prop- 
 erty, and they are there attacked and worried by his neighbor's dogy 
 he cannot justify the shooting of the dog in defence of his strayed 
 sheep or fowls. 
 
 Dogs trespassing in pursuit of animals feres natwra cannot lawfully 
 be destroyed. "A dog," observes Lord EUenborough, "does not incur 
 the pe!ialty of death for running after a hare in another man's ground. 
 And if there be any precedent of that sort which outrages all reason, 
 and common sense, it is of no authority to govern other cases. A- 
 gamekeeper has no right to kill a dog for following game "(»), although. 
 the owner of the r'og has received notice that trespassing dogs will be 
 shot(y). But a dog chasing and pursuing game in a preserve might, 
 it is apprehended, be shot, if the game could not otherwise be saved 
 from destruction(z.) a, : . i 
 
 539 Of the assessment of damages. — Whenever the chattels of one man 
 have been wrongfully seized by another, who has assuihed a virtue,! 
 dominion over them, substantial damages are recoverable, although no 
 pecuniary damage can be proved to have been sustained. "Where, 
 therefore, the defendant wrongfully seized the plaintiff's horse and 
 cart, and placed a man to keep possession of them, who .^llovved the 
 plaintiff the free use of the cart, which was driven to market every 
 day, it was held that the plaintiff was nevertheless entitled to recover 
 substantial damages in respect of the infringement of his proprietary 
 rights(a). , - , 
 
 In actions for the conversion of chattels, the full value of the chattels 
 at the time of the conversion is the measure of- the damages, where no 
 special damage has been sustained, and the, goods have hot been 
 tendered and received back after action(6). By the recovery of the 
 
 (u) Barrington o. Turner'3 Lev. 28. Protheroe v. Mathews, 5 C. & P.-686. /Wadhurati©. 
 Damme, Cro. Jac. 45. Wells v. Head, 4 C. & P. 563. ' Janson ». Brown, 1 Campb, 41. , ,, 
 
 (a:l Vere ». Ld. Cawdor, U East, 569. , • „:., 
 
 iy) Corner v. Champneys, cited 2 Marsh. 584. i- . ; 1 .. : . . ■ , 
 
 (z) Kead v. Edwards, ante, p. 30. .-■.•„ , ; 
 
 (a) Bayliss o. Fisher, 7 Bing. 163. , - , .^r-,- •--'., 
 
 \fi) Wood V. Morewood, 3 Q. B. 440, n. Finch v. Blonnt,7 0< & P. 478," jVlsagcru, Oloau, 10 
 M. & W. 584. Ewbank v. Nutting, 7 C. B. 809. Edmondson v. Nuttall, 17 C. B-, N.S. 280 ; ,34 
 Law J., C. P. 102. The rule as to the measure of damages inactions of trover oatmot be saui 
 to be unilbrmly settled in this country, nor would the iuJ«ptioii ^f the *alei stoted, .to it^e 
 
458 TRESPASS AND CONVERSION: [Chap. 7. 
 
 judgment the ownership of the converted property is transferred, as 
 we have seen, from the plaintiff to the defendant, and the plaintiff 
 holds the damages as the price of the goods he has lost (ante, p. 360) ; 
 he is therefore entitled to their full marketable value where he does 
 not consent to receive them back. If the chattel is of such a nature 
 ■that the loss of it may readily be supplied by the purchase of a similar 
 chattel in the market, the damage will be the marketable value of the 
 chattel at the time of the conversion. If the value of it is doubtful, 
 every presumption is made against the wrong-doer. Where a boy 
 having found a jewel set in a socket took it to a jeweller's to know 
 what it was worth, and the jeweller took the jewel out of the socket to 
 examine it, and then refused to deliver it up, and the boy brought an 
 action for the conversion of the jewel, "several of the trade were 
 examined to prove what a jewel of the finest water that would fit the 
 socket would be worth, and the Chief Justice directed the jury, that 
 unless the defendant did produce the jewel, and show it not to be of 
 the finest water, they should presume the strongest against him, and 
 make the value of the best jewels the measure of their damages, which 
 they did"(c). 
 
 text tend in any considerable degree to harmonize the conflicting decisions, and furnish a, 
 uniform measure of damages. It is undouljtedly the general rule that the measure of the 
 plaintiU's damages in an action of trover is the value of the property at the time of the con- 
 version and interest thereon IVom the time of the conversion up to the rendition of the ver- 
 dict. Eyburn e. Pryor, li Ark. 505. Clark v. Whitaker, 19 Cpnn. 319. Bui-ney v. Pledger, 
 3 Kich. 191. Kennedy v. Whitwell, i Pick. 465. Watt u. Potter, 2 Mason, 77. Lillord v. 
 Whitaker, 3 Bibb, 92. Weld v. Oliver, 21 Pick. 559. Greenfield Bank v. Leavitt, 17 Pickl. 
 Johnson ». Sumner, 1 Met. 172. Sanders v. A'^ance, 7 Monr. 209. Baldwin v. Munro, Anthon, 
 166. Ellis V. Woie, 33 Ind. 127. Carlyon v. Lannau, i Xev. 156. Hamor v. Hathe-nay, 33 Cal. 
 117. Crumb v. Oaks, 33 Vt. 566. Eipley v. Davis, 15 Mich. 75 Brown v. Haynes, 52 Me. 57S. 
 Robinson v. Barrows, 48 Me. 180. Derby v. Gallup, 6 Min. 119. Commercial Bank v. Jones, 
 
 18 Texas, 811. Hurd v. Hubbell, 26 Conn. 389. Cook v. Loomis, 20 Conn. 483. Polk v. AUen, 
 
 19 Mo. 467. Sunk v. Dillon, 21 Mo. 291. Kobinson v. Hartridge, 13 Florida, 501. 
 
 But the time of conversion is not always llxed by the same circumstances. Thus, a tortious 
 taking ia sufficient proof of a conversion, but it lias, been held in many cases trfat the plaintiff 
 may elect to consider the property as still his own and treat a sale of it by the wrong-doer, 
 or a refusal to deliver it on demand, as the conversion. So, it has been helil, that the law 
 will, upon the principle of natural justice, that a wrong-doer ought not to be allowed to make 
 a proflt by his own wilful tort, treat the conversion of property of fluctuating value as 
 occuiTing at such time between the taking and the trial as the property bears the highest 
 price in the market. Ellis v. Woie, 33 Ind. 127. Burt v. Dutcher, 34 N. Y. 493. Eomaine v. 
 Tan Allen, 26 N. Y. 309. Markham v. Jandon, 41 N. Y. 235. Scott v. Rogers, 31 N. Y. 076. 
 
 But this rule, although supported by numerous well considered decisions, has recently been 
 repudiated as a universal rule in New York and other States, and its propriety and soundness 
 questioned when applied to cases not special and exceptional. Matthews v. Coe, 49 N. Y. 67. 
 Baker v. Drake, 53 N. Y. 211. In the latter case it was held that the rule of damages in civil 
 actions does not depend upon the form of the action ; and Avhether it be in contract or in 
 tort, the proper measure of damages, except where punitive damages are allowable, is a just 
 indemnity to the party injured for the loss which is the natural, reasonable and proximate 
 result of the wrongful act complained of, and which a proper degree of prudence on the p.art 
 of the complainant would not have averted. 
 
 (0) Armory ff. Delamire, 1 Str. 604. 
 
Sec. 3.] REMEDY BY ACTION— DAMAGES. 459 
 
 "Where goods of the plaintiff had been deposited in the hands of the 
 defendant for manufacturing purposes, and, the plaintiff being in- 
 debted to the defendant, the latter sued him in the county court and 
 recovered judgment for the debt, but before he could lawfully issue 
 execution the plaintiff demanded his goods, which the defendant 
 refused to deliver, and sutisequently the defendant caused the goods 
 in his hands to be seized and sold under the execution, and the 
 plaintiff brought his action for the conversion of the goods, it was held 
 that he was entitled to recover their full value, for there is nothing 
 unlawful in a man withdrawing his goods for the purpose of avoiding 
 an execution ; and, as by the result of the action in the superior court, 
 the property becomes the defendant's who has thus seized his own 
 goods in execution, his claim against the plaintiff pro tanto is not sat- 
 isfied, and he must resort to the county court to issue fresh execu- 
 tion((i). 
 
 If au action is brought for the shooting of a dog, the character and 
 propensities of the animal for mischief may be considered in mitiga- 
 tion of damages(e). 
 
 If a jury arrive at the conclusion that a defendant has come dis- 
 honestly by a part of property which has been stolen, they are war- 
 ranted in finding that he got possession of the whole. Thus, where a 
 diamond necklace worth 500Z. had been stolen, and a portion of the 
 diamonds shortly after the robbery, came into the defendant's posses- 
 sion, and the latter gave contradictory and unsatisfactory accounts as 
 to the mode in which he became possessed of them, and the owner 
 sued and recovered a verdict for the full value of the npcklace, it was 
 held that the jury were justified in finding that the whole necklace 
 came into the defendant's hands(/). 
 
 The plaintiff is entitled, under a declaration properly framed, to 
 recover all that at the commencement of the suit he has lost through 
 the wrongful seizure of his goods, and it has even been held that the 
 defendant cannot, in mitigation of damages, show that after action 
 brought he paid to plaintiff the value of tHe goods(p'). The jury are 
 not limited in assessing the damages to the price or value of the arti- 
 cle on the day of the conversion, but may give the value at any subse- 
 quent time at their discretion, as the plaintiff might have had a good 
 
 (d) Edmondson v. Nuttall, supra. 
 
 (e) Wells V. Head, 4 C. & P. 6G8. 
 
 (/) Mortimer v. Cradock, 12 Law J., C. P. 186. 
 
 ig) Bundle «. Little, 6 Q. B. 178. But see post, p. 362. 
 
,460 TRESPASS AND . CONVERSION. [Chap. 7. 
 
 opportunity of selling the gbods if they had not been detained(^). If 
 the defendant, acting hona fide under the belief that he had acquired 
 the lawful ownership of the chattel, has proceeded to lay out money 
 upon it, and improve it, and increase its value, the plaintiff will not in 
 all cases be entitled to swell the damages by estimating them accord' 
 ing to the improved value of the article. "It may be," observes Maule, 
 J., " that the wrong-doer, who acqtiires no property in the thing he 
 converts, acquires no lien for what he expends upon it, and the owner 
 may bring an action for the detention or conversion of it ; but it does 
 not follow that the owner is to recover the full value of the thing in its 
 improved state. The proper measure of damage is the amount of 
 pecuniary loss the plaintiff has sustained by the conversion of the chat' 
 tel, that is, what it was really worth, at the time of the conversion "(?•). 
 If at the time of the seizure the plaintiff was under an obligation to 
 have the goods sold, then, if they have been fairly sold, the price 
 realized at the sale may be the fair measure of damages, if there has 
 been nothing harsh or oppressive in the defendant's conduct, or that 
 of his agents(^') ; but if at the time of the seizure the plaintiff was 
 under no obligation to part with his goods, but was in a position to 
 retain the dominion and use of them, he is at the very least entitled 
 to be placed in the condition he was in at the time his goods were 
 taken away from him, and to be compensated with such an amount of 
 money as will enable him to replace the goods(A-). " It is, however," 
 observes Alderson, B., " entirely a question for the jury, what damages 
 they will allow. Juries have not much compassion for trespassers, and 
 they are not bgund tO weigh in golden scales how much injury a party 
 has sustained by a trespass "(?). 
 
 If the act of conversion amounts to pound breach, the person guilty 
 of the wrong will be liable in damages to the landlord, and also to the 
 owner of the property "for damages for the conversion. " It might be 
 difficult in such a case to ascertain the damages, but they would not 
 exceed in the whole the value of the chattels distrained"('m). 
 
 (A) Greening v. Wilkinson, 1 C. & P. 626. Eomaine v. Van Allen, 26 N. T. 309. Markham 
 V. Jandon, 41 N. Y. 235. Burt v. Dutoher, 31 N. T. i93. Soheley V. Lyon, 6 Geo. 530. Barnett 
 ■0. Thompson, 37 Ga. 335. Douglass v. Kraft, 9 Cal. 562. 
 
 (i) Beid V. Fairbanks, 13 C. B. 729 ; 22 Law J., C. P. 206. But see Ellis v. Woic, 33 Ind. 127 ; 
 Silsbury ». McCoon, 3 N. T. 381 ; Brown v. Sax, 7 Cow. 95 ; Betts t>. Lee, 5 Johns. 348 ; Baker 
 V. Wheeler, 8 Wend. 505 ; Eiee v. Ifcjllenbeok, 19 Barb. 654. 
 
 ( j) Whitmore v. Black, 13 M. & W. 509 ; 14 Law J., Exoh. 19. See Campbell t). Woodworth, 
 20 N. Y. 499. 
 
 (/;) Glasspool v. Young, 9 B. & C. 696 ; 4 M. & B. 533. 
 
 (!) Loekley «. Pye, 8 M. & W. 135. 
 
 (m) Tuuner v. Ford, 18 M. & W. 21^. 
 
.Sec. 3.] AOTIOKS— MEASURE OF DAMAGES. 461 
 
 540 Assessment of damages, where the plaintiff has only a limited or doubtful 
 interest in the goods. — Where the plaintiff is not the actual owner, but 
 is only a bailee or hirer of goods which have been wrongfully taken 
 out of his possession, he is entitled as against a stranger to recover the 
 entire value of the goods ; but if the action is brought by the hirer or 
 bailee against the owner of the goods, the damages will be limited to 
 the value of the plaintiff's interest in them(re). A defendant who has 
 wrongfully deprived the plaintiff of the possession of goods cannot 
 avail himself of the title of a third party in reduction of damages, but 
 he may show that he was himself the owner of the goods at the time 
 of the conversion, subject to some temporary or conditional right of 
 possession on the part of the plaintiff, with a view of limiting the 
 damages to -the value of the plaintiff's limited interest(o). If a man 
 brings an action for the conversion of a ship, and upon the evidence it 
 appears that he has but the sixteenth part of it, this will go in reduc- 
 tion of damages, as he has no right to recover the value of the shares 
 of the other part-owners(p). If it appears that the plaintiff has merely 
 been clothed with the possession and ostensible ownership of the 
 chattels, for the purpose of perpetrating a fraud or defeating a dis- 
 tress, or if he has made a transfer of the chattels, which he has treated 
 at one period as valid and bond fide, and at another as merely color- 
 able, so as to leave it doubtful what is his real and bond fide interest 
 in the pi'operty, the jury may, if they please, give him merely nomi- 
 nal damages(g'). 
 
 In cases between pawnor and pawnee, where the pawnee has by an 
 illegal dealing with the pledge determined the bailqient, and the 
 pawnor has in consequence brought an action for the conversion of the 
 goods, the interest of the pawnee ought to be taken into account, and 
 if the pawnor did not intend to redeem the pledge, only nominal 
 damages are recoverable(r). 
 
 Damages for the conversion of bills and notes are calculated, in general, 
 according to the amount of principal and interest due upon the bills 
 
 (n) Heydon & Smith's case, 13 Co. 68. Waters ». Monarch, 5 EU. & Bl. 880 ; 25 Law J., Q. 
 U. 102. Ullman v. Barnard, 7 Gray (Mass.), 654. See Chadwick v. Lamb, 29 Barb. (N. Y.) 
 518 ; Fowler v. Gilmau, 13 Met. 2S7 ; Bigelow v. Young, 30 Ga. 121 ; Eussoll v. Kearney, 27 
 Ga. 96. 
 
 (o) Brierley ». Kendall, 17 Q. B. 943. 
 
 {p) Dockwray v. Dicknson, Skin. &40. 
 
 (g) Camei-ou v. AVynch, a C. & K. 264. Pringle ». Taylor, 2 Taunt. 150. 
 
 (r) Johnson*. Stear, 16 C. B., H. S. 330 ; 33 Law J., C. P. 130 (diss. Williams, J.). See 
 Hays V. Kiddle, 1 Sandl'. Sup. Ct. (N. Y.), 248 ; Baltimore, etc., B. E. Co. v. Blocher, 27 Md. 
 »7. 
 
462 TRESPASS AND CONVMBSION. [Chap. 7. 
 
 or notes at the time of the demand and refusal to deliver them Tip(s). 
 But if a document, purporting to be a bill or note, has been lost or 
 accidentally destroyed, and the defendant is unable to deliver it up, 
 and can prove that it was not a genuine security, and was of no value 
 at all at the time of the conversion, nominal damages only may be 
 recoverable, if the plaintiff is entitled to recover damages at all(i). If 
 the security has been mutilated and rendered valueless by the v^roug- 
 ful act of the defendant, the plaintiff will be entitled to recover what 
 it would have be^n fairly worth to him had it continued a perfect and 
 complete instrument(M). 
 541 Of the damages recoverable, where the plaintiff has offered to return the 
 goods, or the defendant has received them lack after the commencement of 
 the action. — If in the course of the cause the goods have been returned, 
 the plaintiff is still entitled to proceed for further damages and his 
 costs(a;). When the goods have been returned and received uncon- 
 ditionally by the plaintiff, after the commencement of the action, and 
 no special damage is alleged in the declaration, and the damage com- 
 plained of is not necessarily incidental to the wrongful taking of the 
 property, nominal damages only are recoverable. When substantial 
 damages have been recovered, notwithstanding the return of the -goods 
 after the commencement of the action, there has been either an injury 
 to the property converted, or the damage has been the actual and 
 necessary consequence of the conversion ; as in the case of the deten- 
 tion or conversion of a riding-horse, where the horse may have been 
 deteriorated by ill-usage, or where the plaintiff could not get back his 
 horse without paying certain charges for his keep(y), the payment being 
 a necessary consequence of the conversion. But the jjlaintiff, althoijgh 
 he has taken upon himself to accept the goods without imposing any 
 ■condition upon the defendant, has a right to go on with the action, 
 and proceed to trial for the purpqse of recovering his cosis,{z). It is 
 no ground for mitigation of damages that very shortly after the con- 
 version the defendant was entitled to issue execution against the plain- 
 
 (s) Mercer ». Jones, 3 Campb. 477. Ingalls v. Lord, 1 Cow. 240. Keaggy v. Hite, 12 ni. 99. 
 Booth V. Powers, 56 N. Y. 22. Neff «. Clute, 12 Barb. 466. Callanan v. Brown, 31 Iowa, 333. 
 The presumption that the note converted was worth its face may, however, he rebutted bj- 
 showing the insolvency of the maker. Id. See Fry v. Baxter, 10 Mo. 302. 
 
 («) Mathew «. Sherwell, 2 Taunt. 438. Wills v. Wells, 8 ib. 267 ; 2 Moore, 251. 
 
 (M) M'Leod «. M'Ghie, 2 So. N. R. 604. 
 
 (X) Laugher v. Brefltt, 5 B. & Aid. 765 ; 1 D. & E. 417. Hibbard v. Stewart, 1 Hilt. (N. Y. C. 
 r.) 207. Sparks v. Purdy, 11 Mo. 219. Bank v. Bank, 5 Barr. 211! See Curtis v. Ward, 20 
 Conn. 204 ; Smith v. Downing, 6 Ind. 374 ; Dioolittle v. McCullough, 7 Ohio (N. S.), 299. 
 
 [y) Syeds v. Hay, 3 Burr. 1364. 
 
 (2) Moon V. Baphael, 2 B. K. C. 314. 
 
Sec. 3.] ACTIONS — MEASURE OF DAMAGES. 463 
 
 tiflf, and did subsequently issue execution and seize and sell thereunder 
 the very goods (which had all along been in his possession) of which 
 the conversion was complained of(a). 
 
 Damages, in the nature of interest, over and above the value of the goods. 
 — By the 3 & 4 Wm. 4, c. 42, s. 29, it is enacted, that in all actions of 
 trover or trespass de bonis asportatis, the jury, on the trial of any issue, 
 or any inquisition of damages, may, if they think fit, give damages 
 in the nature of interest, over and above the value of the goods at the 
 time of the conversion or seizure thereof. 
 542 Special damages, far exceeding the value of the goods, are recover- 
 able if specified and claimed in the declaration, and shown to be the 
 natural and necessary consequence of the wrongful act. Thus, where 
 the plaintiff complained, not only that the defendant took his goods, 
 but that he did so under a false and unfounded claim of right, and 
 that the plaintiff was thereby much annoyed and prejudiced in his 
 business, and believed to be insolvent, and that by means of the prem- 
 ises certain lodgers were induced to believe that the plaintiff was in 
 embarrassed circumstances, and that the defendant was entitled to 
 seize the goods for a debt, and left the house, it was held that the jury 
 might give vindictive damages for the injury, over and above the value 
 of the goods seized(6). 
 
 Where a carpenter's tools have been detained or converted, and the 
 carpenter, by reason thereof, has lost a valuable job, or been unable 
 to earn his customary wages, damages far beyond the value of the 
 tools may be recovered(c). So if, by reason of the unlawful detention 
 of goods, the owner of them has been prevented from fulfilling a con- 
 tract, or reaping the benefit of a bargain he has made, he is entitled 
 to compensation for the special damage he has sustained, although 
 performance of the contract or bargain could not have been enforced 
 by compulsion of law(d). If, in an action for the conversion of a horse, 
 the plaintiff claims damages in respect of his being obliged to hire 
 other horses for his use, in consequence of his being deprived of bis 
 own horse, he will be entitled to recover the amount expended by him 
 for horse-hire, in addition to the value of his own horse at the time of 
 the conversion(e). A person who has wrongfully taken goods, and 
 handed them over to a third person, is, under certain circumstances, 
 
 (a) Edmonson v. Nuttall, ante^ pp. 457, 459. 
 
 (6) Brewer ». Drew, 11 M. & W. 629; post, ch. 22. 
 
 (c) Bodley v. Reynolds, 8 Q. B. 779. 
 
 (d) Waters v. Towers, 8 Exch. 401; 22 Law J., Exch. 188. Wood v. Bell, 25 ib., Q. B. 153. 
 As to the necessity for giving notice of sach damage, see France v. Gaudet, L. K., 6 Q. B. 199, 
 
 (e) Davis v. Oswcll, 7 C. & P. 804. 
 
464 TSESPASS AND OONVERSTON. j;Chap. 7. 
 
 bound to pay what it has cost the owner of the goods to get them out 
 of the possession of the person into whose hands they have been wrong- 
 fully delivered(/). 
 543 Damages in actions for seizv/res under the Customs' Acts. — By 8 & 9 
 Vict. c. 87, s. 116, it is enacted, that if any action shall be commenced 
 and brought to trial against any person on account of the seizure of 
 any vessel, boat, goods, etc., as forfeited under any Act relating to the 
 customs, wherein a verdict shall be given against the defendant, if the 
 court or judge before whom the suit shjill have been tried shall have 
 certified on the record that there was a probable cause for such seizure, 
 then the plaintifi', besides the thing seized, or the value thereof, shall 
 not be entitled to above twopence damages, nor to any costs of suit(^). 
 
 (/) Koene v. Dilk, 4 Exoh. 388. Pritchett v. Boeyey, 1 Cr. & M. 778. 
 {S\ And see further as to damages, j>oa<, ch. 22. 
 
CHAPTER VIII. 
 
 OF TRESPASSES AND INJURIES FROM NEGLIGENCE— NEGLIGENT 
 MANAGEMENT OP CHATTELS. 
 
 Sbotioit I. — Of trespasses arad injwries from acts of negligence. — Negligence and 
 inevitable accident — Negligence of carriers of passengers — When the very 
 occurrence of a railway accident is priiad facie proof of negligence-^Aceidents 
 at level crossings — Negligent driving — Secret defects in carriages, race-stands, 
 etc. — Liability of the master for the negligence of his servant — Identification 
 of the passenger with the driver — Negligence of foot-passengers in public 
 thoroughfares — Negligent navigation of vessels — Collisions between foreign 
 ships — Non-observance of statutory or Admiralty regulations — Limitation of 
 liability — Duty of shipowner as to goods damaged — Damage to owners of 
 cargoes — ^Negligence of masters and employers causing injury to their serv- 
 ants — Injuries to servants from the negligence of their fellow-servants — 
 Volunteers in dangerous employments — Contributory negligence on the part 
 of the plaintiff — Negligence on the part of skilled workmen and professional 
 men — Negligence of attorneys, barristers, surveyors, bank managers, direc- 
 tors of companies. 
 
 Sbotion II. — Of actions for negligence. — Actions for compensating the families of 
 persons killed by negligence — Proceedings in the Court of Admiralty — Parties 
 to be made plaintiffs and defendants — Master and servant — Contractor and 
 sub-contractor — Pleadings, defences, and evidence — Damages recoverable — 
 Where the plaintiff is insured — Where the action is brought by personal 
 representatives. 
 
 SECTION I, 
 
 OP TRESPASSES AHD INJURIES FROM NEGLIGENCE — NEGLIGENT MANAGE- 
 ^ MENT OP CHATTELS. 
 
 544 Negligence and inevitable accident, — No person may, as we have seen, 
 be excused of a trespass except it be adjudged to have been committed 
 entirely without fault, or to have been an inevitable accident, or to 
 Ad. Vol. I.— 30 
 
466 / • — NEGLIGENCE [Chap. 8. 
 
 have been»-occasioned by the negligence of the plaintiflf himself." 
 " Looking into all the cases from the year-book in the 21 Hen. 7, down 
 to the latest decision on the subject, I find the principle to be," observes 
 Grose, J., "that if the injury be done by the act of the party himself 
 at the time, or he be the immediate cause of it, though it happen 
 accidentally or by misfortune, yet he is answerable "(a). Where to an 
 action of trespass the defendant pleaded that he was a soldier of the 
 trained bands, and was skirmishing with muskets charged with pow- 
 der for exercise in re militari, and that in discharging his musket he 
 accidentally and unintentionally injured the plaintiff, it was held that 
 the plea, being a mere excuse, and no justification, afforded no answer 
 to the action(6). And where the defendant was uncocking his gun, 
 and the plaintiff was stopping to see it, and the gun went off and 
 wounded the plaintiff, it was held that the plaintiff might maintain 
 an action for the injury(c). So, where the defendant intrusted a loaded 
 gun to be carried by an inexperienced servant girl, and the girl pointed 
 the gun in sport at the plaintiff, and drew the trigger, and shot him 
 in the eye, and blinded him, it was held that the defendant was respon- 
 sible in damages for the consequences of his carelessness((^). And 
 where the defendant gave the plaintiff a carboy, or large bottle of 
 nitric acid, to carry, without informing him of the dangerous nature 
 of the acid, and the carboy burst, and the acid inflicted dangerous 
 wounds upon the plaintiff, and burnt and destroyed his clothes, and 
 disabled him, it was held that the defendant was responsible in dam- 
 ages for the injury(e). But if the injury has resulted from circum- 
 stances over which the defendant had no control, he is not then answer- 
 able(ee). This has been held to be the case where the defendant's 
 horse, being frightened by the sudden noise of a butcher's cart which 
 jvas driven furiously along the street, became ungovernable, and 
 plunged the shaft of a gig into the breast of the plaintiff's horse(/) ; 
 also where a horse naturally vicious, but not known to be so by the 
 defendant who was riding it, became restive and unmanageable, and 
 ran upon the foot pavement and knocked down and killed the plain- 
 tiff's husband(5') ; and where a horse, ridden by the defendant, was 
 
 (a) Leame t). Bray, 3 East, 599, amte, p. 2. 
 
 Ifi) Weaver v. Ward, Hob. 134. Dickenson v. Watson, 2 Jones, 205. Castle ». Duryee, 2 
 lieyes (N. T.), 169. 
 (0) Underwood v. Hewson, 1 Str. 596. 
 
 (d) Dixon v. BeU, 5 M. & S. 198. 
 
 (e) Farrant v. Barnes, 11 C. B., N. S. 553 ; 31 Law J., C. P. 137. 
 (ee) Vincent v. Stinehour, 7 Vt. 62. 
 
 (/) Wakeman v. Eoblnson, 1 Bing. 213. 8 Moore, 63. 
 
 {jl) Hammaok v. White, 11 C. B., N. S. 688 ; 31 Law J., C. P. 129. 
 
) 
 
 Sec. 1.] OF CARRIERS — RAILWAY COMPANIES. 467 
 
 frightened by a clap of thunder, and ran over the plaintiff, who was 
 incautiously standing with others in the carriage-road(A). 
 
 If a horse, not known to be of a vicious disposition by the rider, 
 suddenly kicks out without provocation and injures a bystander, the 
 rider will not be responsible for the injury ; but it is otherwise if the 
 injury is caused by an incautious and dangerous use of the spur(j). 
 
 By the civil law, all the losses and damages which result from the 
 act of another, whether through imprudence', rashness, ignorance, or 
 other faults, are to be made good by him whose imprudence, or other 
 fault, caused the mischief ; for it is a wrong that he hath done, although 
 he had no intention to do harm. Thus he who- plays imprudently at 
 ■ a game in a place where there may be danger to others passing by, is 
 answerable for the harm he does(A). A waggoner, or a mule-driver, 
 who hath not strength or skill enough to hold in a mettlesome horse, 
 or an unruly mule, will be answerable for the damage caused thereby ; 
 for he ought not to have undertaken what he had not skill or strength 
 enough to perform. If, by overloading a horse or other beast, or by 
 not avoiding a dangerous path, or by some other neglect, he causes 
 damage to another, he will be answerable ; and he who sustains the 
 damage may have his action against the driver, or against the person 
 who employed him(Z). 
 545 Negligence of carriers of passengers for hi/re. — Every carrier of passen- 
 gers for hire, whether he be or be not a common carrier {post, ch. 10), 
 is bound to exercise the greatest care and forethought for securing the 
 safety of his passengers, and is answerable for the smallest negligence 
 on his own part, or on the part of his servants and agents(?w), but not 
 for unforeseen accidents and misfortunes, which care and vigilance 
 could not have provided against or prevented. He " does not warrant 
 the absolute safety of his passengers. His undertaking as to them 
 goes no further than this, that as far as human care and foresight can 
 go, he will provide for their safety(mTO)." "When everything has 
 
 (ft) Gibbous V. Pepper, 1 Ld. Eaym. 38. 
 
 (i) North V. Smith, 10 C. B., N. S. 575. 
 
 (i) Domat, Ut. 2, tit. 8, 8. i. 
 
 (t) lb. liv. 2, tit. 8, 8. 2, S 6. 
 
 (m) Jackson v. Tollett, 2 Stark. 38. Dudley o. Smith, 1 Campb. 169. Maverick v. Eighth 
 Avenue E. E. Co., 36 N. Y. 378. Brown ». New York Central E. E. Co., 34 N. Y. 104. Bowen 
 V. N. Y. Central E. E. Co., 18 N. Y. 408. Caldwell ». New Jersey Steamboat Company, 47 N. 
 Y. 282. Illinois Central E. E. Co. v. Phillips, 55 111. 194. Taylor v. Grand Trunk E. R. Co., 48 
 N. H. 304.- Johnson v. Winona, etc., K. E. Co., 11 Minn. 296. McLean v. Bnrtant, 11 Minn. 
 277.' Wheaton*. North Beach, etc., R. E. Co., 36 Cal. 590. .Edwards v. Lord, 49 Me. 279. 
 FairchUd v. California Stage Co., 13 Cal. 699. 
 
 (mm) MePadden v. New York Central E. E. Co., 44 N. Y. 478. Lairig v. Colden, 8 Barr. 482. 
 Eailroad Co. -n. Aspell, 23 Penn. (11 Har.) 149. Sullivan «. Philadelphia & Beading E. E. Co., 
 
468 NSSLi&ENCE [CLap. 8. 
 
 been done that human prudence can suggest, an accident may 
 happen. The lights may in a dark night be obscured by fog ; the horses 
 frightened ; or the coachman may be deceived by a sudden alteration 
 in the position of objects near the road by which he had been used to 
 be directed in former journeys ; and if, having exerted proper skill 
 and care, he from accident gets off the road, the proprietors are not 
 answerable for what happens from his doing so." But the breaking 
 down or overturning of a coach is prima fade proof of negligence on 
 the part of the driver^ and he must p»but this presumption, if it be 
 unfounded, by showing that " the damage arose from what the law 
 Considers a mere accident "(w). When the carriage is by railway, the 
 railway company is bound to keep the railway itself in good traveling 
 order, and fit for use, and to provide roadworthy engines and car- 
 riages, skilful drivers and engineers, and all things necessary for the 
 safe conveyance of such passengers ; and by the 31 & 32 Vict. c. 119, 
 S. 22, to provide in certain cases for means of communication between 
 the passengers and the guard. But the company is not bound, at its 
 peril, to provide a roadworthy calriage, and wiU not be responsible to 
 a passenger, if the defect in the carriage is such that it could neither 
 be guarded against in the process of construction, nor discovered by 
 subsequent examination(o). 
 
 6 Casey, 234. Kenney v. Neil, 1 McLean, 540. Meier v. Permsylvania E. E. Co., 64 Penn. St. 
 225. rairohild v. California Stage Co., 13 Cal. 599. 
 
 («) Crofts V. Waterhonse, 11 Moore, 137 ; 3 Bing. 321. Sharp j>. Grey, 2 M. & So. 620 ; 9 Bing. 
 460. Harris®. Costar, 1 C. & P. 637. Boyoe v. California Stage Co., 25 Cal. 460. Christie ». 
 Griggs, 2 Campb. 79. Stokes v. Saltonstall, 13 Pet. (U. S.) 181. Laing v. Colder, 8 Barr. 482. 
 Parish v. Keighle, 11 Gratt. (Va.) 697. Sullivan v. Philadelphia &, Eeading R. E. Co , 6 Casey, 
 234. McKinney v. Neil, 1 McLean, 540. Eedf. on Railw., 3. 1760; Sheaim. on Neg., s. 280. 
 Meier v. Pennsylvania K. E. Co., 64 Penn. St. 225. Prink v. Ode, 4 Greene (Iowa), 555. Fair- 
 field V. California Stage Co., 13 Cal. 599. 
 
 (o) Eeadhead v. Midland Eail. Co., L. E., 2 Q. B. 412; S. C. (Exchr. Ch.) ib. 4 Q. B. 379. 
 Meier v. Pennsylvania E. E. Co., 64 Penn. St. 225. MoPadden v. New York Central E. E. 
 Co., 44 N. Y. 478. Curtis v. Eochester & Syracuse E. E. Co., 18 ib. 536. 
 
 In Alden v. New York Central E. E. Co. (26 N. Y. 102), it was held that a carrier is bound, 
 absolutely and irrespective of negligence, to provide roadworthy vehicles; and that a rail- 
 road corporation is liable for injuries to a passenger, caused by a crack in the iron axle of a 
 car, although the defect could not have been discovered by any practicable mode of exami- 
 nation. The docti'ine of this case is not in accord with the American cases generally, nor 
 with the modem English decisions, and the authority of the case is questioned, if not wholly 
 denied in the court in which it was decided. McPadden v. New York Central E. E. Co. j 44 
 N. Y. 478. 
 
 It has been held that a railroad corporation is responsible in damages to a po-ssenger 
 injured by the breaking of one of the axles of a car in conseeiuence of a latent defect which 
 could not be discovered by the most vigilant external examination, although the car was 
 purchased by the company from extensive and skilful car makers, and the axle was pro- 
 cured from a manufacturer of skill and reputation, if the defect was one whieh could have 
 been discovered in the process of manufacturing the axle or car by the application of ahy 
 test known to men skilled in such business. Eegeman v. Western E. E. Co., 13 N. Y. 9. 
 
 But in another case it was held that a railway were not liable for injuries to a passenger 
 resnlting from the breaking of an axle where the road bed and the car running unon it wera 
 
Sec. 1.] OF CARRIERS — RAILWAY COMPANIES. 469 
 
 If the driver of a railway-engine drives at a dangerous speed, or 
 from negligence or unskilfulness causes the train to be thrown off the 
 rails, or to come into collision with another train, the railway company 
 
 constructed of the best known materials and in the best known manner, combihing all those 
 appliances which men skilled in the art of car building employ, and where the car and its 
 running gear were duly and carefully inspected from time to time, and the accident was due 
 to some cause against which precaution and foresight would be unavailable. Meier v. Penn 
 sylvania B. E. Co., 64 Pcnn. St. 225. 
 
 In another case it was held that carriers of passengers are liable for slight neglect ; and 
 that the law imposes upon them the duty of carrying their passengers safely, so far as is 
 reasonably practicable, and that they would be liable for injury by the breaking of an axle 
 by reason of frost, if by extraordinary care and attention the danger might have been 
 avoided. Frink v. Potter, 17 111. 406. 
 
 In Pennsylvania it is held that railroad corporations are bound to exercise the strictest 
 vigilance, and must carry their passengers safely if human care and foresight can do it, and 
 that they are liable for any defect in the road, the cars or the engines, or any other species 
 of negligence whatever of which they or their agents may be guilty. Railroad^o. V. Aspell, 
 23 Penn. 147. New Jersey E. E. Co. v. Kennard, 21 ib. 203. 
 
 In Massachusetts it is held that carriers of passengers are bound to use the utmost care 
 and diligence to prevent an injury which human foresight can guard against, and that they 
 are responsible for defects which might have been discovered upon the most careful and 
 thorough examination. Ingalls v. Bills, 9 Met. 1. McBlroy and wife v. Nashua & Lowell E. 
 B. Co., 4 Cush. 400. 
 
 In Maine the carrier of passengers is held for such care as is used by very cautious persons. 
 Edwards v. Lord, 49 Me. 279. 
 
 In Connecticut the canier is held for the highest degree of care of a reasonable man. Hall 
 V. Connecticut Biver Steamboat Co., 13 Conn. 320. Derwent «. Loomer, 21 ib. 263. Fuller », 
 Naugatuck E. E., 21 lb. 557, 576. 
 
 In Illinois it has been held that carriers of passengers are bound to use the utmost pru- 
 dence and caution, and the utmost degree of care, vigilance and skill, and are liable for the 
 slightest negligence known to the law short of insurance ; and that the diligence of cautious 
 persons is not enough. Galena & Chicago B. E. Co. v. Tarwood, 15 111. 468. Galena & 
 Chicago E. E. Co. v. Pay, 16 ib. 468. Prink v. Potter, 17 ib. 406. Illinois Central B. B. Co. 
 v. PhiUips, 55 ib. 194. 
 
 In New Hampshire it is held that carriers of passengers by railroad are bound to exercise 
 the highest degree of care and diligence in the conduct of their business, and are responsible 
 for the slightest negligence. Taylor v. Grand Trunk E. B. Co., 48 N. H. 304. Cornwall o. 
 Sullivan B. E. Co., 28 ib. 169. Clark v. Barrington, 41 ib. 51. 
 
 But it has been held in both New Hampshire and Illinois, that while the rule requires of 
 the carrier the highest degree of practicable care and diligence consistent with the mode of 
 transportation adopted, it does not require the utmost degree of care Which the human mind 
 is capable of inventing, as such a rule would involve such an expenditure of money and the 
 employment of -so great a number of persons as would prevent all persons of ordinary pru- 
 dence from engaging in that kind of business. Puller c. Talbot, 23 111. 367. Taylor o. Grand 
 Trunk R. E. Co., 48 N. H. 304. 
 
 In New York it is held that the rule as to the liability of carriers of passengers by stage- 
 coach is not applicable to carriers of passengers by rail; and that the carrier in the latter 
 case is bound to conduct his business with all the care which human prudence and skill can 
 suggest. Hegeman v. Western E. E. Co., 16 Barb. 363. 5. C. 13 N. Y. 9. And in The Phila- 
 delphia & Beading E. E. Co. v. Derby, 14 How. <U. S.) 486, the court held that when carriers 
 undertake to convey persons by the powerful, but dangerous agency of steam, public policy 
 and safety require that they should be held to the greatest possible care and diligence ; and 
 whether the consideration be pecuniary or otherwise, the personal safety of passengers 
 should not be left to the sport of chance or the negligence of careless agents ; and that any 
 negligence in such cases well deserves the epithet of gross. And see Steamboat New World 
 p. King, 16 How. (U. S.) 474. 
 
 But while railroad companies are bound to exercise the utmost care and vigilance for the 
 safety of their passengers, they are not held to an absolute warranty that the passengers 
 «hall not be injured rendering them liable in any event in the absence of negligence. Mc- 
 Padden*. New York Central E. E. Co., 44 N. Y. And see note mm, ante. 
 
470 NEGLIGENCE [Chap. 8. 
 
 is responsible for all damages and injuries that may have been sus- 
 tained by the passengers(p). But if a railway-train runs off the line 
 in consequence of the wilful and malicious act of a stranger, who has 
 placed a stone on the railway, then, as there is no negligence on the 
 part of the railway company, they are not responsible for the conse- 
 quences(g'). A railway company will be responsible for an injury 
 sustained by a child between the ages of three and twelve, travelling 
 with its mother, although no separate fare was paid for the child, at 
 all events in the absence of fraud on the part of the mother(r). If the 
 train overshoot, or stop short of, the platform, and a passenger is 
 injured while jumping from the carriage to the ground, the company 
 is not responsible unless the passenger first requested that the train 
 might be T&acked into the station(s) ; or was invited by the company's 
 
 (p) Collett V. Load. & N. W. Bail. Co., 16 Q. B. 984. Skiimer ». Lond. Br., etc., Bail. Co., 
 6 Exch. 787. 
 
 (2) Latch V. Bumner Bail. Co., 27 Law J., Exch. 155. 
 
 (r) Austin v. Gt. West. Bwy. Co., L. B., 2 Q. B. 442. The liability of carriers for injuries 
 to passengers does not depend in all cases upon the existence of a contract for carriage be- 
 tween the carrier and the passenger. It has been held that a railroad corporation is liable 
 for injuries to a person riding upon their cars upon an invitation from a servant of the cor- 
 poration as a passenger without hire, where the injury arose from the negligence of the ser- 
 yant in the course of his employment and the party injured was without fault. Wilton v, 
 Middlesex B. B. Co., 107 Mass. 108. 
 
 A person riding upon a raili'oad on a free pass, with an agreement that in consideration of 
 its receipt he assumes all risks of accident, and that the company shall not be liable under 
 any circumstances for injuries to his person while using the pass, cannot recover against the 
 company for injuries received through negligence of their servants while being so carried. 
 Kinney v. Central B. B. Co. of New Jeisey, 34 N. J. 513. 
 
 But the rale is otherwise when the party injured is riding under a " drover's pass " con- 
 taining similar stipulations. Cleveland, PainsviUe & Ashtabula R. B. Co. ^. Curran, 19 Ohio 
 St. 1. Pennsylvania B. B. Co. v. Henderson, 51 Penn. St. 315. Lockwood v. Bailroad, 17 
 Wall. 357. But see Bissell v. New York Central B. B. Co., 25 N. Y. 442; GaUin v. London & 
 Northwestern B. B. Co., 32 L. T. B. (N. S.) 550. 
 
 In the absence of an agreement to the contrary, a railroad coi-poration voluntarily under- 
 taking to convey a passenger upon its road, whether with or without compensation, is liable 
 for injuries to such passenger arising from the culpable negligence or want of skill of the 
 agents of the company. Nolten v. Western E. E. Co., 15 N. T. 444. 
 
 (») Siner v. Gt. West. Bwy., L. B., 3 Exch. 150. 4 ib. 117; 38 Law J., Exch. 67. See Eob- 
 «on V. Northeastern E. B. Co., 32 L. T. (N. S.) 551; Aokle v. Southeastern B. E. Co., 27 L. T. 
 (N. S.) 320; L. E., 7 C. P. 324; Lewis v. London, etc., E. B. Co.. 29 L. T. (N. S.) 397; L. B., Q. 
 B. 66; WeUer v. London, etc., E. B. Co., 29 L. T. (N. S.) 888; L. E., S C. P. 132, 134. It is the 
 duty of railway companies to provide platforms at their stations on which passengers may 
 alight, and to deliver their passengers on such platforms. Memphis & Charleston E. B. Co. 
 V. Whitfield, 44 Miss. 466. Shearm. & Eedf. on Negl. ss. 275-277. 
 
 The conductor is bound, upon the request of any passenger, to move the train backward or 
 forward, so as to enable the passenger to step upon the platform, lb. 
 
 BaUway companies are bound to stop their trains at places convenient for passengers to 
 alight. Delamatyr v. Bailroad Co., 24 Wis. 518. And if a train is stopped at a place where 
 passengers cannot alight without dilficulty, it is the duty of the company's servants to assist 
 the passengers in alighting. Memphis & Charleston B. B. Co. -v. Whitfield, 44 Miss. 466. 
 Shearm. & Eedf on Negl. 8. 278. And see Warren ». P E E. Co., 8 Allen, 227; 
 
 Gee V. Eailway Co., L. E., 8 Q. B. 161. 
 
 Stopping a train at an unusual place, renders the company presumptively wrong to that 
 extent, and throws the burden of explaining the neglect upon them. Memphis & Charleston 
 
Sec. 1.] OF CARRIERS — RAILWAY COMPANIES. 471 
 
 servants to alight tliere(<). But the stopping of the train at a place, 
 which a passenger would naturally suppose to be the platform, is a 
 sufficient invitation for this purpose(M). The mere calling out by a 
 porter of the name of a station, however, is not such- an invitation, 
 unless the train stops at a fit place for getting out. It will not, for 
 instance, justify a passenger in getting out while the carriage in 
 which he is riding is in a tunnel(«). Where a passenger, in getting 
 
 K. E. Co. V. Whitfield, 44 Miss. 466. Sedgw. on Dam. 565. Curtiss v. Eocliester & Syracuse 
 "R. R. Co., 20 Barb. 285. And where a railway train passes the platform, and the passengers 
 are required to alight without assistance at an unusual place and without a safe spot to alight 
 upon, the company are 'prima facie guilty of negligence. lb. 
 
 RaUway companies are also required to afi"ord a reasonable time for passengers, whether 
 young or old, to leave the cars in safety ; and if the time tables do not allow sufficient time 
 for this purpose, and an injury is thereby occasioned, the company will be liable. T. W. & 
 W. R. K. Co. V. Baddely, 54 lU. 19. A sick or aged person, a delicate woman, a lame man or 
 a child, is entitled to more attention and care from a railroad company than one in good 
 health and under no disability, and are entitled to more time in which to get on or off the 
 cars. Sheridan v. Brooklyn City & Newtown R. R. Co., 36 N. Y. 39. See O'Mara v. Hudson 
 River R. E. Co., 38 N. T. 445. 
 
 But a person who is sick and infirm and unable to take care of himself should provide him- 
 self with proper assistance while travelling, and should give timely notice to the conductor 
 that he will require longer delay at the station than usual for the purpose of alighting. New 
 Orleans, etc., E. R. Co. v. Statham, 42 Miss. 607. 
 
 If a train stops at a station and remains a reasonable time for passengers to alight, the 
 company wiU not, in the absence of proof of mismanagement of the train or careless conduct 
 on the part of the employees, be held liable for injuries to passengers who did not avail them- 
 selves of the opportunity to alight, and were injured in leaving the cars after the train was 
 in motion. Illinois Central R. R. Co. v. Slatton, 54 111. 133. Lucas v. New Bedford & Taunton 
 R. R. Co., 64 Gray. But where a passenger, by the wrongful act of the company, is put to an 
 election between leaving the cars while they are moving slowly, or submitting to the incon- 
 venience of being carried by the station, where he desires to stop, the company will be held 
 liable for the consequences of the choice provided it is not exercised wantonly or unreason- 
 ably. FUer V. New York Central E. E. Co. , 49 N. Y. 47. See Lambeth v. North Carolina R. R. 
 Co., 66 N. C. 494. But see Jeffersonville R. E. Co. v. Hendricks, 26 Ind. 228 ; JeffersonviUe 
 R. R. Co. V. Switt, id. 469. 
 
 («) Toy V. Lond., Bright. & South Coast Ewy., 18 C. B., N. S. 225. 
 
 (M) Cockle V. Lond. & South-East. Ewy., L. E., 5 C. P.^7 (L. E., 7 C. P. 321). 
 
 (») Bridges v. North London Ewy., L. E., 6 Q. B. 377. Where a train passed beyond the 
 platform and stopped, leaving one of the cars over a culvert, and on the calling of the name 
 of a station by the conductor, a passenger attempted to alight and was injured by reason of 
 darkness and inability to see where the train was standing, the company were held liable. 
 Col. & Ind. Central E. R. Co. v. FarreU, 31 Ind. 408. Wherever passengers are accustomed to bs 
 received upon a train, whether at the station house, at the water tank or elsewhere, the com- 
 pany is bound at its peril to keep the ordinary space in which passengers go to and from the 
 train, in a safe condition for transit ; and passengers have a right to assume, that the ground 
 adjacent to the cars within the limits in which persons necessarily and naturally go to *nd 
 from them, admits of their getting in and out in safety, even in a dark night. Hulbert v. New 
 York Central R. R. Co., 40 N. Y. 145. But if a railway train is stopped at night, merely for 
 the purpose of allowing a train which is expected from the opposite direction, to pass by, 
 and no notice is given by the servants of the company to passengers that they may leave the 
 cars, a passenger who, nevertheless, leaves the cars and is injured by walking into an open 
 cattle guard, cannot recover therefor in an action against the company. Frost v. Grand 
 Trunk E. E. Co., 10 Allen, 387. 
 
 As a general rule, where a railway company have provided a depot and convenience for 
 getting on and oflT its trains, passengers have no right to get on or off at other places, and to 
 attempt to do so would be such negligence as would prevent a recovery for injuries received 
 thereby. But where the company has been inthehabit of receiving and discharging passen- 
 
472 NBaLiOBNCE. [Chap. 8 
 
 into a railway carriage, puts Ms hand on the open door to assist him 
 in getting in, and the guard, without any previous notice(w), shut the 
 door, and so crushed the passenger's finger, the railway company were 
 held responsible(a!). 
 546 When the very occurrence ofdraUmwy accident is primd facie proof of 
 negligence. — ^When both the railway itself, and the carriages in which 
 the passengers are conveyed, are under the exclusive control of the 
 company carrying the passengers, the very fact of a train's running 
 oflF the line has been held to be primt^fade proof of negligence on the 
 part of such company, or its officers, and throws upon them the burden 
 of explaining how it happened, and of showing that it occurred without 
 any fault or neglect of duty on their part(2/). And it is not sufficient 
 to show that other companies had running powers over their line, with- 
 out showing affirmatively that it was through the negligence of such 
 other companies that the accident occurred(z). But if the accident is 
 primd facie caused by negligence of some third person, for whom the 
 defendants are not responsible, e.g., a contractor engaged in placing 
 iron girders over the defendant's line for some third person, it must be 
 shown that the accident resulted from, or might not have occurred, but 
 for the defendant's omitting to take some precaution usually adopted 
 in such cases(a). If it appears that the train went off the rails when 
 travelling at a moderate speed, and that the wheels of the carriages 
 and engine were properly constructed, and the railway itself was 
 properly made and in good order, and that the departure of the engine 
 and carriages from the rails might have been occasioned by the mali- 
 cious trespass of a stranger {ante, p. 383), there will be nothing to es- 
 tablish even a primd facie case of negligence against the company(A). 
 But if the railway bridged or viaducts have not been properly con- 
 gers at other places, it is not negligence for passengers to get on or off at these places while 
 the train is standing still, and there is no apparent danger in so doing. Keating v. New York 
 Central & Hudson Biver R. B. Co., 49 N. Y. 673. And see Hnlbert v. New York Central B. B. 
 Co.,40N. Y. 115. . 
 
 (TO) See Biohardson o. Metropolitan Bwy., L. B., 3 C. P. 374, n. 
 
 (x) Fordham v. Brighton Bwy. Co., L. B., 3 C. P. 368 ; 4 ibid. 619 ; 38 I/. J., C. P. 324. 
 
 (f) Carpne v. Lond. & Br. Bail. Co., 5 Q. B. 761. Latch v. Bnmner Rail. Co., supra. Daw- 
 son V. Manch., etc.. Bail. Co., 5 Law T. B., N. S. 682. See Scottsj. Lond. Dock Co., 34 Law J., 
 Bxch. 17 ; ib. 220 ; Curtis v. Bochester & Syracuse K. R. Co., 18 N. Y. 534 ; Meier v. Pennsyl- 
 vania E. E. Co., 64 Penn. St. 225 ; SttUivan v. Philadelphia & Beading R. E. Co., 6 Casey, 234 ; 
 Laing v. Colder, 8 Barr. 482 ; Shearm. & Bedf. on Negl., S 280 ; Bedf. on Bailw., } 1760. As to 
 interrogatories in cases of collision, see Beckervaise v. Gt. West. Ewy., L. B., 6 C. P. 36. 
 
 («) Ayles V. South-Bast. Rwy., L. R., 3 Exch. 146. See Webster e. Hudson River R. E. Co., 
 38 N. Y. 260 ; Chapman v. New Haven B. E. Co., 19 N. Y. 341 ; Colegi-ove v. New York & New 
 Haven & New York & Harlem B. E. Co.. 20 N. Y. 492. 
 
 (a) Daniel ». Metropolitan Ewy., L. E., 3 C. P. 216 ; 3 ibid. 591 ; 5 Engl. & Ir. App. 45. 
 
 (i) Bird v. Gt. Northern Eail. Co., 28 Law J., Exch. 3. Curtis e. Bochester & Syracuse B. 
 E. Co., 18 N. Y. 534-536. 
 
Sec. 1.] SAIL WAT OB COACB ACCIDENTS. 473 
 
 etructed, or have not been carefully maintained and repaired, so as to 
 enable them to resist the violence of storms and floods which may be 
 expected occasionally, to occur, and injuries are thereby caused to pas- 
 sengers(c), the railway company will be responsible in damages, 
 although they may have employed competent engineers and workmen, 
 and have used the best materials in the work(cZ). 
 547 Acoidents at level crossings. — "When a railway crosses a turnpike-road 
 on a level adjoining to a station, the trains must slacken their speed 
 before arriving at the turnpike-road, and cannot, unless there is some 
 special provision to the contrary in the particular Act under which the 
 company is incorporated, cross the same at any greater rate of speed 
 than four miles an hour(e). And even where the crossing is not near 
 a station, but there are circumstabces making that particular crossing 
 exceptionally dangerous, the mere occurrence of an accident to a foot 
 passenger crossing the line, is evidence to go to the jury of negli- 
 gence(/). PHmafade, however, a foot-passenger crossing a railway 
 on the level, is bound to look to his own safety(p') ; and there is no 
 general duty on railway companies to place watchmen at public foot- 
 ways, or accommodation roads, crossing the railway on a level, to warn 
 persons using the footway or road(A). Where, therefore, the view of 
 the line from one of the gates was obstructed by a pier, but from the 
 level of the line there was a clear view of 300 yards each way, and a 
 person, crossing the line immediately after a train had passed, was 
 killed by a train coming the other way, it was held that there was no 
 evidence of negligence against the railway company(i). Where, how- 
 ever, the plaintiff took the precaution of looking up and down the line, 
 
 (c) Gt. West., etc., of Canada ». Fawcett, 1 Moore's P. C, N. S. 101. 
 
 (d) Grote v. Chester & Holyhead Bail. Co., 2 Exoh. 255. See Taylor V. Grand Trunk E. K. 
 Co.,48N. H. 304. 
 
 (e) 8 & 9 Vict. o. 20, s. 48. 
 
 (/) Bilbee v. Lond. & Brighton Bwy., 34 Law J., C. P. 182. 
 
 (g) Skeltou». L. &5r. W. Rwy., L. R.,2 0. P. 631. A traveller approaching a railroad track 
 is bound to use his eyes and ears so far as there is an opportunity ; and when by the use of 
 those organs, danger may be avoided, the omission is such negligence as wiU bar a. recovery 
 for injuries received upon the track, notwithstanding the negligence of those in charge of the 
 train in omitting to sound the whistle or ring the bell. Gorton v. Brie R. R. Co., 45 N, Y. 660. 
 Ernst V. Hudson R. R. Co., 39 ST. Y. 61. Havens v. Brie R. R. Co., 41 N. Y. 296. Wilcox v. 
 Rome, Watertowu & Ogdensbnrgh R. R. Co., 39 N. Y. 358. Grippen v. New York Central E. 
 R. Co., 40 N. Y. 34. Gonzales v. New York & Harlem R. R. Co., 38 N. Y. 440. Mitchell «. N. 
 Y. Central & Hudson R. R. Co., 6 N. Y. Sup. Ct. 122. Davis v. New York Central & Hudson 
 R. K. Co., 47 N. Y. 400. Stevens v. Oswego & Syracuse R. E. Co., 18 N. Y. 422. Telfer v. 
 Northern R. R. Co., 1 Vroom (N. J.), 188. Butteriield ». Western R. R. Co., 10 Allen (Mass.), 
 532. 
 
 (7j) Cliff w. Midland Rwy., L. R,, 5 Q. B. 258. Beisiegel v. New York Central R. R. Co., 40 
 N. Y. 9. Ernst 1). Hudson River R. E. Co., 39 N. Y. 61. 
 
 (j) Stubley v. L. & N. W. Rwy., L. E., 1 Exch. 13. 
 
474 NEGLIGENCE. [Chap, 8. 
 
 but owing to the fogginess of the morning could not see an engine 
 coming, and the engine man never whistled, it was held that there 
 was evidence of negligence(y). If there is a public carriage way over 
 the railway, alongside of the footway, and the servant in charge of 
 the carriage gates has left them open, this is so far equivalent to a 
 representation by the railway company that all is safe, as to amount 
 to evidence of negligence in case the foot-passenger is injured in 
 crossing the line(A:). Where one of the public carriage gates at a level 
 crossing is also the only exit out of a private yard across the railway, 
 and the driver of a cart coming out of the private yard asks the rail- 
 way gatekeeper if he may cross, and is answered in the affirmative, 
 the company will be responsible if the cart is run into by a train(Z). 
 548 Injuries from secret defects in carriages or race-stands. — A coach with 
 a defective axle-tree is not roadworthy, and a coach-proprietor who 
 sends out a coach with such a defect is responsible for the conse- 
 quences to a passenger, whether he does or does not know of the defect 
 at the time the coach starts('m), provided the defect could have been 
 discovered on due examination, or could have been guarded against 
 
 • 
 
 (.3) James v. Gt. West, itwy., L. E., 2 C. P. 634, n.; 36 Law J., C. P. 265, u. Where a 
 traveller on a public highway approaches a railroad track, and can neither see nor hear any 
 indication of a moving train, lie is not chargeable with negligence for assuming that there is 
 no oar sufficiently near to make the crossing dangerous ; and he has a right to presume, that 
 in handling their cars, the railroad company wiU act with appropriate care, and that the 
 nsual signals of approach will be seasonably given, and that the managers of the train will 
 be attentive and vigilant. Kennayde v. Pacific E. E. Co. 45 Mo. 2S5. Tabor v. Missouri 
 Valley E. E. Co., 46 Mo. 353. See also LangholTi;. Milwaukee, etc., E. E. Co., 19 Wis. 489. 
 And where a raili-oad company has by its own act obstructed the view of travellers upon the 
 public highway, so that the app,roaeh of a train to a crossing cannot be seen until the traveller 
 is upon the track, the company will be deemed guilty of negligence if the tra'^eller is injured 
 at the crossing after having taken due precautions to ascertain the approach of a train. An 
 omission to stop his team before going upon the crossing is not contributory negligence in 
 such cases. Mackay v. New Tork Central E. E. Co., 35 Jf . T. 75 ; Ingersol v. N. T. Cent. & 
 Hudson E. E. Co., 6 N. Y. Sup. Ct. 416. And where the railroad is carried across the high- 
 way in such a manner as to prevent a traveller upon the highway from seeing or hearing an 
 approaching train until too late to avoid a collision, the company will be liable for such 
 collisions in the absence of negligence on the part of the party injured, notwithstanding the 
 company gave the statutory warnings. Eichardson v. New York Central E. E. Co., 45 N. Y» 
 846. 
 
 For a railroad company to make a running switch over a crossing in a populous part of a 
 village is ^cr se an act of criminal negligence, and proof of injury sustained at such crossing 
 by the act of making such switch will warrant a recovery against the company without 
 other proof of negligence. Brown v. New York Central E. E. Co., 32 N. Y. 597. As to the 
 effect of contributory negligence in such case, see Illinois, etc., R. E. Co. v. Baches, 55 lU, 
 379. 
 
 (Ic) Stapley». I/.,B., & South Coast Ewy.,L.E.,lEx;ch. 21. Wanless «. North-East. Ewy., 
 L. E., 6 Q. B. 481. 
 • (I) Luuto. L. &N. W. Ewy., L. E., 1 Q. B. 277. 
 
 (m) Sharp v. Grey, 9 Bing. 459 ; 2 M. & So. 623. Gaselee, J., observing that there was a 
 material distinction between that case and the case of Christie v, Griggs, 2 Campb. 79. See 
 Grote V. Chester & Holyhead Bail. Co., 2 Exch. 265. 
 
Sec. l.J COLLISIONS IN BIGHWATS, ETC. 475 
 
 in the manufacture(ra). A coach which is overloaded is not roadworthy, 
 and if it upsets, in consequence of its being top-heavy, the coachman 
 and coach-proprietor will be responsible in damages(o). 
 
 The same principle applies to persons who cause stands or buildings 
 to be erected to enable the public to view sights, such as horse-races ; 
 and the person who causes such a building to be erected, and receives 
 the money for admission, will be responsible for the negligence of the 
 contractor, although he was a competent person to be employed for 
 such a purpose, and although the defect in the building or stand was 
 not one capable of being ascertained by inspection ; for the law in 
 such a case implies a warranty that due care has been used in the 
 construction of the stand not only by the defendant, but by those 
 whom he employed to erect it, and that it was reasonably fit for the 
 purpose for which it was erected(p). 
 549 Collisions in public thoroughfares — Negligent dming. — A person driv- 
 ing a carriage is not bound to keep on the regular side of the road ; but 
 if he does not, he must use more care, and keep a better look out, to avoid 
 collision, than would be necessary if he were on the proper part of* the 
 road(g). A foot-passenger is not bound to keep on the foot-pavement; 
 
 (71) Keadhead ». Midland Ewy., ante, p. 468. Hadley v. Cross, 34 Vt. 586. Ingalls v. Bills, 
 9 Mete. 1. See Hegeman v. Western R. E. Co., 13 N. Y. 9 ; Taylor v. Grand Trunk E. E. Co., 
 48 N. H. 304. 
 
 (o) Israel v. Clarke, 4 Esp. 259. Aston v. Heaven, 2 Esp. 535. 
 
 (p) Francis v. Cookrell, L. E., 5 Q. B. 184 ; ibid. 501. 
 
 (g) Pluckwell v. Wilson, 5 C. & P. 375. See Kelsey v. Barney, 12 N. Y. 425, 429; Burnham 
 V. Butler, 31 N. Y. 480. In New York, as in many other States, it is provided by statute that 
 when persons travelling in carriages shall meet on a road or highway, they shall seasonably 
 turn their carriages to the right of the centre of the road so as to permit such-caniages to 
 pass without interference or interruption. 1 R. S. 695, s.l. 
 
 Under this statute travellers in carriages are required to keep to the right of the centre of 
 the worked part of the road, although the whole of the smooth or travelled part may be upon 
 one side of that centre. Earing ». Lansing, 7 Wend. 185. But in the winter, when the road 
 is covered with snow, the centre of the highway within the meaning of the statute is the 
 centre of the beaten or travelled track. Smith v. Dygert, 12 Barb. 613. Jaquith v. Richard- 
 son, 8 Mete. 213. The law of the road does not apply to persons on horsehaok- Dudley ». 
 BoUes, 24 Wend. 485. Nor to the meeting of railway cars and ordinary vehicles where the 
 track of the railway is laid along a street or highway. Hegan v. Eighth Avenue E. R. Co., 
 15 N. Y. 380. 
 
 The fact that a carriage was unnecessarily on the left of the middle of the travelled part 
 of a road will not prevent a recovery for injuries from a collision with another carriage turn- 
 ing in from a cross road and negligently driven. Smith v. Gardner 11 Gray (Mass.), 418. 
 See Lovejoy ». Uorlon, 10 Cush. (Mass.) 495. Nor will the statute requiring the traveller to 
 keep to the right justify him in stubbornly keeping on that side and thus causing a collision 
 which a slight change on his part might have avoided. O'Maley v. Dorn, 7 Wis. 236. When 
 a light vehicle can safely pass to the left of a heavily-loaded team it is the duty of the driver 
 of the former to give way to the latter. Grier v. Sampson, 27 Penn. St. 183. Beach v. Par- 
 menter, 23 X'enn. St. 196. See Washburn v. Tracy, 2 Chip. 136. 
 
 Vehicles not moving or passing, are not required to occupy any particular part of the road. 
 Johnson v. Small, 5 B. Monroe, 26. And where two vehicles are going the same way, the 
 driver of the one in advance may take the middle or either side of the road at his pleasure, 
 
476 NEGLIGENT DRIVING [Chap. 8. 
 
 he has a right to walk in the camage-way, and is entitled to the 
 exercise of reasonable care on the part of persons driving carriages 
 along it(r). " It is the duty of persons who are driving over a crossing 
 for foot-passengers to drive slowly, cautiously, and carefully; but it 
 is also the duty of a foot-passenger to use due care and caution in 
 going upon a crossing, so as not recklessly to get among the car- 
 riages "(«)■ If a person driving his own carriage takes another person 
 into it as a passenger, such person cannot be subjected to an action 
 in case of any misconduct in the driving by the proprietor of the 
 carriage, as he had no care nor concern with the carriage ; nor, in 
 case of an accident happening, has he any right of action against the 
 proprietor, except in case of gross negligence(i) ; but if two persons 
 were jointly concerned in the carriage, as if both had hired it together, 
 both will be answerable for any accident arising from the misconduct 
 of either in the driving of the carriage whilst it was so under their 
 joint care(M). It is not enough to give warning to a person to get out 
 of the way of a carriage to exonerate parties from responsibility for 
 care]*essness(«). 
 550 Liahilityof the master for the negligence of his sercant. — Whatever a 
 servant does in order to give effect to his master's will may be treated, 
 as we have seen, as the act of the master(w). But if my servant 
 without my knowledge, wrongfully takes my carriage, or my horse, 
 for his own purposes, and drives against another person's carriage, 
 I shall not be responsible for the inj ury ; for when the servant takes 
 the master's carriage or horse, and uses it under such circumstances, 
 he gains a special property for the time being in the chattel, and 
 makes it for the time, and for the particular wrongful purpose, his 
 owu(a;). Where the defendant's coachman was driving the defend- 
 
 and is under no obligation to turn to either side to allow the other to pass him, provided 
 there is room enough. Bolton v. Colder, 1 Watts, 360. 
 
 Where no statute prescribes how persons shall drive when they meet at the junction of two 
 streets, the rule of the common law applies, and each is required to use such due and rea- 
 sonable care to prevent accident as the circumstances and the place demand. Garrigan v. 
 Berry, 12 AUen (Mass.), 84. 
 
 (r) Boss V. Litton, ib. 407. Baxter o. Second Avenue E. E. Co., 30 How. (N. Y.) 219. Combs 
 • V. Purrington, 42 Me. 332. 
 
 (s) Pollock, C.B., Williams v. Eichards, 8 C. & K. 82. Erie, C.J., Cotton v. Wood, 8 C. B., 
 N. S. 571. Barker v. Savage, 46 N. T. 191. Brooks v. Schwerin, 54 N. T. 343. Belton ». 
 Baxter, id. 245. ' 
 
 («) Moflfatt V. Bateman, L. E., 3 P. C. Ca. 115. 
 
 («) Davey v. Chamberlain, 4 Esp. 229. 
 
 (») WooUey v. Scovell, 3 M. & Ey. 105. 
 
 (w) Ante, p. 30. Alderson, B., Hutchinson w. York & Newcastle Ewy., 5 Exoh. 350. 
 
 (X) M'Manus v. Crickett, 1 East, 106 ; 2 Boll. Abr. 653 ; ante, p. 30. Sleath v. Wilson, 9 C. A 
 P. 607 ; qualified by Seymour o. Greenwood, .<Hi<e, p. 33. See Weed p. Panama E. E. Co., 17 
 N. Y. 362, 365. 
 
SfeC. 1.] BY SERVANTS. 477 
 
 ant's carriage through a narrow street which was blocked up by a 
 luggage-van, containing goods of the plaintiff, which were being 
 unladen, and taken into the plaintiff's house, and behind the van 
 stood the plaintiff's gig, and the defendant's coachman (there not 
 being room for the carriage to pass) got off his box and laid hold 
 of the van-horse's head and moved the van, and caused a large pack- 
 ing-case to tumble on the shafts of the gig, and br^ak them, it was 
 held that the defendant was not liable for the injury, the servant 
 at the time not being in the execution of his master's orders or doing 
 his master's work(g/). 
 
 But whenever the master has intrusted the servant with the control 
 of his carriage or horses, it is no answer that the servant disobeyed 
 his master's orders, and did what he had no business to do, or went 
 where he had no business to go. If the servant, driving his master's 
 carriage, on his master's business, disobeys the express instructions 
 of the latter, and wilfully or maliciously does what he has been ordered 
 not to do, or makes a detour to call on a friend, or to gratify some 
 purpose of his own, and carelessly drives against another vehicle, the 
 master will nevertheless be answerable for the injury ; but if the 
 servant was going on a frolic of his own, without being at all on his 
 master's business, then the master will not be liable(z). 
 
 If an omnibus conductor uses unnecessary violence in expelling a 
 drunken passenger from an omnibus, the proprietor of the omnibus 
 
 (y) Lamh v. Palt, 9 C. & P. 631. 
 
 (z) Ijmpus o. Lond. Gen. Omnibns Co., on<e, p. 33. Joel r. Morrison, 6 C. & P. 503. Mitch- 
 ell V. Crassweller, 13 C. B. 237. Storey v. Ashton, L. E., 4 Q. B. 476 ; 38 L. J., Q. B. 223. Barf 
 I. Yohn, 26 Penn. St, 482. The lest of the master's responsibility for the act of his servant is 
 lot "whether such act was done according to the instructions of the master to the servant, 
 but whether it was done in the prosecution of the business that the servant was employed 
 by the master to do. Thus, if the owner of a building employs a servant to remove the roof 
 Crom his house, and directs him to throw the materials upon his lot, where no one would be 
 endangered, and the servant, disregarding this direction, should carelessly throw them into 
 the street, causing an injury to a passenger, the master would be responsible therefor, 
 although done in violation of his instractions, because it was done in the business of the mas- 
 ter. But, should the servant, for some purpose of his own, intentionally throw material upon 
 a passenger, the master would not be responsible for the injuiy, because it would not be an 
 act done in his business, but a departure therefrom by the servant to effect some purpose of 
 his own. Cosgrove v. Ogden, 49 N. Y. 255. So, if a farmer should direct a servant to take 
 his wagon and horses and take a load of wheat to mill, and on the way to the mill the serv- " 
 ant should wilfully drive the team and wagon over a man and break his leg, the farmer would 
 not be liable. Wright ». Wilson, 19 Wend. 343. 
 
 And the rule may be stated generally that while the master is responsible, civilly, for the 
 fraud, negligence, or other wrongful act of his servant, committed in the transaction of his 
 business, he is not responsible for the wilful injury committed by the servant while so 
 engaged, unless he so act by the express or implied authority of his employer. Mali ». Lord, 
 39 N. Y. 381. VanderbUt v. Kichmond Turnpike Co., 2 N. Y. 479. Story on Agency, ss. 456- 
 462. PhUadelphia & Reading E. E. Co. r. Derby, 14 How. (U. S.) 46S. 
 
478 NEQLIQENT DRIVING. [Chap. 8 
 
 will, as we have seen, be responsible in damages for the misconduct 
 of his servant(a). 
 551 Liabilities of owners of carriages let to hire who select and send their own 
 coachmen. — If carriages and horses are let out to hire by the day, 
 week, month, or job, and the driver is selected and appointed by the 
 owner of the carriage, the latter is responsible for all injuries result- 
 ing from the neglect and careless driving of the vehicle, although 
 the carriage may be in the possession and under the control of the 
 hirer(6). But if the latter drives himself, or appoints the coachman" and 
 furnishes the horses, the owner of the carriage cannot of course be made 
 responsible for the negligence or want of skill of the coachman(c). Two 
 old ladies, being possessed of a carriage of their own, were furnished by 
 a job-master with a pair of horses and a driver by the day, or drive. 
 They gave the driver a gratuity for each day's drive, provided him with 
 a livery-hat and coat, which were kept in their house, and after he 
 had driven them constantly for three years, and was taking off his 
 livery in their hall, the horses started off with their carriage, and 
 inflicted an injury upon the plaintiff. It was held that the defendants 
 were not responsible, as the coachman was not their servant, but the 
 servant of the job-master((i). But if any directions are given by the 
 hirer of the horses to the driver or postillion to break through a line 
 of carriages, or to do any unusual, improper, or aggressive act, or if 
 he interferes so as to take the actual management of the horses into 
 his own hands, he is responsible for any damage done by the driver 
 whilst carrying out the directions given(e). " It is undoubtedly true," 
 observes Parke, B., "that there maybe special circumstances which 
 may render the hirer of job-horses and servants responsible for the 
 neglect of a servant, though not liable by virtue of the general relation of 
 master and servant. He may become so by his own conduct, as by tak- 
 ing the actual management of the horses, or ordering the servant to drive 
 in a particular manner, which occasions the damage complained of "(/). 
 
 (a) Seymour v. GK-eenwood, ante, p. 33. A cab driver employed on the usual terms of pay- 
 ing so mueh a day for liis cab, and keeping the rest himself, is, as between the cab proprietor 
 and the public, the servant of the proprietor, and such proprietor is, therefore, liable for his- 
 negligence. Powles v. Hider, 6 E. & B. 207 ; 26 L. J., Q. B. 331. But as between the cab 
 driver and cab master, the relation is that of bailor and bailee, and as the cab master nrder- 
 takes to supply ahorse reasonably fit to drive, he wiU be responsible to the driver for s ipply- 
 ing an unruly horse which runs away and upsets and injures the driver. Fowler v. Lock, L. 
 E.,7C.P. 272. 
 
 (6) Laugher v. Pointer, B. & C. 572 ; 8 D. & E. 656. Smith ». Lawrence, 2 M. & By. 2. Sam- 
 mell V. Wright, 5 Esp. 262. Dean t>. Brantbwaite, ib. 36. 
 
 (c) Croft V. Alison, 4 B. & Aid. 590. HaU v. Pickard, 3 Campb. 187. 
 
 (d) Quarman ». Burnett, 6 M. & W. 507. Laugher t>. Pointer, 5 B. & C. 547. 
 («) M'Laughlin v. Pryor, 4 Sc. N. E. 665. 
 
 (/) Quarman v. Burnett, 6 M. & W. 4a9. 
 
Seel.] LIABILITIES OF BORROWERS, ETC. 479 
 
 The servant, himself, by whose negligence or want of skill the acci- 
 dent has occurred, cannot defend himself against the claim of a third 
 person by setting up that he was acting under the orders of his master, 
 and that the act complained of was his master's ,act, and that the 
 master alone is responsible(^). 
 
 662 Liabilities of borrowers of carriages for the negligence of thei/r drivers. — 
 A person who has borrowed a horse and chaise for his own use and 
 enjoyment, and who rides about in it, driven by a friend, whom he 
 allows to drive, is responsible for the negligence of the driver, on a 
 declaration charging that he was possessed of, and driving, the horse 
 and chaise, and that the injury was occasioned by his negligent driv- 
 ing(A). 
 
 553 Identification of the passenger with his driver. — ^When a collision 
 between two carriages has been caused by negligent driving on both 
 sides, neither party can recover damages from the other {post, p. 400) ; 
 and it has been held that every passenger who has selected the par- 
 ticular conveyance by which he travels is so far identified with the 
 driver or director of its movements, that if any injury is sustained by 
 him from collision with a rival vehicle, through the joint negligence of 
 his own driver and that of the driver of the rival conveyance, pre- 
 cluding the former from maintaining an action against the latter, the 
 passenger is himself equally precluded, and his only remedy is against 
 his own driver, or the employer of the latter(i). But " it seems highly 
 unreasonable that each set of passengers should, by a fiction, be identi- 
 fied with the coachman who drove them, so as to be restricted for 
 remedy to actions against their own driver, or his employer. Why 
 both the wrong-doers should not be considered liable to a person free 
 from all blame, not answerable for the acts of either of them, and 
 whom they have both injured, is a question which seems to deserve 
 more consideration than it has received"(A). "Where the drivers of 
 two rival omnibuses were competing for passengers, the one endeavoing 
 to get before the other, and both driving at great speed, and in trying 
 to avoid a cart which got in their way, the wheel of the defendant's 
 omnibus came in contact with the projecting step of the omnibus on 
 
 (ff) Alderson, B., in Hutcjiinson v. York & Newcastle R'way., 5 Exoh. 350. 
 
 (ft) Wheatley v. Patrick, 2 M. & W. 650. 
 
 (») Thorogood v. Bryan, 8 C. B. 131. Bi'own v. New York Central E. E. Co., 31 Barb. (N. 
 Y.) 385. Moouey v. Hudson Eiver R. R. Co., 6 Eob. (N. Y.) 648. But see Metcalf v. Baker, 
 11 Abb. N. S. (N. Y.) 431 ; Chapman v. New Haven E. E. Co., 19 N. Y. 341. 
 
 Ik) Note to Ashby v. White, 1 Smith's L. C, 6th ed, 227. See Brown v. New York Central 
 E. E. Co., 32 N. Y. 597 ; Colegrove t>. New York & New Haven and New York & Harlem E. 
 E. Compames, 20 N. Y. 492. 
 
480 NEGLIGENT NAVIGATION. [Chap. 8. 
 
 which the plaintiff was riding, and caused it to swing against a lamp- 
 post, and the plaintiff was thrown off and injured, it was held that he 
 was not disentitled to recover damages from the proprietor of the rival 
 omnibus, by reason, of misconduct on the part of his own driver(Z). 
 
 554 Negligence of servants in hreaking-in and training horses. — In an action 
 n the case brought against a master and his servant, the plaintiff set 
 
 set forth that the defendants brought a coach with two ungovernable 
 horses into Lincoln's Inn Fields, where people were always going to 
 and fro upon their business, and there " improvid6 et absque debits 
 coiisideratione ineptitudinis loci," drove them to make them tractable 
 and fit for a coach, and that the horses, being unmanageable, ran 
 upon and injured the plaintiff; and it was urged that the master, 
 being absent, the action was not maintainable against him, that no 
 knowledge of the horses being unruly, nor any negligence was alleged, 
 but judgment was given for the plaintiff(TO). 
 
 555 CoUisiorts in public thoroiighfares. — The degree of care to be exercised 
 by foot-passengers in a public thoroughfare to prevent collisions with 
 others, depends in a great degree upon the injury that will be likely 
 to result to others from their want of care. Thus a man who traverses 
 a crowded thoroughfare with edged tools, or bars of iron, must take 
 especial care that he does not cut or bruise others with the things he 
 carries. Such a person would be bound to keep a better look-out than 
 the man who merely carried an umbrella ; and the person who carried 
 an umbrella would be bound to take more care in walking with it than 
 a person who had nothing' at all in his hands. 
 
 556 Collisions between wssels — Compulsory pilotage. — If a shipowner un- 
 ecessarily delays mooring his vessel until night comes on, and dark- 
 ness prevents him from distinguishing objects, he will be responsible 
 in damages if he comes into collision with any other vessel, which 
 collision could have been avoided if it had been daylight(w). In every^ 
 case of collision it is the duty of each master to give to the other the 
 name of his vessel, her port of registry, or the place to which she 
 belongs, and the port from which and to which she is bound(o). 
 
 Section 388 of the Merchant Shipping Act, 17 & 18 Vict. c. 104, 
 protects the owners or masters of a ship from liability for loss or dam- 
 
 (2) Bigby v. Hewitt, 6 Exch. 240. Greenland v. Chaplin, ib. 217. And see the remarks of 
 Dr. Lushington, The Milan, 31 Law J., Adm. 112. 
 
 (m) Michael v. Alestree, 2 Lev. 173. 
 
 (n) The Egyptian, 1 Moore, P. C. C, K. S. 373. 
 
 (o) 81 & 35 Vict. o. 110, s. 9. "A shipowner is not liable for a collision arising from an inevit- 
 able accident, i.e., an accident which could not have been prevented by the exercise of ordi- 
 nary care, caution and maritime skill. The Marpesia, L. B., 1 F. C. 212." 
 
Sec. 1.] COMPULSORY PILOTAGE. 481 
 
 age occasioned by the fault or incapacity of any qualified pilot acting 
 in charge of such ship within any district where the employment of 
 a pilot is made compulsory by law(p). If, therefore, a ship, compul- 
 sorily in charge of a pilot, is being towed by a steam tug, and by the 
 negligence of the steam-tug is towed across and brought into colli- 
 sion with another vessel, the owner of the former vessel is not respon- 
 sible, if by giving proper orders the pilot could have avoided the colli- 
 sion(2'), unless there was negligence on his part in the selection of the 
 tug in the first instance, by which the collision was wholly or in part 
 occasioned(f). And this section protects the owners or masters from 
 responsibility for injuries done within the limits of the Thames Con- 
 servancy Act, 1857(s). It will not, however, absolve the owner from 
 responsibility for the neglect of the master to keep a good look out, if 
 such neglect conduces to the collision. It is the duty of the pilot to 
 attend to the navigation, and of the master to keep a good look out(<). If 
 a pilot has been taken on board in pursuance of an Act of Parliament, 
 rendering such employment compulsory, and is in fact in charge of the ' 
 ship at the time of the accident, and the accident occurs through his 
 negligence, the shipowner is absolved from liability under the above 
 section, even though, by reason of an exception in the Act, such 
 employment ceased to be compulsory shortly before the accident 
 occurred(M). But when the employment of the pilot has fairly ceased, 
 the responsibility of the shipowner recommences(«). And if the 
 employment of the pilot is not compulsory, the shipowner, of course, 
 remains liable for his negligence(M). 
 
 (p) The Schwalbe, 14 Moore, P. C. C. 241. The Annapolis, 1 Lush 295. The Peerless, 30 
 Law J., Adm. 89. See Hossack v. Gray, 34 Law J., M. C. 209, as to when an English or 
 Scotch pilot is necessary. The Tyne Improvement Commissioners v. General Steam Naviga- 
 tion Co., L. R., 2 Q. B. 65, as to the port of Newcastle. The Hannah, L. B., 1 Adm. & Ecct 
 283, as to ships (not British) coming up the North Channel, and as to who is a passenger 
 within 6. 354 of the Merchant Shipping Act. (See on the latter point. The Lion, L. E., 2 Adm. 
 & Eocl. 102 ; 2 P. C. Ca. 625.) The Maria, L. E., 1 Adm. & Eccl. 358, as to the port of Hull. 
 Rodrigues v. Meluish, 10 Exch. 110, as to the port of Liverpool. General Steam Navigation 
 Co. V. British & Colonial Steam Navigation Co., L. R., 3 Exch. 830 ; 38 Law J., Exch. 97, as to 
 the limits of the port of London. The fact that the master of a vessel is required hy a State 
 law to take a pilot, does not exonerate the vessel from liability for a collision caused wholly 
 through the negligence of such pilot. The China, 7 Wall. (U. S.) 53 ; Camp v. the Marcellus, 
 1 Clifford, C. C. 481 ; The Alabama and the Gamecock 1 Benedict, D. C. 476. 
 
 (g) The Energy, L. E., 3 Adm. & Eccl. 48. 
 
 (r) MarshaU v. Moran, L. E., 3 P. C. Ca. 205. 
 
 (s) Thames Conservators v. Hall, L. R., 3 C. P. 415. See the Thames Conservancy Act, 181)4, 
 27 & 28 Vict. c. 113, and the Thames Navigation Act, 29 & 30 Vict. c. 89. 
 
 [t) The Zona, L. R., 1 P. C. Ca. 426. The Velasquez, ibid. 494. The Minna, L. E., 2 Adm. 
 & Eccl. 97. The Calabar, L. E., 2 P. C. Ca. 238. 
 
 («) General Steam Navigation Co. v. British & Colonial Steam Navigation Co., L. E., 3 Exch. 
 830 ; 38 L. J., Exch. 97. 
 
 (») The Wobnrn Abbey, 38 Law J., Adm. & Eccl. 28. 
 
 (w) The Lion, 38 L. J., Adm. 51 ; L. E., 2 Adm. & Eccl. 102 ; 2 P. C. C. 525. 
 
 At,. Vol. I.— 31 
 
482 NEGLI&ENT NAVIGATION. [Chap. 8. 
 
 The above Act and the Merchant Shipping Act, 1862 (25 & 26 Vict. 
 c. 63, s. 54), regulate the extent of the liability of shipowners and 
 owners of shares in sea-going ships where, without any actual fault or 
 privity on their parts, any loss of life or personal injury is caused to 
 any person being carried in such ship ; also, where any damage or loss 
 is caused to any, goods, merchandise, or other things whatsoever on 
 board any such ship ; also, where any loss of life or personal injury is, 
 by reason of the improper navigation of such sea-going ship, caused 
 to any person carried in any other ship or boat, or is caused to any 
 other ship or boat, or to any goods, merchandise, or other things 
 whatsoever on board any other ship or boat(a;). The cargo laden on 
 board ship is not liable, like the ship itself, to make good the 
 damage(j') ; but freight earned may be(2). 
 
 In case of loss of life, or personal injury, the Board of Trade may 
 cause juries to be summoned to assess compensation (ss. 507, 508), of a 
 very limited character. Provision is made (s. 510) for the application 
 of these damages to the parties entitled to them, and if they are dis- 
 satisfied with the amount they may, on procuring the amount thereof 
 to be refunded, bring an action for the recovery of damages under 
 various discouraging limitations and restrictions. Nothing, however, 
 in the Act is to lessen or take away any liability to which any master 
 or seaman, being also owner, or part owner, of the ship to which he 
 belongs, is subject in his capacity of master or seaman (s. 516). 
 
 Proceedings in rem in the Admiralty Court are no bar to proceed- 
 ings elsewhere in personam; such proceedings being for the purpose 
 of enforcing a marine lien. If, therefore, the person injured has sus- 
 tained damage beyond what the lien realizes, he may recover it by 
 suing the person guilty of the negligence at common law(a). The 
 Admiralty Courts Act, 1861 (24 Vict. c. 10), enacts by s. 7, that the 
 Court of Admiralty " shall have jurisdiction over any claim for damage 
 done by any ship," and it has been held by the Privy Council that 
 the effect of Lord Campbell's Act, 9 & 10 Vict. c. 93, in conjunction 
 with the above provision, is to give a new right to the representatives 
 of a person killed in a collision between two vessels, enforceable against 
 
 (k) As to the method to be adopted in asoertaming the liahility of the defendants for the 
 several sorts of damage, see Nixon v. Roberts, 1 Johns. & Hem. 742-748 ; 80 Law J., Ch. 844 ; 
 Glaholm v. Barker, L. E., 2 Eq. Ca. 598 ; S. C.X Ch. App. 223. See as to interest upon the 
 damage from the date of the collision, The Northnmbria, L. E., 3 Adm. & Eocl. 6. 
 
 (y) The Victor, 1 Lush. 72. 
 
 (a) The Orpheus, L. E., 8 Adm. & Eccl. 308. 
 
 (o) Nelson e. Conch, 33 Law J., C. P. 4$. As to proceedinga against the ship, see Ohrloff v. 
 BrisoaU, L. E., 1 P. C. Ca. 231. 
 
Sec. l.J COLLISIONS WITH FOREIGN SHIPS, ETC. 483 
 
 the ship which was in fault in the Court of Admiralty, as well as 
 against the persons guilty of negligence in a court of common law(6). 
 But the Court of Queen's Bench has recently dissented from these 
 decisions, and has prohibited the prosecution of such an action in the 
 Court of Admiralty(c). 
 
 557 Collisions with foreign ships. — The regulations for preventing collisions 
 contained in 25 & 26 Vict. c. 63, are expressly extended (ss. 57-64) to 
 foreign ships navigating within British jurisdiction, and may be 
 extended to the high seas by-consent of foreign countries in the manner 
 therein mentioned(d). If a foreign shipowner sues a British ship- 
 owner in the Court of Admiralty here for a collision occurring in foreign 
 waters, and the defendant pleads that by the foreign law pilotage was 
 compulsory in the place where the collision occurred, and that the 
 damage was caused by the pilot's negligence, the plaintiff cannot reply, 
 that by the foreign law the defendant continued liable for the damage; 
 for, in a case of tort, the municipal law of a foreign country cannot 
 be invoked against the admitted principles and practice of our own(e). 
 
 558 Non-observance of statutory or Admiiralty regulations. — Under the Mer- 
 chant Shipping Acts, 17 & 18 Vict. c. 104, ss. 295-299, and 25 & 26 
 Vict. c. 63, s. 25, et seq., and Sched. Table C, regulations are to be 
 made by the Admiralty for the exhibition by steamboats and sailing- 
 vessels of lights at night in such places and under such circumstances 
 as the Admiralty think fit, and certain rules are required to be 
 observed by vessels passing each other(/) ; and it is enacted, that if 
 a collision between vessels appears to have been occasioned by, or would 
 not have happened but for, the non-observance of the Admiralty or 
 statutory rules, the vessel by which any rule has been infringed shall 
 (s. 29) be deemed to be in fault(^), unless it appears to the court that 
 the circumstances made a departure from the regulations necessary — 
 i.e., in order to avoid immediate danger — and that the course adopted 
 by the parties so departing from the regulations was reasonably calcu- 
 
 , (J) The Guldfaxe, 2 Adm. & Ecol. 325; 38 L. J., Adm. 12. The Beta, L. R., 2 P. C. C. U7; 38 
 L. J., Adm. 50. The Explorer, L. B., 3 Adm. & Eocl. 289, w.here the person killed was a 
 foreigner. The George and Richard, L. E., 3 Adm. & Bool. 468, where the claim was by an 
 infant en ventre sa mere. 
 
 (c) Smith ». Brown, L.E., 6 Q. B. 739, per Cocltburn, C.J., and Hannen, J., dub. Black- 
 burn, J. 
 
 (d) See The Amalia, Br. & L. 151. 
 
 (e) The HaUey, L. E., 2 Adm. & Eccl. 8; 2 P. C. Ca. 193. See The Mali Ivo, L. E., 2 Adm. 
 & Eocl. 356. 
 
 (/) General Steam Navigation Co. ». Hedley, L. E., 3 P. C. Ca. 44. 
 
 is) Dowellp. Gen. St. NaY. Co., 5 Ell. &B1. 195; 26 Law J., Q. B. 59. The James, 1 Swabey, 
 60. Grill ». Iron Screw Collier Co., L. R., 1 C. P. 600 ; 3 ibid. 476. The Esk, L. E., 2 Adm. 
 & Ecol. 350. The Fenham, L. E., 3 P. C. Ca. 212. 
 
484 NEGLIGENT NA VIGATION. [Chap. 8. 
 
 ' lated to avoid a collision(A) ; and in case of damage to person or 
 property from non-observance of any rule, the same shall be deemed 
 to have been occasioned by the wilful default of the person in charge 
 of the deck of the vessel, unless it appears to the court that the circum- 
 stances made a departure from the regulations necessary(i). 
 
 The old rule of the Admiralty Court, therefore, that if the owner of 
 one ship brings an action against the owner of another ship for damage 
 by collision, and both vessels be to blame, the damage shall be divided, 
 has, to a certain extent, been supers^ed by the provisions of this 
 statute(j"). But the owner on board a ship that has violated the pro- 
 visions of this statute, and so contributed to the collision, is not pro- 
 hibited by the Merchant Shipping Act from recovering compensation, 
 in accordance with the old rule of the Admirality to the extent of a , 
 moiety of his loss(A). 
 
 Notwithstanding this statute, and the Admiralty regulations founded 
 thereon, persons, in navigating their vessels, are still bound to keep a 
 good look-out, just as they were before these regulations were made ; 
 and if it could clearly be made out that a vessel, having no light, had 
 been run down by another vessel, from sheer carelessness and negli- 
 gence in not keeping a gqod look-out, the owners of the former vessel 
 would have a right to compensation from the latter(^). Every vessel, 
 whether close-hauled or at anchor, is bound to show a light(??7,), and, if, 
 in consequence of a vessel, which is lying across the channel leading 
 into the harbor, not exhibiting a light, another vessel, to avoid a col- 
 lision with her, runs aground or against a sea-wall and receives 
 damage, the former vessel will be liable(w). And the master, when 
 the ship is at anchor, is bound to keep a sufficient crew on board, to 
 protect her against ordinary perils(o). Although the damage resulting 
 from a collision may be greatly increased by some neglect or default 
 on the part of the plaintiff, yet if the plaintiff's neglect has not caused 
 or contributed to the collision, he is not thereby precluded from recov- 
 ering damages(p) ; but if the fault of the plaintiff himself is the proxi- 
 
 « 
 
 (ft) See The Agra and Elizabeth Jenkins, L. K., 1 P. C. 501. 
 
 (») See The Concordia and The Spring, L. E., 1 Adm. Ca. 93, 99. 
 
 ( j) Lawson v. Carr, 10 Moore, P. C. C. 162. 
 
 (ft) The Milan, 31 Law J., Adm. 105. 
 
 (J) Morrison v. Gen. Steam Nav. Co., 8 Exoh. 738. See Inman v. Eeok, L. R., 2 Pr. Co. Ca. 
 
 25. 
 (m) The Eclipse, 31 Law J., Adm. 201. See The Esk, L. E., 2 Adm. & Bocl. 350. The John 
 
 Fenwlck, L. E., 3 Adm. & Eccl. 500 ; Lenox v. Winisimmet Co., Sprague, 160. 
 
 (n) The Industrie, L. E., 3 Adm. & Eccl. 303. 
 
 (0) The Excelsior, L. E., 2 Adm. & Eccl. 268. 
 
 (i>) Greenland v. Chaplin, 5 Exch. 247. Hoffman ». Union Ferry Co, of Brooklyn, 47 N. T, 
 176. Haley v. Earle, 30 N. T. 208. 
 
Sec. l.J NON-OBSERVANCE OF ADMIRALTY REGULATIONS. 485 
 
 mate cause of the collision, he cannot recover in a court of common 
 law(g) : if it is only remotely connected with the accident, then the 
 question is, whether the defendant, by ordinary care, might have 
 avoided the accident, and if he might, the plaintiff is entitled to 
 recover(r). In all cases of collision between ships, it is the duty of the 
 persons in charge of each ship to render all practicable assistance, 
 and, in case of failure so to do, with no reasonable excuse shown, the 
 neglect will be prima, facie evidence of negligence on the part of the 
 person in charge so making default(«). The person in charge under 
 this section is the mate or master, as the case may be(i), and the 
 mere fact of there being a pilot compulsorily in charge of the ship, is 
 not sufficient to exempt the owners from responsibility(w). 
 
 A Queen's officer, stationed on board ship to do his duty there, 
 together with others equally appointed; and stationed there by the 
 same authority to do their several duties, is not responsible in damages 
 for injuries occasioned by the negligence of his subordinate officers in 
 carrying into effect the orders given by him in discharge of his public 
 duty. Therefore, the captain of a sloop-of-war is not answerable for 
 damage done by her in running down another vessel during the watch 
 of the lieutenant who was upon the deck, and had the actual direction 
 and management of the steering and navigating the sloop at the 
 time(c). 
 
 The mere fact of a ship being chartered and employed by the Grov- 
 emment as an armed vessel, and having a commander of the navy on 
 board, under whose orders the vessel is navigated, will not exempt the 
 shipowners from responsibility for injuries occasioned by the negli- 
 gence of a master and crew shipped on board and paid by them(w). 
 Nor will the fact that a vessel has been chartered by third persons 
 exempt the shipowners from liability for the negligence of the master 
 in the stowage of goods shipped on board, unless the charter-party 
 amounts to a demise of the ship(a;). But no action is maintainable 
 against the owners of a transport in the employ of Government for 
 damage done in the careful and proper execution of the orders of a 
 
 (9) 'Sot can he claim salvage. The Capella, L. B., 1 Adm. & Eccl. 356. 
 
 ,vr) Tuff ». Warman, 2 C. B., N. S. 740 ; 28 Law J., C. P. 263. The Vivid, 1 Swabey, 88. See 
 ante, p. 28 ; Austin v. New Jersey Steamboat Co., 43 N. T. 75 ; Silliman v. Lewis, 49 N. T. 379 
 
 (s) 25 & 26 Vict. c. 63, s. 33. 
 
 (fl See Ex parte Ferguson, L. E., 6 Q. B. 380. 
 
 («) The Queen, L. K., 2 Adm. & Eccl. 3.54. As to negligence while performing salvage ser- 
 vices, see The Thetis, L. K., 2 Adm. & Eccl. 365. 
 
 \v) Nicholson v. Mouncey, 15 East, 384. 
 
 (M) Fletcher v. Braddick, 2 B. & P. N. R. 182. Best, J., Scott v. Scott, 2 Stark. 438 
 
 (x) Sandeman v. Scnrr, L. B., 2 Q. B. 86. 
 
486 NEGLIGENT NAVIGATION. [Chap. 8. 
 
 Government officer, under whose command the vessel was at the time 
 of the accident, unless the order was only meant to apply to a partic- 
 ular state of circumstances, and leaves a certain discretion in the mas- 
 ter of the transport, and the circumstances change, and the master care- 
 lessly and imprudently fails to direct his conduct in accordance with 
 the altered circumstances and the requirements of good seamanship(2/). 
 
 559 OoUisions between vessels — LimitaUon of liability. — The ninth part of 
 the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, s. 502, et seq., 
 contains various provisions for limiting *the liability of shipowners in 
 certain cases to the value of the ship and freight, etc., and the 514th sec- 
 tion provides, that in cases where any liability has been incurred by any 
 shipowner in respect of loss of life, personal injury or damage to ships 
 or goods, and several claims are made or apprehended, the Court of 
 Chancery may entertain a suit for the purpose of determining the 
 amount of such liability, and for its distribution rateably among the 
 claimants, and may stop all actions or suits in other courts in relation 
 to the same subject-matter. This jurisdiction may also be exercised 
 by the Court of Admiralty under the 13th section of the 24 Vict. c. 
 24, in cases where the ship or the proceeds thereof are " under arrest" 
 of the court. The Court of Admiralty has jurisdiction under the 
 above section, to entertain a suit for limitation of liabilitjr'in cases of 
 damage caused by a collision between two vessels, although the vessel, 
 on behalf of which the application is made, was sunk by the collision, 
 and cannot therefore, strictly speaking, be "under arrest" of the 
 court. And if the court orders that all actions in other courts in rela- 
 tion to the subject-matter of the suit be stopped, this will operate to 
 stop an action brought in a court of common law by a third person 
 against the owners of the applicant vessel for loss of goods, delivered 
 by him to them as common carriers, and lost through the colIision(z). 
 The court of common law, however, will not it seems, itself inter- 
 fere to stop the action in pursuance of such an order(ct). 
 
 560 Negligent navigation causing damage to owners of cargoes. — The owner 
 of a cargo on board a ship is entitled, as we have seen, to recover 
 compensajiion for damage sustained by collision through negligence. 
 
 (y) Hodgkinson v. Fernie, 2 C. B., N. S. 415 ; 26 Law J., C. P. 219. 
 
 ;s) The Normandy, L. E., 3 Adm. & Ecel. 152. 
 
 (o) Milbum t>. Lond. & South- West. Ewy., L. K. 6 Exoh. 4. And it has been lately held, 
 that where in such a case the owners of the sunken ship have, in a suit for the collision in the 
 Court of Admiralty, paid into Court 15Z. per ton, on the registered tonnage ol the ship under 
 the 17 & 18 Vict. c. 104, s. 54, the ship, nevertheless cannot be considered as ' under arrest ; ' 
 the Court of Admiralty, therefore, has no jurisdiction to stop a suit commenced in the Com- 
 mon Law Courts, and if it attempts to do so, the plaintiff will be entitled to a wlit of prohi- 
 bition. James v. South- West. Ewy., L. E., 7 Exch. 187, 287. 
 
Sec. 1.] NEGLIGENT STOWAGE. 487 
 
 He may sue the shipowner, if the latter is in default(6), and, if not, 
 he is entitled to sue the wrong-doer causing the damage. And the 
 owner of a cargo on board of one of two delinquent ships is not pre- 
 cluded in the Court of Admiralty from recovering from the other 
 delinquent ship a moiety of the damage he has sustained, for he is not 
 there considered to be in anywise identified with the negligent .man- 
 agement of the ship he has selected to carry his goods, nor to be in 
 anywise responsible for the collision(c). 
 
 561 Duty of master or shipowner as to goods damaged on the voyage. — In 
 every contract to carry for freight there is an implied obligation on 
 the part of the shipowner, that in the event of any disaster happen- 
 ing to the. ship or cargo in a port where correspondence cannot be had 
 with the freighter, the master shall act as his agent, and use his best 
 efforts for the protection and preservation of the cargo. If the cargo 
 is a perishable one, and the vessel is unable to proceed, the master 
 must exercise his judgment whether to tranship the cargo or to pro- 
 ceed. He is not bound materially to delay his voyage to the preju- 
 dice of his owner, but he is not at liberty to carry on the cargo, with 
 the certainty that it will perish or materially deteriorate on the voy- 
 age, for the sole purpose of earning the full freight(cZ). 
 
 662 Negligent stowage causing injury to goods. — ^The 6th section of the 24 
 Vict. c. 10, gives the Court of Admiralty jurisdiction " over any claim 
 by the owner or consignee, or assignee of any bill of lading, of any 
 goods carried into any port in England or Wales in any ship, for 
 damage done to the goods, or any part thereof, by the negligence or 
 misconduct of, or for any breach of duty, on the part of, the owner, 
 master, or crew of the ship," unless any owner or part owner is dom- 
 iciled in England or Wales at the time of the institution of the suit. 
 It has been held that under this section the assignee of a bill of lading 
 may sue the shipowner for the negligent stowage of goods(e), although 
 the property in the goods may not have passed to him(/). Such 
 assignee may also, under the above section, institute civil proceedings 
 against the ship in the Court of Admiralty for the master's misfeas- 
 
 (i) Although the bill of lading contain an exception of " barratry of masters or mariners," 
 and " accidents or damages of the seas, rivers, and steam navigation of whatever nature or 
 kind soever." Lloyd v. Screw Collier Co., 33 L. J., Exeh. 269. Grill v. The same, L. K., 3 
 0. P. 476. 
 
 (c) The Milan, ante, p. 393. As to what is " improper navigation " within the meaning of a 
 deed of indemnity against the consequences of such navigation, see Good v. The Loudon 
 Steam Shipowners' Mutual Protecting Association, L. K., 6 C. P. 563. 
 
 (rf) Notara v. Henderson, L. K., 5 Q. B. 346. jifllrmed on appeal, L. E., 7 Q. B. 225. 
 
 (e) The Figlia Maggiore, L. E., 2 Adm. & Eccl. 106. See The Freedom, L. E., 2 Adm. & 
 Eocl. 346;'3P. C, Ca. 594. 
 
 (/) The Nepoter, L. R., -2 Adm. & Eocl. 375. 
 
I 
 
 488 DANGEROUS EMPLOYMENTS. [Chap. 8. 
 
 ance in cutting down and destroying parte of the ship, and ultimately 
 abandoning her, by which the delivery of the cargo to the assignee 
 was delayed and rendered more expensive(^). 
 
 563 Negligent navigation causing personal injury — Damage to sea walls, etc. 
 — The 7th section of the 24 Vict. c. 10, enacts that the " Court of Ad- 
 miralty shall have jurisdiction over any claim for damage done by any 
 ship." Under this section it has been held that a dock company may 
 sue a ship for injury done through negligent navigation to a break- 
 ■water(A) ; and that a diver who has sugtained injury from a similar 
 cause, may also sue the ship which caused it(i). If a ship, through the 
 negligent navigation of the master, runs aground, and is then driven 
 on to a sea wall by the force of the wind or tide, the shipowner will be, 
 responsible for the damage done to the wall. In the absence of negli- 
 gence, however, the shipowner has a reasonable time for the recovery of 
 valuable property contained in the ship, and, as between him and the 
 proprietor of ^he wall, is not bound to break up the ship immediately(A-). 
 
 564 Negligence of masters causing injury to their servants. — Every workman 
 who engages in a dangerous employment takes it, as we have seen 
 {ante, pp. 223, 224), with all its ordinary risks. The master is bound 
 to provide for the safety of his servant in the course of his employ- 
 ment, to the best of his judgment(^) ; but the law does not impose 
 upon the master the obligation of taking more care of the servant than 
 he may be reasonably expected to take of himself. The servant is 
 not bound to risk his safety in the service of his master, and may, if 
 he thinks fit, decline any service in which he reasonably apprehends 
 injury to himself; and in most of the cases in which danger may be 
 incurred, he is just as likely to be acquainted with the probability and 
 extent of it as the master. The master, therefore, is not responsible 
 for injuries sustained by his servant through the viciousness of the 
 horse which the servant is employed to groom, or through the breaking 
 down of a van or carriage in which the servant is directed by the mas- 
 ter to ride or drive, or from the employer's keeping an insufficient staff 
 of servants for the performance of the work he has to do(m), or through 
 
 (^) The Princess Royal, L. E., 3 Adm. & Eool. 41. Semlle, also, aIthx>Tigh the conduct of tlio 
 master amounted to a criminal offen; e, and no criminal proceedings had been taken against 
 him. 3. C. 
 
 (ft) The Uhla, L. R., 1 Adm. & Eccl. 29, n. 
 
 (j) The Sylph, L. K., 2 Adm. & Eccl. 24. Bat this case can hardly be considered law since 
 the decision in Smith v. Brown, ante, p. 483. 
 
 (it) The Bailiffs of Romney Marsh v. Trinity House, L. R., 5 Exch. 204 ; affirmed on appeal, 
 L. E., 7 Exch. 247. See The George and Richard, L. R., 3 Adm. & Eccl. 466. 
 
 {D Paterson v. Wallace, 1 Macq. 751. 
 
 (m) Skipp V. East. Co. Rail. Co., 9 Exch. 22S. 
 
Sec. l.J DANGEROUS EMPLOYMENTS. 489 
 
 the use of dangerous machinery, with the use of which the servant is, 
 or professes to be acquainted, and which he has voluntarily undertaken 
 to use(«), or for the dangers attendant upon the mounting of scaffolds, 
 or unfinished staircases and landings, which the workman has volun- 
 tarily undertaken to mount with as much knowledge of the attendant 
 risk as the person who employs him(o). 
 
 Where the master's coach broke down through the negligence of a 
 coach-maker wh^ had contracted with the master to furnish the latter 
 with sound roadworthy coaches, and repair them, and keep them in 
 good working order, and, the coachman was mutDated and maimed 
 for life, it was held that he had no remedy for the injury. The law 
 does not permit him to recover damages from his own master and 
 employer. Neither can he sue the coach-maker whose negligence 
 occasioned the injury. " It is no doubt a hardship upon the plaintiff"," 
 observes Rolfe, B., " to be without a remedy, but by that considera- 
 tion we ought not to be influenced "(p). "There would be no end 
 of actions if we were to hold that a person having once done a piece 
 of work carelessly, should, independently of honesty of purpose " (or 
 contract), "be fixed with liability in this way by reason of bad mate- 
 rials or insufficient fastening "(g). 
 
 The master is bound, as we have seen {ante, pp. 223-226), to protect 
 his servant from lament dangers on the master's premises, known to 
 the latter and not known to the servant. If a man employs ignorant, 
 inexperienced workmen in dangerous employments, and exposes them 
 improperly to risks, of which he is cognizant, and which are not 
 known to the ignorant workman, he will be liable for the conse- 
 quences of his misconduct(r). For personal negligence of the master, 
 whereby injury is occasioned to -the servant, the master will be 
 liable(s). And where rules are framed by employers for the purpose 
 of regulating the management and exercise of a dangerous employ- 
 
 (n) Dynen v. Leach, 26 Law J., Exch. 221. 
 
 (o) Assop V. Yates, 2 H. & N. 770; 27 Law J., Exch. 156. Griffiths v. Gidlow, ib. 404, Potts 
 V. Plunkett, 9 Jr. C. L. K. 290. See Lanning v. New York Central R. E. Co., 49 N. Y. 621; 
 Coughtry v. Globe Woolen Co., 66 N. Y. 124. 
 
 (p) Winterbottom v. Wright, 10 M. & W. 115. -Priestly v. Fowler, 3 M. & W, 6. Eiley ». 
 BaxencJale, 6 H. & N. 455; 30 Law J. , Exch, 87. Potts v. Port Carlisle, etc., E, Co., 2 Law 
 T. E., N. 8. 283. See Coughtry v. Globe Woolen Co., 56 N. Y. 124, 127. 
 
 (g) Per Willes, J., Collisc. Selden, L. E, 3 C. P. 498. 
 
 (r) Bartonshill Coal Co. v. Eeid^S Macq. 295. Mellors v. Shaw, 30 Law J., 0. P. 333. 
 Weems v. Matthieson, 4 Macq. H. if C. 215. Farrant v. Barnes, 31 Law J., C. P. 139. Coombs 
 V. New Bedford Cordage Co., 102 Mass. 572. Lalor v. Chicago, Burlington & Quincy E. E. 
 Co., 52 III. 401. Cleghorn v. New York Central & Hudson Eiver E. E. Co., 56 N. Y. 44. 
 
 (s) Ashworth v. Stanwix, 30 Law J., O. B. J83. Kegan v. Western E. E. Co., 8 N. Y. 175. 
 Warner v. Brie E. E. Co., 39 N. Y. 468. Wright v. N. Y. Central E B. Co., 25 N. Y 562 
 Hayden v. Smith ville Manufacturing Co., 20 Conn. 648. 
 
490 NEGLIGENCE OF FELLOW-SERVANTS. [Chap. 8. 
 
 ment, and these rules are carelessly or improperly framed, so as to 
 I cause dangers and risks, which might be guarded against and pre- 
 vented by proper rules carefully prepared, the employers will be 
 responsible for the consequences of their negligence(^). Where statu- 
 tory regulations exist for the management of a colliery(M), and securing 
 the safety of the workmen, and these rules are culpably neglected 
 with the knowledge of the owner of the mine, the latter will be respon- 
 sible for the consequences of his neglect of duty, uiiless the person 
 injured has brought the mischief upoti himself by his own negli- 
 gence(a;). And in a case where machinery is required by Act of Parlia- 
 ment to be protected, so as to guard persons working near it from 
 danger, and a servant complains of the want of protection, and con- 
 tinues to work in the mill near the machinery on the faith of a promise 
 by the master that the requisite protection shall be afforded, the master 
 will be responsible if any accident occurs to the servant in the interval, 
 from the want of such protection, unless the accident has been caused 
 by the negligence of the servant himself(2/). 
 565 Injuries to one fellow-servant from the negligence of another feller 
 servant. — Where several servants are employed by the same master l^ 
 one common employment, the master is not responsible for injury 
 resulting to one of them from the negligence of another, provided the 
 master has taken due care not to expose his serv»nt to unreasonable 
 risks(z), and has been guilty of no want of care in the selection of 
 proper servants(a). The principle laid down is, that a servant, when 
 
 (<) Vose V. Lane, and York. Rail. Co., ante, p. 218 
 
 («) As to ventilation of coUeries, see 33 & 24 Vict. o. 151, o. 10 ; Brough v. Homfray, L. E., 
 3 Q. B. 771. As to statutory regulations under the Factory Acts, see 27 & 28 Vict. c. 48; 30 
 & 31. Vict. c. 103; Kent v. Astley, L.. E., 5 Q. B. 19. And as to the provision of a fan in fac- 
 tories where grinding is carried on, see 30 & 31 Vict. c. 146 s. 8. 
 
 (X) Caswell v. Worth, 5 EU. & Bl. 855. Senior v. Ward, 1 Ell. & Ell. 385; 28 Law J., Q. B. 
 139; and see ante, p. 96, et seq. 
 
 (y) Holmes v. Clarke, 6 H. & N. 349; 30 Law J., Exch. 135. Cowley v. Mayor, etc., of Sun- 
 derland, ib. 127. 
 
 (a) Hutchinson v. York., etc., Eail. Co., 5 Exch. 353. Wiggett v. Fox, 11 Exch. 837; 25 Law 
 J., Exch. 188. Searle v. Lindsay, 11 C. B., N. S. 429; 31 Law J., C. P. 106. Hall v. Jtohnson, 
 34 Law J., Exch. 222.' Wright v. New York Centi-al R. E. Co., 25 N. Y 662. Farwell v. Boston 
 and Worcester E. E. Co. , 4 Mete. 49. Brown v. Maxwell, 6 Hill, 592. Coon v. Syracuse and 
 TJtica E. E. Co., 5 N. Y. 492. Murray v. South Carolina E. E. Co., 1 McMuUan, 385. Hayes ». 
 Western E. E. Co., 3 Cush. (Mass.) 270. Albro v. Agawam Canal Co.; 6 Cush. (Mass.) 75. Ejng 
 V. Boston and Worcester E. E. Co., 9 id. 113. Gilshannon v. Stony Brook Co., 10 id. 228. Sher- 
 man V. Eoohester and Syracuse E. E. Co., 17 N. Y. 153. Chicago and Alton E. E. Co. v. Mur- 
 phy, 63 Dl. 336. Leahey ». Michigan Central E. E. Co., 10 Mich, 199. Lanningu N. Y. Ctnti'al 
 E. E. Co., 49 N. Y. 621. Brickner v. N". Y. Central R. R. Cot 49 N. Y. B72. Flike v Boston and 
 Albany E. E. Co., 53 N. Y. 549. Eussell v. Hudson Eiver E. E. Co., 17 N. Y. 134. 
 
 (o) Tarrant v. Webb, 18 C. B. 805. See Wilson v. Merry, L. E., 1 Scotch & Div. App. 326; 
 Warner o. Erie E. E. Co., 39 N. Y. 468. See Cleghorn v. N. Y. Centi-al and Hudson Eiver E. 
 E. Co., 66 N. Y. 44; Chapman v. Erie E. E. Co., 56 N. Y. 679; Hofnagle v. New York Central 
 and Hudson River E. R. Co., 65 N. Y. 608. 
 
Sec. 1.] NBQLIGENGE OF FELLOW-SERVANTS. 491 
 
 he engages to serve a master, undertakes, as between him and his 
 master, to run all the ordinary risks of the service ; and this includes 
 the risk of negligence on the part of a fellow-servant, whenever he is 
 acting in discharge of his duty as servant of him who is the common 
 master of both(6); and when the risk of injury from the negligence of 
 the one is so much a natural' and necessary consequence of the employ- 
 ment which the other accepts, that it must toe included in the risks 
 which are to be «onsidered in his wages. Thus it has been held that 
 a railway company is not responsible for an injury occasioned to one 
 
 The only ground upon which the law recognizes a liability on the part of the master for 
 injuries to his servant arising from the negligence, carelessness, or misconduct of a fellow- 
 servant engaged in the same general business, is the personal negligence of the master in the 
 employment of unfit and incompetent servants and agents, which negligence was the occasion 
 of the injury, and without which the injury would have been averted. Warner v. Erie R. 
 E. Co., 39 N. T. 471. Wright v. New York Central E. E. Co., 25 N. Y. 865. Laning ». Now 
 York Central E. E. Co., 49 N. Y. 521. A master is bound to use due cai-e and diligence in the 
 selection and employment of his agents and servants, and for want of such care and diligence 
 he is responsible to all other servants for any damage that may thence arise. Moss v. Pacific 
 E. R., 49 Mo. 167. Harper v. Indianapolis and St. Louis E. E. Co., 47 Mo. 567. McDermOtt ». 
 PacifloE. E. Co.,30Mo. 115. Eohbaok u. Pacific E E. Co., 43 Mo. 187. Laning ». New York 
 Central E. E. Co., 49 N. Y. 521. See Lawlor v. Androscoggin E. E. Co., 62 Me. 463. 
 
 The duty of the master to the servant, to employ skilful and competent fellow-servants or 
 to use due and reasonable care to that end, must be aflirmatively and positively performed. 
 It is not enough that the master selects one or more general agents of approved skill and 
 fitness, and confers upon them the power of selecting, purchasing or hiring. 
 
 If the general agent carelessly places by the side of the servant another unskilled and incom- 
 petent, and damage results to the servant in consequence, the master is liable. Laning v. 
 New York Centi-al E. E. Co., 49 N. Y. 521. Walker v. Boiling, 22 Ala. 294. And see Gillman 
 r. Eastern Ec E. Co. , 13 AUen, 433 ; Noyes v. Smith, 28 Vt. 69 ; Hard v. Vermont Centi-al E. E. 
 Co., 32 Vt., 473 ; Prazier v. Pennsylvania E. E. Co., 38 Penn. St. 104 ; Walker v. Boiling, 22 
 Ala. 294 ; Flike v. Boston & Albany E. E. Co., 53 N. Y. 549 ; Chicago & Northwestern E. E. 
 Co. V. Sweet, 45 lU. 197. 
 
 And the master is liable to his servant for injuries caused by the incompetency or want of 
 skUl of a fellow-servant, whether such incompetency existed when such fellow-servant was 
 hired or came upon him since the hiring, if the fellow-servant was in the first instance hired 
 or afterwards continued in service with notice or knowledge or the means of knowledge of 
 such incompetency. Laning v. New York Central E. E. Co., 49 N. Y. 521. Illinois Central 
 E. E. Co. V. Jewell, 46 ni. 99. 
 
 But if the fellow-servant was competent when hired, but has since become incompetent, 
 knowledge of such incompetency must in some way be brought to the master, in order to fix 
 his liability. Davis v. Detroit & Milwaukee E. E. Co., 20 Mich. 105. Chapman v. Erie E. E. 
 Co., 55 N. Y. 679. 
 
 And if both the master and the seiTant injured had equal knowledge or means of knowl- 
 edge of the incompetency of a feUow-servant, and the servant nevertheless continued in his 
 master's seiTice, the servant will be deemed to have accepted the service with the attendant 
 risk, and the master will not be liable unless he has given special directions, or has promised 
 to amend the defect, or held out like inducement for the servant to remain in his service. 
 Laning v. New York Central E. E. Co., 49 N. Y. 521. Davis v. Detroit & Milwaukee E. E. 
 Co., 20 Mich. 105. Indianapolis & Cincinnati E. E. Co. v. Love, 10 Ind. 656. Wright, v. New 
 York Central E. E. Co., 25 N. Y. 662. Hayden v. SmithviUe Manufacturing Co., 29 Conn. 548. 
 Thayer ». St, Louis, Alton & Terre Haute E. E. Co., 22 Ind. 29. Chicago & Noi-thwestem R. 
 E. Co. I;.. Jackson, 66 111. 492, Prazer v. Pennsylvania E. E. Co., 38 Penn. St. 104. Mad Eiver, 
 etc., E, E. Co. V. Barber, 5 Ohio St, 562, ATonder v. Baltimore & Ohio E. E. Co., 32 Md. 411. 
 Patterson v. Eailroad Co., 22 Pittsburgh Leg. Four. 95. Buzzell v. Laconia Manuf Co., 48 
 Me. 113. 
 
 (S) See Morgan ». Vale of Neath Eail. Co., 33 L. J., Q. B. 260. S. C, in error, L. E., 1 Q. B. 
 149. Boldt V. New York Central E. E. Co., 18 N. Y. 432. 
 
492 DANOBBOUS EMPLOYMENTS. [Chap. 8. 
 
 of their own servants by a collision on their railway, caused by the 
 negligence of another of their servants, in respect of which injury 
 they would undoubtedly have been liable if the person injured had 
 been a stranger travelling as a passenger for hire(e). But the servants 
 must be fellow-servants, engaged in a common service(d); for if a 
 farmer's servant, delivering corn at the warehouse of a corn merchant, 
 is injured by the negligence of the corn merchant's servant in taking 
 in the sacks, the com merchant would be answerable for the injury(e). 
 And it is not enough that the servant injured, and the servant causing 
 the injury, should be servants of the same master; they must be 
 employed in the same work : for if a gentleman's coachman was to 
 drive over his gamekeeper, the master would be just as responsible 
 as if the coachman had driven over a stranger(/). Nor is it sufficient 
 
 (c) M'Eniry v. Waterford, 8 Ir. C. L. E. 312. Tuuney ». Midland Kail. Co., L. K., 1 C. P. 
 291. Weger v. Pennsylvania B. K. Co., 55 Penn. St. HSO. Eusaell v. Hudson Biver E. K. Co., 
 17 N. Y. 134; in which case the plaintiff, a laborer, was being carried on the line, in pursuance 
 of his conti'act of service with the company. Hando v. Lond., Chat., & Dover Ball., L. E., 2 
 Q. B. 439, n., oca. 
 
 (d) Lovegrove v. Lond. & Brighton Bail., 33 L. J., C. P. 329. See Connolly v. Davidson, 16 
 Minn. 619 ; GiUenwaier v. Madison & Indianapolis B. B. Co., 5 Ind. 310 ; Smith v. New York 
 & Harlem E. R. Co., 19 N. Y., 127. 
 
 (e) Abraham «. Eeynolds, 5 H, & N. 149. Waller v. S. E. B. Co., 32 Law J., Exch. 305. 
 
 (/) Ld. Cranworth, Bartonshill Coal Co. v. Beid, 3 Macq. 294, 307. Bussell v. Hudson Biver 
 E. B. Co., 17 N. Y. 134, 136. Who is a fellow-servant, within the meaning of the rule exempt- 
 ing the master from liability for injuries to a servant arising from the negligence of a fellow- 
 servant, has been a question of some diversity of decision, though the decided weight of 
 authority is to the efl'ect that all who serve the same master, work under the same control, 
 deriving authority and compensation from the same source, and are engaged in the same 
 general business, though in different grades and departments of it, are fellow-servants, each 
 taking the risk of the other's negligence. Wonder v. Baltimore & Ohio E. B. Co., 32 Md. 411. 
 
 And it seems that, to bring the case within the general i-ule of exemption, it is not necessary 
 that the servant injured and the servant causing the injury should be at the time engaged 
 in the same operation or particular work ; and that it is enough that they are in the em- 
 ployment of the same master, engaged in the same common enterprise, and both employed 
 to perform duties and services tending to accomplish the same general purpose, as, for exam- 
 ple, maintaining and operating a railroad, operating a factory, working a mine or erecting a 
 building. Boldt v. New York Central B. E. Co., 18 N. Y. 432. Warner v. Erie B. B. Co., 39 
 N. Y. 468. Coon v. Utica & Syracuse B. E. Co., 5 N. Y. 492. Albro v. Agawam Canal Co., 6 
 Cnsh. (Mass.) 76. Parwell v. Boston & Worcester E. E. Co., 4 Mete. 49. Hard v. Vermont & 
 Canada E. B. Co., 32 Vt. 473. O'Connell v. Baltimore & Ohio E. R. Co., 20 Md. 212. 
 
 Thus the brakeman on a railroad ti'ain, the conductor and engineer of that train, the 
 mechanics in the repair shop, the inspector of the machinery and rolling stock of the road, 
 the trackman who inspects the rails, the laborer ballasting the track, and the superintondent 
 of the movement of the trains would come under the rule above mentioned and be classed as 
 fellow-servants. Parwell ». Boston & Worcester E. B. Co., 4 Mete. 49. Hayes v. Western 
 E. E. Co.,3Cush. (Mass.)270. Eyan». Cumberland Valley B. E. Co., 23 Penn. St. 382. Sher- 
 man V. Eochester & Syracuse E. E. Co., 17 N. Y. 153. Wonder ». Baltimore & Ohio B. E. Co., 
 82 Md. 411. Bussell v. Hudson Biver E. B. Co., 17 N. Y. 134. Bat see GiUenwaier v. Madison 
 & Indianapolis E. E. Co. , 5 Ind. 340. In the latter case it was held that a carpenter, en ployed 
 by a railroad corporation to build a bridge across a certain creek, and who was injnrea by 
 Ihe carelessness of the servants of the corporation running the train on which he was riding, 
 for the purpose of going to a place where he was directed to assist in loading timber for the 
 bridge, though in some sense a servant of the corporation, yet was, in this particular instance, 
 a passenger, and that the corporation were liable for the injury. 
 
Sec. 1.] CONTRIBUTORY NEGLIBENCE. 493 
 
 that they are temporarily subject to the same superintendent, if they 
 are not in fact the servants of the same master(p'). If a fellow-work- 
 man in a mine is also a co-proprietor in the mine, and therefore one 
 of the plaintiff's masters, the common master is then responsible for 
 injury caused by the negligence of such fellow-workman(A), A sub- 
 contractor and his servants engaged ifl doing the common work of a 
 particular contract, under a contractor, are all fellow-servants, engaged 
 in one common employment, though each directs and limits his atten- 
 tion to particular branches of the work, and they all are held to 
 undertake, as between themselves and the contractor, to run all the 
 ordinary known risks of the service, including the risk of negligence 
 of the other servants engaged in discharging the work of their com- 
 mon employer(i). So a carpenter in the service of a railway company 
 cannot sue the company for the negligence of a porter in their 
 employ (A). 
 
 566 Injuries to volunteers who assist gratuitously in work of a dang&rovs 
 nature. — If a person comes forward as a volunteer, and offers to assist 
 servants engaged in a difficult or dangerous work, and the volunteer 
 gets injured through the negligenee of one of the servants, the 
 employer is not responsible for the injury ; for a person, by volunteer- 
 ing his services, cannot have any greater rights, or impose any greater 
 duties on the employer, than would have existed if he had been a 
 hired servant(Z). 
 
 567 Gonirihutory neglig'ence on the part of the plaintiff. — A plaintiff cannot, 
 as previously mentioned, recover damages in a court of common law, 
 if, but for his own negligence, or that of the person who repr'esents 
 him, the accident would not have happened, though there was 
 negligence on the part of the def endant(«i) ; for the plaintiff cannot 
 complain of an injury which his own negligence and want of care has 
 
 {g) Warburton ». Gt. West. Rail., L. E., 2 Bxch. 30. See Connolly v. Davidson, 15 Minn. 
 619. 
 
 (ft) Asliwortli V. Stanwix, 30 Law J., Q. B. 183. 
 
 (j) Wiggett V. Fox, 11 Exch. 832 ; 25 Law J., Bxch. 193. 
 
 (4) Morgan ». Vale of Neath Rail. , supra. 
 
 (I) Degg V. Mid. EaU. Co., 1 H. & X. 773 ; 26 L. J., Exch. 173. Potter ». Fanlkner, 1 B. & S. 
 800 ; 31 Law J., Q. B. 30. Flower v. Pennsylvamu. K. E. Co., 69 Penn. St. 210. New Orleans, * 
 etc., E. E. Co. V. Harrison, 48 Miss. 112. 
 
 (m) Waite v. North-East. Eail. Co., Ell. Bl. & Ell. 719 ; 27 L. 37, Q. B. 417 ; 28 Law J., Q. B. 
 258. Tuff ». Wai-man, 2 C. B., N. S. 740 ; 27 Law J., C. P. 322. Senior v. Ward, 1 El. & El. 
 385 ; 28 Law J., Q. B. 139. Scott «. Dub. & Wick. Eail. Co., 11 Ir. Com. Law Eep. 377 ; Vaug- 
 han ». Cork & Youghal Eail. Co., 12 ibid. 297. Adams v. Lancashire & Yorkshire Rwy., L. 
 K., 4 C. P. 738 ; 38 L. J., C. P. 277. Ernst v. Hudson Eiver E. E. Co., 39 N. Y. 61. Murphy v. 
 Deane, 101 Mass. 455. Macon, etc., E. E. Co. v. Johnson, 38 Ga. 409. Dix v. Brown, 41 Miss. 
 131. Wilcox V. Eome, Watertown & Ogdensburgh E. E. Co., 39 N. Y. i!o8. Eunyon v. Central 
 K. E. Co., 1 Dutch. (N. J.) 666. Central E. E. Co. v. Moore, 4 Zabr. (N. J.) 824. 
 
494 NEGLIGENCE [Chap 8. 
 
 contributed to bring upon him(«). If, therefore, children stray upon 
 a railway, and get injured by a passing train, damages cannot be 
 recovered by them from the company, although there should be 
 negligence in the management of the train(o). If a person of full age 
 and mature judgment gets up into the defendant's cart, without any 
 right so to do, and sustains an "injury from the negligence of the de- 
 fendant's servant, the person so trespassing is precluded from recover- 
 ing damages from the defendant(p). "If," observes Domat, "any 
 one goes across a public cricket-groumd whilst people are playing 
 there, and the ball, being struck, chances to hurt him, the injury is to 
 be imputed to the imprudence of the person who sought out the 
 danger, and not to the innocent striker of the baU"(5). Where, the 
 plaintiff and defendant being jointly interested in the pulling down 
 and rebuilding of a party-wall between their respective houses, each 
 appointed an agent to superintend the execution of the work, and the 
 work was negligently done, and the plaintiif's house was much 
 injured from the want of proper support during the execution of the 
 Work, it was held that he could not maintain an action for damages 
 against the defendant, as the blame was the common blame of both. 
 "Since the wall," observes Lord EUenborough, "was taken down by 
 both, neither could impute negligence to the other "(r). If an ob- 
 struction has been negligently placed in a public thoroughfare by the 
 defendant, and the plaintiff has ridden against it, he cannot recover 
 damages from the defendant if it appears that he was riding at an 
 improper pace, or was intoxicated, and could have avoided the 
 obstruction if he had ridden with reasonable and ordinary care(s). If 
 
 («) Jervis, C.J., Martin v. Gt. North. Eail. Co., 16 C. B. 192. Wise v. Gt. West. Bail. Co., 
 1 H. & N. 63 ; 26 Law J., Exch. 261. Ante, pp. 24^-28. Owen v. Hudson River R. E. Co., 35 if. 
 T. 516. Gonzales i>. New York & Harlem R. R. Co., 38 N. T. Ua. Murphy v. Deane, 101 
 Mass. 4S6. Baltimore, etc., E. E. Co. o. State, 29 Md. 252. Northern, etc., R. E. Co. o. State, 
 id. 420. Conliu e. Charleston, 15 Rich. (S. C.) L. 201. Curran v. Warren Chemical & Manu- 
 factoring Co., 36 N. Y. 153. Gay v. Winter, 34 Cal. 153. Meyer v. Pacific E. E. Co., 40 Mo. 
 151. KeUogg V. The T. D. Hiae, 19 La. An. 304. Callahan v. Warne, 40 Mo. 131. Toledo, 
 etc., E. R. Co. V. Goddard, 25 Ind. 185. MeAunich v. Mississippi, etc., E. R. Co., 20 Iowa, 338. 
 Haley v. Barle, 30 N. Y. 208. Michigan, etc., E. E. Co. v. Leahey, 10 Mich. 193. Merch v. 
 Concord R. E. Co., 9 Foster (N. H.), 9. Steele o. Burkhardt, 104 Mass. 59. 
 
 (o) Singleton v. B. C. E. Co., 7 C. B., N. S. 287. Abbott v. Macfle, ante, p. 26. That the 
 doctrine of the text requiies modification, see Kay v. Pennsylvania B. E. Co., 65 Penn. St. 
 269 ; Ihl V. Forty Second Street R. E. Co., 47 N. Y. 317 ; Daley ». Norwich & Worcester E. E. 
 Co. , 26 Conn. 591 ; North Pennsylvania E. E. Co. o. Mahoney, 57 Penn. St 187 ; Mangam r. 
 Brooklyn E. R. Co., 38 N. Y. 456 ; Boland v. Missouri R. E. Co., 36 Mo. 484. 
 
 (p) Lygo V. Newbold, 9 Exoh. 306 ; -23 Law J., Exch. 109. As to boys climbing on a cart, 
 see Lynch ». Nurdin, ante, p. 26. 
 
 (3) Domat, liv. 2, tit. 8, s. 4. 
 
 (r) HUl V. Warren, 2 Stark. 378. 
 
 (») Bntterfleld v. Forrester, 11 Bast, 60. 
 
Sec. 1.] Br BUILDBRS, SURGEONS, CMYMISTS, ETC. 495 
 
 the risk is obvious, the plaintiflF ought not to incur it(*), but should 
 proceed to remove the obstruction {ante, p. 233), or take legal pro- 
 ceedings for its removal, and for the recovery of the damages he has 
 sustained by being deprived of the use of the thoroughfare. In the 
 Court of Admiralty, in cases of collision, where both vessels are to 
 blame, the damages, when recovered, are, as we have seen, divided 
 between the delinquent ships(M). 
 
 If a rule established for securing the safety of workmen in a dan- 
 gerous employment is habitually violated, to the knowledge of the 
 workman himself, the latter has no ground to recover damages from 
 the employer for injuries sustained from the non-observance of the 
 rule(a;). 
 
 568 Negligence on the part of the plaintiff forming no vrnpediment to an 
 action for damages. — Negligence or misconduct on the part of the plain- 
 tiff does not, as we have seen, prevent him from recovering damages 
 in those cases where the negligence or misconduct has not been an im- 
 mediate co-operative cause of the injury of which he complains(y). 
 
 569 Injuries from the negligence of skilled workmen and professional men. — 
 It is the duty of every workman who undertakes the performance of ' 
 work, to execute it with care and diligence, and with the ordinary 
 amount of skill and knowledge incident to his particular craft, art or 
 profession. If a carpenter undertakes to roof a barn, or build a shed, 
 and employs defective materials, or does his work so negligently and 
 unskilfully that the roof, when finished, will not keep out the rain, he 
 is responsible in damages to his employer(z). If a builder undertakes 
 to build a house, and builds it out of the perpendicular, or neglects to 
 examine the ground and secure proper foundations for the building, 
 and constructs the walls so carelessly and negligently that a settle- 
 
 (t) Clayards v. Dethick, 13 Q. B. 416. See Wyatt ». Gt. West. Eail., 34 L. J., E. B. 204. 
 
 {«) The Milan, ante, p. 484. The Favorita, 1 Benedict, D. C. 23. The Eloctra, id. 282. Meigs 
 V. The Northerner, 1 Wash. Terr. 91. The Marcia Tribou, 2 Sprague, 17. O'Nei] ». Sears, id. 
 62. Phcenix, 3 Blatch. C. C. 273. Thomas Martin, id. 517. Rival, Sprague, 12S. Lenox v. 
 Winisimmet Co.,id. 160. Allen ». Maokay, id. 219. Chamberlain ». Ward, 21 How. (U. S.)648. 
 
 (X) Senior v. Ward, 1 Ell. & Ell. 3S5 ; 28 L. J., Q, B. 139. 
 
 (y) Ante, pp. 25-27. Silliman ». Lewis, 49 IS. Y. 379. Anstin v. New Jersey Steamboat Co., 
 43 X. Y. 7.'). Haley v. Earle, 30 N. Y. 208. Buel v. New York Central E. R. Co., 31 N. Y. 314, ' 
 MorrisseyB. Wiggins' Ferry Co., 48 Mo. 380. Meyer v. People's R. E, Co., 43 Mo. 523. 
 Northern, etc., E. E. Co. v. State, 29 Md. 420. Conlin v. Charleston, 15 Eicb. (S. C.) L. 201. 
 Flynn». San Francisco, etc., R. R. Co., 40 Cal. 14. Walkert). Westfleld, 39 Vt. 246. Rich- 
 mond V. Sacramento, etc., E. E. Co., 18 Cal. 361. West v. Martin, 31 Mo. 376. Brown v. 
 Illius, 27 Conn. 84. Isbell v. New York, etc., R. R. Co.. 27 Conn. 393. Indianapolis, etc., R. 
 R. Co. V. Caldwell, 9 Ind. 397. Grant v. Moseley, 29 Ala. 302. Steele v. Burkhardt, 104 Mass. 
 69. See Button v. Hudson River R. E, Co. , IS N. Y. 248 ; Murphy v. Deane, 101 Mass. 466. 
 
 («) Broom v. Davis, cited in Batten o. Butter, 7 East, 479, a. Moneypenney v. Hartland, 2 
 C. & P. 378. 
 
496 NEOLIQENCE [Chap. fit. 
 
 ment takes place and cracks make their appearance, and the structure 
 becomes a dangerous nuisance, the builder is responsible in damages 
 for negligence(a). So if he is guilty of negligence in not suffi- 
 ciently underpinning the adjoining house, whereby such adjoining 
 house is injured ; and the penalty imposed by s. 94 of the Metropoli- 
 tan Building Act (18 & 19 Vict. c. 122), on a building owner who, in 
 making his own buildings, damages those adjoining, is cumulative(6). 
 The degree of skill and diligence which is required from the work- 
 man depends upon the nature and extent of his public profession, and 
 rises in proportion to the value, the delicacy, and the beauty of the 
 work he undertakes to execute, and the fragility and brittleness of the 
 materials intrusted to him to work upon(c). Clockmakers, jewelers, 
 opticians, and all kinds of skilled workmen and all persons belonging 
 to the learned professions (except barristers), are responsible in dam- 
 ages if they profess to accomplish more than they are able to perform, 
 and undertake works of skill without being possessed of sufficient 
 skill, or apply less than the occasion requires(d). "Every person," 
 observes Tindal, C.J., "who enters into a learned profession undertakes 
 to bring to- the exercise of it a reasonable degree of care and skill. 
 He does not undertake, if he is an attorney, that at all events you 
 shall gain yoiir cause ; nor does a surgeon impliedly undertake that 
 he will perform a cure, nor does he undertake to use the highest possi- 
 ble degree of skill, but he undertakes to bring a fair and competent 
 degree of skill "(e). So a chymist will be liable for negligence in com- 
 pounding hair wash, by which the plaintLfif's wife was injured(/). 
 570 Negligence of attorneys and solicitors{g). — Every client has a right to 
 the exercise, on the part of his attorney, of care and diligence in the 
 execution of the business intrusted to him, and to a fair average 
 amount of professional skill and knowledge ; and if attorneys have 
 
 (o) Harman v. Cornelius, 5 C. B., N. S. 236 ; 28 Law J., C. P. 88. Farasworth v. Garrard, J 
 Campb. 39. Duncan v. Blundell, 3 Stark. 7. Munro v. Butt, 8 Ell. &B1. 738. Williams o 
 Fitzmaurice, 3 H. & N. 844. 
 
 (6) Williams v. Golding, L. B., 1 C. P. 69. See cmte, p. 213. 
 
 (c) Addison on Contracts, 6tli edit. 399. 
 
 (d) Scare v. Prentice, 8 Bast, 352. Slater ». Baker, 2 Wila. 359. 
 
 («1 Lamphier v. Phipos, 8 C. & P. 479. Haucke v. Hooper, 7 C. & P. 81. See Smathers v. 
 nanks, 34 Iowa, 286 ; Almonds v. Nugent, id. 300 ; Gallaher v. Thompson, Wright, 466. 
 
 (/) George v. Skivington, L. K., 5 Exch. 1. See Norton v. Sewall, 106 Mass. 143 ; Thomas*. 
 Winchester, 6 N. Y. 397 ; Fleet v. HoUenkemp, 13 B. Monr. 219. So of a patent agent for 
 negligence in not heiug aware of a legal decision which made an important change in the 
 practice of obtaining patents. Lee v. Walker, L. R., 7 C. P. 121. 
 
 (g) As to their duty to keep accounts, see Ex parte Neville, L. R. , 4 Ch. App. 43. No agree- 
 ment between an attorney and his client as to the former's remuneration made in pursuance 
 of the Attorneys and Solicitors Act, 1870 (33 & 34 Vict. c. 28), will absolve snch attorney from 
 the consequences of his negligence. See s. 7. 
 
Sec. l.J OF ATTORNEYS. 497 
 
 not as much of these qualities as they ought to possess, or if, having 
 them, they have neglected to employ them, the law makes them respon- 
 sible for the loss which has accrued to their clients from their deticien- 
 cies(A). It is the duty of every attorney and solicitor to act with 
 fidelity to his client, and to keep the secrets of the latter ; "for if a 
 man, being intrusted in his profession, deceive him who intrusted him, 
 or if a man retained of counsel become afterward of counsel with the 
 other party in the same cause, or discover the evidence or secrets of 
 the cause ; or if an attorney act deceptive, to the prejudice of his client, 
 or make default by collusion with others, whereby his client is injured, 
 an action lies for damages "(0- If a-'ti attorney, when his client's deeds 
 are put into his hands, for the purpose of raising money, discloses 
 defects of title to the person who was about to lend, and the client 
 sustains damage therefrom, the attorney is responsible for neglect of 
 duty, and cannot shelter himself from the consequences by showing 
 that he was also employed on the part of the proposed lender, and was 
 actuated by a sense of justice towards him ; for whenever an attorney 
 finds ihat he has a conflicting duty to discharge towards his several 
 clients, he must at once withdraw from the inconsistent employment, 
 and decline to act in the matter(M). Whenever the attorney has his 
 client's title-deeds put into his hands for any purpose whatever,""he is 
 to consider his lips sealed with a sacred silence as to the whole of 
 their contents "(A). 
 
 It is also the duty of every attorney, by reason of the emolument 
 he receives for the exercise of his professional skill, to take care that 
 his client does not enter into any covenant or stipulation that may ex- 
 pose him to a larger responsibility than the nature of the business he 
 is instructed to transact may, in the ordinary course of practice, 
 require. If the stipulations are more onerous in their consequences 
 than usual, the matter should be fully explained to the client, and the 
 unusual extent of liability be made known to him(Z). 
 
 If an attorney conducting a suit neglects to comply with the prac- 
 tice or orders of the court, and neglects to take some necessary step 
 
 {K\ Hart v. Frame, 6 CI. & Fin, 209. Bussell v. Palmer, 2 Wils. 335. Holmes ». Peck, 1 R. I. 
 242. Stevens v. Walker, 55 111. 151. O'Barr v. Alexander, 37 Ga. 195. Eeilly v. Cavanaugh, 
 29 Ind. 435. Goodman v. Walker, 30 Ala. 4S3. Cox ». Sullivan, 7 Ga. 144. Wilson v. Russ, 7 
 Shep. 421. As to the liabilities of a firm for the negligence, etc., of one member of it, see Uuu- 
 donald {Earl of) v. Masterman, L. R., 7 Eq. Ca. 604 ; 38 Law J., Ch. 850 ; Bickford v. Darcy, 
 L. R., 1 Exch. 354. 
 
 (t) Com. Dig., Action on the Case for Deceit, A. 5. 
 
 (ii) See Williams v. Reed, 3 Mason, 405. 
 
 (ft) Tindal, C.J., Taylor v. Blaoklow, 3 B. N. C. 235. 
 
 (i) Stannard v. Ullithorne, 4 M. & Sc. 376 ; 10 Bing. 491. 
 
 Ad. Vol. I.— 32 
 
NE<3LIQBNCE [Chap. 8. 
 
 in the cause, by means whereof all the previous proceedings become 
 useless, he will be responsible in damages-to his client(m). And the 
 same consequences follow if he brings an action for his client, within 
 a limited jurisdiction, on a cause of action manifestly arising out of 
 the jurisdicfcion(w), or negligently suffers judgment to go by default 
 when he is retained to defend an a«tiori(o) ; or fails to instruct counsel 
 properly, and to deliver briefs in sufficient time to enable his counsel 
 effectively to perform the duty intrusted to him ; or if he is not pres- 
 ent in person, or by his agent at the trial, to see that the witnesses are 
 forthcoming when called upon(y>). When present at the trial, it is the 
 duty of the attorney not to suffer the case to be called on, unless he 
 has previously ascertained that all the necessary witnesses are in 
 attendance(g') ; but he is not bound to search after his counsel, nor is 
 he answerable for the non-attendance or neglect of the latter(r'). If 
 he has received instructions from his client not to compromise an 
 action he is retained to prosecute, he will be guilty of a breach of 
 duty if he does compromise, and cannot shelter himself from an action 
 by showing that it was done under the advice of counsel(s), although 
 that circumstance might go in reduction of damages. But in the, 
 the absence of a distinct prohibition to compromise, the general author- 
 ity of an attorney is sufficient for that purpose(^). 
 
 "It would be extremely difficult," observes Tiiidal, C.J., "to define 
 the exact amount of skill and diligence which an attorney undertakes 
 to furnish in the conduct of a cause. The cases, however, appear to 
 establish in general, that he is liable for the consequences of ignorance 
 or non-observance of the rules, of practice of his court(<i), for the want 
 of care in the preparation of the cause for trifel, pr of attendance 
 thereon with his witnesses, and for the mismanagement of so much of 
 the conduct of a cause as is usually and ordinarily allotted to his de- 
 
 (m) Bracey v. Carter, 12 Ad. & B. 373. Franklaiid v. Cole, 2 Cr. & J. 590. Pitt v. Yalden, 1 
 Burr. 2063. 
 
 (n) Williams v. Gibbs, 6 N. & M. 788.' 
 
 (o) GodeJ'roj' v. Jay, 5 M. & P. 297 ; 7 Bing. 419 ; Smallwood v. Norton, 2 App. 83 ; Grayson 
 V. Wilkinson, 5 Smedes & Marsh. 238. As to the liability of an attorney for negligence in the 
 collection of a debt, see Wilson v. Collin, 2 Cash. (Mass.) 316 ; Stevens v. Walker, 55 111. 151 ; 
 Dearborn «. Dearborn, 15 Mass. 310; Crocker ». Hutchinson, 2 Chip. 117 ; Oldham ». Sparks, 
 28 Texas. 428. For negligence in issuing execution, see Phillips v. Bridge, 11 M.ass. 246. In 
 not applying for a new trial, Hastings v. Halleok, 13 Gal. 203. 
 
 (p) Hawkins v. Harwood, 4 Exch. 606 ; 19 Law J., Exch. 33. De Eouflgny i>. Peale, 5 
 Taunt. 4S3. Swannel v. Ellis, 8 Moore, 340 ; 1 Bing. 347. 
 
 [q] Eeece v. Eigby, 4 B. & Aid. 202. 
 
 (r) Lowry v. Guildford, 5 C, & P. 234. 
 
 (s) Pray v. Voules, 1 El. & El. 839 ; 28 Law J., Q. B. 232. Butler v. Knight, L. R.,2 Exch. 109. 
 
 (t) Pristwiok v. Paley, 34 L. J., C. P. 189. Butler v. Knight, mpra. 
 
 (tt) See Lee v. Walker, ante, p. 496. 
 
Sec. l.J OF ATTORNEYS. 499 
 
 partment of the profession ; but he is not answerable for error in judg- 
 ment upon points of new occurrence, or of nice or doubtful construction, 
 or of such as are usually intrusted to men in the higher branch of the 
 profession of the law, unless he has thought fit to act upon his own 
 judgment and opinion respecting matters which ought to have been 
 laid before counsel "(m). PrimA facie the attorney's retainer ceases 
 on judgment being obtained, but it may be renewed by any acts 
 showing the client's intention that he shall continue to act in th!it 
 relation(a;). 
 
 If an attorney is employed to investigate the title to an estate, or to 
 seek out an eligible investment, and obtain good security for money 
 advanced, and the title is obviously defective, or the security is mani- 
 festly bad or insufficient, the attorney will be responsible for his negli- 
 gence both at common law and in equity(2/). But he is not responsible 
 for an advance on a mortgage which turns out a deficient security, if 
 he has taken the opinion of a competent surveyor as to the value of the 
 property(z). He is not justified in relying upon an extract from a will 
 furnished to him by his client, unless the latter agrees to take the en- 
 tire responsibility upon himself; but he ought to search for and exam- 
 ine the original will(a). If he relies upon his own judgment and 
 opinion as to the interpretation and legal operation of deeds and con- 
 veyances, he does so at his peril. If he draws a, wrong conclusion from 
 them, he will be responsible in damages to his client. He ought, 
 therefore, to lay them before counsel, if he wishes to avoid the respon- 
 sibility of acting upon his own judgment respecting them(&). 
 
 If, when retained by a client who is about to advance his money on 
 the security of a mortgage, he has reason to suspect that the intended 
 mortgagor has been insolvent, or in embarrassed circumstances, he will 
 be responsible for a breach of duty if he neglects to make searches in 
 the proper quarter to ascertain whether such intended mortgagor has 
 eyer taken the benefit of the Insolvent Act(c) ; or to make inquiry 
 
 (M) Godefroy e. Dalton, 6 Bing. 468. Purves v. Landell, 13 CI. & Fin. 98. Shilcock v. Pass- 
 man, 7 C. & P. 292. Kemp p. Burt, 4 B. & Ad. 431. Long». Orsi, IS C. B. 610. Cox K. Leech, 
 
 1 C. B-, N. S. 617. Ireson c. Peantiau, 3 B. & C. 812, 813. Townley v. Jones, 8 C. B,, N. S. 289. 
 See MoiriU e. Graham, 27 Texas, 64S. 
 
 (X) Butler c. Knight, eupra. But sec Smyth v. Harvie, 31 111. 62. 
 
 <y) Knight V. Quatrles, 4 Moore, S33 ; 2 B. & B. 102. Whitehead t>. Greotham, 10 Moore, 183 ; 
 
 2 Bing. 464. Howell p. Young, 5 B. & C. 269. Chapman v. Chapman, L. 11., 9 Eq. Ca. 276. 
 See Watson v. Muirhead, 57 Penn. St. 161. 
 
 (z) Chapman «. Chapman, supra. As to his duty to get the best price for property intrusted 
 to him for sale, see Morgan v. Steble, L. R., 7 Q. B. 611. 
 (a) Wilson©. Tuekcr,»StaFfc. 166, 
 (6) Ireson v. Pearman, 3 B. & C. 813 ; B D. & E. 699. 
 (c) Cooper r. Stephenson, 21 Law J., Q. B. 292. 
 
500 NEGLiQENCE. [Chap. 8, 
 
 whether there are any existing incumbrances on the property(d). K 
 he neglects to register a judgment, or to file a cognovit or warrant 
 of attorney, or to file writs, and his client sustains damage from his 
 default, he will be responsible for the consequences(e). Nor has he 
 any. implied authority, after judgment in favor of his client, to enter 
 into an agreement on Ms behalf- to postpone execution(/). "When 
 employed by a purchaser of leasehold property, he is not exonerated 
 ffom the duty of investigating the title of the vendor by a stipulation 
 in .the conditions of sale that the lessor's title is not to be gone into, 
 and that no abstract of the vendor's title will be furnished. He must, 
 nevertheless, ascertain that the vendor has a lease, and that the whole 
 transaction is not a mere pretence(g'). 
 
 571 Negligence of hamsters. — There is no instance of any action having 
 been successfully brought against a barrister for neglect of duty ; but 
 if a barrister intentionally does a wrong, and acts with malice, fraud, 
 or treachery in the discharge of his professional duties he will be 
 responsible, like every other wrong-doer, for the mischief thereby 
 occasioned(^). 
 
 S7 2 Negligence of surveyors or valuers. — ^Where the plaintiff undertakes 
 to perform work to the satisfaction of the defendants' surveyor, pay- 
 ment to be made only on the certificate of such surveyor, if the defend- 
 ants and the surveyor collude to withhold the giving of the certificate 
 to prevent the plaintiff from being paid for his work, there is abund- 
 ant authority, both at law and in equity, that the defendants cannot 
 shelter themselves by means of any such misconduct(i). ■ But a declar- 
 ation against the defendant, that his surveyor wrongfully and improp- 
 erly neglected and refused to give his certificate, discloses no cause 
 of action, for that would be to substitute the opinion of a jury for a 
 certificate of the surveyor, which it was the very object of the contract 
 to prevent(A). Where two persons were employed to value between 
 the incoming rector and the representatives of the deceased incumr 
 bent, and the defendant, through ignorance of the true principle for 
 the valuation of ecclesiastical dilapidations, valued so favorably to the 
 opposite party and adversely to the plaintiff, that his valuation was 
 
 {d) Hopgood V. Parkin, L. E., 11 Eq. Ca. 74. See Katcliffc v. Barnard, L. E., 6 Ch. App 
 652. 
 (e) Hunter v. Caldwell, 10 Q. B. 82 ; 16 Law J., Q. B. 274. 
 (/) Lovegrove v. White, L. E., 6 C. P. 440. 
 ig) Allen v. Clark, 11 W. E. 304. 
 
 (7() Swinfen v. Ld. Chelmsford, 5 H. & N. 918 ; 29 Law J., Exch. 382. 
 (i) Erie, C.J., Clarke v. Watson, 34L. J., C. P. 148. ^ 
 
 (i) Clarke v. Watson, supra. 
 
Sec. 1.] OF BANKERS, DIRECTORS, ETC. 501 
 
 accepted, it was held that he was liable for the results of his igno- 
 rance(Z). 
 
 573 Negligence of kank-managers. — It has been mentioned, ante, p. 11, 
 that a refusal by a banker to honor his customer's cheque, if he has 
 sufficient funds in his hands, is actionable. It is no breach of duty 
 on the part of the manager of a bank to discount bills for companies 
 in which he is interested, provided the advances are made within the 
 scope of his authority and in the ordinary course of business, and no 
 allegation of rnala fides can be sustained, nor is he, it seems, under 
 any obligation to disclose to the directors the fact that he is a share- 
 holder in companies keeping accounts with the baTik(m). It has never 
 been decided whether there is any legal obligation on a banker not 
 to disclose the state of his custome:c's account except upon a reason- 
 able and proper occasion ; but, assuming that such an obligation 
 exists, the question what is a reasonable occasion is clearly one for 
 the jury to decide, and if the customer sustain any special damage 
 by the banker having disclosed the state of his account, the banker 
 would, it seems, be responsible(re). A banker is not liable for the loss 
 of a box left under his care by a customer for safe custody, of which 
 the customer keeps the key, and for which no payment is made, if it 
 be stolen by one of the clerks of the bank, unless the loss was occa- 
 sioned by gross negligence on the part of the banker(o). But if a 
 banker or banking company undertakes the custody of securities for 
 a customer and charges a commission for the receipt of the dividends 
 from them, they would, it seems, be liable for negligence, if they left 
 the securities in the uncontrolled power of their clerk or manager, 
 who fraudulently disposed of them{p).. 
 
 574 Negligence of directors of public companies. — If directors of a joint- 
 stock company receive the deposits of shareholders for a company 
 with certain objects, and subsequently, by the memorandum of asso- 
 ciation, register other and different objects, the shareholder may de- 
 fend an action for calls, and obtain the cancellation of the contract in 
 equity, and, it would seem, may, at least in cases of actual fraud, sue 
 the directors in a court of equity for neglect of duty, and so obtain 
 the return of the money deposited(3). And the official liquidator, on 
 
 (!) Jenkins v. Botham, 15 C. B. 168; 24 L. J., C. P. 94. 
 
 (m) Bank of ITpper Canada ».'Braclshaw, L. R., 1 P. C. Ca. 479. 
 
 (») Hardy ©.Veasey,!. R., 3 Exoh. 107. 
 
 (o) Giblin «. McMulIen, post, p. 537. See Foster v. Essex Bank, 17 Mass. 500. 
 
 (p) 7!e United Service Co.,'!;. R., 8 Oh... App. 212. ' 
 
 (g) Stewart v. Austin, L. R., 3Eq. Ca. 299; Slrip f. CrosskiU, L. R., 10 Eq. Ca. 73. 
 
502 NEGtiGMNCE, [Chap. 8. 
 
 behalf of all the shareholders, or the individual shareholders, accord- 
 ing to circumstances, may institute a suit in equity against the direc- 
 tors for the purpose of compelling them to make good losses occasioned 
 by their misconduct in the management of the company's affairs, e.g., 
 by their acting contrary to provisions in the deed of settlement, issuing 
 false balance-sheets, paying dividends out of capital(r), paying bonuses 
 vyithout a proper balance-sheet, or making due allowance for risks 
 "which the company had incurred, etc.(s). But the directors of a com- 
 pany, who purchase the business of an insolvent partnership composed 
 of men possessed of real estate, are not necessarily liable for negli- 
 gence, in not taking mortgages on the estates of such partners(i). Nor 
 would they as a body be liable for the acts of a few of their number, 
 acting as an executive committee, who, with a view to enhance the 
 price of the shares, bought them with the company's money, but con- 
 cealed the transaction under color of a loan to third persons apparently 
 solvent and respectable(M). Nor for publishing a debtor and creditor 
 account of the company, in which they credited the company with 
 debts as good, believing them to be such, which subsequently turned 
 out to be bad, and issuing fresh shares at a premium on that assump- 
 tion(a;). 
 
 SECTION II. 
 
 OP ACTIONS FOR NEGLIGENCE — DIRECT AND CONSEqtTENTIAl, INJURIES. 
 
 575 Actions fw compensating the families of persons killed hy negligence. — 
 By 9 & 10 Vict. c. 93, it is enacted, that whensoever the death of a 
 person shall be caused by any wrongful act, neglect, or default, which, 
 if death had not ensued, would have entitled the party injured to 
 maintain an action and recover damages in respect thereof, the person 
 who would have been liable if death had not ensued shall be liable to 
 
 (r) Tarqnand v. Marshall, L. E., 6 Eq. Ca. 112 ; 4 Ch. App. 376 ; 38 L. J., Ch. 639. See . 
 Genei-al Exchange Bank v. Homer, L. R., 9 Eq. Ca. 480. 
 
 (s) Ranee's case, L. R., 6 Ch. App. 104. 
 
 (t) Overend & Co. v. Gurney, L. R., 4 Ch. App. 701. Nor for mere Impmdencei not amount- 
 ihg to craasa negligentta, fraud, or malfeasance. Ov«rcBd &, Co. ». Gibb, L. B., 5 Engl, & Ir, 
 App. 480. 
 
 («) Land Credit Co. of Ireland v. Lord Fermoy, %. R., B Ch, App. 763, 
 
 (X) Jackson v. Turquand, L. B., 4 Engt. & Ir. Apip. 30&, 
 
Sec. 2.] ACTIONS FOR DEATH CAUSED BY. 503 
 
 an action for damages(y), although the death shall have been caused 
 under such circumstances as amount in law to felony. And (s. 2) that 
 every such action shall be for the benefit of the wife, husband, parent, 
 and child(z) of the deceased person, and shall be brought by, and in 
 the name of, his executor or administrator(a), and the damages 
 recovered, after deducting certain costs, shall be divided amongst the 
 before-mentioned relatives, in such shares as the jury by their verdict 
 shall find and direct. But not more than one action shall (s. 3) be 
 brought in respect of the same subject-matter of complaint, and the 
 action must be commenced within twelve calendar months after the 
 death of the deceased person, and the plaintiff must deliver (s. 4), 
 together with the declaration of his cause of action, a full particular 
 of the persons on whose behalf the action is brought, and of the nature 
 of the claim(6). If the deceased has brought an action in his lifetime, 
 or has received satisfaction during his life in respect of the injury, no 
 fresh action, or no action, as the case may be, can be brought by his 
 personal representatives after his death(c). 
 
 Contributory negligence on the part of the deceased will be a bar 
 to an action by his personal representatives where the deceased him- 
 self, if he had lived, could have maintained no action for the injury((i). 
 But if the circumstances of the negligence were such that, if death 
 had not ensued, the deceased might have brought his action in respect 
 of it, his representatives may maintain an action in respect of pecun- 
 iary loss occasioned by the death, although that pecuniary loss would 
 not have resulted from the accident to the deceased himself, had he 
 lived. 
 
 The loss of the benefit of education, and of the enjoyment of the 
 comforts and conveniences of life, depending upon the possession of 
 pecuniary means to obtain them, through the death of a father, whose 
 income ceases with his life, is an injury in respect of which an action 
 can be maintained on the statute ; and so, also, is the loss of a pecun- 
 iary provision which fails to be made, owing to the premature death of 
 a person by whom such provision would have been made had he lived ; 
 
 (ti See The Gutdfaxe, ante, p. 483. See I/aws of New York, 1847, ch. 450 ; Laws of 1849, 
 ch. 266 ; North Carolina Bev. Code, oh. 1 ; Kesler v. Smith, 66 N. C. 154 ; Maryland Code, 
 art. 65. 
 
 (s) An illegitimate child is not within the purview of the statute. Dick inson v. North East. 
 Eail. Co., 33 Law J., Exch. 91. 
 
 (a) In case there is no executor, etc., or of his unwillingness, etc., to sue, the action may be 
 brought by the persons benefleially interested. 27 & 28 Vict. c. 95. 
 
 (6) Duckworth ». Johnson, 4 H. & N. 653. 
 
 (c) Bead v. Great East. Rail. Co., L. B., 3 Q. B. 556. 
 
 (d) Ante, pp. 24-28, Contributory Negligence. 
 
504 XE6LIGEXCE. [Chap. 8, 
 
 for wherever there is a reasonable expectation of pecuniary advantage 
 from the prolongation of the life of a person, the extinction of such 
 expectation by negligence occasioning his death will be sufficient to 
 sustain an action upon the statute(e). 
 576 Actions at law, and proceedings in the High Court of Admiralty for 
 negligence. — The High Court of Admiralty has jurisdiction over all. 
 causes of action arising from collisions between vessels caused by negli- 
 gence either in a port or river, or on the British seas or high seas(/), 
 and over any claim for damage, done by*auy ship(p'). The proceeding 
 in the Court of Admiralty is an action in rem, the first step in the 
 process being a seizure of the delinquent ship, which is impounded 
 and detained to answer the plaintiif's claim; but the proceedings may 
 be either in rem ot in personamlfi). The Trinity Masters attend to 
 assist the Court, and this has been thought to make it a desirable tri- 
 bunal for the trial of causes involving questions of nautical skill and 
 science(i). Proceedings in rem in the Admiralty Court are no bar to 
 an action for damages(^-), but the Admiralty Court may provide against 
 the parties being harassed by actions for the same collision by other 
 parties, by providing that the compensation awarded shall not be 
 paid till such other parties have released their claims(Z). In the Court 
 of Admiralty, in cases of collision where both ships are to blame, and 
 the provisions of the Mertehant Shipping Act do not intervene, the 
 owners of the cargo, equally with the owner of the ship, recover a 
 moiety of the damage(m). The remedy is equally open to the ship- 
 owner and the owner of the cargo. 
 
 By the Mercantile Shipping Act, 1854 (17 & 18 Vict. c. 104), it is 
 enacted (s. 512), that in cases where loss of life or personal injury has 
 occurred by any accident, in respect of which the shipowner is alleged 
 to be liable in damages, no person shall be entitled to bring an action 
 until the completion of any inquiry that may be instituted by the 
 Board of Trade, or until the Board of Trade has refused to institute an 
 inquiry ; and the Board of Trade is to be deemed to have refused 
 whenever notice has been served on it by any person of his desire to 
 
 (e) Pj-m V. Gt. North. Bail. Co., 31 Law J., Q. B. 249; 32 ib. 377. Mclntyre t7. Now York 
 Central R. K. Co., 37 N. T. 287. Tillcy v. Hudson Elver K. R. Co., 3i N. Y. 471. Kresler v. 
 Smith, 66 N. C. 15-1. See Pennsylvania R. E. Co. v. Kollei-, 67 Penn. St. 800. 
 
 (/) 4 Inst. c. 22; 7 & 8 Vict. c. 2; 3 & 4 Vict. c. 65. Tlie Melvina, 31 Law J., Aclm. 113. 
 
 ((?) 24 Viet. c. 10, s. 7. See ante, p. 483; Smith v. -Brown. 
 
 (h) Ibirl. s. 3.5. 
 
 (i) The Anne &, Mary, 2 W. Roh. 196 ; and see 23 Jur. part 2, 483. 
 
 (Jc) Nelson v. Couch, 33 Law J., C. P. 46. 
 
 (I) The Minna, L. K., 2 Adm. & Eccl. 97. . 
 
 (m) The Milan, 31 Law J., Adm. 105. 
 
Sec. 2.] REMEDT BT ACTION. 505 
 
 bring an action, and no inquiry is instituted by the Board for one 
 month after service of the notice. And, after the completion of such 
 inquiry, if any person injured estimates the damage at a greater sum 
 than the statutory amount, or (in case of a compromise having been 
 made by the Board) the amount accepted by the Board by way of 
 compensation, such party may, subject to the limitations and restric- 
 tions there provided, bring an action for damages {ante, pp. 480-486). 
 The ov.ner of a cargo on board a ship that has violated the statute, 
 and so contributed to the injury, is not, as we have seen, prohibited 
 thereby from recovering,- in the Court of Admiralty, compensation 
 against another ship which also by negligence contributed to the col- 
 lision {ante, p. 487). 
 
 577 Parties to he made plaintiffs. — A person who has let chattels out to 
 hire may, nevertheless, sue for damages in respect of a permanent 
 injury to his reversionary interest. Thus, where the owner of a barge, 
 who had let it out to hire to a bailee, brought an action for damages 
 done to it, by reason of the negligence of > a third party, it was held 
 that he had a right to sue for the injury, notwithstanding the bail- 
 ment(«). 
 
 578 Joint and separate rights of action. — When there are several joint- 
 owners of a chattel which has been damaged or destroyed by negli- 
 gence, all should be joined as plaintiffs ; and if they are not so joined, 
 the defendant may object to the non-joinder, in order that he may not 
 be harassed by several actions for the same cause(o). Where two per- 
 sons were owners of a ship in unequal proportions as tenants in com- 
 mon, A beiitg the owner of a fourth part, and the plaintiff of the 
 remaining three-fourths, and the former brought an action against the 
 defendants, the owners of another ship, for wrongfully running down 
 and injuring the vessel in which they were mutually interested, and 
 the defendants omitted to plead the non-joinder of. the other part- 
 owner in abatement, and A had judgment, and obtained full satisfac- 
 tion for all the damage that he had sustained to his share of the ship, 
 and afterwards the plaintiff, the owner of the:remainilig three-fourths 
 of the ship, sued the same defendants for the damage he had sus- 
 tained, and the defendants pleaded the non-joinder of. .4 in abate- 
 ment, and the plaintiff then set forth in his replication .the proceed-- 
 ings in the former action, it was held that as the bther part-owner had' 
 already received satisfaction, he could not be entitled to any part of 
 
 (n) Mearsw. Lond. &S.-W/Rail. Co,,il C. B., N. S. S50; 81I,awJ,,,C.E.220. i . 
 (o) Ante, pp. 85, 244 ; post, ch. 20. 
 
506 NEOLWENCE. [Chap, 8. 
 
 the damages to be recovered in that action, and that he need not, con- 
 sequently, be joined as a plaintiif (p). 
 579 Parties to he made defendants. — The person who actually inflicts the 
 injury through his own negligence, is of course always responsible for 
 the injurious consequences of his default. " Those," observes Domat, 
 " who construct works, or who do any other thing from whence may 
 ensue damage to others, will be answerable for that damage, if they 
 have not taken the necessary precautions to prevent it. Thus masons, 
 carpenters, and others, who carry m^erials up their scaffolds, and 
 those who, from the top of a tree, cut down the branches thereof, must 
 give timely warning to all persons likely to be endangered by their 
 proceedings, and will be answerable in damages if they neglect, so to 
 do "(g) ; but as these persons are generally acting under the directions 
 of some master and employer, and are unable themselves to make 
 compensation in damages to the persons injured, the law properly 
 holds the master and employer responsible for the act of his servant, 
 whether the work is done by a domestic servant or day-laborer, or by 
 a person who works by the job or piece, and contracts to do the work 
 for a specific 8um(?') ; provided always, that the workman is an ordi- 
 nary laborer, personally engaged in the execution of the work, acting 
 under the control of the master, and not a contractor exercising an 
 independent employment, and selecting his own servants and work- 
 men for the performance of the work(s). 
 
 If the person for whom the work is done selects the servant who is 
 to do it, that will not relieve the master of such servant from liability 
 for his negligence(i). * 
 
 A servant who merely hires laborers for the performance of the 
 master's work, is not answerable for the negligence of such fellow- 
 servants, or for injuries inflicted by them in the course of their employ- 
 ment. Thus a gardener or a steward, who employs laborers under 
 him to do his master's work, is not answerable for the defaults or 
 improper conduct of such laborers causing damage to a third person. 
 In such cases the action must either be brought against the hand 
 
 [p) Sedgworth v. Overend, 7 T. E. 280. Bloxam v. Hubbard, 5 East, 420. Under the Pcnn- 
 sylyania statutes an action against a railroad company for negligently causing the death of a 
 parent is properly brooght in the name of all the childi-en. North. Penn. E. E. Co. v. Sobiu- 
 eon, 44 Penn. St. 176. 
 
 (g) Domat, lir. i, tit. 8, s. 4. 
 
 (r) AfUe, pp. 30-34. Birket ». WTiitehaven Juno. Eail. Co., 4 Exch. 137. 
 
 (») Sadler v. Henlock, 4 Ell. & Bl. 578; 24 Law J., Q. B. 138. 
 
 («) Holmes v. Onion, 2 C. B., N. 3. 790; 26 Law J., C. P. 263; ante. p. 30. 
 
Sec. 2.] ACTIONS — PARTIES. 507 
 
 committing the injary, or against the owner for whom the act was 
 'lone(M), or against both the one and the other jointly(a;). 
 
 Where the lessee of a ferry hired of the defendants a steamer with 
 a crew, for the day, to carry his passengers, it was held that the 
 defendants were liable for injuries caused to the passengers by the 
 negligence of the crew, who were the servants of the defendants, 
 although the passengers contracted with the lessee of the ferry for 
 conveyance in the steamboat, and paid their fares tc such lessee(2/). 
 
 The liability of any one other than the person actually doing the 
 act from whence the injary results, proceeds on the maxim qUifadt 
 per alium facit per se. The master has the selection of the servant 
 employed, and it is reasonable that he who has made choice of an 
 unskilful or careless person to execute his orders, should be responsible 
 for any injury resulting from the want of skill or want of care of the 
 person employed ; but neither the principle of the rule nor the rule 
 itself can apply to a case where the person sought to be charged does 
 not stand in the character of employer and master to the person by 
 whose negligent act the injury has been occasioned(z). Therefore 
 where the defendant employed a carpenter to niake a signboard, and 
 obtained permission for him to make it in the plaintiff's shed, and the 
 carpenter in lighting his pipe negligently set fire to the shed, it was 
 held that the plaintifif could not recover against the defendant, for the 
 act of the carpenter in lighting his pipe was not connected with the 
 employment on which he was engaged by the defendant(a). 
 
 The master is not relieved from his responsibility for the wrongful 
 act of his servant whilst doing his master's work, merely because an 
 Act of Parliament has limited and controlled the choice of the master 
 in the selection of his servants, and has compelled him to choose from 
 a particular class of skilled or educated persons, supposed tb be pecu- 
 liarly fitted for the performance of .the duties intrusted to them to dis- 
 charge(&). 
 
 The general rule is, that the person injured by the negligence of 
 another, cannot go beyond the person who actually did the injury, 
 
 («) stone V. Cartwright, 6 T. E. 411. 
 
 (a;) Wilson v. Veto, 6 Moore, 49. A joint action will lie against both master and servant 
 for a personal injury caused by the negligence of the servant in the discharge of his duties 
 to his master and in the absence of the latter. Phelps ». Wait, 30 N. Y. 78. Wright v. Wil- 
 cox, 19 Wend. 343. Montfort v. Hughes, 3 E. D. Smith, 691. Suydam v. Moore, 8 Barb. 358. 
 Hewett V. Swiit, 10 Am. Law Eeg. 505. But see Parsons v. Wlnchell, 5 Cush. 692. 
 
 (j() rialyell v. Tyrer, El., Bl. & El. 899; 28 L. J., Q. B. 52. 
 
 (a) Keedie v. London & North- West. Eail. Co., 4 Exch. 265. 
 
 (a) Williams v. .limes, 33 Law J., Exch. '207. 
 
 (6) Martin v. Temperley, 4 Q. B. 298. 
 
508 NEGLIGENCE. [Chap". S 
 
 unless lie can establish that the latter stood in the relation of a servant 
 to the defendant, or that the injury was the inevitable result of some 
 specific order given by the defendant. There are two classes of cases : 
 the first, where the act is done under the order of the employer, and 
 the order cannot be obeyed without doing what is complained of; the 
 second, where the improper mode of doing what might be rightly done 
 occasions the mischief(66). Endeavors have been made to hold all par- 
 ties liable from whom the act ultimately originates ; but it has been 
 held, that if the act ordered to be done can be lawfully done without 
 injury to others, the act of the person personally engaged in doing the 
 mischief is not the act of the person who set him in motion, unless the 
 relationship of master and servant can be established between them(c). 
 580 Contractor and sub-contractm\ — Although, therefore, a person has or- 
 dered or directed a particular thing to be done, yet if he does not 
 employ his own servants and workmen to do it, but intrusts the execu- 
 tion of the work to a person who exercises an independent employ- 
 ment, and has the immediate dominion and control over the workmen 
 engaged in the work, he is not responsible for injuries done to third 
 persons from the negligent execution of the work(cZ) ; unless a nuisance 
 is thereby created and continued on his own premises {ante, p. 247). 
 Thus, where a butcher employed a licensed drover in the way of his 
 ordinary calling to drive a bullock from Smithfield to the butcher's 
 slaughter-house, and the drover negligently sent an inexperienced boy 
 with the bullock, who drove the beast into the plaintiff's show-room, 
 where it broke several marble chimney-pieces, it was held that the 
 butcher was not answerable for the damage((3). And where a company, 
 empowered by Act of Parliament to construct a railway, contracted 
 under seal with certain persons to make a portion of the line, and by 
 the contract reserved to themselves the power of dismissing any of 
 the contractors' workmen for incompetence, and the workmen, in con- 
 structing a bridge over a highway, negligently caused the death of a 
 person passing beneath along the highway, by allowing a stone to fall 
 
 (66) In the first class of cases both the employer and contractor are liable ; in the second, 
 the contractor alone is responsible. Chicago v. Robbins, 3 Black (U. S.), 4:13. Homan v. 
 Stanley, 06 Penn. St. 464. Allen v. WiUard, 57 Penn. St. 374. Clark v. Fry, 8 Ohio, N. S. 358. 
 Baton V. European & Northern R. R. Co., 59 Me. 520. But if in the latter case the negligent 
 act was done under the direction of the employer, both the employer and contractor would 
 be liable, but separately. Clark v. Fry, 8 Ohio, N. S. 358. 
 
 (c) Butler v. Hunter, 7 H. & Jf. 826 ; 31 Law J., Bxch. 214. Cincinnati v. Stone, 5 Ohio> N. S. 
 38. Allen ». Willard, 57 Penn. St. 374. Stevens v. Armstrong, 6 X. Y. 435. 
 
 (rf) Cuthbortson ». P.arsons, 12 C. B. 304. Batons. European & Northern R. R. Co., 59 Me. 
 520. Forsyth t>. Hooper, H Allen "(Mass.), 419. Kellogg ». Payne, 21 Iowa, 575. Allen o Wil 
 lard, 57 Penn. St. 374. Schwiirts v. Gilmore, 45 111. 455. 
 
 (e) Milligans. Wedge, 12 Ad. & E 737. 
 
. Sec. 2.] CONTRACTORS ANB SUB-CONTRACTORS. 509 
 
 upon him, it was. held, in an action against the company by the 
 administratrix of the deceased, that they weie not liable(/). And it 
 is immaterial that the defendant lends some 'Qf his own men to the 
 contractor, if they are acting substantially as the contractor's servants 
 at the time of the injury(p'). But where the defendants, who were 
 occupiers of a . bonded warehouse in Liverpool, employed a master- 
 porter for the purpose of removing some barrels of flour from their 
 warehouse and lowering them into a cart, and the master-porter used 
 his own tackle, and brought and paid his own men ; and, through the 
 negligence of the men or the insufficiency of the tackle, one of the 
 barrels slipped from the tackle whilst it was being lowered into the 
 cart, and fell upon the plaintiff and injured him, it was held that the 
 defendants were responsible for the injury(/z). Here the work, it has 
 been observed, was in effect done by the defendants themselves at 
 their own warehouse, the workmen, though engaged by the master- 
 porter, being under the control of the defendants, and acting substan- 
 tially as their servants(j), and it is upon this ground alone it seems, 
 that the above case can be supported(A). 
 
 After the contract has been properly completed, and the works 
 handed over to the commissioners or persons who have employed the 
 contractor^ the liability of the contractor ceases, and for any subse- 
 quent injury caused by the natural result of the work the contractor 
 has completed, the commissioners and not the contractor will be 
 responsible ; as where the defendant, under a contract with the Metro- 
 politan Board of Works, opened a highway for the purpose of con- 
 structing a sewer thereunder, and after finishing the sewer, properly 
 filled in and made good the road, which, however, subsequently sub- 
 sided, which is the natural result of such opening the road and loosen- 
 ing the materials of which it is composed, and the plaintiff's horse 
 stumbled in one of the holes so caused and was injured(^). 
 581 Negligence of servants working under builders, contractors and sub- 
 contractors. — ^Where work which can lawfully be done without injury 
 to others is placed in the hands of a builder or contractor, who selects 
 his own workmen and servants for the performance of the work, and 
 
 (/) Beedie v. Lond. &. N.-W. BaU. Co., I Exch. ZH. See Eaton v. European & Northern K. 
 E. Co., 59 Me. 520. 
 
 (g) Mun-ayu. Currie, L. B.,G C. P. 24. See Wood «. Cobb, 13 Allen (Mass.), 58. 
 
 Ch) Kandleson v. Murray, 8 Ad. & E. 109. 
 
 (i) Denman, C. J., 12 Ad. & E. 741. And see ante, p. 220 ; West Biding Bail. Co. v. Wako 
 field Board of Health. See p. 215. 
 
 (A-) Murphy v. Caralli, 34 Law J., Exch. 14. 
 
 (I) Hyams v. Webster, L. B. , 2 Q. B. 264 ; 4 ibid. 138. Bartlett V. Baker, 34 Law J., Exch. 
 8, aco. 
 
510 NEGLIGENCE. [Chap. S. 
 
 directs the manner of doing it, exercising his own judgment in the 
 matter, and having the immediate control over the workmen, such 
 contractor, and not the person who employs him, is the person re- 
 sponsible for injuries to strangers from the negligent execution of the 
 work(7n). If a person orders his wall or his hoase to be pulled down, 
 he is not responsible for the negligence of the workmen employed by 
 the builders for the purpose(w). And if the work is done under the 
 immediate control and superintendence of a sub-contractor, then the 
 latter is the party responsible for any wrong done by the workmen he 
 employs in the execution of the work. It must not be understood, 
 however, that a contractor cannot become liable for the negligence of 
 his sub-contractor. If the contractor personally interferes and gives 
 directions to the latter, or to the workmen employed by him, he would 
 be responsible for the orders given, but he cannot be charged simply 
 on'the ground of his filling the character of contractor(o). 
 
 Where a builder had contracted with the committee of a club to 
 make alterations and improvements in the club-house, and prepare 
 and fix the necessary gas-fittings, and the builder made a sub-contract 
 with a gas-fitter to do this latter portion of the work, and the gas- 
 fitter's workmen allowed the gas to escape and cause an explosion, 
 which injured the butler of the club and his wife, it was held that the 
 gas-fitter, and not the builder, was liable for the negligence(p). 
 583 Voluntary and involuntary trespasses — Direct and consequential inju- 
 ries. — If a squib is thrown amongst a crowd in a public place, and is 
 then tossed from one person to another, the first thrower, and all who 
 have tossed the squib otherwise than in pure self-defence, arei respon- 
 sible, as we have seen, for the injury it occasions(5). " If A takes the 
 hand of B, and with it strikes C, A is the trespasser and not B"{r). 
 
 " If," observes Lord Denman, " I am guilty of negligence in leaving 
 anything dangerous in a place where I know it to be extremely 
 
 (m) Steel v. S. E. Rail. Co., 16 C. B. 550. Gray v. PuUen, 5 B. & S. 790, 981. Clark v. Fry, 8 
 01)io (N. S.), 358. Callahan v. Burlington, etc., E. R. Co., 23 Iowa, 662. Hunt v. Pennsyl- 
 vania R. R. Co., 51 Penn. St. 475. Clark v. Vermont & Canada R. E. Co., 28 Vt. 103. Pawlet 
 V. E. & W. E. R. Co., 28 Vt. 298. Blake v. Fen-is, 5 N. Y. 48. 
 
 (n) Uutler v. Hunter, ante, p. 508. See Benedict v. Martin, 36 Barb. (N. T.) 288. 
 
 (0) Overton v. Freeman, 11 C. B. 873 ; 31 Law J., C. P. 52. Blake v. Thirst, ante, p. 246. 
 See Heffernan v. Benkard, 1 Rob. (N. Y.) 432. 
 
 (p) Rapson t>. Cubitt, 9 M. & W. 710. 
 
 (a) Soott V. Shepherd, 3 Wils. 403. 
 
 (r) Gibbons v. Pepper, 1 Ld. Raym. 38. Bac. Abr. Tkespass, D. 2, ante, pp. 8, 9. Wliere 
 if caught B by the arm, swung him around violently and let him go, thereby throwing him 
 against T, who immediately pushed him off and against a hook, whereby he was severely 
 injured, it was held that It could maintain an action of trespass vi et armis against F, 
 Eicker v. Freeman, 50 N. H. 420. 
 
Sec. 2.] ACTIONS — PLEADINGS. 511 
 
 probable that some other person will unjustifiably set it in motion to 
 the injury of a third party, and if that injury should be so brought 
 about, the suflFerer may have redress by action against both or either 
 of the two, but unquestionably against the first. If, for example, a 
 gamekeeper, returning from his daily exercise, should rear his loaded 
 gun against a wall in the playground of schoolboys, and one of these 
 should playfully point the gun at a schoolfellow, and fire it off and 
 maim him, the gamekeeper must answer in damages to the wounded 
 party"(s). If a horse and cart are left standing in the street without 
 any person to watcli them, and a person strikes the horse and causes 
 it to back against a shop-window, the owner is liable for the damages, 
 for he must, as we have seen, take the risk of all the consequences 
 that result from the horse being left unattended(<). In such a case 
 the owner, who has left his cart unattended, and the person who struck 
 the horse, are both liable for the injury(<). 
 
 "If I deliver my horse to a smith to shoe, and he delivers him to 
 another smith, who pricks him, I may have an action on the case 
 against the latter, though I did not deliver the horse to him. So if I 
 deliver goods to A, who delivers them to B, to keep to the use of A, 
 and B wastes these goods, I may have an action on the case against 
 B, though I did not deliver the goods to him "(m). 
 
 583 Joint and separate liabilities. — If several co-proprietors of a stage- 
 coach intrust the driving of the coach to one of them, all will be 
 responsible for injuries caused by his negligent driving(a;). And if 
 two omnibuses are racing, and one of them runs over a man who is 
 crossing the road and has not time to get out of the way, the injured 
 person has a remedy against the proprietor of either omnibus(2/). 
 
 584 Declarations for injuries from negligence must set forth either an 
 injury to the property or to the person of the plaintiff, or to both. If 
 the injury is an injury to goods and chattels, the declaration must 
 
 («) Lynch ». Nuvdin, 1 Q. B. 36. 
 
 («) midge V. Goodwin, 5 C. & P. 192. See Fiazor v. Kimlar, 5 N. T. Sup. Ct. 18. Where a 
 druggist carelessly labels a deadly poison as a hanr.luss medicine, and the poison so labelled 
 after passing through many intermediate sales finally reaches the hand of one who, without 
 fault, uses it as a medicine, and is injured thereby, the druggist is liable for the result of his 
 negligence notwithstanding the number of intermediate sales. Thomas v. Winchester, 6 N. 
 Y. 397. See Fleet v. HoUenbeck, 13 B. Monr. 219. 
 
 («) Roll. Abr. 90. Loeschman v. Machin, 2 Stark. 311. 
 
 (x) Moreton v. Hardern, 4 B. & C. 223. 
 
 \y) Cresswell, J., in Thorogood v. Bryan, 8 C. B. 121. One injured by the concurrent 
 negligence of two other persons, may maintain a joint action against both. Colegroye v. 
 New York & New Haven, & New York & Harlem E, K. Co., 20 N. Y. 492. Klauder e 
 MeGrath, 35 Penn. St. 123. Or he may at his election sue either of the wrong-doers. Creed 
 V. Hartmann, 29 N. Y. 691. North. Pennsylvania K. E. Co. v. Mahoney, 67 Peiin. St. 162. See 
 Milford V. Holbrook, 9 AUen (Ma«g,), 17. 
 
512 NEGLIGENCE. [Chap. 8. 
 
 allege them to be the goods and chattels of the plaintiflf : ■ for if there 
 is no averment to this eflfect, and nothing on the record to show the 
 plaintiff's right or title to the chattels or to the possession of them, 
 there is no cause of action(2). The declaration for an injury to a ship 
 or carriage through the negligent management of another ship or 
 carriage by the defendant or his servants, should set forth the 
 plaintiff's possession of his ship on the high seas or in a certain river, 
 or of his carriage on a certain highway, and the defendant's possession 
 of another ship on the high seas, or iij the same river, or of another 
 carriage on the same highway, and that the defendant navigated his 
 ship or drove his carriage in so negligent a manner, that the de- 
 fendant's ship or carriage, through his carelessness and mismanage- 
 ment, ran foul of the plaintiff's ship or carriage, and injured the same, 
 and spoiled divers goods and chattels in the said ship, and caused the 
 plaintiff' to incur great expense in repairing, etc., and caused the plain- 
 tiff to be deprived of the use of his ship, etc., and to lose the profits of 
 a voyage, concluding with a claim of damages.(a). 
 
 If the plaintiff complains of an injury to the person, the declaration 
 •will either be for an immediate injury, such as an assault {post,, ch. 
 15), or trespass ; or a consequential injury, such as the breaking of the 
 plaintiff's leg through thevupsetting of a coach negligently driven by 
 the defendant(6), or the loss of the plaintiff's eye through the negli- 
 gence of the defendant in intrusting a loaded gun to the care of a 
 young and inexperienced person, who carelessly shot off the gun 
 pointed at the plaintiff(c). If the cause of action be a breach of duty, 
 arising ex contractu, the circumstances and the nature of the contract or 
 employment creating the duty must be truly set forth on the face of 
 the declaration, and be supported by the evidence at the trial(d). 
 
 A decjaration alleging that the plaintiff was the servant of the 
 defendant, ard that the defendant ordered the plaintiff to ascend and 
 use certain scaffolding, etc., well knowing it to be dangerous and unfit 
 for use, and that the plaintiff, in obedience to the order of the defend- 
 ant, used 'the scaffolding, etc., believing it to be safe and fit for use, 
 and not knowing the contrary, and not having the same means that 
 the plaintiff had of forming^a correct opinion upon its sufficiency and 
 safety, and that the scaftbldi::g, etc., by reason of its being unsafe 
 
 («) Pritchard v. Long, 9 M. & W. 666. Forman v. Dawes, Car. & M. 129. 
 
 (a) Lcame «. Bray, 3 East, 593. 
 
 (i) Curtis V. Prinkwater, 2 B. & Ad. 160. 
 
 (c) Dixou V. flJell, 5 M. & S. 198. 
 
 (d) Lopos V. De Tastet, 4 Moore, 279 ; ante, p. 17. 
 
Sec. 2.] FLEA OF NOT GUILTY. ^13 
 
 and unfit for use, gave way with the plaintiff upon it, and precipitated 
 the plaintiff upon the ground, etc., discloses a good cause of action(e). 
 
 If the plaintiff complains of injuries received by the upsetting of a 
 coach in which he was riding as a passenger, the declaration should 
 allege that the defendant was the proprietor of a stage-ooach, and that 
 the plaintiff was received by him as a passenger, to be carried safely 
 for hire, and that the defendant did not take proper care in the driv- 
 ing and management of the coach, but suffered the coach to be over- 
 loaded, etc., stating the facts constituting the act of negligence, and 
 the injury resulting to the plaintiff, and claiming damages. 
 
 The allegation in the declaration that the plaintiff was to be safely 
 carried, does not mean that he is to be conveyed safely absolutely, like 
 a bale of goods, bat that he is to be carried with due care(/). 
 585 Plea of not guilty. — The plea of not guilty in actions for injuries 
 caused by the negligence of the defendant, operates as a denial only 
 ■of the wrongful act alleged to have been committed by the defendant, 
 and no defence other than such denial is admissible under that 
 plea. 
 
 All other pleas in denial must take issue on some particular matter 
 of fact alleged in the declaration(^). If the plaintiff complains of 
 damage done to his goo&s and chattels, or personal property, through 
 the negligence of the defendant or his servants, the plea of not guilty 
 operates as a denial only of the defendant's having committed the 
 wrong alleged by damaging the goods mentioned, but not of the plain- 
 tiff's property therein(^). The defendant cannot, therefore, nnder the 
 plea of not guiltyj show that the damaged chattel did not belong to 
 the plaintiff, or that it was not in his possession at the time of the in- 
 jury(i). But where the plaintiff's own negligence is the immediate 
 cause of the injury, or has contributed to the mischief of which he 
 complains, the defence is admissible under the plea of not guilty(A). 
 
 And if the injury was the result of an inevitable accident, and was 
 not occasioned by any default on the part of the defendant, the defend- 
 
 (c) Williams v. Clongh, 3 H. & N. 258 ; 27 I/aw J., Exoh. 325. 
 
 (/) Harris v. Costar, 1 C. & P. 638. Aston v. Heaven, 2 Esp. 535. See ante. p. 467-8, Where 
 •he action is against the master for tlie negligent act of hi? servant, the declaration may- 
 charge the negligence to be that of the master Ti-ithout mentioning the servant ; and it should 
 stab 1 that the act was committed negligently, but not that it was committed wilfully. Brasher 
 V. Kennedy, 10 B. Monr. 28. 
 
 (^) Eeg Gen. Hil. Term, 16 Viet. ; 1 Ell. & Bl. App. Ixxxi, Ixxxii.; post, eh. 21. 
 
 ;A) Eeg. Gen. Hil. Term, 16 Vict. ; 1 Ell. & Bl. App. Ixxxi, bcxxii. 
 
 (t) Hart V. Crowley, 12 Ad. & E. 378. Taverner v. Little, 5 B. N. C. 678. 
 
 (*) Bridge v. Grand June. Bail. Co., 3 M. & W. 'Hi. Holden ». Liv. Ga^ Co., 3 C. B. 1 ; 15 
 LawJ.,C. P. 301. 
 
 Ad. Vol. I.— 33 
 
514 NEGLIGENCE. [Chap. 8 
 
 ant will be entitled to a verdict under the plea of not guilty(?). This 
 has been held to be the case where a horse, being frightened by a clap 
 of thunder, ran away with the defendant, and knocked down the 
 plaintiflF(ZZ) ; also, where a horse, being frightened by the noisy and 
 rapid approach of a butcher's cart, furiously driven, became ungovern- 
 able, and ran against and killed another horse, notwithstanding all 
 the efforts of the defendant to control the animal(TO). But where an 
 action was brought against the defendant for running over' the plain- 
 tiff with a horse and cart, and breaking his leg, it was held that the 
 defendant could not under the plea of not guilty, show that there was 
 no negligence on his part, but that the plaintiff accidently slipped 
 from the pavement at the moment when the cart was ijassing, and had 
 ' so got his leg under the wheel. " The authorities show," observes 
 Lord Denman, " that if the accident had resulted entirely from a 
 superior agency, that would have been a defence, and might have been 
 pleaded under the general issue ; but a defence admitting that the 
 injury resulted from an act of the defendant is not so proveable "{n). 
 586 Evidence at the trial — Proof of negligence.- — -Proof of the commission 
 by the defendant, or his servants, of the injury of which the plaintiff 
 complains, very generally carries with it prima facie proof of negli- 
 gence, and it is for the defendant to show that the injury was the 
 result of inevitable accident {ante, pp. 2, 465, 469, 470), or that it was 
 occasioned by the negligence or misconduct of the plaintiff himself 
 {ante, pp. 24^28), or by circumstances over which the defendant had 
 no control {ante, pp. 468-470). So the fact that a barrel from the 
 defendant's warehouse, or a brick from the defendant's bridge, fell 
 upon the plaintiff, who was passing along the street, or under the 
 bridge, is sufficient to raise the presumption of negligence by the 
 defendant(o). Where the declaration of the cause of action stated that 
 the defendant struck the plaintiff's cow divers blows, by reason 
 
 {I) One, who by his own negligence gets into a position which renders an accident inevit- 
 able, cannot avail himself of the defence of " inevitable accident." Austin v. New Jersey 
 steamboat Co., 43 N. Y. 75. 
 
 [II) Gibbons v. Pepper, 1 T.d. Raym. 38 ; 2 Balk. 638. 
 
 [m) AVakeman v. Robinson, 1 Bing. 213. 
 
 («) Hall ». Fearnley, 3 Q. B. 921. 
 
 (o) Byrne u. Boadle,33Law J., Exch. 13. Scott ». London Dock Co., ante, p,. 4'^. Kear- 
 ney V. I.ond. and Brighton Rwy., L. E., 5 Q. B. 311 ■; 6 ibid. 759. See Welfare v. Brighton 
 Rwy. Co., L. R., 4 Q. B. 693. " Where a horse, in course of carriage by railway, gotinjured, 
 apparently by getting down on the floor of the horse-box, and it was proved, on the one 
 hand, that the train proceeded on its journ.ey without disturbance or inten'uption ; and on 
 the other, that the horse was quiet and accustomed to travel by rail, it was held that the 
 railway company were not liable, for that the proper inference to be drawn from such facts 
 was that the injury had resulted from the 'proper vice' of the horse. Kendall ». S. W. Rwy., 
 L. E., 7 Exch. 273, diu. Pigott, B." 
 
Sec. 2.] EEMEDT BT ACTION — EVIDENCE. 515 
 
 whereof she died, it was held that it was suiScient to prove that the 
 cow received such injury at the hands of the defendant, that it became 
 necessary to kill her(p). 
 
 Where an Act of Parliament directed a water company to lay down 
 pipes, with plugs in them, as safety-valves to prevent the bursting of 
 the pipes, and the plugs were properly made, and of proper material, 
 and a severe frost came and prevented the plugs from acting, and the 
 pipes burst and flooded the plaintiflf 's cellar, it was held that there 
 was no evidence of negligence against the company(g'). 
 
 A declaration which charges the defendant with having negligently 
 driven his cart against the plaintiff's horse, or with having so negli- 
 gently kept his fire that it spread to and consuqied the plaintiff's corn, 
 is supported by proof that the defendant's servant negligently drove 
 the cart, or lighted and kept the flre(r), {ante, pp. 30-34, 301, 475). But 
 in order to make the master responsible, it is not sufficient to show 
 that the servant has been guilty of negligence in driving, it must be 
 shown that the servant was driving at the time with the authority 
 of the master on his business ; but it is not necessary to prove any 
 express request or order by the master to the servant to use the mas- 
 ter's horse or carriage. If, at the time of the injury, the servant 
 appears to have been driving his master's carriage in the ordinary 
 course of his employment, the master will be prima facie responsible(s). 
 Where the plaintiff was injured by the negligence of a person left in 
 charge of a ship lying in dock, the production of the ship's register 
 was held to be prima facie evidence that the ship-keeper was the serv- 
 ant of the person appearing on the register as owner, and, therefore, 
 that such owner was responsible(i). 
 
 If the action is brought under the statute 9 & 10 Vict. c. 93, for com- 
 pensating the families of persons killed by accident (ante, p. 502), it 
 must be proved that actual pecuniary damage has been sustained by 
 the relatives of the deceased person, and that the plaintiflf', who sues as 
 administrator, or the person for whose benefit the action is brought, 
 had some pecuniary interest in the life of the person killed. It was 
 intended by the Act to give compensation for damage actually sus- 
 tained, ^nd not to enable persons to sue in respect of some imaginary 
 damage, and so punish those who are guilty of negligence by making 
 
 ip) Haneoek v. Southall, 4 D. & R. 202. 
 (g) Blyth e. Birmingharn Water Co., llExch. 781. 
 
 (r) Brucker v. Fromont, 6 T. B. 659. Turberville v. Stampe, 1 Ld. Raym. 26i. Croft v. 
 Alison, 4 B. & AM. 590. 
 («) Patten V. Bea, 2 C. B., N. S. 613 ; 26 Law J., C. P. 237. 
 (<) Hibbse. Boss, I.. B., 1 Q. B. 531. 
 
516 NEGLIGENCE. ^ [Chap. 8. 
 
 them pay costs; but the loss of anticipated benefit, founded on a 
 reasonable and just expectation of pecuniary advantage derivable 
 from the continuance of the life of the deceased, may be the subject- 
 matter of damage, and a sufficient foundation for an action(M). 
 
 If the plaintiff complains of a breach of duty on the part of the 
 defendant, in his character of an attorney, it must be clearly shown 
 that it was the duty of the defendant to do that which he is charged 
 with having neglected. If the matter is at all left in doubt, he is 
 clearly entitled to the benefit of the d9ubt(a5). 
 
 587 Proof of retainer and employment. — Where an action for negligence 
 was brought against a surgeon, and it was proved that the plaintiff's 
 mother sent for the defendant, and that her father paid him, it was 
 held that the plaintiffs submitting to the defendant's treatment was 
 sufficient proof that the defendant had been employed by the plain- 
 ti%). 
 
 588 Proof of the ownership of chattels damaged by negligence. — Where the 
 plaintiffs hired a chariot for the day, appointed the coachman, and 
 furriished the horses, it was held that they were properly described as 
 owners and proprietors of the carriage in a declaration against a 
 defendant for an accident arising fram his servant's negligence in driv- 
 ing against the chariot(z). 
 
 589 Evidence for the defence{d) — Questions for the jury. — If it appears that 
 there was negligence on the part of the plaintiff as well as on the part 
 of the defendant, the proper question for the jury is, "whether the 
 damage was occasioned entirely by the negligence or improper con- 
 duct of the defendant, or whether the plaintiff himself so far contrib- 
 uted to the misfortune by his own negligence, that, but for such negli- 
 gence on his part, the misfortune would not have happened. In the 
 first place the plaintiff would be entitled to recover, in the latter 
 not "(6). 
 
 In an action for damages resulting from the negligent driving of 
 the defendant's servant, the proper question for the jury is, whether 
 
 (M) Duckworth v. Johnson, 4 H. & N. 659. Mclntyre v. New York Central R. E. Co., 37 N. 
 T. 287. Tilley v. Hudson River E. E. Co.) 24 N. Y. 471 ; 5. C. 29 N. Y. 252. Ki-esler v. Smith, 
 oe N. C. 154, 
 
 (X) Chapman v. Van Toll, 8 EU. & Bl. 396 ; 27 Law J., Q. B. 1 ; ante, pp. 496-500. 
 
 (2/) Glad well v. Steg-gall, 8 Se. 67 ; 5 B. N. C. 733. 
 
 (0) Croft V. Alison, 4 B. & Aid. 590. 
 
 (a) Admissions made by tlio plaintiff, by his conduct, that he has a had case, are admissible 
 for the defence, e.g., his asking a person not present at the accident to come forward and give 
 evidence : Moriarty v. L. C, & D. Ewy., L. E., 5 Q. B. 314. 
 
 (6) Tuff V. Warman, 2 C. B., N. S. 740; 27 Law J., C. P. 322; ante, pp. 24-28. That the 
 doctrine stated in the text is not the correct rule of law in cases of negligence, see Mui-phy 
 V. Deane, 101 Mass. 456. 
 
Sec. 2. J ACTIONS — DAMAGES RECOVERABLS. 517 
 
 at the time df the commission of the injury the servant was driving 
 on his master's business and with his authority(c). 
 
 In actions against an attorney for negligence, it is the province of 
 the judge to inform the jury for what species or degree of negligence 
 an altorney is properly answerable, and what duty is cast upon him 
 by law, or by the practice of the court in the particular instance, and 
 to leave them to say whether the attorney has performed his duty ; 
 and in case of non-performance, whether the neglect was of that sort 
 or degree which is culpable or venial in the sense of sustaining or not 
 sustaining an action(ii), 
 
 "Where the injury complained of has resulted from negligence in 
 leaving instruments of danger, such a horse' and cart, unattended in 
 a public thoroughfare or place of public resort, it is for a jury to inquire 
 whether the horse was vicious or steady, whether the horse was left for 
 an unreasonable time, and whether there was any excuse for leaving 
 it at all unattended, whether assistance could have been procured to 
 watch the horse, whether the street was unfrequented or thronged, 
 and especially whether large numbers of young children might 
 reasonably be expected to be about the spot(e). 
 590 The damages recoverable will mainly depend upon the nature and 
 character of the injury, whether it is the mere result of such negli- 
 gence as amounts to little more than accid-ent, or whether it is of a 
 wilful or insolent character(/). In cases of injuries to chattels from 
 negligence, the measure of damages is the actual deterioration in the 
 value of the chattel, and if the owner has been deprived of the use 
 of the chattel, and has been obliged to hire another chattel, and been 
 put to expense, and has sustained special damage, Avhich -is the 
 natural and necessary result of the wrongful act, such damages are 
 recoverable if claimed in the plaintiff's declaration. In an action for 
 an injury to a horse from negligent driving, it was held that the 
 proper measure of damages was the keep of the horse at a farrier's, 
 the amount of the farrier's bill, and the difference between the value 
 of the horse at the time of the accident and at the time of the com- 
 m_encement of the action.(</). 
 
 (c) Patten v. Rea, 2 C. B. N. S. 607; 26 Law J., C. P. 233. 
 
 (<f) Hunter v. Caldwell, 10 Q. B. S2. Hatch v. Lewis, 1 F. & F. 467. 
 
 (c) Lynch v. Xurdin, 1 Q. B, 38; ante, pp. 24-27. 
 
 (/) Emblem v. Myers, 6 H. & N. 64. 
 
 [g) Hughes v. Quentin, 8 C. &. P. 703. In an action brought to recover damages for inju 
 nes caused by the gross negligence of the defepdants, the jury may in their discretion give 
 exemplary damages. Ta;ylor u. Grand Trunt K. E. Co., 48 N. H. 304. Hopkins ». Atlantic 
 & St. L. E. E. Co., 36 N. H. 9. Whipple v. Walpole, 10 N. H. 130. But in an action against 
 
518 NEGLIGENCE. [Chap. 8. 
 
 59 1 Damages not too remote. — ^Where through the default of a coach pro- 
 prietor in neglecting to provide proper means of conveyance a pas- 
 senger is placed in so perilous a position as to render it prudent for 
 him to leap from the coach, vrhereby his leg is broken, the proprietor 
 "will be responsible for the damage, though the coach be not actually 
 overturned(A). But if the negligence of the defendant only cause 
 some personal inconvenience to the plaintiff, and the injury is proxi- 
 mately caused by the plaintiff unreasonably trying to remedy such 
 inconvenience, the defendant will not be liable. Thus, where from a 
 defect in the latch of a railway carriage the door flew open, and a 
 passenger, in endeavoring to shut it, fell out, it was held that the 
 company were not responsible(i) 
 
 592 Negligent management or navigation of vessels. — The liability of a ship- 
 owner for damage done by the negligent management of his vessel, 
 causing a collision with another vessel, is, as we have seen, limited to 
 the value of the vessel and freight at the time of such collision : and 
 if the vessel instantly founders, he is not thereby exempted from 
 liability(y). The value is to be taken at the moment of collision(^). 
 Where the plaintiff, in consequence of the collision, has been obliged to 
 avail himself of the assistance of persons who demand an exorbitant 
 sum for salvage, and it is reasonable and prudent to resist this demand, 
 and costs are incurred in resisting it, the plaintiff will be entitled to 
 recover these costs, if he claims them in his declaration as part of the 
 damages(Z). The proceedings in the Court of Admiralty in cases of 
 collision are, as we have seen, generally speaking, against the ship 
 {ante, p. 483) ; and where both vessels are found to blame, and the 
 Merchant Shipping Act does not preclude the recovery of damage {ante, 
 p. 482), the shipowners can only recover a moiety of the damage which 
 
 arailroad company to recover damages for injuries resulting from the negligence of an 
 employee, the company will not be liable in punitive damages, however gi*oss or culpable 
 the negligence of the employee, unless the company Is also chargeable with gi'oss miscon- 
 duct. Cleghorn v. JSTew York Central & Hudson River B. R. Co., 66 N. Y. H. 
 
 (ft) Jones V. Boyce, 1 Stark, i93, cited in Wilson v. Newport Dock Co., L. R., 1 Exch. 1S7. 
 So wii6re a passenger sees another train of cars approaching the one in which he is being con- 
 veyed at sucli a speed as to make a serious collision inevitable, and in his attempt to escajje, 
 gets upon the platform of the car only in time to have his leg broken by the collision, the com- 
 pany will be liable, notwithstanding the regulation prohibiting passengers from standing or 
 riding on tlie platform while the cars are in motion, and notwithstanding the fact that the 
 otlier passengers who did not see the approaching danger and kept their seats escaped unin- 
 jured. Buel V. New York Central R. R. Co., 31 N. Y. 314. 
 
 (i) Adams v. Lancashire and Yorkshire Kwy., L. B., 4 C. B. 739. See Re United Service 
 Co., L. R., 6Ch. App. 212. 
 
 (j) Brown v. Wilkinson, 15 M. & W. 391. 
 
 (A) The Mary Caroline, 3 W. Bob. 101. 
 
 (i) Tindall v. Bell, 11 M. & W. 228. 
 
"See. 2. J DAMAGES IN CASE OF DEATB. 519 
 
 they have respectively sustained ; and the same rule applies to actions 
 by the owners of the cargoes on board the delinquent ships(«i). Nor 
 can the one recover salvage from the other in such a case(n). 
 
 593 Damages when the plaintiff is insured against loss, or has received full 
 indemnity under a contract of insurance. — The recovery by the plaintiff 
 of full compensation for the loss or damage his property has sustained 
 under a contract with insurers, cannot be given in evidence in reduc- 
 tion of damages in an action against the wrong-doer who has done the 
 mischief. The plaintiff's contract with the underwriters or insurers is 
 res inter alios acta, of which the defendant, who is sued for negligence, 
 cannot avail himself. If it were not so, the wrong-doer would take 
 the benefit of a policy of insurance without paying the premium(o). A 
 plaintiff, however, who has received a full indemnity for his loss under 
 
 . a contract of insurance, and has afterwards recovered compensation in 
 an action for damages against the wrong-doer, is not entitled to a 
 double satisfaction, but is bound to hand over the damages to the 
 insurer or underwriter, who is the person really damnified by the 
 wrongful act(p). 
 
 594 Dam,ages recmerdble hy personal representatives in cases of death from 
 negligence. — In all actions by the personal representatives of persons 
 killed by negligence, brought under the 9 & 10 Vict. c. 93 {ante, pp. 
 502, 515), to recover damages proportioned to the injury resulting 
 from his death to the persons for whose benefit the action is brought, 
 the jury, in assessing the damages, must confine themselves to injuries 
 of which a pecuniary estimate may be made, and cannot lawfully 
 increase them by adding a solatium to those persons in respect of the 
 mental sufferings occasioned by such death. They cannot, therefore, 
 lawfully inquire into the degree of mental anguish which each mem- 
 ber of the family has suffered from the bereavement, and cannot take 
 into consideration the mental sufferings of a widow or child for the 
 loss of a husband or a parent(g). It is clear, also, that the damages 
 are not to be given merely in reference to the loss of any legal right 
 against the deceased, which might have been turned to profit if he 
 
 (m) The Milan, ante, p. 484. 
 
 («) The Capella, L. R., 1 Adm. & Eocl. 35(). 
 
 (0) Yates v. Whyte, 4 B. N. C. 283. Propeller Monticello v. Gilbert MoUison, 17 How. (IT. 
 *S.) 1.52. Hoarding u. Town of Townshend, 43 Vt. 636. Althorff u. Wolfe, 22N. Y. 355. See 
 Clark V. Wilson, 103 Mass. 219 ; Perrott v. Shearer, 17 Mich. 48 ; Mayor, etc., of New York 
 V. stone, 20 Wend. 139. 
 
 [p) Ante, p. 315 ; smdpost, oh. 22. See Hart v. Western E. K. Co., 13 Mete. 99. 
 
 (3) Blake v. Mid. Rail. Co., 21 Law J., Q. B. 233 ; 18 Q. B. 93. Armsworth v. S. E. Rail. Co., 
 11 Jur. 759. Oldflcld v. Hew York & Harlem R. E. Co., 14 N. Y. 310. 
 
520 NEGLIGENCE. [Chap. 8. 
 
 had lived, and which has been lost by his death, for the damages 
 recovered are to be distributed amongst the relations only, and not to 
 all individuals sustaining loss ; and, accordingly, the practice has been 
 to ascertain what benefit could have been claimed from the deceased, 
 if he had lived, by the person seeking to obtain damages ; and if the 
 latter can show that he had a reasonable expectation of pecuniary ben- 
 efit from the continuance of the life, and is also within the requisite 
 degree of relationship, his claim may fairly be considered by the jury 
 in assessing the amount of damages(r)«. Thus the loss of the benefit 
 of education and of the comforts and conveniences of life, and of an 
 expected pecuniary provision, may, as we have seen, be taken into 
 consideration ; and it is for a jury to say, taking into account all the 
 uncertainties and contingencies of the particular case, whether there 
 was such a reasonable and well-founded expectation of pecuniary 
 benefit as can be estimated in money, and so become the subject of 
 damages(s). No damages can be given in respect of funeral expenses 
 and mourning, there being no language in the statute referring to 
 these expenses and rendering them recoverable(i). 
 
 (r) rranklin v. S. E. Eail. Co., 3 H. & N. 2U. Kresler v. Smith, 66 N. C. 154. Proof of 
 special pecuniary damages is not necessary to maintain an action for causing tlie death of 
 an infant, or to warrant the jury to find more than nominal damages. It is Tvithin the 
 province of the jury in such cases, after taking into consideration the position in life and 
 occupation of the parents, and the age and sex of the child, to form an estimate of the dam- 
 ages with reference to the pecuniary injury, present or prospective, resulting to the next of 
 kin. Ihl ». Forty-Second Street & Grand Street Ferry R. K. Co., 47 N. T., 317. O'Marer ». 
 Hudson River E. R. Co., 38 N. Y. 445. Oldfield v. New York & Harlem R. R. Co., 14 N. Y 310. 
 Drew V. Sixth Avenue E. E. Co.', 26 N. Y. 49. 
 
 (s) Pym V. Gt. North. Eail. Co., ante, p. 504. Mclntyre v. New York Central E. E. Co., 37 
 N. Y. 287. Tilley v. Hudson River E. R. Co., 29 N. Y. 252. 
 
 («) Dalton V. S.-E. Rail. Co., 4 C. B. N. S. 296 ; 27 Law J., C. P. 227. 
 
CHAPTER IX. 
 
 OP NEGLIGENCE ON THE PART OF BAILORS AND BAILEES- 
 DETENTION AND LOSS OF CHATTELS BY BAILEES(a). 
 
 Sbction I. — Of 'negligence on the part of hailors arid bailees. — Bailments of chattels 
 — Negligence of bailees — Loss of chattels by workmen to whom they have 
 been delivered — Negligent keeping of goods by warehousemen, wharfingers, 
 etc. — Losses by robbery and theft — Losses occasioned by the negligence of 
 the bailor — Loss of cattle — Liabilities of agisters of cattle— Deposit of goods 
 under a special contract — Deposit of luggage and parcels at railway stations 
 — Delay in delivery — Loss of goods by persons who have received them to be 
 can'ied, but who are not common carriers — Limitation of the liability of ship- 
 owners in respect of the carriage of merchandise and chattels — Detention of 
 chattels by bailees claiming lien — Particular liens and general liens — Ordinary 
 lien of workmen and artificers — Persons against whom a lien may be claimed 
 — General lien — Lien of factors, brokers, bankers, attorneys, solicitors, etc. — 
 Lien for freight — Lien of consignees — Notice that goods will be held subject 
 to general lien — Custom of trade — Extinguishment of liens — Detention -of 
 chattels by one of several joint-owners or tenants in common — Re-delivery of 
 chattels to one of several bailors. 
 
 Section II. — Of actions for the negligent management, negligent keeping, and un- 
 lawful detaining of goods and chattels. — Parties to be made plaintiffs — Joint 
 and separate rights of action — Power of bailees to compel rival claimants to 
 interplead and establish their title — Declarations against bailees for negligence 
 and breach of duty — Payment of money into court — Pleadings, defences, ev- 
 idence, and damages recoverable — Orders for the delivery 9f the specific 
 thing detained — Assessment of the value thereof — Assessment of damages, 
 ■where all or part of the things detained have been delivered up after action 
 
 (o) See farther, as to bailments, Addison on Contracts, ch. 12, 6tli ed. 
 
522 NEGLIGENCE. [Chap. 9, 
 
 SECTION I. 
 
 OP NEGLIGENCE ON THE PART OP BAILORS AND BAILEES — DETENTION 
 AND LOSS OP CHATTELS BY BAILEES. 
 
 595 0/ bailments of chattels. — "There are," observes Holt, C.J., "six 
 sorts of bailments. The first is a bare, naked bailment of goods 
 delivered by one man to another, to keep for the use of the bailor ; 
 
 ■ and this I call a depositum, and it is that sort of bailment which is 
 mentioned in Southcote's case. The second sort is, when goods or chattels 
 that are useful are lent to a friend, gratis, to be used by him ; and 
 this is called commodatum, because the thing is to be restored in specie. 
 The third sort is, when goods are left with the bailee, to be used by 
 him for hire ; this is called locaiio et conductio, and the lender is called 
 locator, and the borrower conductor. The fourth sort is, when goods 
 or chattels are delivered to another as a pawn, to be a security to him 
 for money borrowed of him by the bailor; and this is called, iu Latin, 
 vadium, and in English, a pawn or a pledge. The fifth sort is, when 
 goods or chattels are delivered to be carried, or something is to be 
 done about them for a reward, to be paid by the person who delivers • 
 them to the bailee, who is to do the thing about them(&). The sixth 
 sort is, when there is a delivery of goods or chattels to somebody who 
 is to carry them, or do something about them gratis, without any 
 reward for such his work or carriage "(c). 
 
 596 Negligence of bailors. — It is the duty of every bailor of dangerous, 
 explosive, and combustible substances, knowing the dangerous nature 
 of them, to take care that the danger is communicated to a bailee to 
 whom they are delivered to carry, to take care of, or to keep ; and if 
 the bailor fans to make the necessary disclosure, he is responsible if 
 an accident occurs, and damages are sustained by the bailee or his 
 servant(d). 
 
 597 Of the negligent Jceeping of chattels by bailees. — "As to the first sort of 
 bailment," observes Holt, C.J., "where a man takes goods into his 
 
 (5) If property is delivered on a contract for an equivalent in money, or some otlior com- 
 modity, and not for tlie return of the specific goods, e.g., wliero a farmer sends corn to be 
 ground, to be mixed up by the miller when ground with corn belonging to other people, the 
 farmer to have an equivalent quantity in return, that is a sale and not a bailment. South 
 Australian Co. v. Eandell, L. E., 3 C. P. Ca. 101. 
 
 (c) Cogga V. Bernard, 1 Smith's L. C, 6th ed. 177. 
 
 (d) Farrant v. Barnes, ante, p. 22. 
 
.Sec. 1.] BORROWERS AND LENDERS OF CHATTELS. 523 
 
 custody, to keep for the use of the bailor, such a bailee is not answer- 
 able if they are stole without any fault in him, neither will a common 
 neglect make him chargeable ; but he must be guilty of some gross 
 neglect((^cZ). If he keeps the goods bailed to him but as he keeps his 
 own, though he keeps his own but negligently, yet he is not charge- 
 able for them, for the keeping them as he keeps his own is an argument 
 of his honesty"(e). But if he is guilty of gross negligence, it is no 
 answer to say that he lost his own goods at the time he lost the goods 
 of the bailor(/). 
 
 "As to the second sort of bailment — viz., commodatum, or lending 
 gratis — the borrower is bound to the strictest care and diligence to 
 keep the goods, so as to restore them back again to the lender ; be- 
 cause the bailee has a benefit by the use of them, he will be answerable 
 if he be guilty of the least neglect(#) ; as if a man should lend 
 another ahorse to go in one direction, or for one month, and the bailee 
 goes in another direction, or keeps the horse above a month, and an 
 accident happens to the horse, the bailee will be chargeable, because 
 he has made use of the horse contrary to the trust he was lent to him 
 under ; and it may be, that if the horse had been used no otherwise 
 than as he was lent, that accident would not have befallen him. If 
 the bailee put the horse in his stable, and he were stolen from then'ce, 
 the bailee shall not be answerable for him ; but if he or his servant 
 leave the house or the stable-doors open, and thieves take the oppor- 
 tunity of that and steal the horse, he will be chargeable, because the 
 neglect gave the thieves the occasion to steal the horse. Bracton says 
 the bailee must use the utmost care, but yet he shall not be chargeable 
 where there is such a force as he cannpt resist"(g'). 
 
 " The duties of the borrower and lender," observes Coleridge, J., 
 " are in some degree correlative. The lender must be taken to lend 
 for the purpose of a beneficial use by the borrower; the borrower, 
 
 (dd) Foster v. Kssex Bank, 17 Mass. 500. Edson v. Weston, 7 Cow. 278. Sodowsky v. 
 M'Farland, 3 Dana, 205. Mcjiay v. Hamblin, 40 Miss. 472. Dunn v. Branner, 13 La. An. 452. 
 Spooner v. Mattoon, 40 Vt. 300. Johnson v. Reynolds, 3 Kaus. 257. 
 
 (e) Holt, C. J., Coggs V. Bernard, 2 Ld. Eaym. 909. Walker ». Guarantee Assoc., 18 Q. B. 
 286 ; 21 Law J., Q. B. 257. Fulton v. Alexander, 21 Texas, 148. 
 
 (/) Doorman v. Jenkins, 2 Ad. & E. 258. See post, p. 629, 530 ; GuUadge ». Howard, 23 
 Ark. 61. 
 
 (#) Soranton v. Baxter, 4 Sandf. (N. Y.) 5. Bennett o. O'Brien, 37 111. 250. Wood o. 
 MoClure, 7 Ind. 155. Phillips v. Condon, 14 111. 84. 
 
 (g) Coggs V. Bernard, 2 Ld. Kaym. 911. See Wood v. MoClure, 7 Ind. 155. Where A deliv- 
 ers a horse to B, to be used by the latter in compensation for its feed and keeping, the trans- 
 action is not a mere gratuitous loan, but a contract for the mutual benefit of both parties, 
 under which B is required to exercise only ordinary care in the keeping of the animal. 
 Chamberlain v. Cobb, 32 low^, 161. 
 
524 NEGLIGENCE. [Chap. 9. 
 
 therefore, is not responsible for reasonable wear and tear, but he is for 
 negligence, for misuse, for gross want of skill in the use, above all, for 
 anything which may be defined as legal fraud. So, on the other 
 hand, as the lender lends for beneficial use, he must be responsible for 
 defects in the chattel with reference to the use for which he knows ihe 
 loan is accepted, of which he is aware, and owing to which, directly, 
 the borrower is injured(p'p'). 'Adjuvari quippe nos, non decipi, bene- 
 ficio oportet,' is the maxim which Story borrows from the ' Digest ;' 
 and Pothier is express to the same «fFect, citing, as Story does also, 
 the instance, ' Qui sciens vasa vitiosa commodavit, si ibi infusum 
 vinum, vel oleum corruptum efifusumve est, condemnaiidus eo nomine 
 est.' This is so consonant to reason and justice that it has become 
 part of our law. If, therefore, the owner of a horse, knowing it to be 
 vicious and unmanageable, and highly dangerous to ride, should lend 
 it to one who is ignorant of its bad qualities, and conceals them from 
 him, and the rider, using ordinary care and skill, is thrown and 
 injured, the lender would be responsible. By the necessarily implied 
 purpose of the loan, a duty is contracted by the lender towards the 
 borrower not to conceal from him those defects, known to the lender, 
 which may make the loan perilous to him"(,^). In the absence of all 
 proof of knowledge by the lender of the defect which caused the injury, 
 there would of course be no cause of action against him(i). 
 
 " As to the third sort of bailment, scilicet locatio, or lending for hire, 
 in this case the bailee is also bound," observes Lord Holt, "to take 
 the utmost care, and to return the goods when the time of hiring is 
 expired ; for when goods are let out for reward, the hirer is bound to 
 use such care as the most diligent father of a family uses, and if he 
 uses that he shall be discharged. But every man, how diligent soever 
 he be, being liable to the accident of robbers, though a diligent man 
 is not so liable as a careless man, the bailee shall not be answerable if 
 the goods be stolen "(j). These expressions of Lord Holt, making a 
 hirer answerable to the same extent as a borrower, have been shown 
 by Sir W. Jones to be too strong, the hirer being boimd only to take 
 such care as a prudent man would take of his own property(A). 
 
 [gg) Sec Sims v. Chance, 7 Texas, 156. 
 
 (ft) Blakemore ii. Bristol & Exeter Eail. Co., 8 EU. & Bl. 1051; 27 Law J., Q. B. 167. Cowley 
 i;. Mayor, etc., of Sunderlana, 6 H. & N. 565 ; 30 Law J., Exch. 127. 
 
 (i) MacCarthy v. Young, 6 H. & N. 329 ; 30 Law J., Exoh. 227. 
 
 'Jl Ooggs V. Bernard. 2 Ld. Raym. 909. 
 
 (ft) Jones on Bailments, 86 ; Harrington v. Snyder, 3 Barb. 380 ; Kennedy v. Ashcroft, 4 
 Bush (Ky.), 530 ; Howard v. Babcock, 21 lU. 259 ; Vaughn v. Webster, 5 Barring. (Del.) 256 ; 
 Swigert v. Graham, 7 B. Mou. 661 ; Mayor of Columbus v. Howard, 6 Ga. 213 ; Angus v. Diok- 
 erson, 1 Meigs, 459 ; MiUon v, Salisbury, 13 Johns. 211. 
 
Sec. 1.] FAWIfORS AND PAWNEES. 525 
 
 The owner must stand to all the ordinary risks to which the chattel is 
 naturally liable, but not to risks occasioned by negligence or want of 
 ordinary caution on the part of the hirer. If a carriage, for example, 
 let to hire, breaks down on the ordinary public thoroughfare, through 
 the badness of the road, or is injured by a flood or inundation, the 
 owner must bear the loss, although the carriage was driven by the 
 servants and horses of the hirer. But if the hirer had gone out of his 
 way to meet the- danger — if he had travelled by unusual and difficult 
 roads, or crossed a plain subject to floods, when he might have kept 
 the high ground, and been safe, he must make good the loss that has 
 been occasioned thereby. If the owner sends his own postillion or 
 coachman to drive the carriage, the hirer is discharged from all atten- 
 tion to the horses and the risks of the road, and is bound only to take 
 ordinary care of the glasses and inside of the caniage whilst he sits 
 in it, unless he officiously interferes and gives orders, and takes the 
 management and direction of the vehicle into his own hands(Q. If a 
 horse is hired as a saddle-horse, the hirer has no right to use it in a 
 cart, or as a beast of burden. If it is hired to go to Richmond he has 
 no right to go with it to York ; and if, during such misuser, a loss 
 occurs, the hirer will be responsible therefor(fl). 
 
 If a horse hired for a journey is taken ill on the road, and the hirer 
 calls in a farrier, he will not be responsible if the horse dies, although 
 the death may have been occasioned by the injudicious treatment of 
 the latter ; but if the hirer neglects to avail himself of proper advice 
 and assistance, or chooses ignorantly to prescribe himself, and from 
 unskilfulness gives the horse improper medicine, and the horse dies, 
 be is liable to the owner for the loss('m). It is of course the primary 
 duty of the hirer, in the absence of an express stipulation to the con- 
 trary, to supply an animal hired by him with suirtable food during the 
 time it is intrusted to him for use ; and if a hired horse is exhausted, 
 or becomes ill, and refuses its food, and the hirer notwithstanding 
 pursues his journey, and by so doing injures or kills the horse, he will 
 be responsible therefor to the owner(w). 
 
 "As to the fourth sort of bailment," says Lord Holt, "viz., vadium, or 
 
 (I) Jones on Bailments, 88 ; Pothier LOUAGE, No. 106, 190 ; Tr. des Oblig. 1, 543. Hughes 
 V. Boyer, 9 Watts, 556. , 
 
 (U) Hall V. Corcoran, 107 Mass. 251 ; Kennedy v. Ashcraft, i Bush (Ky.), 630 ; Mayor ol' 
 Columbus V. Howard, 6 Ga. 213 ; Lewis v. McAfee, 32 Ga. 465 ; Wheelook v. Wheelright, 5 
 Mass. 104 ; Homer «. Thwing, 3 Viak. 492 ; Rotch ». Hawes, 12 Pick. 136 ; Schenck v. Strong, 
 1 South. 87 ; M'Neills v. Brooks, 1 Yerg. 75 ; Martin v. Cuthbertson, 64 N. C. 328. 
 
 (m) Deane v. Keate, 3 Campb. 4. 
 
 (») Handford v. Palmer, 6 Moore, 79 ; 2 B. & B. 359. Bray V. Mayne,* 1 Gow, N. P. C. 1. 
 Thompson ». Harlow, 31 Ga. 348, 
 
526 'NEGLIGENCE. [Chap, 9. 
 
 a pawn, if the pawn be such as will be the worse for using, the pawnee 
 cannot use it, as clothes, etc. ; but if it be such as will be never the 
 worse, as jewels pawned to a lady, she might use them ; but then she 
 must do it at her peril : for whereas, if she keeps them locked up in her 
 cabinet, if her cabinet should be broken open, and the jewels taken 
 from thence, she would be excused ; if she wears them abroad, and is 
 there robbed of them, she will be answerable. And the reason is, 
 because the pawn is in the nature of a deposit, and is not liable to be 
 used. But if the pawn be of such a nature that the pawnee is at any 
 charge about the thing pawned to maintain it, as a horse, cow, etc., 
 then the pawnee may use the horse in a reasonable manner, or milk 
 the cow, etc., in recompense for the meat(«w). And as to neglects for 
 which the pawnee shall make satisfaction, Bracton tells us that if a 
 creditor takes a pawn he is bound to restore it upon payment of the 
 debt ; but yet, if the pawnee uses true diligence in keeping of the 
 pawn(o), it is sufficient, and, notwithstanding the loss of it, he may 
 resort to the pawnor for his debt. And the true reason of all these 
 cases is, that the law requires nothing extraordinary of the pawnee, 
 but only that he shall use an ordinary care for restoring the goods(p). 
 But, indeed, if the money for which the goods were pawned be 
 tendered to the pawnee before they are lost, then the pawnee shall be 
 answerable for them, because the pawnee, by detaining them after the 
 tender of the money, is a wrong-doer ; and a man that keeps goods by 
 wrong must be answerable for them at all events, for the detaining of 
 them by him is the reason of the loss. The same law holds in relation 
 to goods found'X?). Should the pawnee dispose of the goods under a 
 power of sale, he will be liable for gross negligence in conducting the 
 sale, by which the goods are disposed of at an inadequate value(r). 
 
 "As to the fifth sort of bailment," says Lord Holt, " viz., a delivery 
 to carry, or otherwise manage, for a reward to be paid to the bailee, 
 those cases are of two sorts : either a delivery to one that exercises a 
 public employment, or a delivery to a private person. First, if it be 
 to a person of the first sort, and he is to have a reward, he is bound 
 to answer for the goods at all events. And this is the case of the com- 
 mon carrier, common hoyman, master of a ship, etc." {post, ch. 10). 
 " The second sort are bailees, factors, and such like ; and though a 
 
 («n) Lawi'ence v. Maxwell, 83 N. Y. 19, 22 ; Story on Bailm. s. 89. 
 (o) See Donald j». Suckling, poa*, p. 551. 
 (p) See Shackell v. West, 2 Ell. & Ell. 3'28. 
 • (9) As to pledges to pawnbrokers, see Addison on Conti'acts, 6tli ed., 279-293. 
 
 (r) Maughan v. Sliarpe, 34 Law J., C. P. 19 ; aecus, if he be mortgagee, S. C. 
 
Sec. 1.] LOSS OF CMATTMLS BY WORKMEN. 527 
 
 bailee is to have a reward for his management, yet he is only to do 
 the best he can, and if he be robbed, etc., it is a good account." 
 
 " As to the sixth sort of bailment, it is to be taken that the bailee 
 is to have no reward for his pains, and that by his ill-management the 
 goods are spoiled. Then the bailee, having undertaken to manage 
 the goods, and having managed them ill, and so by his neglect a dam- 
 age has happened to the bailor, the bailee is answerable. It is an 
 obligation which arises ex mandato. It is what we call in English, 
 acting by commission. And if a man acts by commission for another 
 gratis, and in the executing his commission behaves himself negli- 
 gently, he is answerable; and the reasons are, first, because in such a 
 case a neglect is a deceit to the bailor, for when he intrusts the bailee, 
 upon his undertaking to be careful, he has put a fraud upon the plain- 
 tiff by being negligent, his pretence of care being the persuasion that 
 induced the plaintiff to trust him. And a breach of such a trust, 
 undertaken voluntarily, will be a good ground for an action. A strong 
 case to this matter was an action agai^ist a man who had undertaken 
 to keep an hundred sheep, for letting them be. drowned by his default. 
 And there the reason of the judgment is given, because, when the 
 party has taken upon him to keep the sheep, and after suffers them 
 to perish by his default, inasmuch as he has taken them, and has 
 them in his custody, if after he does not look to them, an action lies. 
 And if a man will enter upon the thing, and take the trust upon him 
 self, and miscarries in the performance of the trust, an action will lie 
 against him for that ; though nobody could have compelled him to do 
 the thing "(s). A banker, the gratuitous bailee of a box belonging to 
 his customer, and containing securities, is not liable for the loss of the 
 box, by the theft of his clerk, unless he has omitted to take some pre- 
 caution which a reasonable and prudent man would have taken of his 
 own property(<). 
 
 Where a bystander was asked by the owner of a horse to get on the 
 horse and ride it, for the purpose of showing it off for sale, and the 
 bystander recklessly and carelessly rode the horse over very slippery 
 and dangerous ground, and threw it down and injured it, it was held 
 that he was responsible for the injury(M). 
 598 Loss of chattels by workmen. — Every bailee for hire of a chattel is 
 bound to take the same care of the chattel, whilst it remains in his 
 
 («) Coggs V. Bernard, 2 Ld. Eaym. 909 ; 1 Smith's L. C, 6th ed. 177. Doorman u. Jenkins, 
 2 Ad. &E. 262. 
 («) Giblin v. MoMuUen, 38 Law J., P. C. 2S ; L. K., 2 P. C. Ca. 317. See ante, p. 501. 
 (u) WUsoa V. JJrett, 11 M. & W. 113. 
 
528 NEGLIGENCE [Chap. ,9. 
 
 possession, that a prudent and cautious man ordinarily takes of his 
 own property. If clothes are delivered to a fuller to be dressed, and 
 he suffers them to be eaten by mice, he will be responsible for the dam- 
 age, unless he can discharge himself from all imputation of neglect, 
 by showing that he had been subjected to some unusual and unex- 
 pected visitation from such vermin. The very occurrence of the dis- 
 aster affords a strong primd facie presumption of a want of ordinary 
 caution(c). Where a ship, bailed to a shipwright to be repaired, was 
 put into a dry dock belonging to the shipwright, and whilst she lay 
 there a high tide arose, and pressed against the dock gates ; and it 
 appeared that the gates might have been shored up so as to resist tl^e 
 pressure of the water, but nothing was done, and the water at last 
 burst open the gates and dashed the bailor's vessel against another 
 vessel, it was held that the bailee was responsible for the injury, as he 
 might, by proper precautions, have guarded against the accident(a:). 
 Wherever the loss of the thing bailed arises from the want of the de- 
 gree of care which, from the nature of the bailment, ought to be 
 exercised, it is immaterial whether the negligence be imputable per- 
 sonally to the bailee or to the servants employed by him(y). 
 599 Theft hy servants. — If the subject-matter of the bailment is secretly 
 purloined by the bailee's servant, the bailee will be responsible for the 
 loss, unless he can show that he could not, by the exercise of the 
 greatest vigilance, have guarded against the theft ; but he will not be 
 responsible for a robbery by irresistible violence(z). Where a chrp- 
 nometer, bailed to a watchmaker to be repaired for hire, was placed 
 by the bailee in a drawer in his shop amongst a variety of common 
 watches, part of which belonged to the bailee, and the rest to his cus- 
 tomers, which drawer was locked at night, and in a recess in the same 
 room stood a strong iron chest, in which watches belonging to the 
 watchmaker, of the value of several thousand pounds, were deposited 
 and locked up, and in the night the drawer was broken open by the 
 watchmaker's servant, who slept in the shop, and the chronometer was 
 stolen by him, together with the other watches there deposited, but 
 the watches in the iron chest remained untouched, it was held, that 
 as the watchmaker had taken more care of his own watches, by lock- 
 Co) In the Roman law proof of such a dieaster was held to be proof of neg-ligence. " Si 
 fullo vestimenta polienda acceperit ; eaque mures roserint, ex locate tenetur, quia debuit ab 
 hie re oavere." Dig. lib. 19, tit. 2, lex 13, s. 6. 
 {X) Leek V. Macstaer, 1 Campb. 137. 
 
 (y) M. Campbell, C.J., Dansey v. Eicbardson, 3 EU. & Bl. 169 ; 23 Law J., Q. B. 22S. 
 ' («) Walker r. British Guarantee Ass., 21 Law J., Q. B. 260 ; 18 Q. B. 277. 
 
HeC. l.J OF WAREHOUSEMEN, WEASUNGEBS, ETC. 529 
 
 ing them up in the iron safe, than he had taken of the bailor's 
 chronometer, he was responsible for the loss, and Dallas, C.J., was of 
 opinion that the watchmaker "was bound to protect the property 
 against depredation from those who were within the house "(a). 
 600 Negligent keeping of goods by warehousemen, wharfingers, and depositor 
 ries for hire. — ^All persons to whom goods and chattels are delivered 
 to be kept for hire and reward, and who are paid expressly and 
 specifically for the exercise of their labor and care in keeping them, 
 and not merely for the finding of a place of deposit, are bound to 
 exercise that amount of care and vigilance for their preservation, 
 which the most prudent and careful of men exercise for the protection 
 of their own property(fi). * If the goods are injured by mice or rats, 
 the warehouseman will be responsible for the damage(c), although he 
 keeps cats to destroy vermin(c?). It is no answer to an action against 
 a warehouseman for the non-delivery of a chattel intrusted to him to 
 keep for hire, to say that he has lost it(e) ; the mere fact of the loss is 
 primid fade proof of negligence, and he must rebut this presumption 
 by showing that he had taken the greatest care of the thing intrusted 
 to him, and had no means of preventing the loss. A booking-office 
 keeper who receives money for booking parcels, is bound to put them 
 into a safe place, and if he leaves them in a public room, or an open 
 shop, and they are lost or stolen, he will be responsible to the owner(/). 
 
 (a) Clark «. Eamshaw, Gow, 30. 
 
 (6) " Quod si horrearius nominatim custodiam merdtim in se receplt, videbitur locasse 
 operas non solum exacts, sed etiam exactissiintB custodise." — Pandect. Just. ed. Poth. lib. 19, 
 tit. 2, art. 3, 72. Warehousemen are bound to exercise ordinary care and diligence in the 
 keeping of goods, and are responsible only for ordinary neglect. Titsworth v. Winnegar, 61 
 Barb. (N. Y.) 148. Knapp ». Curtis, 9 Wend; 60. Ducker «. Barnett, 6 Mo. 97. Baltimore, etc., 
 E. E. Co. V. Shumacher, 29 Md. 168. Chicago, etc., E. E. Co. v. Scott, i2 JR. 132. Jackson e. 
 Sacramento, etc., E. R. Co., 23 Cal. 268 ; Myers v. Walker, 31 lU. 353. 
 
 A want of ordinary care on the part of a warehouseman in one particular, will not render 
 him responsible for a loss occasioned by causes unconnected with that particular in which 
 he is negligent. Gibson ». Hatchett, 24 Ala. 201. 
 
 A warehouseman is not required by law to render his buildings secure against all possible 
 contingencies ; and will not be liable for injuries to goods if the buildings in, which they 
 were stored were reasonably and ordinarily safe against ordinary and common occurrences. 
 Cowlea V. Pointer, 26 Miss. 253. 
 
 And if the bailor knows at the time he intrusts his goods to another how and where his 
 bailee will keep them, he thereby assents to such keeping, and can maintain no action for 
 their loss. Knowlesc. Atlantic & St. L. E. E. Co., 38 Me. 55. Warehousemen are not insurers 
 against loss by an accidental Are ; nor are they chargeable with the negligence of their 
 servants in failing to remove goods rt-om a burning warehouse, unless the removal of goods 
 in such cases was within the scope of the servant's employment. Aldrich v. Boston & 
 Worcester K. E. Co., 100 Mass. 31. 
 
 (c) White V. Humphry, 11 Q. B. 4,4. 
 
 ((J) Laveroni o. Drury, 8 Exch. 166. See Kay V. Wheeler, L. E., 2 C. P. 302. 
 
 (e) Cairns v. Eobins, 8 M. & W. 256. Eeeve v. Palmer, 6 C. B., N. S. 84. Goodman v. 
 Boycot, 2 B. & S. 1 ; 31 Law J., Q. B. 69. 
 
 (/) Dover v. Mills, 5 C. &. P. 176. 
 
 Ad. Vol. I.— 34 
 
530 , NE6LWENCE. [Chap. 9. 
 
 601 Distinction between robbery and theft. — A very sensible distinction is 
 taken in the civil law between a public palpable robbery by force and 
 violence, when a house is broken into and robbed of its contents, and 
 a theft or secret purloining of goods. In the one case, the bailee 
 relieved himself, from responsibility for the loss by proof of the mere fact 
 of the robbery(g'), it being considered that individual care or vigilance 
 could avail but little against the open attack of the determined robber ; 
 in the other, he was bound to make good the loss, unless he could 
 show that he had taken the greatest care of the things intrusted to 
 him, and that it had been purloined, notwithstanding every precaution 
 for its safety(A). Where an officer in the army, on leaving London, 
 delivered a trunk containing divers articles bf value to an upholsterer 
 to be kept for a shilling a week, and the trunk was returned to the 
 officer emptied of its contents, which were supposed to have been 
 stolen by the upholsterer's servant, it was held by Lord Kenyon, that 
 if the upholsterer had taken as much care of the articles as he had 
 taken of his own property, he was not responsible for the theft com- 
 mitted by his servant(i); but every depositary of chattels to be kept 
 for hire is primd fade responsible for a theft committed by his own 
 servants within the house(A), and can only discharge himself from 
 liability by showing that the theft was committed under such circum- 
 stances, or was of such a nature, that the greatest care and vigilance 
 on his part could not have guarded against it, or prevented it. 
 
 602 Losses occasioned by the negligeiice of the bailor., — If the owner himself 
 in any way conduces to the loss ; if he brings people to the warehouse 
 or place of deposit to look at the goods, opens packages in which they 
 are contained, etc., and the loss is as likely to have arisen from the 
 misconduct of the persons so introduced, or from the carelessness of 
 the owner, as from the neglect of the warehouseman or bailee, the 
 latter is not responsible for the loss. Thus, where a quantity of gin- 
 seng contained in a box was deposited by the plaintiff in the defend- 
 ant's warehouse, and the plaintiff was in the habit of resorting to the 
 box, and ordering the lid to be taken off, for the purpose of showing 
 
 {,g) Dig. lib. 17, tit. 2, lex 52, 63. Instit. lib. 3, tit. 15, s. 2, 3 
 
 (A) "Ad casus autem fortuitos non sunt referendi illi casus, qui cum culpi conjnncti esse 
 Bolent ; cujnsmodi sunt furta. Quamobrem, qui rem furto amissam dicit, ia diligentiam 
 suam proiare debet." Viu. Com. ad Instit. lib. 3, tit. 15, s. 6. Pothier (Pret a Usage), art. S3. 
 Abbott, C.J., in Robinson v. Ward, Ey. & M. 276. 
 
 (i) Finncane v. Small, 1 Esp. 316. 
 
 (i) Hodgson v. Fullarton, 4 Taunt. 787. Dallas, C.J., in Clarke e. Earnshaw, Gow, 32. 
 Campbell, C.J., and Coleridge, J., in Dansey ». Richardson, 3 Ell. & Bl. IfiS-in ; 23 Law J., 
 Q. B. 223-229. De Rothschild v. Royai Mail, etc., Co., 7 Exch. 734 ; 21 Law J.', Exch. 273. 
 
Sec. l.J LOSS OF CATTLE, ETC. 531 
 
 the ginseng to expected purchasers, who came to the warehouse to 
 view it on the invitation of the plaintiff, and rats at last got into the 
 box and destroyed the ginseng, it was held that the defendant, the 
 warehouseman, was not responsible for the loss(Z). 
 
 603 Loss of chattels hy wharfingers. — The duties and responsibilities of the 
 wharfinger, in respect of the safe keeping of the goods intrusted to 
 him, to be dealt with in the way of his trade, 'are analogous to those 
 of the warehouseman(K). If he receives directions to ship them ou 
 board a particular vessel, he does not discharge his duty by deliver- 
 iTig them to one of the crew ; but he is bound to place them in the 
 hands of the captain, or some person in authority on board the vessel(m). 
 If he is clothed merely with the custody of the goods, and the duty of 
 shipping them devolves, by usage and custom, upon the master of the 
 vessel to which they are to be sent, the wharfinger is discharged from 
 responsibility as soon -as he has placed them at the disposal and under 
 the care of the master and officers of such vessel, although they are 
 Qot actually removed from the wharf(>i). 
 
 604 Loss of cattle — Liabilities of agisters of cattle. — ^A person who receives 
 cattle or horses, or living animals to keep for the owner, and is paid 
 expressly for his care and watchfulness in preserving them, as well as 
 /or their sustenance, is bound to take the utmost care of them, and he 
 is responsible for damage and injury resulting from ordinary casual- 
 ties, if such damage might have been averted and prevented by the 
 exercise of great care and vigilance. Very slight evidence of neglect 
 Aas been sufficient to induce juries to return verdicts in favor of those 
 who have sought compensation for the loss of cattle delivered to bail- 
 ees to be kept for hire. Thus, where the defendant, a farmer, had 
 received the plaintiff's horse to agist for a certain price, and the horse 
 strayed and was lost, and never after heard of, and the plaintiff gave 
 evidence of the gates having been occasionally seen left open, and the 
 fences being in parts out of order, but it did not appear directly that 
 
 he horse had strayed through any defect in the fences, or through any 
 rf the gates being left open, the jury, nevertheless, returned a verdict 
 against the defendant for the full value of the horse(o). If the bailee 
 suffers his fences to be defective, or puts the horse into a dangerous 
 
 (l) Calliff ». Danvers, IPeake, N. P. C. 155 ; cmte, p. 24-28. 
 
 (B) A wharflnger is liable only for want of ordinary diligence. Blin v. Mayo, 10 Vt. 66. 
 See Holtzcluw v. Duff, 27 Mo. 392 ; Foots v. Storrs, 2 Barb. (N. Y.) 326. 
 (m) Leigb v. Smith, 1 C. & P. 638, 641 ; 2 Esp. 695. 
 
 (n) Cobban v. Downe, 5 Esp. 41; Story on Bailments, 293; Jones on Bailments, 97. 
 (0) Broadwater v. Blot, Holt, 547. 
 
532 NEOLi&ENCE. [Chap. 9. 
 
 pasture, and the animal, by reason thereof is lost or injured, this is a 
 degree of neglect for which he is un^ubtedly responsible(p). 
 
 605 Deposit of luggage and pa/rcels at railway stations. — If the ticket or 
 receipt given on the deposit of goods at the station of a railway com- 
 pany does not state that the goods will not be delivered back on a, 
 Sunday, or. specify the times at which parcels are deliverable, it is the 
 duty of the company to be always ready to deliver them within a 
 reasonable time after demand(g'). Where a railway company provided 
 a place of deposit for the reception of "articles and luggage for the con- 
 venience of passengers on payment of a trifling charge, and gave public 
 notice that they would not be responsible for any package exceeding 
 the value of 101., and the plaintiff deposited a leathern bag containing 
 jewelry and articles exceeding 101. in value, and received a ticket in 
 exchange, on the back of which the terms of the deposit were printed, 
 and the bag was delivered by mistake to a wrong person, but was 
 ultimately recovered and returned to the plaintiff by the company, 
 with a portion of the jewelry missing, it was held that the company 
 was not responsible for the loss(r). 
 
 606 Deposit of goods under a special contract. — In a contract of bailment, 
 the bailee may impose any fair and reasonable terms he pleases upon 
 the bailor, and may make his acceptance of the goods to be kept, and 
 his responsibility for the re-delivery of them dependent upon those 
 terms being assented to and observed by the parties who dea,l with 
 him ; but if he accepts the goods and takes them into his possession, 
 he will not be allowed to impose terms utterly repugnant to, and incon- 
 sistent with, any contract at all(s). Where public notice is given of 
 the terms upon which goods are received, or the terms are printed on 
 a paper or receipt delivered to the bailor, and it is sought to hold him 
 to the terms on the ground that he has impliedly assented to them, it 
 should be shown that the terms are reasonable and fair, and not devised 
 for the purpose of fraud or extortion, or for the purpose of exonerating 
 the bailee from responsibility for his own negligence and misconduct(i). 
 
 (p) Mosley ». Fosset, 1 EoH. Abr. i; ante, p. 185. The liability of an agister of cattle comes 
 within the general rule of bailment, and is merely that of reasonable care and ordinary 
 diligence in providing for their safety. Halty v. Markel, 44 Bl. 225. Umlauf u. Bassett, 38 111. 
 96. McCarthy e. Wolfe, 40 Mo. 520. Key «. Toney, 24 Mo. 600. 
 
 He is liable for damages resulting from the negligent, but not for the wUful acts of his 
 servants. Halty v. Markel, 44 111. 225. 
 
 (g) Stallard v. Great Western Bail. Co., 2 B & S. 419; 31 Law J., Q. B. 137. 
 
 (r) Van Toll ». South-Bastern Bail. Co., infra ; ante, pp. 24r-28. 
 
 («) Addison on Contracts, p. 921, 6th ed. 
 
 («) Byles, J., Van loll v. S.-E Kail. Co., 12 C. B., N. S. 76 ; 31 Law J., C. P. 24fi. Peck v. 
 North Staff. Kail. Co., 10 H. of L. Ca. 473. 
 
Sec. l.j LOSS OF GOODS BY PRIVATE CARRIERS. 533 
 
 607 -ZJoss o/ goods hy parties receiung them to be carried, bid who are not 
 common carriers. — " Every man," observes Gould, J., "that undertakes 
 to carry goods is liable to an action, be he a common carrier, or what- 
 ever he is, if through his neglect they are lost, or come to any dam- 
 age ; and if a reward be given, then it is without question so. The 
 reason of the action is the particular trust reposed in the bailee, to 
 which he has concurred by the assumption of the work, and in the 
 executing which he has miscarried by his neglect. And when a man 
 undertakes specially to do such a thing it is not hard to charge him 
 for his neglect, because he has the goods committed to his custody 
 upon those terms "(m). The law casts upon him the obligation of using 
 due and proper care and skill, whether any hire or reward has or has 
 not been agreed to be paid. If, therefore, a person receives a free 
 pass, and is carried gratuitously upon a railway, the railway company 
 is not thereby released from the duty of using due and proper care in 
 the performance of the work of carrying him(MM). 
 
 "When a bailee has undertaken to carry money, or goods and chat- 
 tels, gratuitously, to a distant part, it is no answer to an action 
 brought against him for the breach of his engagement to say that he 
 lost the articles in a brothel or a lodging-house, or by the wayside, 
 without giving any satisfactory or excusable account of the loss. The 
 loss itself unexplained affords the strongest presumption of negli- 
 gence(a;), and the bailee must rebut this presumption by showing that 
 he was forcibly robbed, or that the property was stolen without any 
 gross neglect or wilful default on his part(y), or that his vehicle broke 
 down or was overturned, and that the articles were lost during the 
 hurry and confusion and fright of an undoubted accident. Where 
 the bailee of a parcel upon which the word "value" was written 
 promised to carry it gratuitously from Bedford to London, and direc- 
 
 (») Coggs ». Bernard, 2 Ld. Baym. 909 ; 1 Smith's L. C, 6th ed. 177. 
 
 (tttt) But otherwise where the parties have provided to the contrary by express contract. 
 Kinney v. Central E. E. Co. of New Jersey, 34 NT J. 513. Wells v. New York Central K. E. 
 Co., 24 N. T. 181. Perkins v. New York Central E. E. Co., 24 N. Y. 19B. BisseU v. New York 
 Central E. E. Co., 26 N. Y. 443. See Smith v. New York Central E. E. Co., 24 N. Y. 222 ; Stin- 
 Bon o. New York Central E. E. Co., 32 N. Y. 333. 
 
 (iE) Parry v. Eoberts, 3 Ad. & E. 120 ; 5 N. & M. 670 ; Maule, J., in Melville v. Doidge, 6 C. 
 B. 456. See Colyar v. Taylor, 1 Cold. (Tenn.) 372. 
 
 (y) Doorman e. Jenkins, 2 Ad. & B. 256 ; Holt, C.J., in Coggs e. Bernard, 2 Ld. Eaym. 913. 
 A bailee of goods, without reward, to be carried from place to place, is responsible only for 
 gi-oss negligence; and what constitutes such negligence Is a question for the jury. Loben- 
 stein V. Pritohett, 8 Kan. 213. Storer v. Gowen, 6 Shep. 174. Allen r. Saokrider, 37 N. Y. 341. 
 
 If ho has used the money with which he was intrusted, and has been afterwards robbed of 
 other money, he must bear the loss. Anderson v. Poresman, Wright, 598. So if he loses the 
 money with which he is intrusted while other money which is his own is not lost he must 
 bear the loss. Bland v: Womack, 2 Murph. 373. 
 
534 NEGLIGENCE. [Chap. 9. 
 
 tions were given to him to take particular care of it upon the road, and 
 to deliver it to the book-keeper at the Bell and Crown, Holbom, and. 
 the parcel not being delivered, an action was brought against the 
 bailee for the breach of his engagement, and no satisfactory evidence 
 was offered by him to excuse or account for his neglect, it was held 
 that the bailee ,was responsible for the value of the parcel(0). 
 
 Where the captain of a vessel was intrusted with a seaman's chest 
 to be carried gratuitously from Trinidad to England, and during the 
 voyage the chest was opened to see if it contained any contraband 
 articles,- and was found to be filled with money and valuables, which 
 were taken out by order of the captain, put into a canvas bag, and 
 deposited in the captain's own chest in his cabin, where his own 
 money and valuables were kept, and on the arrival of the vessel at 
 Gravesend, the captain and one of the mates went ashore, leaving the 
 vessel in charge of the other mate, and the next morning the captain's 
 chest was missing, and was never afterwards discovered, and it 
 appeared that the night preceding the loss of the chest an excise 
 officer and two young men belonging to the ship had been allowed to 
 sleep in the captain's cabin, Lord Ellenborough left it to the jury to 
 say whether the captain had been guilty of negligence, telling them 
 that as soon as he had discovered the valuable nature of the property, 
 he was bound to watch it with great care and diligence, and the jury 
 being of the opinion that proper care had not been taken of the money, 
 found a verdict for the plaintiff for the full value of the property(a). 
 
 When the bailee is to be paid for carrying the things, he cannot, of 
 course, in any case, set up a mere loss of goods by the way, as an 
 answer to an action for the non-delivery of them(6). But the duty to 
 carry safely, which the law imposes upon all persons who undertake 
 the carriage of goods for hire, is not understood to mean that the goods 
 shall be carried and delivered safely at all events, but that they shall 
 be kept safe from all such hazards and contingencies as might have 
 been foreseen and guarded against by the exercise of vigilance and 
 sMll. 
 
 Where the defendant received eleven boxes of gold dust, to be car- 
 ried and delivered at the Bank of England, "robbers and dangers of 
 the road excepted," and one of the boxes was secretly stolen, it was 
 held that the defendant was responsible for the loss ; that a secret 
 
 (s) Beanohamp v. Powley, 1 M. & Kolj. 38. 
 (o) Nelson v. Mackintosh, 1 Stark. 237. 
 
 (h) Eogers v. Head, Cro. Jao. 262. Matthews v. Hopping, 1 Keb. 852. Eosa v. Hill, 2 C. B. 
 877 ; 15 Law J., C. P. 182. 
 
Sec. l.J liOSS OF GOODS BYf PRIVATE CARRIERS. 535 
 
 theft or pilfering was not within the exception as to robbers, nor was 
 it a danger of the road within the meaning of the contract(c). If the 
 owner accompanies the goods to take care of them and loses them 
 himself, the carrier is not, of course, responsible for the loss(d). But 
 if the goods are actually bailed or delivered into the hands of the car- 
 rier, the latter cannot exonerate himself from the consequences of 
 negligent keeping by showing that the owner sent his own servant 
 with the goods for greater security (e). 
 
 There is no duty imposed upon electric telegraph companies to de- 
 liver messages correctly, so as to enable the receiver of the message, 
 in the absence of any privity between him and the company, to sue 
 them for negligence in case he suffers injury from the misdelivery or 
 inaccurate delivery of the message(/). 
 
 (c) De Rothschild v. K. M. St. P. Co., 7 Exch. 734; 21 Law J., Bxoh. 273. 
 
 (d) Briad v. Dale, 8 C. & P. 209, 211; 2 M-. & Bob. 80. 
 
 (e) Eobinson r. Dunmore, 2B. & P. 416. 
 
 (/) Playfoi-d V. United Kingdom Telegraph Co., L. E., 4 Q. B. 706; 38 L. J., Q. B. 249. 
 
 By the 31 & 32 Vlot. o. 110, power is given to the Postmaster-General to purchase the tele- 
 graphs in this country, and this has been done. By the 32 & SB Vict. c. 73, c. 23, telegraphic 
 messages are to be deemed post letters within 7 Will. 4 & 1 Vict. c. 36, but this is not to re- 
 lieve officers of the post-office from producing such messages in courts of law when duly 
 required so tfe do. The liability of telegi-aph companies is regulated by contract, and the 
 nature of their public employment. In the absence of any special contract limiting or regu- 
 lating their liability, they do not insure the safe and accurate transmission of messages, but 
 they are bound to transmit them with care and diligence adequate to thq business which 
 they undertake, and if they fail in such care and diligence, they become responsible. Breese 
 «. United States Telegraph Co., 48 N. Y. 132. 
 
 But, whJe they are bound to transmit all messages delivered to them, they have the right 
 tx make reasonable rules and regulations for their business; and can limit their liability for 
 mistakes not occasioned by gross negligence or wilful misconduct, either by notice brought 
 home to the sender of the message or by special contract entered into with him. Breese v. 
 United States Telegraph Co., 48 N. Y. 132. Eedf. on Carr. 405. Birney v. New York & 
 Washington Telegraph Co., 18 Md. 341. New York & Washington Printing Telegi'aph Co. v, 
 Dryburgh, 35 Penn. St. 298. Ellis v. American Telegraph Co., 13 Allen, 226. Western Union 
 Telegraph Co. ». Carew, 15 Mich. 525. Wann v. Western Union Telegraph Co., 37 Mo. 472. 
 Camp V. Western Union Telegraph Co., 1 Mete. (Ky.) 164. 
 
 Thus a telegraph company may relieve itself from liability for errors in the ti'ansmission 
 of a message by a notice printed on the blank on which the message is written to the effect 
 that the company will not be responsible for such errors unless the message is repeated, pro- 
 vided such notice was brought .to the knowledge of the party injured by the error. Camp «. 
 Western Union TeWgiaph Co., 1 Mete. (Ky.) 164. Wann v. Western Union Telegraph Co., 
 37 Mo. 472. Sweetland v. Illinois & Mississippi Telegraph Co., 27 Iowa, 433. 
 
 But while telegi-aph companies may, within certain limits, thus limit their liability for cer- 
 tain errors in the transmission of messages, they cannot make such rules and regulations as 
 will protect them from liability for damages resulting from their own gross negligence or the 
 gross negligence of their agents and servants. Western Union Telegraph Co. v. Buchanan, 
 35 Ind. 429. Western Union Telegraph Co. v. Graham, 1 Colorado, 230. Ellis r. American 
 Telegraph Co., 13 Allen, 234. Sweetland v. niinois & Mississippi Telegraph Co., 27 Iowa, 433. 
 True V. Intemational Telegraph Co., 60 Me. 9. 
 
 Thus a notice with regard to the repetition of messages, usually printed on the blank on 
 which the message is sent, will not relieve the company from liability for loss occasioned by 
 the neglect of the operator, through forgetfulness, to send the message. Birney v. New York 
 & Washington Telegraph Co., 18 Md. 341. 
 
 Nor will such notice relieve the company from liability where the neglect to send the mes- 
 
536 BAILMENTS. [Chap. 9. 
 
 608 Limitation of liability of shi/powners. — The Merchant Shipping Acts, 
 17 & 1^ Vict. c. 104, s. 503, and 25 & 26 Vict. c. 63, s. 54, eiempt 
 the owners and shareholders of sea-going ships from liability to make 
 good any loss or damage that may happen, without their actual fault 
 or privity, to any goods, merchandise, or things from fire on hoard 
 ship, or to any gold, silver, diamonds, watches, jewels, or precious 
 stones, by reason of robbery or embezzlement, making away with or 
 secreting thereof, unless the owner or shipper thereof has, at the time 
 of shipping the same, inserted in his bills of lading, or otherwise de- 
 clared in writing to the master or owner of such ship, the true nature 
 and value of such articles. 
 
 609 Detention of chattels by bailees under a claim of lien. — The detention 
 of chattels by a bailee is frequently justified on the ground thivt the 
 bailee has a right to hold them in his hands until some pecuniai y de- 
 mand upon or in respect of them has been satisfied by the ]t>ail' r. A 
 
 sage arose from the ignorance of the operator as to the existence of a town wh<ch is a 
 county seat and one of the stations on the company's line. Western Union Telegray h Co. V, 
 Buchanan, 35 Ind. 129. 
 
 Nor will such notice relieve the company firom liability for a negligent failure to deliver a 
 message, not repeated, after its receipt at the oflce to which it was addressed. > festem 
 Union Telegraph Co. v. Graham, 1 Colorado, 230. Time v. International Telegraph Co., 60 
 Me. 9. 
 
 Nor will such notice relieve the company ft-om damages caused by defective instT^.Aients. 
 Sweetland v. niinois & Mississippi Telegraph Co., 27 Iowa, 433. 
 
 Or by the want of proper skill in the operators, or by their failure to use due care. fli. 
 
 Where the operator changes the words of the message to be sent to confonn b^ xhat he 
 supposes to be the intention of the sender of the message, and damage is sustained hereby, 
 the party injured may hold the company liable, notwithstanding the message w0s ' rjitten on 
 a blank containing the ordinary notice as to repeating the message. New York \ tVashing- 
 ton Telegraph Co. ». Dryburgh, 35 Penn. St. 298. 
 
 So the company is liable in like case where the operator at the receiving office makes the 
 change. Sellers v. Western Union Telegi-aph Co., 3 Am. Law Rev. 777. 
 
 But where the condition as to repeating exists, and is known to the party sending ames 
 sage, or where he is bound to take notice of it, and a mistake occurs in an unrepeated mes. 
 sage, the mere proof of such mistake, without some other evidence of carelessness on the 
 part of the company, will not make it liable. It must be further shown that tbe mistake was 
 caused by the fault of the company. Sweetland v. Illinois & Mississippi Telegraph Co., 27 
 Iowa, 433. 
 
 In Rittenhouse r. Independent Line of Telegraph (44 N. T. 263), it was held that the negli- 
 gence of a telegraph company is proved by showing that it did not transmit the message in 
 the form in which it "was delivered to it; and that the burden was upon the company to 
 show that the mistake happened without its fault. 
 
 In Baldwin v. United States Telegraph Co. (45 N. T. 744), it was held that an error in trans- 
 cribing the direction of a message and a consequent misdelivery, is prima facie evidence of 
 neglect and want of care in the operator ; and that the burden of proof was upon the com- 
 pany to explain the error and show that it occurred without fault. 
 
 A telegraph company may also be liable for the negligence of its operators in allowing a 
 fraudulent message to be sent over its wires, thereby causing injury to third parties. 
 
 Thus it has been held that the sending of a message addressed to a banking house, in the 
 name of the cashier of a bank, at the request of a party who was thereby held out to be en- 
 titled to credit to a large amount, without any evidence of his authority to use the name of the 
 cashier, is an act of gross negligence for which the telegraph company is liable to the bank 
 for the damages occasioned thereby. Elwood i>. Western Union Telegraph Co., 45 N. T. 649. 
 
See. 1.] PARTICULAR AifD GENERAL LIENS. 537 
 
 right of lien may exist in favor of the unpaid vendor of chattels, who 
 has not parted with the possession of the things he has sold(p') ; or in 
 favor of persons who have advanced money upon the security of a 
 deposit of title-deeds, or of goods and chattels ; of innkeepers who 
 have provided lodging and food for travellers and guestB(A) ; of com- 
 mon carriers who have received goods to be carried for hire ; of ship- 
 owners who have earned freight for the conveyance of a cargo, or the 
 hire of their vessels under a charter-party of affreightment, when the 
 ship itself has not been demised to the charterer, or who have a claim 
 against the owners of goods for general average or salvage(«) ; of the 
 salvor or rescuer of property from perils of the sea, who has earned 
 salvage for his services : of the factor, broker, or auctioneer, who has 
 received goods for sale, and has made advances or given acceptances 
 upon the credit of them to his employer, or who has sold them and 
 earned commission, etc., and retains in his hands the produce of the 
 sale. It generally exists, also, in favor of artizans and others who have 
 bestowed labor and service on goods and chattels which have been 
 delivered to them to be repaired, improved, or mended. It may exist 
 also in many other cases by custom, or by the express agreement of 
 the parties(j'). 
 
 The right of lien, when once established, is not destroyed by reason 
 of the remedy for the recovery of the debt secured by the lien being 
 barred by the statute of limitations(A-). And it will exist, although it 
 aries out of an immoral consideration, if the plaintiflf cannot recover 
 without relying on the immorality, on the principle of in pari delicto 
 potior est conditio possidentis^). 
 610 Particular liens and general liens. — There are two species of liens 
 known to the law, namely, particular liens and general liens. Par- 
 
 {g) Cooper v. Bill, 34 Law J., Exch. 161; or a right Ijo stop in transitu, if the transitus has 
 not been determined. Bolton v. Lane. & Yorkshire Bail. Co., L. B., 1 C. P. 431. And see 
 Bodger r.'Comptoir d'Esooiapte de Paris, L. B., 2 P. C. Ca. 393 ; L. J., P. C. 30 ; L. B. 3 P. 
 C. Ca. 465 ; Addison on Contracts, 6thed., p. 200, et seq. i McClure v. McDearmon, 26 Ark. 66 ; 
 Flint ». Eawlings, 20 La. An. 557. 
 
 (ft) Allen V. Sinith, 31 Law J., C. P. 306. Gamwell v. Schley, 41 Ga. 112. Case v. Fogg, 46 
 Mo. 44. Manning v. Hollenbeck, 27 Wis. 202. Nichols v. HoUiday, 27 Wis. 406. Colquitt v. 
 Eirkman, 47 Ga. 555. 
 
 (i) Briggs V. Meroht. Trad, etc., 13 Q. B. 167 ; 18 Law J., Q. B. 178. Wilson i). Grand Trunk 
 B. E. Co., 56 Me. 60 ; Fox ». Holt, 36 Conn, 558; The Davis, 19 Wall. 16. 
 
 (.;■) Small v. Moates, 9 Bing. 574. Norris v. Williams, 1 Cr. & M. 842. Hague v. Dandeson, 
 17 Law J., Exch. 269. Gray v. Carr, L. E., 6 Q. B. 522. Peek v. Larsen, L. B., 12 Eq. Ca. .378 
 See Wiltshire Iron Co. v. Gt. West. Ewy., L. E., 6 Q. B. 101, 776, as to the effect of a liquida- 
 tion on a lien. Also Be Sankey Brook Coal Co., L. R., 12 Eq. Ca. 472. As to the lien ol 
 pledgees and pawnbrokers, see Addison on Contracts, 6th ed. 279-290. 
 
 (ft) Spears ». Hartly, 3 Esp. 81. iJe Broomhead, 16 Law J., Q B. 355. 
 
 U) Taylor v. Chester, L. E., 4 Q. B. 309 ; 38 L. J., Q. B. 226. 
 
538 BAILMENTS. ' [Chap. 9; 
 
 • 
 
 ticular liens are where persons claim a right to retain goods in respect 
 of labor and money expended upon them, and these liens are favored 
 in law. General liens are claimed in respect of a general balance 
 of accounts, and these are founded on custom only, and are therefore 
 to be taken strictly. 
 611 Ordinary lien of workmen and artificers. — ^Whenever a person has' 
 bestowed work and labor or skill in repairing or improving a chattel 
 at the request, or by the employment, of the owner, he has a lien upon 
 it for a fair and reasonable remuneratiojj, or for the contract price, if a 
 price has been fixed by agTeement(rrt). Thus the artificer to whom 
 goods are delivered to be worked up, the shipwright to whom a vessel 
 has been delivered to be repaired(w), the printer to whom paper has 
 been delivered to be printed(o), the miller who has ground corn or 
 meal at his mill(^), the horsebreaker or trainer by whose skill a horse 
 is trained and rendered manageable(g'), the stallion-keeper who has 
 received a mare to be covered by his stallion, have each a lien for their 
 hire, or the customary charges for their services, unless there be some 
 express or tacit understanding between the parties to the particular 
 contract inconsistent with the exercise of such a right. But where no 
 work is to be done upon the chattel to improve or increase its value, or 
 to carry it from one place to another for hire, no lien attaches upon it. 
 Thus, if a power of attorniey, or an authority to receive money, is 
 Intrusted to a bailee in order that he may exhibit it as a voucher, he 
 has no lien upon the document for money due to him from the bailor. 
 Where a mortgage deed was delivered to an auctioneer in order that 
 he might obtain payment of the principal and interest due thereon, 
 and the auctioneer made several applications for the money, it was 
 held that he had no lien upon the deed for his charges(r). 
 
 The lien of the manufacturer and workman extends only to the 
 principal chattels placed in his hands to be worked up, and not to the 
 accessorial materials which may have been furnished by the employer, 
 and left upon the premises of the manufacturer or workman unused. 
 Thus, where oil, madder, dyewood, and fustic, were furnished to scrib- 
 
 (B») Chase e. Westmore, 5 M. & S. 183. Morgan v. Congdon, 4 N. Y. 552. Burdick r. Mur- 
 ray, 3 Vt. 302. 
 
 (n) Franklin r. Hosier, 4 B. & Aid. 341. Williams e. AUsup, 10 C. B., N. S. 417 ; 30 Law J., 
 C. P. 353. As to a maritime lien, see Tlie Two Ellens, L. R., 3 Adm. &, Bocl. 345 ; L. K., 4 P. 
 C. C. 161. 
 
 (o) Blake v. Nicholson, 3 M. & S. 167. 
 
 [p) Chase v. Westmore, 5 M. & S. 180. 
 
 (g) Bevan v. Waters. 3 C. & P. 620. Jacobs e. Latour, 2 M. & P. 201 ; 5 Bing. 130. Scarfe e. 
 Morgan, 4 M. & W. 284. 
 
 fr) Sanderson v. BeU, 2 Cr. & M. 304. 
 
Sec. 1.] SIGHT OF LIEN. 539 
 
 biers and fullers by a person who sent them cloth to be scribbled and 
 fulled and dyed upon their premises, it was held that the lien of the 
 scribblers and fullers was confined to the cloth, and did not extend to 
 the oil, etc., furnished by the employers, and left upon the premises 
 after the scribbling and fulling had been completed(s). And where a 
 stereotype printer received stereotype plates from his employer to print 
 from, it was held that his lien for printing was confined to the paper, 
 and did not extend to the plates from which he printed. But such a 
 lien may be established by custom and the usage of trade, or by agree- 
 ment of the parties(i). The lien of the artificer upon a chattel is 
 strictly confined to work done upon it in making, mending, or repair- 
 ing it. He cannot set up any claim against the owner for expenses 
 incurred by him for warehousing it and taking care of it during the 
 period of its detention(M) ; nor can he sell any portion of the property 
 to cover the expenses he has incurred('u). 
 6 1 2 A person cannot set up a right of lien which is at variance with the terms 
 or conditions, or implied understanding, upon which he received the prop- 
 erty. — Thus, if a liyery-stable keeper takes in a horse to be stabled 
 and fed for hire, upon the understanding that the horse is to be re-de- 
 livered to the owner whenever he requires it, the livery-stable keeper 
 has no right of lien upon the horse for his keep(a;), or for money paid 
 by him to a veterinary surgeon for blistering the horse according to the 
 owner's directions(2'), the right of the owner to the possession of the 
 horse for the purpose of riding him being deemed inconsistent with 
 the right of lien. The livery-stable keeper, indeed, who holds ahorse 
 at the constant disposal of the owner, is the mere servant of the latter, 
 and has nothing more than the bare custody of the animal. This is 
 the case also with the agister of milch cows, who receives them to be 
 depastured, agisted, or fed, the owner having a right to the possession 
 of the cows whenever he requires them for the purpose of milking(2). 
 And if the trainer of a race-horses holds them on the understanding 
 that the owner may send them to be ridden by a jockey of his own 
 choice at any race he chooses, and the trainer cannot lawfully refuse 
 to deliver them to the owner for such a purpose, that state of things is 
 
 (8) Campston v. Heigh, 2 So. 68i. 
 («) Bleaden v. Hancock, M. & M. 465. 
 
 («) Brit. Emp. Ship Co. v. Somes, 27 T^aw J., Q. B. 397 ; 30 ib. Q. B. 229 ; BU., Bl. & Ell. 353, 
 8 H. L. C. 338. See Nevair v. Eoup, 8 Clarke (Iowa), 207. 
 («)) Thames Iron Works Co. v. Patent Derrick. Co., 1 Johns. & H. 97 ; 29 Law J., Ch. 714. 
 (a!) Judson v. Btheridge. 1 C. & M. 743. Yorke v. Grenaugh, 2 Ld. Kaym. 868. 
 (y) Orchard v. Eaokstraw, 19 Law J.; C. P. 303. 
 (z) Jaxjksou V. Cummins, 5 M. & W. 342. Chapman t>. AUen, Cro. Car. 273. 
 
540 BAILMENTS. [Chap. 0. 
 
 inconsistent with the existence of a right of lien(a). If. a policy of 
 insurance is deposited for safe custody only, the depositary cannot set ■ 
 up a lien upon it for an antecedent debt(6). If a person receives 
 a bill of exchange to get it discounted, and pay over the proceeds to 
 the owner, or apply them in some specified manner, he has no lien 
 upon the bill for money that may be due to him from the latter(c). If 
 a ship-factor receives the certificate of registry of a ship in order to 
 pay the tonnage dues, he has no lien upon it for a debt due to him 
 from the shipowner(d). Whenever goods in the hands of a bailee or 
 depositary are, by the terms of the cpntract, to be re-delivered to the 
 owner at some stated period, or " if by the agreement the plaintiff is 
 to have the goods immediately, and the payment in respect of them is 
 to take place at a future day, the bailee cannot set up any lien "(e), 
 A lien is wholly inconsistent with a dealing on credit, and can only 
 exist where payment is to be made in ready money, or security is to 
 be given the moment the work is com"pleted(/). "If security" (such 
 as a bill, note, or bond) " is taken for the debt for which the party has 
 a lien upon the property of the debtor, such security being payable at 
 a distant day, the lien is gone "{g). 
 
 If a person, when goods are demanded of him, rests his refusal to 
 deliver them up on grounds quite distinct from any claim of lien, he 
 cannot afterwards, on finding that those grounds fail him, put forward 
 a claim of lien as a justification for his refusal. Where, therefore, a 
 warehouseman, on being applied to for brandy which had been 
 delivered to him for safe custody, refused to give it up, saying that it 
 was his own property, it was held that he could not afterwards justify 
 his refusal on the ground that warehouse rent was due to him, and 
 was not tendered at the time the brandy was demanded(A), " for it 
 would be absurd to offer the expenses of keeping the goods to one who 
 insisted on retaining them as his own property"(i). But a person does, 
 not, of course, lose his right of lien by merely omitting to mention it 
 
 (o) Forth V. Simpaoii, 13 Q. B. 685. 
 
 (6) Muir V. rieming, D. & E., N. P. C. 30. 
 
 (c) Key V. Flint, 8 Taunt. 28 ; 1 Moore, 451. Buchanan v. Findlay, 9 B, & C. 749. 
 
 (d) Bum V. Brown, 3 Stark. 273. 
 
 (e) Ci-awshay v. Homfrey, 4 B. & Aid. S2. Woollen Manufactory v. Huntley, 8 N. H. 441. 
 (/) Raitt V. Mitchell, 4 Campb. 146. 
 
 [g) Hewison v. Gruthrie, 3 Sc. 298 ; 2 B. N. C. 769. Cowell ». Simpson, 16 Ves. 280. Horn 
 castle p. Farran, 3 B. & Aid. 497. Cobnrn v. Eers-vrell, 35 Me. 126. Hutchins v. Olcntt, 4 
 Vt. 549. ^ 
 
 (7i) Boardman v. Sill, 1 Campb. 410, n. Weeks e. Goode, imte, p. 408. Scott v. Jester, 13 
 Ark. 437. Picquet v. McKay, 2 Blactf. 465. Dows v. Morewood, 10 Barb. 183. See Hanna V. 
 Phelps, 7 Ind. 21. 
 
 (t) White V Gainer, 9 Hloore, 46. 
 
Sec. 1.] BI&BT OF LIEN. 541 
 
 ■when the goods are demanded. And if he claims a right to retain 
 them for two separate charges, and has a lien only in respect of one of 
 them, this will not dispense with the necessity of a tender of the one 
 in respect of which the lien exists(A). 
 61 3 ParUes against whom a lien may he claimed. — A mere trespasser or 
 wrong-doer, who gets possession of property without the consent of 
 the owner, cannot in general deal with it so as to create a right of lien 
 thereon as against the true owner(Z), unless the person in whose 
 possession the property is placed is a public innkeeper, or common 
 carrier, or common ferryman, or is bound to exercise his craft in favor 
 of all who require his services (post, ch. 10). Where the owner of a 
 pony phaeton intrusted the phaeton to a painter to be painted, and 
 .the latter carried it to the premises of the defendant, who was in the 
 habit of taking carriages to stand on his premises for hire, and there 
 left it, and, the phaeton never having been painted or brought back, 
 the plaintiff, after the expiration of three months, made search for it, 
 and found it on the premises of the defendant, who claimed a lien on 
 it for the price of the standing-room, it was held that the defendant 
 had no such lien(m). And where a chaise, which had been broken by 
 the negligence of a servant, was taken by the latter to a coach-maker's, 
 without the knowledge or sanction of the master, and was there 
 repaired, it was held that the coach-maker had no lien upon the chaise 
 as against the master for the price of the repairs(«.). It would seem 
 also, from the adjudged cases,- that if a servant is directed to take a 
 cartiage to A to be repaired, and he by mistake takes it to B, B would 
 have no lien upon it for the price of the repairs, as the servant was not 
 authorized to employ B in the matter. This may be law, but it is 
 hardly just, and opens a wide door to fraud, as it is impossible for the 
 coach-maker to be cognizant of the particular directions given by the 
 master to the servant. If the servant has received general directions 
 to get the carriage repaired, he may then of course give a right of 
 lien to any coach-maker he may employ to do the repairs(o). It has 
 been held, that if a person obtains possession of goods by fraud, and 
 pawns them, the pawnee is entitled to a lien upon them for the money, 
 advanced as against the true owner(p). But the possession of the 
 
 ;*) Scarfe v. Morgan, 4 M. & W. 281. See Everett v. Coffin, 6 Wend. 603. 
 (J) Hartop V. Hoare, 3 Atk. U. Lempviere v. Pasley, 2 T. E. 4S5. CasteUain v. Thompson 
 13 C. B., N. S. 106. See Guilford v. Smith, 30 Vt. 49. 
 (m) Buxton v. Baughan, 6 C. & P. 674. , 
 
 («; Hiscox V. Greenwood, 4 Eap. 174. 
 (o) Weldonu. Goald, 3Bsp. 268. 
 (p) ParJier v. Patrick, 5 T. E. 175 ; doubted in Peer v. Hnmphrsy, 2 Ad. & E. 499 ; said tf 
 
542 BAILMENTS. [Chap. 9. 
 
 goods by the pawnor must have been obtained by virtue of a contract 
 intended to pass the property to him. If a person pawns with another 
 property to which he has no color of title, the jus tertii may always be 
 set up aga,inst the pawnor by the pawnee(g'). 
 614 General lien is a right on the part of a manufacturer, or workman, 
 factor, broker, or commission agent for the sale of goods, warehouse- 
 man or wharfinger, into whose hands goods have been placed to be 
 worked up, repaired, improved, sold, or taken care of for hire, in the 
 ordinary course of thfeir trade or employment, to retain possession of 
 them, not only until they have received payment of the hire due to 
 them for their services in the particular employment, but for the 
 general balance due to them from their employer in the ordinary course 
 of dealing for work and services of the like nature bestowed at other 
 times upon other goods of the employer. This right depends either 
 npon the express agreement of the parties, or the custom and usage 
 of the particular trade or business. The onus of making out and 
 establishing the right, whether it exists by agreement or by custom, 
 lies upon the person claiming it. When custom and usage of trade 
 are relied upon as establishing the right, the usage must be shown to 
 have governed the parties in their previous dealings together, or to 
 prevail to such an extent that the contracting party must be supposed 
 to be cognizant of it, and to have contracted subject to the usage ; but, 
 as the right is an encroachment upon, the ordinary rules and principles 
 of the common law, it is regarded with jealousy by the courts, and 
 requires the strongest proof. 
 
 Where persons carry on a trade or business in which a general lien 
 is recognized, they cannot claim a general lien in respect of goods or 
 securities which are, by agreement, held for a particular purpose, or 
 under special conditions inconsistent with the claim of a general 
 lien(r). A general lien cannot be set up in opposition to the terms and 
 conditions upon which the goods were received. Thus, if a broker or 
 factor receives goods to sell, and applies the proceeds in some particu- 
 lar manner, he cannot set up a lien for his general balance, because a 
 lien of this nature would be utterly inconsistent with the terms upon 
 which he acquired possession of the goods(s). And if a debtor depos- 
 its a bill of exchange with his creditor, in order that the latter may 
 
 be good law by Parke, B., in Load v. Green, 15 M. & W. 219 ; and Cresswell, J., in White v. 
 Garden, 20 Law J., C. P. 168 
 
 (g) Chessman v. Exall, 6 Exoh. 345, As to pledges by faot(*-s and agents, see Addison on 
 Contracts, 6th ed., p. 281, et seq. 
 
 (r) Bock V. Gorrissen, 2 De G., P. & J. 434; 30 Law J., Ch. 43. 
 
 («) Walker v. Birch, 6 T. E. 262. 
 
Sec. 1.] LIEN OF FACTORS AND BROKERS. 543 
 
 ge.t the bill discounted and pay over the proceeds to the debtor, the 
 creditor cannot set up a lien upon the bill for the general balance due 
 to him(<). In some places, dyers, calico-printers, fullers, warehouse- 
 men, wharfingers, and packers, have been held, in accordance with 
 the proved usage of their several trades in the particular locality, to 
 have a lien on goods sent to them to be dyed, printed, warehoused, 
 worked upon, or taken care of, not only for the work done upon, or in 
 ?espect of, the particular goods in their possession, but also for their 
 charges of dyeing, printing, warehousing, etc., other goods which had 
 previously been delivered back to their owners(M) ; and in other places, 
 where no such usage has been shown to exist, they have been held to 
 have no such general lien(»). The usp-ge, when it exists, must be 
 shown to be long established, and notorious, fair, and reasonable, and 
 not contrary to any established principle of law(y). It has been held 
 that a publisher has a lien upon any one or more parts or numbers of 
 a work for his charges and disbursements for printing or publishing 
 the various numbers, though not consecutive, of an entire work(0); also, 
 that an agent who carries on business in his own name, on behalf of 
 an undisclosed principal, has a lien on the business, the stock 
 employed in it, and the debts owing to it, to the extent of the liability 
 which he has incurred in the conduct and management of the busi- 
 ness(a). 
 615 lAen of factors and brokers. — Factors and brokers to whom goods are 
 consigned to be sold, have a lien for the general balance due to them 
 from their employers or principals in the ordinary course of their 
 business as factors, and for their acceptances on behalf of such employ- 
 ers, upon the goods whilst they are in their possession, and on the 
 moneys realized by the sale of them(6). This right exists universally 
 by the custom of the trade. It is part of the law merchant, and as 
 such is judicially taken notice of by the courts, no proof being ever 
 required as a matter of fact that such general lien exists ; but no such 
 lien can be claimed as resulting from any general law of principal 
 
 (t) Key V. Flint, 1 Moore, 451 ; 8 Taunt. 21. 
 
 («) SaviU V. Barohard, 4 Eep. 52. Naylor v. Mangles, 1 ib. 109. Spears ». Hartley, 3 ib. 81. 
 Rose V. Hart, 8 Taunt. 499 ; 2 Moore, 547. Webb v. Fox, 2 Peake, N. P. C. 167. 
 
 (X) Green v. Parmer, 4 Burr. 2214 ; 1 W. Bl. 651. Holderness v. CoUinson, 7B. & C. 216. 
 
 (y\ Enshforth v. Hadfleld, 6 East, 528. Leuokhart r. Cooper, 3 So. 621 ; 3 B. N. C. 99. 
 
 (») Blake v. Nicholson, 3 M. & S. 167. 
 
 (a) Poxcraft ». Wood, 4 Buss. 488. 
 
 (6) Kruger v. Wilcox, Ambl. 252. Hudson v. Granger, 5 B. & Aid. 31. Hammond v. Bar- 
 clay, 2 East, 227. Griefl' v. Cowguill, 2 Disney (Ohio), 54. Winne v. H.iramond, 37 111. 99. 
 Cator ». Merrill, 16 La An. 137. Davis i;. Bradley, 28 Vt. 118. Aioher ». McMechan, 21 Mo. 
 43. Matthews v. Meuedger, 2 McLean, 145. Baker v. Taller, 21 Pick. 318. 
 
544 BAILMENTS. [Chap. 9. 
 
 and agent(c). The lien does not extend to a collateral debt not grow- 
 ing out of the relationship of principal and factor, such as a debt due 
 for rent(c?), nor to goods which have not actually reached the hands 
 of the factor(e), or which have come into his possession without the 
 consent and direction of the owner; consequently, if goods have been 
 left at the factor's place of business by mistake or inadv,ertence(/), or 
 have been taken possession of by him without the authority of the 
 owner, he cannot set up a lien upon them for his balance(^). And 
 if the person from whom he receives Mie goods is only an agent, he 
 cannot retain them as -against the true owner for a debt that was due 
 to him from the agent at the time the goods were put into his hands, 
 and which was not contracted on the credit of the deposit of the 
 goods ; but it is otherwise if he has made advances on the credit of 
 the deposit, not knowing the depositor to be an agent(A), The factor 
 can only claim a lien for his general balance upon goods which come 
 to his hands as factor. A factor, therefore, who effects a policy of 
 insurance, not as factor, but as an insurance broker, is not entitled to 
 a general lien on a policy in his hands for a balance due to him in 
 his character of factor(i). 
 616 Insurance brokers have also, by the general usage and custom of 
 trade, a lien upon every policy effected by them for the premium paid 
 on such policy, and for their commission, and also for the general bal- 
 ance due to them from their employers upon all policies effected by 
 them for such employers, and left in their hands, and upon all moneys 
 received by them upon such policies from the underwriters, unless the 
 person for whom they effected the policy was himself only an agent 
 in the matter; in which case the extent of their lien will depend 
 upon the disclosure or concealment of the agency, and the degree of 
 credit they may have given to the agent, under the impression that 
 he was the person really interested in the policy. The lien does 
 not extend to a collateral debt not incurred in respect of brokerage 
 business(A). 
 
 (c) Bock V. Gorrissen, 30 Law J., Ch. 42. 
 
 (d) Hoagjitoii V. Matthews, 3 B. & P. 485. 
 
 (e) Kinloch v. Craig, 3 T. E., 123. Bruce v. Andrews, 36 Mo. 593. But see Wadee. Hamil- 
 ton, 30 Ga. 450 ; Kollock ». Jackson, 6 Ga. 153. 
 
 (/) Lucas ». Dorrieu, 7 Taunt. 278. 
 
 (g) Taylor v. Eobinson, 2 Moore, 730. 
 
 (ft) Pultney o. Keymer, 3 Esp. 181. Addison on Contracts, 6th ed., pp. 279-283. Freeman e. 
 Appleyard, 32 Law J., Exch. 173. See Wesling v. Noonan, 31 Mo. 699. 
 
 (i) Dixon V. Stansfeld, 10 C. B. 398. 
 
 (ft) Mann v. Forrester, 4 Campb. 60. Mann e. Shlffner, 2 East, 269. M'Kenzle v. Nevins, 
 9 Shep. 138. See Seed v. Paciflo Ins. Co., 1 Met. 16«. 
 
Sec. 1.] , LIEN OF BANKERS, ATTORNEYS, ETC. 545 
 
 617 lA&n of 6a«^s.— Bankers also, Who are a species of factors in 
 pecuniary transactions, have, by the general law of the land, a lien 
 upon all the securities for money of their customers in their hands for 
 their advances to such customej?s in the ordinary course of business(0, 
 unless such securities have been received under special circumstances, 
 and not in the ordinary way of their business as bankers, or under 
 some special arrangement or understanding inconsistent with the 
 exercise of the right, or limiting it to some specified amount(»ra). By 
 the term securities is meant notes, bills and negotiable instruments, 
 coupons, bonds of foreign governments, etc.(w). If title-deeds and 
 securities for money, not being negotiable, are deposited in the hands 
 of a banker by a person who is wrongfully possessed of them, or is 
 not the true owner thereof, and is not authorized to raise money 
 upon them, the banker has no better or further rights over them than 
 the person who deposited them in his hands, and cannot set up a lien 
 upon them as against the true owner(o). But as regards negotiable 
 securities, such as exchequer bills of exchange, and promissory notes, 
 the right of general lien will extend to them, although the customer 
 who delivered them to the banker was not the owner, but was 
 holding them as an agent or trustee of some third person, unless the 
 banker knew at the time he received the securities that they did not 
 belong to the persom from whom he received them. The lien of a 
 banker upon the securities in his hands belonging to his customers is 
 part of the law merchant, and as such is judicially taken notice of by 
 the courts(p). 
 
 618 Lien of attorneys and solicitors. — ^Attorneys and solicitors also have 
 a lien upon all money recovered by them in the actions and suits in 
 which they are employed (matrimonial, in bankruptcy, or otherwise(g)), 
 
 (I) Daris v. BowBher, 6 T. R. 488. Bank of the Metropolis v. New England Bank, X How. 
 (T7. S.) 234. Eussell v. Hadduck, 3 Gill, 233. Baltimore, etc., E. B. Co. v. Wheeler, 18 
 Md. 372. The articles of association of joint-stock banks not unfrequently provide that the 
 bank shall have a lien on the shares of a shareholder for all money due to the bank by such 
 shareholder. See Re General Exchange Bank, L. R., 6 Ch. App. 818. 
 
 (m) Vanderzee v. WiUis, 3 Bro. C. C. 21. Bank of the Metropolis v. New England Bank, 1 
 How. (U. S.) 234. Eussell ti. Hadduck, 3 Gill, 233. Baltimore, etc., E. E. Co. v. Wheeler, 18 
 Md. 372. 
 
 (n) Brandao v. Bamett, 12 CI. & P. 787. Wylde v. Bradford, 33 Law J., Ch. 53. 
 
 (o) Lucas V. Dorrien, 7 Taunt. 278. Newton v. Newton, L. E., 6 Eq. Ca. 135. 
 
 (p) Bamett ». Brandao, 7 Sc. N. E. 331. Wookey v. Pole, 4 B. & Aid. 11. CoUins v. Martin, 
 1 B. & P. fi48. 
 
 (g) Ex pa/rte Bremner, L. E., 1 Prob. & Div. 254. Ex parte Cleland, L. E., 2 Ch. App. 811. 
 The Jeff Davis, L. R., 1 Adm. & Eool. 1. The Leader, 2 ibid. 314. Mercer v. Graves, L. E., 
 7 Q. B. 499. Morrison v. Ponder, 45 Ga. 167. Marshall n. Meeeh, 51 N. Y. 141. Pulver v. 
 Harris. 52 N. Y. 73. Re Paschal, 10 Wall. 488. Whittle v. Newman, 84 Ga. 377. Warfleld v. 
 Campbell, 38 Ala. 527. McGregor v. Comstock, 28 N. Y. 237. Carter »..Davis, 8 Florida, 183 
 
 Ad. Vol. I.— 35 
 
546 BAILMENTS. [Chap. 9. 
 
 and upon all the deeds and papers and other articles of their clients 
 ■which come to their hands in their professional capacity, for the pur- 
 poses of business, for the costs not only of the particular cause or 
 matter with which such deeds or papers are connected, but for the 
 costs due to them generally from their clients(r). But a solicitor has 
 no lien upon the will of a client for the costs incurred in the prepara- 
 tion of it,, and cannot therefore refuse to produce it after his client's 
 death until his costs have been paid. And, where deeds are delivered 
 for a specific purpose, the right of li^ is extinguished as soon as the 
 particular purpose has been accomplished, and it may be superseded 
 altogether by the attorney's taking from the client security for his 
 costs(s). The town agent of a country attorney has a lien only upon 
 the money recovered, and upon the papers in his hands in the par- 
 ticular cause in which he is engaged, for the amount due to him by 
 the attorney in that particular cause. He cannot set up a claim of 
 lien for the general balance due to him from the country attorney who 
 employs him, and cannot retain the money or papers of" the client to 
 satisfy his general debt(i). And his lien is limited to the debt actually 
 due from the client to the country solicitor, so that if the country 
 client pays the country solicitor the lien is discharged, for the country 
 solicitor can give the town agent no lien which he does not himself 
 possess(M). 
 
 An attorney cannot set up a general lien for the balance due to him 
 in respect of services not rendered by him as an attorney, nor can he 
 detain deeds and papers which do not come to him in his professional 
 
 Gammon ». Chandler, 30 Me. 152. Sexton tf. Pike, 13 Ark. 193. Baker v. Cook, 11 Mass. 
 236. Potter v. Mayo, 3 Greonl. 34. 
 
 To the contrary, see Forsyth v. Beveridge, 52 111. 268 ; Mansfield v. Dorland, 2 Cal. 5W7 ; 
 Hill B. Brinkley, 10 Ind. 102 ; Ex parte Kyle, 1 Cal. 331. 
 
 As to the eitent of the lien, see CuiTier v. Boston & Maine E. E. Co., 37 N. H. 223 ; Eooney 
 V. Second Avenue R. E. Co., 18 N. T. 368 ; Stewarts. Flowers, U, Miss. B13 ; Wells v. Hatch, 
 43 N. H. 246 ; Waters v. Grace, 23 Ark. 118. 
 
 As to his lien as against an official liquidator, see Re Union Cement & Brick Co., L. R. 4 
 Ch. App. C. 27 ; .Be South Essex Reclamation Co., 38 L. J. Ch. 305. 
 
 (r) Stevenson v. Blakelocke, 1 M. & S. 635. Lambert ». Buckmaster, 2 B. & C. 616. Blun- 
 den V. Desert, 2 Dru. Sc W. 405. Friswell o. King, 15 Sim. 191. Robins v. Goldingham, L. R., 
 13 Eq. Ca. 440. Bowling Green Savings Bank v. Todd, 52 N. T. 489. Stewart v. Flowers, 44 
 Miss. 513. Dennett ». Cutts, 11 N. H. 163. 
 
 As to an attorney's lien on a judgmenJ,for his costs, see O'Brien v. Lewis, 32 Law J., Ch. 
 665 ; Slater v. Sunderland (Mayor of), 33 Law J., Q. B. 37 ; Langley v. Headland, 34 Law J., 
 C. P. 183 ; Be Bank of Hindustan, L. E., 3 Ch. App. 125 ; Ex parte Morrison, L. E., 4 Q. B. 
 153. As to a proctor's, Patterson v. Patterson, L. E., 2 Prob. & Div. 192. 
 
 (s) Genges ». Genges, 18 Vcs. 294. Balcli v. Symes, Turn. & E. 92. 
 
 (*) White e.Eoyal Exchange Ass. Co., 7Moore, 249. Moody o. Spencer, 2 D. & E. 6. Anon., 
 2 Dick. 802. 
 
 («) Waller v. Holmes, 1 John's. & Hem. 239 ; 30 Law J., Oh. 2^. .Se Afldre-vv, 7 H. & N. 87 ; 
 80 Law J., Exch. 403. Peatfleld v. Barlow, 38 L. J., Ch. 311. 
 
Sec. l.J LIEN OF SBIPOWNERS. 547 
 
 character. He has no lien, for example, where he acts or holds papers 
 as town-clerk(a;), or steward of a manor(2/) ; he cannot set up any lien 
 which is inconsistent with the nature of his employment, or the terms, 
 or conditions, or express or implied trust upon which he received the 
 papers(2). His right, moreover, is dependent upon the rights of his 
 client, and he cannot acquire more extensive powers over the papers 
 in his hands than the client himself possessed at the time he deposited 
 them with him(a). If an attorney transacts business for a fii-m in 
 partnership collectively, and also manages the private business of the 
 members of the firm individually, he has no lien upon the private se- 
 curities, deeds and writings, of one partner in respect of the business 
 done for the firm (6). 
 
 By the 23 & 24 Vict. c. 127, s. 28, it is provided, that in any case 
 before a court of justice where an attorney shall be employed to pros- 
 ecute or defend, the court or judge may declare the attorney entitled 
 to a charge upon the property recovered or preserved through his in- 
 strumentality(c), and may make an order for the taxation of the 
 attorney's costs, and for the payment of them out of such property ; 
 and all conveyances and acts done to defeat such charge, except to a 
 hcmd fide purchaser for value, without notice, shall be void(d). The 
 attorney's charge for his costs under this section only extends to the 
 property of his own client and not to thg,t of other persons(e). But, 
 independently of any order under the above statute, the proctor's lien 
 in the Admiralty Court will attach and take precedence of the claim 
 of a garnishee(/). 
 
 619 Certificated conveyancers haw nalien upon the papers and instructions 
 placed in their hands for the purpose of enabling them to draw a con- 
 veyance(p'). 
 
 620 Li&n of shipmasters. — An agent cannot acquire a lien upon the prop- 
 erty of his principal for work done by others whom he has employed 
 
 {x) Champemown v. Scott, 6 Mad. 93. 
 
 (y) Rex V. Sankey, 6 Ad. & E. 428. 
 
 («) LawBon v. Dickenson, 8 Mod. 307. See Ee Paithfiil, L. E., 6 Eq. Ca. 324 ; Simmonds r. 
 Gt. East. Kail. Co., L. E., 3 Ch. App. 797. 
 
 (a) Hollis V. Claridge, 4 Taunt. 807. Bsdaile v. Oxenham, 3 B. & C. 229. Lightfoot v. Keane, 
 1 M. & W. 745. Molesworth v. Eobblns, 2 Jon. & L. 358. 
 
 (6) Turner ». Deane, 3 Bxch. 836 ; 18 Law J., Ex(^. 34.3. S»e Re Mosa, L. E., 2 Eq. Ca. 345. 
 
 (cl See Twynam v. Porter, L. E., 11 Eq. Ca. 181 ; Heinrich v. Sutton, L. E., 6 Ch. App. 8G6. 
 Be National Assurance and Investment Association, L. E., 7 Ch. App. 221. See Bails ». Baile, 
 L. E., 13 Eq. Ca. 497 ; The Heinrich, L. E., 3 Adm. & Ecol. 505. 
 
 (d) See The Philippine, L. E., 1 Adm. & Eocl. 309 ; Be Massey, L. B., 9 Eq. Ca. 367 ; Be 
 Keane, L. E. , 12 Eq. Ca. 115. \ 
 
 (e) Ben-ie v. Howitt, L. E., 9 Eq. Ca. 1. 
 
 '/) The Jeff Davis, L. E., 2 Adm. & Eccl. 1. See The Heinrich, L. E., 3 Adm. & Eocl. 605. 
 (g) Steadman v. Hockley, IB M. & W. 553. 
 
548 BAILMENTS. [Chap, 9. 
 
 and paid. A Shipmaster, tterfefore^ has no lien upon a ship for tooney 
 expended or debts incurred by hira for repairs done to her on the 
 T6yage(A). 
 
 621 Lien fof freisfht.-^The lien of shipowners and masters of ships on 
 goods and cargoes for freight is regulated by the Merchant Shipping 
 Act(is). 
 
 622 Lien of consi^nees:^^T!hQ general lien of a consignee upon goods con- 
 signed to him cannot be set up against positive directions given him 
 by- the coUsignor, and if he accepts''^ consignment accompanied by 
 directions to apply the proceeds of it in a particular way, he is bound 
 by such directions(j'). 
 
 623 Notice that good's will be held subject to a general lien. — ^The right to 
 retain for a general balance may, with certain exceptions presently 
 noticed, be created by the express contract of the parties. Every 
 workman and artificer not being a public innkeeper, common carrier, 
 or common ferryman, and not being bound to exercise his calling in 
 favor of all persons who may require his services, has a right to pre- 
 scribe the terms upon which he will receive goods into his possession 
 to be dealt with in the Ordinary course of his trade, and may by express 
 notice reserve to hiaiself a general lien, if he thinks fit so to do. 
 Thus where the dyerS, dressers, bleachers, whisters, printers and calen- 
 derers, of Manchester, and the Ueighborhood, came to a public 
 resolution or agreement, at a public meeting in Manchester, that they 
 would receive goods to be dyed, dressed, bleached, etc., on the Condi' 
 tion that such goods should not only be subject to the debts for the 
 work and labor performed upOn them, but. also for the general balance 
 due from the persons employing them for work and labor of the same 
 kind performed upon goods which they had already delivered out of 
 their possession, it was held that persons -Who had sent goods to the 
 dyer or fuller, tvith notice of this resolution, conceded to them a lien 
 for their general balance(A). 
 
 624 General lien by custom of trade — War ehmiseTteepers-^-Whar fingers.'^ 
 Where certain public warehousekeepers of the city of London claimed 
 a right to retain various bales of wool under an ancient custom of 
 that city, for all public warehqjisekeepers to have a general lien upon 
 all goods from time to time housed in their warehouses in the name of 
 the merchants or other persons by whom such public warehousekeep- 
 ers were employed, for all moneys or any balance thereof due from 
 
 (ft) Hassey ». Christie, 9 East, 433. \j) Frith v. Forbes. 32 Law J., Ch. 10. 
 
 (!) 25 & 20 Vict. 0. 63, see s. 67. (h) 5ir]anau v. Slmwcross, 6 T. E. U. 
 
Sec. l.J LIEN OF POLICY BROKERS, ETC. 549 
 
 such merchants to such public warehousekeepers for their advances, 
 expenses, and charges, etc., it was held that the custom was bad, as 
 the general lien claimed was not confined to goods the property of the 
 person who employed or retained the warehousekeeper. " The cus- 
 tom,'' it was observed, " if supportable, would make the goods of a 
 foreign merchant, which have been consigned to a London factor for 
 sale, and by him put into the warehouse of the warehousekeeper for 
 safe custody, liable to a private debt of the factor for expenses incurred 
 in respect of other goods of third persons, which had been in his hands 
 at former times, for charges contracted upon such goods, during any 
 antecedent period of time, and that to an unlimited extent; which 
 would be unreasonable and unjust, and obviously prejudicial in a very 
 high degree to foreign trade, for no foreign merchant would consign 
 his goods to this country for sale, if they could be made liable whilst 
 warehoused for custody, to satify a debt already due from the factor 
 to the warehousekeeper, in respect of other goods(Z). Dock companies 
 have no general lien for wharfage charges, and cannot detain the 
 goods of one man to satisfy wharfage dues and charges incurred by 
 another(«i). If a wharfinger has a general authority to receive all 
 goods directed for A B, and goods come to his wharf directed by mis- 
 take for A B, the real owner of the goods cannot take them away 
 without paying the charges incident to those particular goods ; but it 
 is equally clear that the wharfinger could not set up a lien on such 
 goods for a general balance of accounts due from A B io \axa.{n). 
 625 lAen of poUoy-brokers.^-If a policy-broker is employed by an agent 
 to effect a policy of insurance for the benefit of such agent, and there 
 is no disclosure of the agency, and nothing to lead the broker to think 
 that any third party is interested in the policy, and the insurance is 
 accordingly effected in the name of the agent as owner, and a loss 
 occurs, and the policy is allowed, after the loss, to remain in the 
 broker's hands, and the latter then permits the agent to get into his 
 debt, not knowing hini to be an agent, the broker will have a lien as 
 against the principal upon the policy, and upon the money he received 
 thereon from the underwriters, to the extent of the debt due to him 
 from the agent, as well as for his commission, and charges for effecting 
 the policy(o). But if there ih the slightest indication of the agency to 
 
 (0 Tindal, C. J., Leuckhart ». Cooper, 3 So. 831 ; 3 B. N. C. 99 ; 35 Hen. 6, 33, cited Eex v 
 Humphery, McOlel. & T. 193. 
 (m) Dresser v. Bosanquet, 32 Law J., Q. B. 57 ; 4 B. & S. 460, 486. 
 in) Richardson v. Goss. 3 B. & P. 123. 
 to) Mann V. Forrester, 4 Campb. 61. Westwooj V. Bell, lb. 366. Olive v. ■Smitb, 6 Tannt. 58. 
 
550 " BAILMENTS. [Chap. 9. 
 
 the broker, such as a declaration by a British subject in time of war 
 that the property is neutral(p), or a statement that the insurance is to 
 be effected "for a correspondent in the country "(g), or that the prop- 
 erty to bQ insured belongs to a merchant abroad who has consigned it 
 to the agent with full power of disposition over it, and with authority 
 to indorse the bill of lading(r), the broker will have a lien only for his 
 commission and charges for the insurance, and not for the balance due 
 to him from the agent. 
 626 Extinguishment of liens hy abandoninimt of possession. — If a bailee who 
 has a right of lien upon property in his possession voluntarily parts with 
 the possession of such property, the lien is gone ; so that if .he afterwards 
 recovers possession of the property his right of lien does not revive(s) ; 
 but if it is stolen or taken away by a trespasser or by fraud, and he 
 gets it back again, his right of lien is not extinguished(i). Possession 
 of goods and chattels may be given up, and the right of lien extin- 
 guished, although the goods and chattels are never actually removed 
 from the premises of the party having the lien(M). And, on the other 
 hand, as the possession of the servant is the possession of the master, 
 it follows that a depositary or bailee who has a right of lien upon 
 goods in his possession does not lose his right by placing the goods in 
 the hands of his servant or agent for custody, who is to hold them at 
 his disposal. Warehousekeepers and wharfingers to whom goods have 
 been delivered by masters of ships for safe custody, have been held 
 to be the servants of such masters holding the goods at their disposal, 
 so as to preserve the shipmaster's lien for the freight after the goods 
 have been taken out of the ship(»). 
 
 The right of lien being a mere personal right, which cannnot be 
 parted with, it follows that a bailee who has got a lien cannot sell his 
 right to another, nor can he transfer, as we have just^seen, th'e prop- 
 erty over which the lien extends, to another, without losing his right 
 of lien(a!), unless the property has been pledged to secure the repay- 
 ment of money advanced, with an express or implied power of sale(2^), 
 
 (p) Maausa v. Henderson, 1 East, 337. 
 
 (5) Snook V. DaTidBon, 2 Campb. 218. 
 
 (r) Lanyon v. Blanohard, ib. S97. 
 
 («) Sweet V. Pym, 1 East, i. Bi-aokett v. Hayden, 3 Shep. 347. M'Parland ». Wheeler, 26 
 Wend. 467. Matthews v. Menedger, 2 M'Lean, U5. Bailey v. Quint, 22 Vt. 474. King v. In- 
 dian Orchard Canal Co., H Cusb. (Mass.) 231. Danforth v. Pratt, 42 Me. 50. See, however, 
 Spaulding v. Adams, 32 Mo. 211. 
 
 («) Wallace v. Woodgate, R. & M. 194. 
 
 •u) Jacobs V. Latour, 2 M. & P. 305. 
 
 {V) Reeves v. Capper, 5 B. ?f . C. 136. 
 
 («) Clerk V. Gilbert, 2 B. N. C. 357. 
 , (j/) See Johnson v. Stear, 33 L. J., C. P. 130. 
 
Sec. 1.] EXTINGUISHMENT OF EIGHT" OF LIEN. 551 
 
 for there is a clear distinction in this respect between a lien, which i§ 
 a mere personal right of detention, and a pledge deposited to secure 
 the repayment of money(z). An innkeeper, consequently, cannot sell 
 the horse of his guest for the expense of his keep, except within the 
 city of London(a). A sheriff cannot sell an interest of this description, 
 and he cannot, consequently, seize property covered by the lien under 
 an execution against the party claiming the lien(6) ; but if the execu- 
 tion is against the owner of the goods, he is entitled then to seize 
 them, after tendering the amount of the debt for which they are a 
 security. A person may, as we have before seen, reserve to himself, 
 by express contract, a right to take and to hold goods as a security 
 for the payment of a debt, so that he will be entitled to resume pos- 
 session of the goods after he has parted with them, and to re-establish 
 his lien, provided the rights of no third person have intervened. 
 
 627 Statutory power of sale in discharge of a right of lien. — By the 
 Merchant Shipping Act, 1862, power is given to wharf or warehouse 
 owners, in certain cases, to sell by public auction goods placed in their 
 custody, and apply the proceeds of the sale in satisfaction and dis 
 charge of the charges upon them(c). 
 
 62S Tender of the debt in extinguishment of the right of lien. — ^Wherever a 
 person has a lien upon goods for the payment of money due upon them, 
 whether he be an unpaid vendor in possession of goods sold, or a 
 manufacturer or workman in possession of goods that have been worked 
 up or repaired by him, or a pledgee holding chattels as a security for 
 a debt, the lien may be at once extinguished, and a right to the pos-' 
 session -of the goods created, by a tender of the money due upon 
 them((i). "Where a lease was deposited with the defendants as a 
 security for the repajrment of 150Z. on a promissory note payable on 
 demand, and the defendants agreed that they would not enforce their 
 remedy upon the note so long as the maker should duly pay the 
 interest' thereon, the rent of the premises, and what might from time 
 to time be due to them for beer, and if he failed in any of these 
 respects, the defendants were to be at liberty, after notice, to sell the 
 lease and to deduct the expenses of the sale, the principal money and 
 interest, and any account then due from the plaintiff to the defend- 
 ant, it was held that the moment the amount of the note was paid or 
 
 (s) Donald v. Suckling, L. E., 1 Q. B. 585. 
 
 (o) Jones V. Pearle, 1 Str. 566. 
 
 (6) Legg V. Evans, 6 M. & W. 42. See Toung v. Lambert, L. B., 3 P. C. Ca. 142. 
 
 (c) 25 & 26 Tiot. c. 63, ss. 73-76. 
 
 (d) Eatoliff ». Davies, Cro. Jac. 244. 
 
552 BAILMENTS. [Chap. 9. 
 
 tendered, there was an end of all the stipulations as to what should be 
 done with the lease in the event of the non-payment of the note and 
 interest, and that the plaintiff had a right to maintain an action of 
 detinue to recover back his lease(e). 
 
 629 Detention of goods and chattels, deeds and securities, hy one of sever aZ 
 joint-owners or tenants in common. — " If two be possessed of chattels 
 personal in common by divers titles, as of a horse, an ox, or a cow, etc., 
 if the one take the whole to himself out of the possession of the other, 
 the other hath no other remedy but »to take this from him who hath 
 done to him the wrong, to occupy in common, etc., when he can see 
 his time"(/). Where two have an equal interest in a deed, and each 
 may have occasion to use it, as for instance, where the same deed 
 grants Whiteacre to A, and Blackacre to B, it is manifest that both 
 cannot hold the deed at the same time ; and to avoid any unseemly 
 contest for the possession of it, it has been held that he who first 
 gets -hold of it is entitled to keep it. For fraud or force which may 
 be used to get possession of the deed, either party may perhaps have 
 a remedy against the other; but the title to the deed is ambula- 
 tory between those who may have an interest in, and may have occa- 
 sion to use it, and each is entitled to keep the deed from the other so 
 long only as he actually retains it in his custody and control, but no 
 longer(£r). 
 
 630 Re-delivery of chattels to one of several joint-bailors. — If an action is 
 brought by several joint-bailors against a bailee for the non-delivery 
 of goods deposited in his hands by a joint-bailment from all of them, 
 it is a good defence to the action that the goods bailed by the plaintiffs 
 to the defendant have been delivered up to one of them. " It is said," 
 observes Lord Campbell, " that this is no defence, because the contract 
 of bailment was not to deliver them except to the plaintiffs jointly. 
 But as, in fact, one of the plaintiffs has got the goods, the question 
 arises whether he can sue the defendants for giving' them to himself. 
 It would be contrary to all principle, and the cases show that it would 
 be contrary to all law, if he could. I do not think an action could be 
 maintained against bankers in this position more than against others : 
 but it is not to be supposed they could therefore with impunity deliver 
 up to one person securities deposited with them to hold for several per- 
 sons. I think, in such a case, they would stand in the relation of 
 
 (e) Chilton v. Carrington, 15 C. B. 105. 
 
 (/) Litt. sec. 323. 
 
 Is) Forter ». Crabb, 12 C. B. 138. 
 
Sec. 2.] ACTIONS OF DETINUE, ETC. — PARTIES. 553 
 
 trustees for all the joint-bailors ; and there would be a clear remedy 
 in equity for the breach of trust in delivering the joint property to one 
 only of the cestui que trusts "(A). 
 
 SECTION 11. 
 
 OP ACTIONS FOR THE NEGLIGENT MANAGEMENT, NEGLIGENT KEEPING, 
 AND UNLAWFUL DETAINING OF GOODS AND CHATTELS. 
 
 631 Parties to he made plaintiffs. — ^Where injury has been sustained by 
 the servants of a bailee from the negligence of the bailor, in not giving 
 notice of the dangerous nature of the subject-matter of the bailment, 
 the servant is the proper person to sue for damages(i). A mere gra- 
 tuitous bailment of a chattel to another does not, as we have seen, 
 remove the chattel out of the possession of the bailor, and does not 
 prevent the latter from suing a third person who takes the chattel out 
 of the hands of the bailee and refuses to deliver it to the bailor on 
 demand {ante, pp. 445, 446). In case of gratuitous bailment, the 
 bailee generally holds the chattels merely at the will of the bailor, and 
 is bound to return them whenever required so to do. Where, there- 
 fore, brewers sell porter in casks, and lend the casks to their customers 
 until they are emptied, they may maintain an action against a wrong- 
 doer for taking and detaining the empty casks(A). And where chattels 
 lent to hire have been permanently injured or destroyed whilst in the 
 hands of the bailee by a wrong-doer, the bailor, or owner of the 
 chattels, may maintain an action on the case in respect of the damage 
 done to his reversionary interest in them. The mere outstanding right 
 of the bailee to the use of the chattels does not debar the owner of this 
 right of action(Z). 
 
 In all cases of bailment of chattels by one person to another for hire 
 or reward, it is essential that &e bailee should preserve his dominion 
 and control over the property, and his power of restoring it to the 
 
 (ft) Brandon v. Soott. 7 EU. & Bl. 237 ; 26 Law J., Q. B. 163. 
 (i) Fan-ant v. Barnes, 11 C. B., N. S. 553 ; 31 Law J., 0. P. 137. 
 (*) Manders v. Williams, i Bxch. 343. 
 
 {I) Hears v. Land. & S.-West Bail. Co., 11 C. B., N. S. 850 ; 31 Law J., C. P. 220. Howard v. 
 Farr, 18 N. H. 467. 
 
554 BAILMENTS. [Chap. 9, 
 
 owner. If, therefore, he parts -witli the possession of the chattel, and 
 places it under the dominion and control of a stranger, the bailment is 
 determined, and the owner has a right of action for the recovery of 
 the thing bailed(?w). 
 
 Where, after a bailment of chattels, the bailor has transferred all his 
 interest in the chattels to another, the bailee is entitled, as we have 
 seen, to have an order or authority from the bailor to deliver them 1o 
 his transferee, or a reasonable time to make inquiry and ascertain the 
 validity of the new title of the claimant before he can be made respon- 
 sible in damages for the non-delivery of the chattels to the latter(«). 
 Where, for example, goods have been bailed by the owner to a ware- 
 house-keeper, to be kept, and the owner has subsequently sold the 
 goods to a purchaser, the warehouse-keeper is not responsible for 
 refusing to deliver the goods to the purchaser without the production 
 of a delivery-order from the bailor, or some documentary evidence of 
 title to the goods on the part of the stranger who demands them ; but 
 he may, if he pleases, at once attorn to the purchaser, and rely upon 
 the title of the latter(o). 
 
 If the bailee has received the chattels upon the terms that he is to 
 deliver them to the bailor, or to any person authorized by him to 
 receive them, a bona flde purchaser or mortgagee, who is in possession 
 of a bill of sale, or assignment, or mortgage, executed by the bailor, 
 transferring all the bailor's interest in the chattels to such purchaser 
 or mortgagee, may, on presenting such bill of sale or mortgage to the 
 bailee, lawfully demand possession of the chattels, and in case of the 
 refusal of the latter to deliver them to him within a reasonable time 
 after the demand {ante, p. 401), may maintain an action for the conver- 
 sion or detention of the property(p), the bill of sale or mortgage signed 
 by the bailor, being an authority or direction to the bailee to deliver 
 up the chattels to the purchaser or mortgagee ; but if there be a mere 
 oral agreement of sale, and no warrant, or authority, or direction from 
 the bailor for the delivery of the goods, the refusal of the bailee to 
 deliver them to the stranger would be no proof of a conversion, or of a 
 wrongful detainer. It is to a case of this sort, where there has been 
 a mere oral transfer of chattels by a bailor, without any warrant or 
 authority from the latter to the bailee to deliver them to the transferee, 
 
 (m) Cooper o. Willomat, 1 C. B, 682. 
 
 (n) Ante, pp. 401, J03. Lee v. Bayes, 18 C. B. 607 ; 25 Law J., C. P. 3^9. Solomons V. Dawei, 
 1 Esp. 82. 
 (0) Ogle V. Atkinson, 5 Taunt. 762. Cheesman v. ExaU, 6 Exch. 344 ; ante, p. 402. 
 (p) PianUin v. Neate, 13 M. & W. 484 ; 1 Roll. Abr. DETimJE, C. 2, 3. 
 
t3ec. 2.] ACTIONS OF DETINUE, ETC. — PARTIES. 555 
 
 that the dictum of Holt, C.J., must be taken to apply, that HA bail goods 
 to 0, and after give his whole right to them to B, B cannot maintain 
 detinue for them against C, because the special property that 
 acquires by the bailment is not thereby transferred to B{q). If the 
 right of property in the subject-matter of the bailment has been trans- 
 ferred by devise, the devisee may sue for the detention or loss of the 
 property, and it is no answer to the action to show that the subject- 
 matter of the bailment was lost in the lifetime of the devisor, and has 
 not been in the possession of the bailee since the accrual of the title 
 of the devisee(?'). So, if the right of property in title-deeds, or an 
 heirloom, comes to the heir-at-law by descent, the heir is the proper 
 person to sue for their detention(s). 
 
 If the bailor is not himself the owner of the goods, but has some 
 special property therein, or is himself a bailee of them, and answer- 
 able over to the real owner, he is entitled to maintain an action for 
 damage done to them, or for the loss of them(<). 
 632 Joint and separate rights of action. — If a chattel has been deposited 
 by two or more joint-owners of it in the hands of a bailee, iwho has 
 agreed to keep it for them, it is not in the power of one of them to 
 take it out of his hands without the consent of the others(M). If that 
 were not so, each might demand the chattel, and have an action for its 
 non-delivery, and so the bailee might be harassed with as many 
 actions as there were joint owners(a;). But if the bailee thinks fit to 
 deliver up the goods to one of the joint-bailors, a joint-action by all 
 of them cannot afterwards be maintained against him, for the one who 
 has got the goods cannot join with the others in suing for the non- 
 delivery of them(2/). And if the defendant is a mere wrong-doer, 
 having got into his hands the property of several joint-owners, none 
 of whom have authorized him to detain it, any one of such joint-owners 
 may bring an action of detinue against him(z). If several joint- 
 owners allow one of them to deal with their property, and place it in 
 the hands of a bailee, the latter is accountable to the owner with whom 
 
 (g) Rich V. Aldred, 6 Mod. 216. 
 
 (r) Goodman v. Boycott, 2 B. & S. 1 ; 31 Law J., Q. B. 69. 
 
 .(«) Bro. Abr. Detin 0E, pi. 30, 45. 
 
 {«) Freeman v. Birch, 1 N. & M. 420. NicoUs v. Bastard, 2 C. M. & E. 660 ; ante, pp. 44*- 
 448. See Peoria, etc., E. R. Co. v. Mclutire, 39 III. 298. 
 
 (M) Lord EUenborougli, C.J. , in May v. Harvey, 13 East, 199. Nathan v. Buckland, 2 Moote, 
 153. Harper «. GodseU, L. R., 5 Q. B. 422 ; ante, p. 446. Stachely v. Peirce, 28 Texas, 328. 
 
 (X) Attwood V. Ernest, 13 C. B. 889 ; 22 Law J., C. P. 226. 
 
 (y) Brandon v. Scott, 7 Ell. & Bl. 237 ; 26 Law J., Q. B. 163. See Brizendine ». Frankfort 
 Bridge Co., 2 B. Mon. 32. 
 
 (a) Broadbent v. Ledward, 11 Ad. & B. 209. 
 
556 BAILMENTS. [Chap. 9. 
 
 he deals(a), " as if a charter be made to four and one of them bails the 
 charter to keep, he alone, without the others, may bring detinue ; or 
 all the owners may be joined as plaintiffs, except in the case of deposits 
 of money in the hands of bankers "(6). Where two persons were 
 severally entitled to separate portions of the contents of a box de-^ 
 livered by their agent to a railway company, to be carried for both of 
 'them, and the box was lost, it was held that they might sue jointly 
 for damages(c). 
 633 Power to compel rival claimants to ^tablish their title hy garnishment 
 and by interpleader. — By the common law, whenever one person had 
 deposited goods in the hands of another, to be re-delivered to the 
 bailor, and a third party came and claimed the goods of the depositary, 
 and brought an action of detinue for their recovery, the bailee might 
 pray garnishment, i.e., that the bailor might be garnished or warned 
 of the claim, made by the stranger upon the depositary, and sum- 
 moned to show to the court whether the goods were his property or 
 not ; and upon this prayer of garnishment a scire facias issued against 
 the depositor to appear and plead with the plaintiff, and the latter 
 thus became the defendant to the suit under the name of the garnishee, 
 the first defendant, the depositary, being considered out of court by 
 the gamishment(d). By the 1 & 2 Wm. 4, c. 58, s. 1, it is enacted, 
 that all depositaries or stakeholders who are sued in the superior 
 courts, or the courts of pleas of Lancaster or Durham, for the recovery 
 of deposits held by them, there being at the time other claimants 
 thereon besides the plaintiff in such action, may apply to the court after 
 declaration, and before plea, by affidavit or otherwise, showing that 
 the defendant does not claim any interest in the- subject-matter of the 
 suit, but that the right thereto is claimed, or is supposed to belong to 
 some third party, who has sued, or is expected to sue, for the same ; 
 and that the defendant does not collude with such third party, but is 
 ready to bring into court, or to pay or dispose of the subject-matter of 
 the action in such manner as the court, or aay judge thereof, may 
 direct ; and the court, or any judge thereof, after such application 
 has been made, may make a rule or order calling upon such third 
 party to appear and state the nature and particulars of his claim, and 
 maintain or relinquish it, and in the meantime stay the proceedings 
 in the action, and, finally, order such third party to make liimself 
 
 (o) Martin, B., Walshe v. Provan, 8 Exch. 852. 
 
 (6) Thel. Dig. lib. ii., cap. 47, s. 8. Broadbent v. Ledward, 11 Ad & E. 211. 
 
 (c) Metcalfe v. Lond. and Brighton Rail. Co., 4 C. B., N. S. 319 ; 27 Law J., C. P. 333. 
 
 (d) 3 Beeves, 118 ; Com. Dig. Pleader, 2 x. 8. Bicii ». Aldred, 6 Mod. 216. 
 
Sec. 2.] ACTIONS OF DETINUE, ETC. — CHATTELS. 557 
 
 defendant in the same, or some other action, and generally dispose of 
 the claims, and make such rules or orders as may appear just and 
 reasonable(e) ; and the powers and authorities of this statute are, by 
 23 & 24 Vict. c. 126. s. 12, made to extend to cases where the titles of 
 the claimants have no common origin, but are adverse to, and inde- 
 pendent of, each oth«r(/). 
 
 634 Declarations against bailees for loss of chattels. — If the plaintiff com- 
 plains of the loss of chattels delivered by him to the defendant to be 
 safely kept, or to be mended or repaired, or to be dealt with by the 
 defendant in the way of his trade, it is sufficient for the plaintiff to 
 set forth the delivery by him of the chattels to the defendant (describ- 
 ing them), and stating the purpose for which they were delivered, and 
 to allege generally that the defendant, having received possession of 
 the chattels from the plaintiff, did not take due and proper care of 
 them, and by reason thereof they became wholly lost to the plaintiff(p') ; 
 but it is not now necessary to show on the face of the declaration how 
 the chattels got into the hands of the defendant, or to allege that they 
 were lost or destroyed through his negligence. If the chattels have 
 been delivered by the plaintiff to the defendant, and the defendant is 
 unable to return them, from any cause whatever, the ordinary decla- 
 ration in detinue will suffice(^). 
 
 In actions of detinue, the declaration formerly alleged that the 
 plaintiff delivered the chattels to the defendant, to be re-delivered on ' 
 request ; but this allegation of a bailment was wholly immaterial, and 
 not traversable, the gist of the action being the detainer of the prop- 
 erty(i); and the form given by the Common Law Procedure Act 
 simply alleges that the defendant detains from the plaintiff his goods 
 
 and chattels (describing them), or his title-deeds of land called 
 
 in the county of , (describing the deeds), and that the plaintiff 
 
 claims a return of the goods and chattels, or deeds, or their value, and 
 £ for their detention(^). If any special damage has resulted to 
 
 ' the plaintiff from the detention, the nature of it should be set forth 
 on the face of the declaration. If, for example, by reason of the 
 detention by the defendant of the title-deeds to an estate, the plaintiff 
 has been prevented from selling or letting property to advantage, or 
 
 (e) CoggB V. Bernard, 2 Ld. Kaym. 909. 
 
 (/) Meynell v. AngeU, 8 Jur., N. S. 1211 ; 11 W. E. 122. Best v. Hayes, 32 Law J., Exch. 
 129. Tanner v. European Bank, L. E., 1 Exch. 261. 
 Ig) Doorman v. Jentins, 2 Ad. & E. 256. f, 
 
 (»> Eeeve ». Palmer, 5 C. B., N. S. 84. Jones v. Dowie, 9 M. & W. 19. 
 (I) Clossman v. White, 7 C. B. 66. 
 (A) 15 & 16 Vict. c. 76, 8. 59 ; and Sohed. B. 29. See SdioXIeld r Wlii<;elegge, 49 N. T. 259 
 
558 BAILMENTS. [Chap, 9. 
 
 from receiving money, the fact should be stated and relied upon in 
 aggravation of the damages(Z). 
 
 635 Declarations against bailees for da/mage to chattels. — ^Where the plaintiffs 
 declaration alleged that the defendant undertook, safely and securely, 
 to raise up several hogsheads of brandy of the plaintiff then in a 
 certain cellar, and to lay them down again in a certain other cellar, 
 and that the defendant and his servants, so negligently and carelessly 
 put down the hogsheads in the said other cellar that, through want of 
 care on their part, the casks were staved, and a great quantity of 
 brandy was spilt, it was held that the declaration disclosed a good 
 cause of action, though it did not allege that the defendant was a 
 common porter, or that he was to have any reward for his pains(m). 
 
 If the plaintiff complains of an injury done to a horse lent by him 
 to the defendant, it is sufficient to set forth the plaintiff's possession 
 of the horse, the delivery of it by the plaintiff to the defendant for a 
 certain specified purpose, or to be ridden in a moderate, careful, and 
 proper manner, and to aver that the defendant used the horse for a 
 different purpose from that for which it was lent, showing in what 
 way it was used, and that the defendant did not take due and proper 
 care of the horse, but used and managed it so carelessly and impru- 
 dently that the horse was, through the carelessness and negligence of 
 the defendant, greatly injured and lessened in value. 
 
 636 Plea of not guilty. — In actions for loss of, or damage to, goods, the 
 plea of not guilty operates, as we have seen, as a denial only of the 
 wrongful act alleged to have been committed by the defendant. Thus, 
 in an action against a bailee for the loss of, or damage to, goods 
 delivered to him to keep, or to be carried, or otherwise dealt with, the 
 plea of not guilty will operate as a denial of the loss or damage, but 
 not of the receipt of the goods by the defendant for the purpose set 
 forth in the declaration, or of the plaintiff's property in the goods(re). 
 
 637 PUa of non-detinet. — The plea of non-detinet, alleging that the 
 defendant does not detain the goods and chattels in the declaration 
 mentioned, operates as a denial of the detention of the goods by the 
 defendant, but not of the plaintiff's property therein; and no other 
 
 ' defence than such denial is admissible under that plea(o). If, there- 
 fore, the defence be that the defendant was justified in detaining the 
 
 ' (I) Goodman v. Boycott, ante, p. 555. See SteTens v. Smith, 28 Cal. 102. 
 (m) Coggs V. Bernard, 2 Ld. Kaym. 909. 
 
 (n) Eeg. Gen. Hil. Term, 16 Vict. K. 16 ; 1 Ell. & Bl. App. Ixxxi. Lxxxli. 
 (0) Eeg. Gen. Hil. Term, 16 Vict. R. 15 ; 1 BU. cSs Bl. App. Ixxxl. The defence of the 
 statute of limitations is available under the plea of non-detinet. Traum ». Keiffer, 31 Ala. 136. 
 
Sec. 2.] ACTIONS OF DETINUE, ETC. — PLEADINGS. 559 
 
 goods, in respect of some special property in them, or as having a lien 
 upon them, he must set forth such right specially on the record. He 
 cannot give in evidence, under the plea of non-detinet, that the goods 
 ■were pawned to him for money which had not been paid ; neither can 
 he give in evidence a gift from the plaintiif, for that proves that he 
 does not detain the plaintiff's goods, and must be put in issue by a 
 plea denying the plaintiff's right (5f property in the goods(p). If the 
 defendant claims a right to retain possession of the goods on the 
 ground that he is himself joint-owner of them with the plaintiff, or 
 that he is tenant in common of them with him, his interest should be 
 specially pleaded and set forth upon the record(g'). But under the 
 general issue the defendant may show that the goods belonged to a 
 firm in partnership, and were placed in the defendant's hands by a 
 solvent partner, to be sold for the purpose of paying the partnership 
 debts, and that they had been sold for that purpose(r), or that they 
 were delivered to a third person with the plaintiff's consent(s). 
 
 638 Pleas of delivery to one of several joint plaintiffs. — ^We have already 
 seen that it is a good defence to an action brought by several joint 
 plaintiffs against a defendant, for the recovery of chattels deposited 
 in his hands by a joint bailment from all of them, to plead that, before 
 the commencement of the action, the chattels mentioned in the declar- 
 ation were delivered by the defendant to one of the plaintiffs {ante, p. 
 451). 
 
 639 Pleas denying the plaintiff's property. — Under a plea alleging that 
 the goods and chattels in the declaration mentioned were not, nor are 
 they, the goods and chattels of the plaintiff, the defendant may set up 
 a, jus tertii, and show that the A^oods were not the goods of the plaintiff 
 at the time they were delivered to the defendant; that the defendant 
 had no notice thereof until the true owner afterwards gave notice of 
 his title, and forbade the defendant to deliver up the goods to the 
 plaintiff(i). It has been held by the Court of Queen's Bench that the 
 defendant, under a plea denying that the goods detained were the 
 goods of the plaintiff, may show that he had a lien upon them(M) ; but 
 the Court of Exchequer has come to a different decision, and holds, 
 
 ip) Eiohards v. Frankum, 6 M. & W. 420. 
 
 (8) Mason v. Fainell, 12 M. & W. 648. 
 
 (r) Morgan v. Marquis, 23 Law J., Exoh. 21 ; 9 Exoh. 145. 
 
 (») Anderson v. Smith, 29 Law J., Exoh. 460. 
 
 («) See Biddle v. Bond, 34 Law J., Q. B. 137 ; Davis 0. Nest, C. & P. 169. See Tannery. 
 Allison, 3 Dana, 422 ; McCarrey v. Hooper, 12 Ala. 823 ; Slaughter r. Cunningham, 24 Ala. 
 260 ; HaU o Chapman, 35 Ala. 553. 
 
 (M) Lane v. Tewson, 12 Ad. & E. 116. 
 
560 BAILMENTS. [Chap. 9. 
 
 that if the defendant sets up a right to detain on the ground of lien, 
 he must plead such right specially on the record. " We are aware," 
 observes Alderson, B., "that this is contrary to an opinion of the 
 Court of Queen's Bench in the case of Lane ■». Tewson ; but we cannot 
 agree with that decision. The case was not fully argued before the 
 court, nor were the authorities, which we think have decided that 
 question, fully laid before them "(«). 
 
 640 Pleas justifying detention undsr a claim of Uen{y) usually allege, that 
 the chattels mentioned in the declaration were delivered by the plain- 
 tiff to the defendant, to be worked up, repaired, or mended, by the 
 defendant for hire in the Way of his trade ; and that the defendant 
 worked up, repaired or mended, the chattels, and that a certain speci- 
 fied sum of money became due to the defendant in respect of such 
 work and labor, and that the plaintiff has not paid or tendered to the 
 defendant the said sum so due to him, and that the defendant detained 
 the chattels as security for the payment thereof. If the defendant 
 wishes to set up a general lien for work done on other goods of the 
 plaintiff, the defendant should show on the face of his plea whether he 
 founds his claim on custom or contract. If he claims a general lien by 
 the custom of trade, he should show the nature of the trade he carries 
 on ; the existence of the custom ; the delivery to him of goods, from 
 time to time, to be worked upon or dealt with by him for hire^in the 
 way of his trade, subject to such custom ; the dealing with the goods 
 by him, so as to entitle him to hire ; the amount due to him at the 
 time he received the goods ; the work done by him thereon, and his 
 claim to detain them until he has been paid the general balance due 
 to him(0). 
 
 641 Pleas of payment of money into Qowt. — ^By the Common Law Pro- 
 cedure Act, 1860 (23 & 24 Vict. c. 126), s. 25, the defendant, in any 
 action for detaining the goods of the plaintiff, may, by leave of the 
 court or a judge, and upon such terms as they or he shall think iit, 
 pay into court a sum of money to answer the claim of the plaintiff in 
 respect of the goods alleged to be detained, the payment to be pleaded 
 according to the provisions of the Common Law Procedure Act, 1852, 
 and the like proceedings may be had and taken thereupon as to costs 
 and otherwise. 
 
 {X) Mason v. Famell, 12 M. & W. 684. 
 
 iy) Barnewall v. Williams, 7 M. & Gr. 403; ante, pp. 536-651. This plea cannot be interposed 
 anless the defendant insisted on his lieu when the demand for the return of the goods was 
 made. Spence McMillan, 10 Ala. 683. 
 
 (*) Coombs V. Noad, 10 M. & W. 'l27. Cumpston v. Haigh, 2 B. N. C. «9. Leuckhart r. 
 Cooper, 3 ib. 99. 
 
Sec. 2,] ACTIONS OF VETINVE, ETC. — EVIDENCE. 561 
 
 642 Evidence^ — Proof on the part of the plaintiff. — Although the only plea 
 oil the record be a plea of not guilty, or non-detinet, the plaintiff must 
 neverthelfess give some general evidence of a right on his part to have 
 the chattels delivered up to him. If he proves that the goods were at 
 one time in his possession, and that they were taken away by the 
 defendant ; or if the plaiutiff shows that he himself delivered the goods 
 to the defendant, and afterwards demanded them back again, and 
 that the defendant refused to deliver them, he establishes a primd fade 
 right to the possession of the goods, and will be entitled to a verdict 
 under the plea of not guilty. But if the goods were not delivered by 
 the plaintiif to the defendant, or taken out of the possession of the 
 plaintiflF, there is nothing to show that he has any right to have them(a). 
 If it appears, on the plaintiff's own showing, that he and the defend- 
 ant are joint-owners of the goods, or tenants in common of them, he 
 does not establish any right to take them out ■ of the hands of the 
 defendant, nor does he prove that the defendant detains the goods 
 from the plaintiff, for one of several-joint owners, or tenants in com- 
 mon of a chattel, who has got possession 6f the chattel, has a right, as 
 we have seen, to retain such possession(6). 
 
 Where a testator, two years before his death, gave ^ome railway 
 debentures to the defendant, intending to transfer the money secured 
 by them to the defendant, and delivered the debentures to the defend- 
 ant, who took possession of them, and locked them up- in his own desk, 
 but no transfer of the debts secured by the debentures was ever made,- 
 in accordance with the Act of Parliament regulating the transfer of 
 such securities, and after the testator's death his executors sued the 
 defendant for detaining the debentures, it was held that they were not 
 entitled to recover them(c). 
 
 The charters and evidences of title to realty belong to the persons 
 in whom the legal interest in the property is vested(d) ; but the right 
 to the possession of bonds and securities for money remains vested in 
 the parties beneficially interested, who have got possession of the secu- 
 rity and claim to hold it(e). 
 
 The detention necessary to support an action of detinue is an 
 adverse or wrongful detention. It must he proved that the defendant 
 
 (a) Land v. North, i Doug. 268 ; ante, pp. 452, 463. 
 
 (J) Poster ». Crabb, 12 C. B. 151 ; ante, pp. 405, 406, 652. See Boll «. Hogan, 1 Stew. 536. 
 . (<j) Barton v. Gainer, 3 H. & JT. 389 ; 27 Law J., Exoh. 890. Kelsaok v. Nioliolson, Cro. 
 EUz. 496. 
 
 (d) Ante, pp. 415, 416. Searle v. Law, 15 Sim. 390. 
 
 (e) Oliver v. Oliver, ante, p. 416. 
 
 Ad. Vol. I,— 36 
 
562 BAILMENTS. TChap. 9. 
 
 withholds the goods, and prevents the plaintiff from having the posses- 
 sion of them(ee). There should be evidence of a request on the part of 
 the plaintiif to have the' goods delivered to him, and a refusal to 
 deliver on the part of the defendant. A defendant, having the goods 
 in his possession, is not by reason thereof, bound to seek out the plain- 
 tiff and send them to him. The plaintiff must come for them(/). It 
 may be that the goods are the plaintiff's, and yet the detention of 
 them by the defendant may be perfectly lawful(g'). 
 
 If the plaintiff makes out a prima fttcie right to the possession of the 
 chattels, and shows that he has demanded thenj, and that the defend- 
 ant detains them from him, the title or right of property in the goods 
 cannot be investigated unless it has been put in issue by a plea trav- 
 ersing the plaintiff's right of property. 
 643 Evidence for the defence. — ^As the authorities show that it is no answer 
 to an action of detinue, when a demand is made for the re-delivery of 
 a chattel, to say that the defendant is unable to comply with the 
 demand, by reason of his own negligence or breach of duty, it is 
 clearly no answer to say that he has lost the chattel, and is conse- 
 quently unable to re-deliver it to the plaintiff(A). 
 
 If the defendant relies upon a plea denying the plaintiffs right of 
 property in, or right of possession of, the goods, the defendant must 
 prove his title to them. A bailee is not estopped, as we have seen, 
 from showing that the bailor had a defeasible title, and that his title 
 has been defeated by matter subsequent to the bailmlent or to the 
 recognition of the title by the defendant(i). He may refuse to re- 
 deliver the goods to the bailor on the ground that they are the property 
 of another person who has demanded and received them, or who has 
 forbidden the bailee to part with the possession of them(A) ; but the 
 bailee cannot, if the possession of the bailor was a lawful possession, 
 and the bailment was not founded in fraud, of his own accord set up 
 the jus tertii{l). He can set up the title of another only "if he defends 
 upon the right and title and by the authority of that person "(to). But 
 if the bailor was a trespasser or a thief in possessing himself of the 
 
 («e) See Latter v. White, L. E., 5 Engl. & Ir., App. 578. 
 
 (/) Clement v. Flight, 16 M. & W. 42 ; Fltz. Nat. Brev. 138 A. 
 
 (g) Clossman » White, 7 C. B. 55. 
 
 (/i) Keeve v. Palmer, 5 C. B., N. Si 90, 92. Goodman v. Boycott, ante, p. 555. 
 
 (i) Thorne ». Tilbury, 3 H. & N. 534 ; 27 Law J., Exch. 407 ; oii«e, pp. 452, 453. 
 
 (/J) Shelbury v. Scotsford, Yelv. 22. Biddle v. Bond, ante, pp. 402, 559. 
 
 (I) Armory v. Delamirie, 1 Str. 505. See Tanner v. Allison, 3 Dana, 422 ; MoCorrey 9. 
 Hooper, 12 Ala. 823. 
 
 (m) Pollock, C.B., Thome B. Tilbui-y, Blackburn, J., Biddle v. Bond, utmp. Bourne*. 
 Fosbrooke, 34 Law J., C. P. 164. McGuire v. Shelby, 20 Ala. 456. 
 
Sec. 2.] ACTIONS OF DETINUE, ETC. — EVIDENCE. 563 
 
 goods, or the bailment was made with intent to defraud, the bailee 
 may justify his refusal to deliver them up to the bailor, whether the 
 true owner has or has not interposed to prevent delivery(mm). 
 
 Where the plaintiff in an action for the detention of plate proved 
 that he had pawned the plate with the defendant, and afterwards 
 sought to redeem it, and tendered the amomit due upon it, but the 
 defendant refused to deliver it up, it was held that the defendant 
 might, under a plea alleging that the plate was not the property of the 
 plaintiff, show that the plaintiff had, prior to the deposit of the plate 
 with the defendant, transferred it by a bill of sale to a purchaser, who, 
 nevertheless, allowed the plaintiff to continue in possession of it ; that 
 the plate had been deposited with the defendant in fraud of such pur- 
 chaser, and that the defendant detained the plate by the order and 
 under the' authority of the latter(w). 
 644 Proof of dbandonment of possession before commencement of action. — 
 It is no answer to an action for detaining goods to show that the defend- 
 ant abandoned possession of the goods before action, by delivering 
 them over to some third person. The evidence of the detention is, that 
 the defendant, having taken possession of the plaintiff's chattel, does 
 not return it when demanded(o). But if the defendant has parted 
 with the possession of the property before the plaintiff's title to it 
 accrued, he has not then detained it as against the plaintiff, and is not 
 liable in detinue. Thus, where the defendant took possession of goods 
 to which he conceived himself to be entitled under a will, which turned 
 out to be invalid from want of due execution, and before letters of ad- 
 ministration were taken out, and before there was any legal repre- 
 sentative appointed with authority to demand and receive the goods, 
 the defendant delivered them back to the person from whom he re- 
 ceived them, and then the plaintiff took out administration and 
 demanded the property of the defendant, it was held that he could 
 not recover, as the defendant had- never detained the goods as against 
 him(p). But where title-deeds were deposited with the defendant by 
 the testator, and lost by the bailee during the lifetime of the testator, 
 and the plaintiff became entitled to the possession of the deeds by 
 devise, it was held that in such a case the loss thereof by the defend- 
 ant was no answer to the plaintiff's claim to the deeds(g). 
 
 (mm) Stratton v. Minnis, 2 Munf. 329. But see MoGuire ». Shelby, 20 Ala. 456. 
 («i Cheesmau v. Exall, C Exeh. 34t. 
 (o) Jones c. Dowle, 9 M. & W. 19. 
 ;p) Crossfleld v. Such, 8 Exch. 828. 
 
 (g) Goodman v. Boycott, 2 B. & S. 1 ; 31 Law J., Q. B. 69. Per Wightman, j:, diss. Black- 
 burn, J. 
 
564 BAILMENTS. f Chap. 9. 
 
 645 Damages recoverable — Orders for delivery. of the .specific thing detained. 
 — In the old action of detinue, the defendant had the option of retain- 
 ing possession of the chattel detained, paying to the plaintiff' the sum 
 at which the jury thought proper to assess its value(r). "The judg- 
 ment," observes Frowike, C.J., " is, that the plaintiif shall recover the 
 goods or their value ; then shall issue a writ to the sheriff to distrain 
 the defendant to deliver the goods, and if he will not, then the value 
 as it is taxed by the inquisition. And so it is in the election of the de- 
 fendant to deliver to the plaintiff the goods or the value "(s). This 
 option on the part of the defendant being felt to operate as a hardship 
 upon the plaintiff in many cases, it has been taken away by the Com- 
 mon Law Procedure Act, 1854, which enacts, s. 78, that the court or- a 
 judge shall have power, if they or he see fit so to do, upon the appli- 
 cation of the plaintiff in any action for the detention of any chattel, 
 to order that execution shall issue for the return of the chattel detained, 
 without giving the defendant the option of retaining such chattel upon 
 paying the value assessed, and if the chattel cannot be found, and 
 unless the court or a judge should otherwise order, the sheriff shall 
 distrain the defendant by all his lands and chattels in the sheriff's 
 bailiwick, till the defendant render such chattel, or, at the option of 
 the plaintiff, that he cause to be made of the defendant's goods the 
 assessed value of such chattel ; provided that the plaintiff shall, either 
 by the same or a separate writ of execution,, be entitled to have made 
 of the defendant's goods the damages, costs, and interest in such action. 
 
 The jurisdiction of the judge, under s, 78 of this statute, is solely 
 applicable to a case where the value is found, so that no order can be 
 made where such value has not been found(<). The regular and legal 
 finding of the jury, under s. 78, is a finding of so much for the value 
 of the thing detained, and so much by way of damages for 'its deten- 
 tion. If the value of the chattel is not assessed by the jury, the 
 course provided by s. 78 is not applicable. TheCourt of Chancery 
 has also jurisdiction to order a specific chattel to be delivered up to 
 the person seeking to enforce his right to it, where the latter has not 
 fixed the price of the article, or assessed its value, and thereby fur- 
 nished the measure of his own dam&ges(M). 
 
 646 Assessment of value. — The value of the thing detained should be 
 assessed at the highest price it bore in the market at any time during 
 
 (r) Phillips V. Jones, 15 Q. B. 867. 
 
 (s) Keilw. 64 b; Yelv.71. 
 
 («) Chilton V. Carrington, 15 C. B. 780 ; 24 Law J., C. P. 78. 
 
 (u) Dowliug V. Betjemann, 2 Johns. & H. 544. 
 
iSec. 2.] ■ ACTIONS OF DETINUE, ilTC. — DAMAGES. 565 
 
 the period of its detention(a;) ; and where the vahie is doubtful, and the 
 defendant might have returned it if he had thought fit, every fair pre- 
 sumption and inference should be made in favor of the owner of the 
 property seeking its restitution, and against the wrong-doer who has 
 detained it from him. But where the value of the article lies pecu- 
 liarly withili the kriowledge of the plaintiff, he should prove the value 
 of it, in order to enable the jury to make a correct assessment of the 
 damages. Thus, when he sues for the detention of letters and docu- 
 ments, he should prove the nature of the letters, and of what use they 
 were to h\m{y). If he sues for the detaining of title-deeds, he should 
 prove the value of the property to which they refer, and that the deeds 
 are essential to the establishment of the title, and he will then be en- 
 titled to have the damages assessed at the value of the estate(z). 
 
 Having assessed the value of the thing detained, the jury should 
 then assess a certain sum by way of damages for the detention of it. 
 Those who take upon themselves to detain the property of another are 
 answerable for all the consequences that naturally result, in the ordi- 
 nary course of things, from the wrongful act(a). 
 647 Assessment of damages where the whole, or part, ' of the goods have been 
 delivered up after action. — The object of an action for detaining goods 
 is to recover the goods in specie, or their value to be assessed by a 
 jury, and also damages occasioned by their detention. This object is 
 only partially answered by the delivery of the goods to the plaintiff, 
 and their acceptance by him- after the commencement of the suit : the 
 ■plaintiff having a right to recover by the verdict of the jury the dam- 
 age he has sustained by reason of the goods having been improperly 
 detained. If all or any of the goods have been delivered up after suit, 
 the plaintiff can have ho judgment to recover them or their value, but 
 he may have judgment to recover damages for their detention if the 
 plaintiff has sustained any ; and for the residue not delivered up, the 
 plaintiff may have the usual judgment to recover them or their value, 
 and damages for their detentioTi(6). In an action of detinue for sev- 
 eral goods, which were collectively valued at one sum in the declara- 
 tion and by the jury, it was held that if all the goods were not given 
 up — if one article was withheld — the defendant was liable for the 
 value of all ; but in detinue for two things, the defendant may before 
 
 \x) Archer v. Williams, 2 C. & K. 27. Barrow ». Arnaud, 8 Q. B. 609. 
 
 (y) Anderson v. Passman, 7 C. & P. 197. ' 
 
 ;«) Eoll. Aljr. DeiindE, E. 
 
 (a) Davis v. I>ond»and North- West. Kail. Co., 7 W. K. IM. 
 
 (6) Crossfleld v. Such, 8 Exch. 165 ; 22 Law J., Exch. 65. 
 
566 BAILMENTS. [Chap, 9. 
 
 verdict give up one, and plead as to the other(c). If there is a good 
 defence to part of the goods, by reason that the defendant was always 
 ready to deliver them, the jury must assess the value of the residue 
 of the goods, and damages for the detention, but none as to the 
 goods delivered up. If there was no defence as to them, then the 
 jury must assess the value of the residue of the goods, and damages 
 ■ for the prior detention of those that were delivered up(d). 
 
 The jury may find the fact of the return or re-delivery of the chat- 
 tel specially, and confine themselves to an assessment of damages for 
 the detention of it. In an action for detaining railway-scrip, which 
 had been delivered up to the plaintiff after the commencement of the 
 action, under a judge's order, it was held that the judge was war- 
 ranted in directing the jury at the trial,- that in estimating the dam- 
 ages they might take into consideration the difference in the value 
 of the scrip at the time of the demand and the time of its delivery to 
 the plaintiff under the judge's order(e). 
 
 Where railway-scrip shares or stock have been unlawfully detained 
 after demand, and given up after the commencement of the action, 
 the measure of damages is the highest sum the scrip could have been 
 sold for during the period of its detention, deducting the value of it 
 at the time it was received back by the plaintiff. The wrong-doer 
 cannot get off with less than that, and may have to pay greater dam- 
 ages(/). 
 
 "Whenever the defendant has wrongfully detained the plaintiff's 
 chattels, or has wrongfully withheld from him the means of obtaining 
 possession of them, he is answerable for all the loss naturally resulting 
 in the ordinary course of things from his wrongful act, provided the 
 special damage is specified and claimed in the plaintiff's declara- 
 tion(5r). 
 648 Evidence in mitigation of damages. — A defendant who has wrongfully 
 detained the plaintiff's horse cannot make the expense of the horse's 
 keep, whilst he was wrongfully detained, a ground for reduction of the 
 damages(A). 
 
 (c) Bro. Abr. Tender, pi. 39. 
 
 (d) Crossfleld v. Such, ut sup. Pawly ». Holly, 2 W. BI. 853. 
 
 (e) Williams v. Archer, 6 C. B. 318. Barrow v. Ai-naud, 8 Q. B. 609. 
 
 (/) Archer v. Williams, 2 C. & K. 27. See Brewster v. Silliman, 38 N. y. 128. 
 {g) Barrow v. Arnaud, 8 Q. B. 610. 
 (ft) Wormer v. Biggs, 2 C. & K. 36. 
 
CHAPTER X. I 
 
 OP iS'EGLIGENCE OF BAILORS AND BAILEES— LIABILITIES OP 
 
 COMMON CARRIERS, COMMON FERRYMEN, COMMON 
 
 INNKEEPERS AND LODGING-HOUSE KEEPERS(a). 
 
 SscTioN I. — Of negligence and breach of duty on the part of cmnmon carriers.^-Ot 
 the duties and responsibilities of common carriers — Who may be said to be a 
 common carrier — Of the public profession of railway companies made through 
 the medium of theii- time-tables — Of the duty of railway and canal companies 
 to afford all reasonable facilities for the carriage of passengers, merchandise, 
 and chattels — Loss of goods by common carriers — Concealment of risk by 
 consignors — Contributory negligence of consignors — Inability of the common 
 carrier to rid himself of the public duties of his profession and calling — 
 Statutory exemption of common carriers from liability in respect of the loss 
 of gold and siher, and valuables, when the value has not been declared — By 
 whom the declaration of value is to be made and the increased rate of car- 
 riage paid — Articles to which the statute extends — Loss of goods from theft 
 by common carrier's servants — Notices, conditions, and special contracts by 
 railway companies — "What are just and reasonable conditions — Commence- 
 ment and duration of the liability of the common carriei' — Delivery of gooda^ 
 at the place of destination — Deliveiy of luggage at railway stations — Accept- 
 ance of goods to be carried beyond the limits of a particular line of rail-way — 
 Loss of luggage by railway companies — Loss of merchandise carried as- 
 luggage — Effect of the refusal of the consignee to receive the goods — Land- 
 ing of goods by shipowners — Lien of common carriers — Railway charg.e» — 
 Packed parcels — Passenger fares — Right to alight at intermediate stations. — 
 Neghgence of common ferrymen. 
 
 Section II. — Negligence arid breach of duty on the part of common innkeepers 
 and lodging-house keepers. — Who may be said to be a common innkeeper^ — 
 Loss of goods by common innkeepers — Limitation of the liability of inn- 
 keepers — Deposit of property with innkeepers — Losses occasioned by the 
 misconduct of the guest — Lien of innkeepera — Liability of lodging-house 
 keepers. 
 
 Section III. — Remedies against common carriers and common innkeepers. — Sum- 
 mary proceedings against railway companies for not receiving and forwarding 
 traffic — Parties to actions against common carriers and common innkeepers — 
 . Pleadings — Defences — Evidence — Damages recoverable — Injunction to en- 
 force compliance with the Railway and Canal Traffic Act. 
 
 (a) See farther as to common carriers, Addison on Contracts, ch, 13 ; innkeepiers and lodg- 
 inff-house keepers, cb. 10, o. 2, 6th ed. 
 
568 NEGLiaEyCE OF COMMON CARBIERS. [Chap. 10. 
 
 SECTION I. 
 
 ON NEGLIGENCE AND BREACH OF DUTY ON THE PART OF COMMON 
 
 CARRIERS. 
 
 649 Duties Q/nd responsibilities of common carriers. — Every common carrier 
 is bound to accept and carry all such tjjiings as he publicly professes 
 to carry for all, persons who are ready and willing to pay him his cus- 
 tomary hire, provided he has room in his cart or carriage for their 
 conveyance, and has declared his intention to set out on his accus- 
 tomed journey(6). He is bound to carry them to and from the places 
 to which he professes to carry, although one of those places may be 
 without the rea]m(c) ; for whenever a man undertakes the public office 
 or profession of a common carrier of goods he undertakes a public 
 trust for the benefit of the rest of his fellow-subjects, and is bound to 
 serve the subject in all the things that are within the reach and com- 
 prehension of such an 'office, under pain of an action against him(t?). 
 By the 29 & 30 Vict. c. 69, however, s. 6, no warehouse-owner or 
 carrier is bound to receive or carry any goods which have been 
 declared, by Order in Council, to be " specially dangerous," such as 
 petroleum(e), nitro-glycerine(/), etc. ; and no person shall deliver such 
 goods to any warehouseman or carrier without marking upon them 
 their name and description, etc. ; and also giving anotice in writing to 
 such warehouseman or carrier, under a penalty of 500^. (s. 3). A 
 carrier is not bound to carry goods by the shortest route, but only by 
 the route by which he usually carries them, and which he professes to 
 
 goes')- 
 
 The nature and extent of the employment or business which the 
 common carrier expressly or impliedly holds himself out as undertak- 
 ing will regulate. the extent of his rights, duties, and responsibilities. 
 
 (6) Bao. Abr, Caeeiers, B. Fictford v. Grand Junction Rail. Co., 8 M. & W. 372. Salton- 
 stall ». Stocton, Taney, 11. East Tennessee, etc.,R. R. Co. w. Nelson, 1 Cold. (Tenn.) 272. 
 Bennett v. Button, 10 N. H. 481. 
 
 A common carrier may refuse to receive goods offered him for transportation if he has 
 reasonable gi'ounds therefor. Porcher v. North Eastern R. R. Co., 14 Rich. (S. C.) L. 181, 
 
 (0) Cvonch V. Lond. and North-West. Rail. Co., 14 C. B. 290 ; 23 Law J., C. P. 73. 
 
 (d) Keilway, 50, ijI. 4. 
 
 (e) See further as to the carriage and storage of petroleum, 34 & 3S Vict. c. 105. 
 
 (/) By 32 & 33 Vict. c. 113, nitro-glycerine cannot be manufactured, sold, stored, or caiTied, 
 except under a license from a Secretary of State. But a carrier who carries it in ignorance 
 is exempt fro^ penalty, s. 4. 
 
 ig) Per Willcs, J., Myers p. Lond. and South- West. Rwy., L. B., 6 C. P. 3. 
 
Sec. 1.] DUTIES, ETC., OF COMMON CARRIERSi 669 
 
 If he selects a particular line or description of business, he cannot, so 
 long as he adheres to it with good faith, be compelled to go beyond it. 
 A common carrier of merchandise, for ej^ample, cannot be compelled 
 to carry coals, marble, money, or bank-notes,- dogs, pigS, horses, or 
 live animals. A common carrier of passengers only cannot be com- 
 pelled to carry merchandise, and a common carrier of merchandise 
 and parcels cannot be compelled to carry passengers(A). But he may, 
 if he pleases, carry, under a special acceptance or a special contract, 
 any article which he does not profess to carry, and does not commonly 
 carry, and by this special contract he may define the nature and 
 extent of his engagement, and the degree of risk he will incur, stip- 
 ulating that in the particular transaction he is not to be regarded as 
 being in the exercise of his public employment, but as carrying in a 
 private capacity, and incurring no responsibility beyond that of an 
 ordinary bailee for hire, answerable only for his own misconduct and 
 negligence, and that of the servants and workmen he employs for 
 executing the work(j). 
 
 Every steamboat, railway, or other company, or person carrying 
 animals for hire, is bound to cleanse and disinfect the vessels, pens, 
 carriages, trucks, etc., used for such purpose(A). Every railway 
 company is also bound, on the written request of the consignor or 
 person in charge of any animals carried by them, to provide the 
 animals with food and water at such stations as the Privy CouncU 
 may direct, and will have a lien for the reasonable expense of supply- 
 ing such food and watej? on the animals so supplied, and also on any 
 other animals carried fbr the same consignor(^). 
 
 Every common carrier of passengers with luggage is bound to -take 
 the customary quantity of luggage with each passenger, consisting of 
 articles of clothing, and such things as a traveller, according to the 
 habits or wants of the particular class to which he belongs, usually 
 carries with him for his own personal use or convenience, either with 
 reference to the immediate necessities, or to the ultimate purpose, of 
 the journey, but he is not bound to carry merchandise or articles 
 wholly unconnected with luggage, unless he professes to carry mer- 
 chandise, or unless the traveller tenders or is ready to pay thp 
 
 (h) Johnson v. Mid. Bail. Co., 4 Exch. 373. S6e Michigan Southern etc., R. B. Co. v. Mc- 
 Donough, 21 Mich. 165 ; Fanners & Mechanics' Banls v. Champlain Transportation Co., 23 Vt. 
 186, 206. 2 Bedf. on Bailw. 116. 
 
 (t) Bee post, -p. m9. Martin «. Great Indian Peninsular Bail. Co., L. E., 3 Exch. 9. lake' 
 Shore, etc., E. B. Co. o. Perkins, 25 Mich. 329. 
 
 (*) 32 & 33 Vict. u. 70, s. 62. See Cox v. Gt. East. Ewy.,po»«, p. 602. ;■ - 
 
 (i) 32 & 33 Vict. c. 70, s. 64. See Harris v, Iforthern Indiana E, K. Go;, 20 N. Y. 282. 
 
570 NEaLIGENCE OF COMMON CARRIERS. [Chap. 10. 
 
 customary hire for merchanclise(m). Deeds and money carried by an 
 attorney in his portmanteau for use in- the. causes in which he may be 
 engaged are not " ordinary luggage " for which a railway company is 
 responsible(m), nor is a-child's rocking-horse(o), nor sheets and blankets 
 intended for the use of the passenger'^s household 'when pernianeritly 
 settled(p), but a chronometer is, it seems, luggage for a master 
 mariner(g'). 
 
 (m) Great Northern Eail. Co. v. Shepherd, 8 Exch. 30 ; 21 Law J., Exoh. 114. Merrill v. 
 Grinnell, 30 N. Y. 694. Smith v. Boston, etc., K. E.'Co., 44 N. H. 325. Glasco v. New York, 
 etc., K. E. Co., 36 Barb. (N. Y.) 667. Hatchings v. Western, etc., E. E., 25 Ga. 61. The 
 Elvira Harbeck, 2 Blatch. Ct. Ct. 336. Dibble v. Brown, 12 Ga. S17. 
 
 (n) Phelps V. Lend, and North- West. Bail. Co., Si Law J., C. P. 259. 
 
 (0) Hudston V. Midland Ewy., 38 L. J., Q. B, 213 ; L. E., 4 Q. B. 366 
 
 (p) Macrow e. Gt. Western Kwy., L. E., Q. B. 612. 
 
 (S) Le Conteur v. Lond. and South- West. Eail. Co., L. E., 1 Q. B. 54. A gold watch de- 
 Jjosited in a trunk by a traveller on a railroad is baggage for the loss of which the carrier is 
 liable. American Contract Co. v. Cross, 8 Bush (Ky.), 472. McCormiok v. Hudson Eiver E. 
 E. Co., 4 E. D. Smith (N. Y. C. P.), 181. Jones v. Voorhees, 10 Ohio. 145. 
 
 So is a proper sum of money for travelling expenses. Merrill v. Grinnell, 30 N. Y. 594. 
 Whitmore v. Steamboat Caroline, 20 Mo. 513, Duulap u. International, etc., E. B. Co., 98 
 Mass. 371. Doyle v. Kiser, 6 Ind. 242. 
 
 An opera glass. Toledo, Wabash & Western E. E. Co. v. Hammond, 33 Ind. 379. 
 
 Manuscripts, carried by a student, author or professional man, for the pui-pose of ihe 
 studies or business upon which he is travelling. Hopkins v. Westcott, 6 Blatch. 64. 
 
 A revolver. Chicago, etc., E. E. Co. v. Collins, 56 in. 212. Davis v. Michigan, etc., E. E. 
 Co., 22 111. 278. 
 
 Laces, carried by a lady in her trunk. Traloff ». New York Central, etc., E. E. Co., 10 
 Blatchf. 16. 
 
 A bed and bed-coverings, belonging to a poor man who is moving with his wife and family. 
 Onimit v. Henshaw, 35 Vt. 605. But see Connolly v. Warren, 106 Mass. 146. Or to a steerage 
 passenger on a vessel. Hirschson «. Hamburgh Packet Co., 34 N. Y. Sup. Ct. 521. Linen cut 
 into shirt bosoms. DulTy v. Thompson, 4 E. D. Smith (N. Y. C. P.), 178. And also such 
 articles of wearing apparel or other articles generally as are designed for the personal use of 
 the traveller or the members of his family, and ai'C of the kind customarily carried by 
 travellers as baggage, although they are not intended to be used, and are not necessary for 
 the use, comfort or convenience of the traveller on the journey. Dexter v. Syracuse, Bing- 
 hamton and New York E. E. Co., 42 N. Y. 3-26. Dunlap v. Internatjonal, etc., Co., 98 Mass. 371. 
 
 The liability of the carrier for riioney contained in the trunk of a passenger and carried an 
 personal baggage, is limited to money taken for travelling expenses properly so caUeu. 
 Merrill ». Grinnell, 30 N. Y. 694. Bell ti. Drew, 4 E. D. Smith (N. Y.), 59. Davis v. Michigan, 
 etc., E. E. Co., 22 III. 278. Whitmore v. Steamboat Caroline, 20 Mo. 513. 
 
 The amount for which the carrier will be liable must depend upon the character of the 
 "journey and the special circumstances of the case ; and must be measured by the require- 
 ments of the transit over the whole contemplated journey, including such an allowance for - 
 accidents or sickness and for sojourning by the way as a reasonably prudent man would 
 deem it necessary to make. Merrill v. Grinnell, 30 N. Y. 694. 
 
 A common carrier will not be liable for the loss of articles which the passenger' has 
 purchased for persons not members of his family and packed with his baggage. Dexter v. 
 SjTacuse, Binghamton and New York E. E. Co., 42 N. Y. 326. Nevins v. Bay State, etc., Co. , 
 i Bosw. (N. Y.) 225. The Ionic, 5 Blatchf. Ct. Ct. 538. 
 
 Nor for masquerade costumes furnished for use at a ball and carried in a trunk. Michigan, 
 etc., E. E. Co. V. Oehm, 66 Dl. 293. Nor for more than one revolver. Chicago, etc., E. E. 
 Co. V. Collins, 66 111. 212. Nor for baggage which the passenger has in charge. The E. E. 
 Lee, 2 Abb. (U. S.) 49. But see Gore v. Norwich, etc., Transportation Co., 2 Daly (N. Y. C. 
 P.), 254. 
 
 Nor for masonic regalia. Nevins e. Bay State, etc., Co., 4 Bosw. (N. Y.) 226. Nor for en- 
 gravings. Id. 
 
 But if a carrier knows or has notice of the character of the goods taken as baggage, and 
 
Sec. 1,] WBO IS A COMMON CARRIER. 571 
 
 650 Who may he said to be a common caifier. — Every person who plies 
 with a carriage by land, or a boat or vessel by water, between dif- 
 ferent places, and professes openly to carry passengers and goods for 
 hire, is a common carrier{qq). Such are railway companies, who 
 profess to carry passengers, parcels, and merchandise from one place 
 to another(r), stage-coach and stage-wagon proprietors(r?'), lighter- 
 men, hoymen, barge-owners, canal boatmen, and the owners and 
 masters of ships and steamboats employed as general ships for the 
 transportation of all persons offering themselves or their goods to be 
 conveyed for hire to the port of destination(s). The owner of a cart 
 or carriage who does not ply regularly for hire to a particular desti- 
 nation, but merely lets out a private carriage, with horses and driver, 
 by the hour, day, or job, to proceed to d,ny destination ordered by the 
 hirer, is not a common carrier. A London cab-driver, or hackney 
 COEchman, for example, is not a common carrier(ss). 
 
 65 1 Public profession of railway companies through their time-tables and 
 toll-taMes. — If a railway company publishes, or authorizes the publica- 
 tion of a time-table, representing that a train will start at a particular 
 hour to a particular place, and no train is prepared, the company is 
 responsible in damages to all persons who have acted upon the faith 
 of the representation, and have been deceived and put to expense, and 
 have sustained damage thereby(0- The company make a continuous 
 representation whilst they continue to hold out written or printed 
 papers as being their time-tables, and they thereby make a public 
 profession that they will exercise their vocation of common carriers, 
 
 still undertakes to transport them, he is liable for their loss although they are not trareller's 
 baggage. Stoneman v. Erie Railway Co., 52 N. T. 429 ; 2 Eedf. on Eailw. 149, 151, note. 
 
 (2?) Dwight V. Brewster, 1 Pick. 50. Orange Bank ». Brown, 3 Wend. 161. Allen v 
 Sackrid'er, 37 N. T. 341. Self v. Dunn, 42 Ga. 328. 
 
 (r) Byland v. Peters, 6 Pa. Law G. Rep. 126. Virginia, etc. v. Sanger, 15 Gratt. 230. 
 Fuller V. Naugatuck, etc., 21 Conn. 557, 670. Contra, Costa, etc., B. E. Co. v. Moss, 23 Cal. 323. 
 
 (rr) Po-weU v. Mills, 30 Miss. 231. HoUister ». Nowlen, 19 Wend. 234. Cole v. Goodwin, id. 
 251. Jones v. Voorhees, 10 Ohio, 145. 
 
 (3) Bac. Ab. Caeeieks, A. Lovett o. Hobbs, 2 Show. 127. Ingate v. Christie, 3 C. & K. 01. 
 Faulkner v. Wright, 1 Eice, 107. Chouteau v. Steamboat St. Anthony, 16 Mo. 216. Hale v. 
 New Jersey Steam Navigation Co., 15 Conn. 539. 
 
 Express companies are also common cai'iers. Stadhcoker ». Combs, 9 Eich. 193. Belger v. 
 Dinsmore, 51 N. T. 166. Christensoni). American Express Co., 15 Minn. 270. Southern Ex- 
 press Co. V. McVeigh, 20 Gratt. (Va.) 264. Southern Express Co. v. Newby, 36 Ga. 635. LoweU 
 Wire Fence Co. v, Sargent, 8 Allen, 189. Baldwin ». American Express Co., 23 111. 198. Ver- 
 rier ». Sweitzer, 32 Penn. St. 203. Sweet ». Barney, 23 N. T. 336. 2 Eedf. on Eailw. 19, 30, 
 
 So are tow-boats, used in towing barges or other water craft, loaded mth freight, from one 
 point to another on inland rivers. Bussey v. Mississippi Valley Transportation Co., 24 lia. 
 An. 165. But see Arctic, etc., Ins. Co. v, Austin, 54 Barb. (N. T.) 559 ; Leonard v. Hendrick- 
 son, 18 Penn. 40 ; Wells v. Steam Navigation Co., 2 N. Y. 204. 
 
 (««) Brind v. Dale, 8 C. & P. 207. Eoss V. Hill, 2 C. B. 887 ; 16 Law J., C. P. 182. Liverpool 
 Alkali Co. v. Johnson, L. E., 7 Bxch. 267. 
 
 («) Port, ch. 18, s. 1. 
 
572 NEGLIGENCE OF COMMON CARRIERS. [Chap; 10. 
 
 and dispatch passengers or goods, as the case may be, to certain speci- 
 fied places(M) at or about the time named in such time-tables ; and if 
 they fail to do so they commit a breach of their duty as common car- 
 riers, and are , responsible in damages to those who tender themselves 
 or their goods for conveyance at the appointed time, and find that 
 there is no train about to start(t)). But the sticking up of a table of 
 tolls at the different stations does not imply that the company carries 
 all the things mentioned therein from each station(a:). The mere taking 
 of a ticket is not sufSicient evidence of awiontract to convey a passenger 
 to a certain place within a given time ; the time-bills must be pro- 
 duced to prove the contract(y). 
 652 Duty of railway and canal compafiies to afford reasonable facilities for 
 the carriage of passengers, merchandise, and chattels. — By the Railway 
 and Canal Traffic Act (17 & 18 Vict. c. 31) it is enacted (s. 2), that 
 every railway company and canal company shall, according to their 
 respective powers, afibrd all reasonable facilities for the receiving, 
 forwarding, and delivering of traffic upon and from the several rail- 
 ways and canals belonging.to or worked by such companies respectively, 
 and for the return of carriages, trucks, boats, and other vehicles ; and 
 no such company shall make or give any undue or unreasonable pref- 
 erence or advantage to or in favor of any particular person or company, 
 or any particular description of traffic, in any respect whatsoever ; nor 
 shall any such company subject any particular person or company, or 
 any particular description of traffic, to any undue or unreasonable 
 prejudice or disadvantage in any respect whatsoever (z) ; and every 
 
 («) Not necessarily, however, by the shortest route. Myers v. L. & South-West. Ewy., L. 
 E.,5C. P. 1. 
 
 (J)) Denton v. Gt. Northern Rail. Co., 5 EU. & Bl. 868 ; 25 Law J., Q. B. 129. Oxlade", In re, 
 1 C. B., N. S. iSi. 
 
 (K) 0.\lacle V. North-East. EaHl. Co., 15 C. B., N. S. 680 ; 33 Law J., C. P. 171. 
 
 iy) Hurst v. Gt. West. Bail. Co , 31 Law J., C. P. 265. And see Kobinsou v. Gt. West. Bail. 
 Co., 35 Law J., C. P. 123. 
 
 (») Sutton V. Gt. West. Co., 35 Law J., Exch. 18 ; L. E., 4 Eng. & Ir. App. 226 ; 38 Law J., 
 Exoh. 177 See post, p. 603 ; New England E.'cpress Co. v. Maine Central K. E. Co., 57 Me. 
 183 ; MoDuffle v. Eailroad, 53 N. H. 730. 
 
 Eailroad companies are bound to provide the most ample accommodations for the public, 
 and to discharge the duties imposed on them with the utmost fldelity. Illinois Central R. E. 
 Co. V. Waters, 41 lU. 73. 
 
 They are under obligation to receive and transport impartially, all merchandise and pas- 
 sengers offered to them on the ten:ns prescribed by the grant through which they hold their 
 franchises ; and a railroad company cannot free itself from this obligation by an agreement 
 between its directors and an express company which transfers the whole business of carriage 
 of merchandise over its route to the latter, and under which the railroad company refused to 
 carry for the general public, and the express company decline to carry subject to the liabili 
 tics of common carriers. Eogers Locomotive, etc., Works v. Erie E. E. Co., 20 N. J. Eq. 349. 
 New England Express Co. v. Maine Central E. E. Ob., 57 Me. 188. . 
 
 But a railroad company is not obliged to become a common carrier of money under a clause 
 
Sec. 1.] DUTIES OF SAIL WAT AND CANAL COMPANIES. 573 
 
 railway company and canal company haviug or working railways oi 
 canals which form part of a continuous line of railway or canal, oi 
 railway and canal communication, or which have the terminus, station, 
 or wharf of the one, near the terminus, station, or wharf of the other, 
 shall afford all due and reasonable facilities for receiving and forward- 
 ing all the traffic arriving by one of such railways or canals to the 
 other, without any unreasonable delay, and without any such prefer- 
 ence or advantage, or prejudice, or disadvantage, as aforesaid, and so 
 that no obstruction may be offered to the public desirous of using such 
 railways and canals as a continuous line of communication, and so that 
 all reasonable accommodation may, by means of the railways and 
 canals of the several companies, be at all times afforded to the public. 
 It has been held, however, that the above section applies only to the 
 "receiving," "forwarding," and "delivering" of traffic, and not to 
 facilities for storing goods after they have been delivered to the con- 
 signees. Where, therefore, a railway company let the surplus land 
 adjoining their station to one coal merchant to the exclusion of others, 
 it was held that another coal merchant had no ground of complaint 
 although the first named merchant did not require or use the whole oi 
 the surplus land for the purpose of storing his coals(a). 
 
 If railways are blocked up and impeded by snow, the company is 
 bound to use all reasonable exertions to forward the passengers, though 
 extra expense must be incurred by the company in so doing, which 
 they have no means of recovering from their passengers; but the 
 owners of goods and cattle have no right to complain that extraordi- 
 nary eff'orts which are made to forward passengers are not used to for- 
 
 in the charter requiring it to transport " all merchandise and property" offered. Kuter v. 
 Michigan Central E. K. Co., 1 Biss. 35. 
 
 And -when, Ijj- reason of an unusual pressure of business, the rolling stock of a railroad 
 company becomes inadequate to transport the freight already received, the company may 
 lawfully decline to receive other freight offered for transportation. Faulkner v. South Paclflc 
 E. E. Co., 51 Mo. 311. 
 
 But in every case where a carrier has i-easonable ground for refusing to receive and caiTy* 
 either persons or merchandise, he mast make the objection at the time the application for 
 carriage is made ; for if he receives the person or jjroperty for transportation without ob- 
 jection, his liability is the same as though no ground for refusal existed. Faulkner v. SouHi 
 Paoiflc E. E. Co., 51 Mo. 311. Hannibal E. E. Co. „. Swift, 12 Wall. 362. But see Wibert v. 
 New York & Erie E. E. Co., 12 N. Y. 245. 
 
 Even after the receipt of goods by the carrier for transportation, he may refuse to carry 
 them if the freight thereon is not paid by the shipper as stipulated. Stewart v. Bremer, B3 
 Penu. St. 268. 
 
 If a common carrier in forwarding freight discriminates between two classes of shippers 
 by deliberately delaying or stopping the property of one class in order to give preference to 
 another, contrary to the usual course of business, he is guilty of a wrong, and liable therefor. 
 Keeney v. Grand Trank K. E. Co., 69 Barb. (N. Y.) 104. 
 
 (a) West V. L. & X.-W. Ewy., L. E., 5 C. P. 622, per Montague Smith and Brett, JJ., diss. 
 Bovill, C.J., and Keating, J. 
 
574 NEGLIGENCE OF COMMON CARRIERS. [Chap. 10. 
 
 ■ward cattle and goods. " If a snow-storm occurs which makes it 
 impossible to forward cattle except by extraordinary means, involving 
 additional expense, the company are not bound to use such means and 
 to incur such expense "{b). So if there be delay in delivering goods 
 by reason of an accident occurring on the defendant's line, such acci- 
 dent being caused wholly by the negligence of another railway com- 
 pany, which had running powers over the defendants' line, the de- 
 fendant's, in the absence of a special contract to deliver within a cer- 
 tain time, are not responsible(c). * 
 
 Whenever there has been an apparent preference in respect of the 
 conveyance of goods conceded by a railway company to certain per- 
 sons to the prejudice of a complainant, there is sufficient ground to 
 call upon the company for an explanation and justification of their 
 conduct in the matter(d!). 
 653 Loss of goods hy common carriers. — " The law,'' observes Holt, C.J., 
 " charges every person exercising the public employment of a common 
 carrier, common hoyman, master of a ship intrusted to carry goods, 
 against all events but acts of God and enemies of the king. For 
 though the force be never so great, as if an irresistible multitude of 
 people should rob him, nevertheless he is chargeable. And this is a 
 politic establishment contrived by the policy of the law for the safety 
 of all persons, the necessity of whos'e afiairs obliges them to trust 
 these sort of persons, that they may be safe in their dealings. For 
 else these carriers might have an opportunity of undoing all persons 
 that had any dealings with them by combining with thieves, etc. ; 
 and yet doing it in such a clandestine manner as would not be possi- 
 ble to be discovered. And this is the reason the law is founded upon 
 in that point "(e). 
 
 (6) Briddon v. Git. North. Eail. Co., 28 Law J., Exch. 51. Ballentine v. North. Missouri K. 
 R. Co., 40 Mo. 491. See Penn. v. Buffalo & Erie E. E. Co., 49 N. Y. 204. 
 (0) Taylor v. Gt. North. Eail. Co., L. E., 1 C. P. 385. 
 
 (d) Garton v. Bristol & Exeter Eail. Co., 28 Law J., C. P. 308. Baxendale v. Gt. West. 
 Eail. Co., ib. 81. As to injunctions, see post, s. 3. 
 
 (e) Coggs V. Bernard, 2 Ld. Eaym. 909; 1 Smith's L. Ca., 6th ed. 177. Where a railroail is 
 in good order and well equipped, and as many trains are run as can be run with safety, the 
 company, in the absence of an express contract to transport property within a limited time, 
 ■will not be responsible for delays occasioned by an unusual quantity of freight being deliv- 
 ered to it, which was forwarded without preference in the order of its receipt. Wibertv. 
 New York & Erie E. E. Co., 12 N. T. 245. East Tennessee, etc., E. E. Co. v. Nelson, 1 Cold. 
 (Tenn.) 272. Peet v. Chicago, etc., E. E. Co., 20 Wis. 594. But see Faulkner v. South Pacific 
 E. E. Co., 51 Mo. 311. 
 
 The fact that the company had not the proper appliances for transportation is no defence 
 to an action for damages for delay in forwarding stock. Tucker v. Pacific E. E. Co., 50 Mo. 
 385. 
 
 Nor is the fact that the employees of the company were on a strike excuse for the failure 
 
Sec. 1.] LOSS BY FIBE, STORMS, ETC. 575 
 
 By tlie term "act of God" is meant something in opposition to the 
 act of man, such as storms, lightning, tempests, and inevitable acci- 
 dents not resulting from human agency. If the danger or the acci- 
 dent, though unavoidable, has been occasioned by the act of man, the 
 carrier cannot avail himself of it as an excuse for the non-delivery of 
 the goods(/). Thus, where an action was brought against a common 
 
 of the company to transport freight within the usual time. Blackstook v. New York & Erie 
 K. B. Co.,20N. Y. 48. 
 
 That a common carrier is au insurer against any loss not occasioned by the act of God or 
 the public enemy, or the fault of the party, suffering the loss, see Kohannan v. Hammond, 42 
 Cal. 227; Goodwin e. Baltimore, etc., li. B. Co., 58 Barb. (N. Y.) 195; Howe v. Oswego, etc., 
 B. B. Co., 56 Barb. (N. Y.) 121; The Maggie Hammond, 9 Wall. 435; Klanber v. American 
 Express Co., 21 Wis. 21; Southern Express Co. v. Newby, 36 Ga. 635; Porcher v. Northeastern 
 E. E. Co., 14 Rich. (S. C.) L. 181; Southern E.xpres3 Co. v. Moon, 39 Miss. 822; Arnold v. 
 Jones, 26 Texas, 336; Hooper v. Wells, 27 Cal. 11; Commander-in-chief, 1 Wall. 43; Ferguson 
 V. Brent, 12 Md. 9; Powell v. MUls, 30 Miss. 231; Cential E. & B. Co. v. Hines, 19 Ga. 203; New 
 Brunswick Co. v. Tiers, 4 Zabr. (N. J.) 697; Both v. Buffalo & State Line E. E. Co., 34 N. Y. 
 548; HoUister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, ib. 251; Powell v. Myers, 26 Wend. 
 691; Eeed v. Spaulding, 30 N. Y. B30; Merritt v. Earle, 29 ib. 115. 
 
 Goods taken from a carrier by the military forces of a State in insurrection are to be 
 deemed taken by the "public enemy," within the meaning of the exception to the rule. 
 Lewis V. Ludwick, 6 Coldw. (Tenn.) 368. So if taken by the United States forces while being 
 transported within tlie Confederate lines. Southern Express Co. ».Womaok, 1 Heisk. (Tenn.) 
 256. So where the goods were seized by Confederate soldiers. Bland v. Adams Express Co., 
 1 Duvall (Ky.), 232. But a carrier within the limits, and recognizing the Confederate govern- 
 ment, is estopped from alleging that the seizure of his goods by a Confederate oMcer was 
 the act of a public enemy. Patterson v. North Carolina B. B. Co., 64 N. C. 147. 
 
 (/) Oakley v. Ports, etc.. Steam Packet Co., U Exch. 622; 25 Law J., Exch. 99. Merritt v. 
 Earle, 29 N. Y. 115. Michaels v. Nevr York Central E. B. Co., 30 ib. 564. Bead v. Spaulding, 
 ib. 630. Williams v. Grant, 1 Conn. 487. Crosby v. Fitch, 12 ib. 410. 
 
 " Under the tenn act of God are comprehended all misfortunes and accidents arising from 
 inevitable necessity which human prudence could not foresee or prevent; and in cases of 
 this description, carriers may be liable for a loss arising from inevitable necessity, existing at 
 the time of the loss, if they had been guilty of a previous negligence or misconduct by which 
 the loss may have been occasioned." " For though the immediate or proximate cause of a 
 loss may havp been what is termed the act of God, or inevitable accident, yet if the carrier 
 unnecessarily exposes the property to such accident, by any culpable act or omission of his 
 own, he is not excused." Williams v. Grant, 1 Conn. 487. Crosby «. Fitch, 12 ib. 410. 
 
 To excuse the earner for loss or damage of goods intrusted to his care on the ground of 
 inevitable accident or act of God, the loss or damage must result from the direct and immc-' 
 diate act of God without the intervention of any human agency, Ferguson v. Brent, 12 Md. 
 ■9. Sprowl V. KeUar, 4 Stew. & Port. 382. Jones v. Pitcher, 3 ib. 135. Michaels v. New York 
 Central B. B. Co., 30 N. Y. 664. Merritt v. Earle, 29 ib. 115. 
 
 But even to this rule there may be exceptions. Thus, where by reason of a violent storm 
 a jettison becomes necessary for the preservation of the rest of the cargo, the loss is by the 
 act of God, although occasioned through the immediate agency of men. Price v. Hartshorn, 
 44 N. Y. 94. 
 
 So where the proximate cause of the loss of goods intrusted to a common carrier is the act 
 of God, such as a flood, the carrier will be excused, even though he may have contributed in 
 a remote way to the loss of the goods by his own negligence or laches. Bailroad Co. v. 
 Beeves, 10 WaU. 176. 
 
 Thus where goods intrusted to a carrier by canal are lost by reason of the breaking of a 
 dam in the canal in consequence of an extraordinary Hood, the carrier will be excused on 
 the ground of inevitable accident, although had it not been for the lameness of a horse the 
 boat would not have been at the place of the flood when it occurred. Morrison v. McFad- 
 den, 6 Pa. Law J. Eep. 23. 
 
 But if the carrier is guilty of unreasonable delay in forwarding goods, and they are injured 
 by a flood while lying in the depot awaiting shipment he will not be excused, as the goods ' 
 
576 LOSS OF GOODS BY COMMON C4.RMIERS. [Chap. 10. 
 
 carrie^i? for; not safely carrying and delivering a quantity of hops, and 
 it appeared that a fire broke out in a building adjoining a booth 
 under which the carrier had placed the hops, and burnt with inex- 
 tinguishable violence, and extended itself to the hops, and consumed 
 them, without any neglect or default on the part of the carrier him- 
 self, it was held that, inasmuch as the fire had not been occasioned 
 by lightning, but by the act of man, the occurrence of the disaster 
 constituted no answer to the action(^). If the goods have been de- 
 stroyed or swept away by rains and floods, the circumstances attendant 
 upon the loss must be regarded, in order to determine whether it has 
 been occasioned by the act of God or the act of man. If the common 
 carrier has neglected to provide proper coverings for the goods ; if he 
 has gone out of his way to meet the danger; if he has travelled by 
 unusual roads, or crossed a plain subject to inundations when he might 
 have kept the high ground and been safe, the loss occasioned thereby 
 is a loss from the act or negligence of man, and the common carrier is 
 consequently responsible therefor(^). 
 
 If a barge-owner who carries goods for hire on a canal accepts cer- 
 tain goods to be carried for hire, and rats gnaw a hole in the barge, 
 and cause a leak, and the goods are injured, the barge-owner is respon- 
 sible for the damage(!i). He is not, of course, responsible for any deteri- 
 oration in the value of the goods resulting from the negligence or want 
 of care of the owner or the consignor, such as defective packing, nor 
 for losses occasioned by an inherent defect in the article causing its 
 
 were exposed to the peril by Iiis fault and neglect. Dunson ». New York Central E. E. Co., 
 3 Lans. (N. T.) 265. Bead v. Spaulding, 30 N. Y. 630. Michaels v. New York Central E. E. 
 Co., id. 564 
 
 So where goods carried by a steamboat are lost by the sinking of the vessel, and the imme- 
 diate cause of the accident and loss is the contact of the boat with the mast of a sloop which 
 had sunk some two days previo&sly in a squall, leaving the mast fifteen feet out of water at 
 low tide, the carrier will not bo excused on the ground of inevitable accident or act of God, 
 .as the accident might have been avoided, and the squall which sunk the sloop was but the 
 remote or secondary cause of the accident. Merritt v. Earle, 29 N, Y. 115. See Pennewill v. 
 CuUen, 5 Harring. (Del.) 238. 
 
 So where a violent storm caused an unusually low tide, and a earner's barge lying at a 
 pier, was pierced by a projecting timber, covered at ordinary tides, and not known by the 
 carrier to exist, the carrier was held liable for the injury of the goods upon the barge, not- 
 withstanding that his negligence in leaving the barge there would not have resulted in the 
 injury without the concurrence of the act of God and the negligence of the wharf-builder. 
 New Brunswick Co. v. Tiers, 4 Zabr. (N. J.) 697. , 
 
 K divers causes concur in the loss of goods by a caiTier, the aot of God being one, but not 
 •the proximate cause, it does not discharge the carrier. The carrier is liable unless the act 
 of God was the immediate cause of the loss, without which it would not have occun'ed. Fer- 
 guson tJ. BKent, 12 Md. 9. New Brunswick Co. v. Tiers, i Zabr. (N. J.) 697. 
 
 (ff) iForward v. Pittard, 1 T. E. 83. Hyde v. Trent Nav. Co., 5 ib. 309. 
 
 (ft) Doct. & Stud. Dial. 2, oh. 38 ; Noy, oh. 43. Maghee v. Camden & Amhoy E. K. Co., 4a 
 N. Y. 514. Phillips B. Brigham, 26 Ga. 617. 
 
 {t) Bale ». Hall, 1 WilB. 281. 
 
Sec. l.J LOSS ST FIBB, STOBMS, ETC. 577 
 
 destruction(w). If, however, the defective packing of goods is patent 
 and visible, and easily remedied, and he accepts the goods for convey- 
 ance, he is bound to take all reasonable means to provide against the 
 defect, and secure their safety. Where a dog, with a string about his 
 neck, was delivered to a common carrier to be carried, and was tied 
 by the string in a watch-box, and shortly afterwards the dog slipped his 
 head through the noose, and escaped, and was never seen afterwards, 
 and an action was brought to recover the value of the dog, and it was 
 contended that the owner ought to have taken care that the cord was 
 properly secured round the dog's neck, it was held that as the common 
 carrier had the means of seeing that the dog was insufficiently secured, 
 he ought to have locked him up or taken other proper means to secure 
 him, and that he was responsible for the loss(j). Where, however, a 
 greyhound, secured in the way ordinarily adopted and obviously 
 intended by the owner to be used, viz., by a collar and strap, was 
 delivered to a railway company to be carried, and the greyhound dur- 
 ing the journey slipped his head through the collar and was lost, it 
 was held that the company was not responsible(^). 
 
 If a cargo or load of goods weighing a certain weight be delivered 
 to a common carrier to be carried for hire, and the cargo on its arrival 
 at its destination is deficient in weight, there is a prima, facie presump- 
 tion of negligence on the part of the carrier, which the latter must 
 rebut by showing that the deficiency of weight arose from causes over 
 ■which he had no control(Z). 
 
 If the accident or casualty causing the loss of the goods is occasioned 
 by the misconduct of a third person, and not by any fault or neglect 
 on the part of the common carrier himself, the latter is, nevertheless, 
 responsible to the owner for the loss, as he has himself a remedy over 
 against the offending party. Thus, where the ship of a common car- 
 rier by water drove on an anchor in the river Humber, and was sunk, 
 and the goods on board were injured, and the accident was occasioned 
 by the neglect of a third person in not having his buoy out to mark 
 the place where his anchor lay, it was held that the common carrier 
 was nevertheless bound to make good the loss(7w). But if the miscon- 
 duct of the third person is caused by the orders of the owner of the 
 goods, the carrier of course will not be responsible(«). 
 
 (m) Eixford v. Smith, 52 N. H. 355. Klaiiber v. American Express Co., 21 Wis. 21. 
 
 (j) Stuart ». Crawley, 2 Stark. 321. 
 
 (fc) Richardson v. North-East. Ewy., L. E., 7 C. P. 76. 
 
 (I) Hawkes v. Smith, Car. & M. 72. 
 
 (m) Trent Nav. Co. v. Ward, 8 Esp. 130. See Eeaves v. Waterman, 2 Speers, 197. 
 
 (B) Butterworth v. Brownlow, 34 Law J., C. P. 267. 
 
 Ad. Vol. I.— 37 
 
578 LOSS OF GOODS ST COMMON CARRIERS. [Chap. It). 
 
 If a man professes to be a common carrier of passengers merely, and 
 only receives occasionally, and at his own option, some trifling arti- 
 cles of luggage with such passengers, to be carried ^gratuitously for 
 the accommodation of the latter, he cannot be charged as a common 
 carrier of goods for the loss of them. He is, in such a case, a gratui- 
 tous bailee of the goods, and chargeable only witb the liabilities and 
 responsibilities of a person who gratuitously, undertakes to carry goods 
 for another. Such is an omnibus proprietor, who professes only to 
 carry passengers and receives his hire solely therefor, but occasionally 
 receives and carries gratuitously small bundles and parcels for the 
 accommodation of his passengers. As he does not profess to carry 
 goods for hire, he cannot be compelled to receive them as a common 
 carrier of goods, neither can he be charged except as a gratuitous 
 bailee for the loss of them. And if luggage is carried free, upon the 
 express terms that the passenger shall himself take charge of it, and 
 that it shall be taken at his risk, he cannot make the carrier responsi- 
 ble for the loss of it(o). If, however, the carrier or coach-proprietor 
 professes to carry both passengers and luggage, he is clothed, as 
 regards the conveyance of the luggage, with the obligations and 
 responsibilities of a common carrier of goods for hire(p), whether the 
 hire is paid by the passenger or by some other person on his behaJ* 
 or for his benefit(g'). 
 
 654 Concealment of risk by consignors. — ^A person who gives a carrier 
 goods of a dangerous character to carry, and which require more cau- 
 tion in their carriage than ordinary merchandise," and which, without 
 such caution, would be likely to injure the carrier and his servants, is 
 bound in law to give notice of the dangerous character of such goods 
 to the carrier, and if he fails so to do he is responsible to the carrier, 
 or to his servants, for the injurious consequences of his neglect(r). 
 See ante, p. 568. 
 
 655 Contributory negligence. — If goods delivered to be carried are lost or 
 stolen by the way, and the conduct of the bailor or consignor himself 
 has in any way conduced to the loss, he has no ground at common law 
 for seeking compensation at the hands of the common carrier(s). If a 
 
 (0) Stewart ». Lond. and North-West. Eail. Co., 33 Law J., Exoh. 199. 
 
 (p) Brooke v. Pickwick, 4 Bing. 218. 
 
 (2) Marshall v. Tork. and Newcastle Eail. Co., 11 C. B. 655 ; 21 Law J., C. P. 24. 
 
 (r) Parrant v. Barnes, 11 C. B., N. S. 663 ; 31 Law J., C. P. 139 ; post, oh. 17, s. 1, FRAUDTr- 
 LENT Concealment. Boston & Albany E. E. Co. v. Shanly, 107 Mass. 668. Barney ». Burst- 
 enbinder, 7 Lans. (N. Y.) 210 ; 64 Barb. 212. 
 
 (») Butterworth v. Brownlow, supra. Congar v. Chicago & Northwestern E. E. Co., 24 Wis. 
 157. HeUman V. Holladay, 1 Woolw. 365. K goods are missent in consequence of the negli- 
 gence of the owner in marking their destination upon them, the carrier will not be liable. Id 
 
Sec. 1.] CONTRIBUTORY NEGLIGENCE BY CONSIGNOR. 579 
 
 man, for example, sends bank-notes, sovereigns, or valuables, to a 
 common carrier to be carried disguised as merchandise, or as a parcel 
 of ordinary value, requiring no more than ordinary care, and the 
 valuables are stolen, the common carrier is not responsible at common 
 law for the loss, inasmuch as the neglect of the consignor in not 
 apprising him of the extraordinary value of the parcel, in order that 
 extraordinary care might have been taken of it, may have been the 
 occasion of that loss {ante, p. 24) ; and " the holding out by the con- 
 signor as an ordinary risk what is in reality an extraordinary risk is a 
 legal fraud — dolus malus, — and ex dolo malo non oritur actio" {t). 
 656 InaMlity of the common carrier to rid himself of the public duties 
 imposed upon him. — It has been held that a person who undertakes 
 the public employment of a common carrier of merchandise, or of pas- 
 sengers and luggage, has no more right to engraft upon his employ- 
 ment the terms that " all merchandise is carried at the risk of the 
 owners," or that " all luggage is carried at the risk of the passengers," 
 and that " he will not be responsible if it is lost or damaged by the 
 way," than a common innkeeper has to refuse to receive guests except 
 on the terms that he shall not be responsible for the safe-keeping of 
 their goods and luggage deposited in his inn {post, s. 2). The con- 
 signor of merchandise or the passenger has a right to reject these? 
 terms, and to insist on the merchandise, or the customary allowance 
 of luggage for a passenger, being taken at the common carrier's risk, 
 provided he makes the declaration of value, and is ready to pay the 
 premium of insurance in those cases where the declaration and pay- 
 ment are required by law {post, p. 582). " The traveller," justly 
 observes an American judge, "is under a sort of moral duress, a 
 necessity of employing the common carrier, and the latter shall not be 
 allowed to throw off his legal liability. He shall not be privileged to 
 make himself a common carrier for his own benefit and a mandatory 
 or less to his employer. He is a public servant, with certain duties 
 defined by law, and as Ashurst, J., said of the duties of innkeepers, 
 they are indelible" {u). 
 
 (t) Bayley, J., Batson v. Donovan, 4 B. & AJd. 37. Wamer v. Western Transportation Co., 
 e Eob. (N. T.) 490. American Express Co. v. Perkins, 42 DJ. 458. Cincinnati, etc., E. E. Co. 
 t. Marons, 38 HI. 219. 
 
 In tlie absence of circumstances amounting to a legal fraud, a carrier, who receives a box 
 or package for transportation without inquiry as to its value, and is paid such price for trans- 
 portation as is charged with reference to its bulk, weight or external appearance, will be 
 responsible for its loss, whatever may be its value. Gorham Manufacturing Co. v. Fargo, 45 
 How. (N. T.) 90. Phillips v. Earle, 8 Pick. 182. Compare Greeil v. Southern Express Co., 46 
 Ga. 305. 
 
 («) Cowen, J., Cole v. Goodwin, 19 Wend. 281. HoUister v. Nowlen, ib. 234. Angell on 
 Carriers, App. xviii. xxiii. See Boot. & Stud. Dial. 2, ch. 39 ; Noy's Maxims, oh. 43, 92 ; 
 
580 LOSS OF GOODS BY COMMON CARRIERS. [Chap. 10. 
 
 657 Statutory protection of common carriers in respect of the carriage of gold 
 and silver, title-deeds, valuables, etc. — Bj the 11 Geo. 4 and 1 Wm. 4, c. 
 68, commonly called the Carriers' Act, reciting that by reason of the 
 frequent practice of bankers and others of sending by the public mails, 
 stage-coaches, and public conveyances by land, for hire, parcels and 
 packages containing money, bills, notes, jewelry, and other articles of 
 great value in small compass, much valuable property is rendered lia- 
 ble to depredation, and the responsibility of common carriers for hire 
 is greatly increased ; and that through the frequent omission by per- 
 sons sending such parcels to notify the value and nature of the con- 
 tents thereof, so as to enable such common carriers, by due diligence, 
 to protect themselves against losses arising from their legal responsi- 
 bility, and the difficulty of fixing parties with knowledge of notices 
 published by such common carriers, with the intent to limit such 
 responsibility, they have become exposed to great and unavoidable 
 risks, and have thereby sustained heavy losses ; it is enacted that no 
 common carrier by land for hire shall be liable for the loss of, or injury 
 to, any gold or silver coin, or any gold or silver in a manufactured 
 state, or any precious stones, jewelry, watches, clocks, or time-pieces, 
 trinkets, bills, orders, notes, or securities for payment of money, 
 •stamps, maps, writings, title-deeds, paintings, engravings, pictures, 
 gold or silver plate, or plated articles, glass(z), china, silks in a manu- 
 factured or unmanufactured state, and whether wrought up or not 
 wrought up with other materials(a), furs, or lace {i.e., lace made by 
 hand(6) ), contained in any parcel or package which shall have been 
 delivered either to be carried for hire or to accompany the person of 
 any passenger in any public conveyance, when the value of such 
 articles or property contained in such parcel or package shall exceed 
 the sum of ten pounds, unless at the time of .the delivery thereof at the 
 office, warehouse, or receiving-house of such common carrier, or to his 
 bookkeeper, coachman or other servant, for the purpose of being car- 
 ried, or of accompanying the person of any passenger, the value and 
 nature of such articles or property shall have been declared by the per- 
 
 Stewart v. L. & K.-West Ewy., ante, p. 578. See Blnmenthall v. Brainerd, 38 Vt. i02 ; Empire 
 Transportation Co. v. Wamsutta Oil Co., 63 Penn. St. 14; Clark v. Faxton, 21 Wend. 163; 
 Powell V. Myree, 26 Wend. 591 ; Camden Transportation Co. v. Belknap, 21 Wend. 364 ; Jones 
 V. Voorhees, 10 Ohio, 146 ; Camden, etc., E. R. Co. v. Burk, 13 Wend. 611 ; Beekman v. Shouse, 
 5 llawle, 179. See DwigM v. Brewster, 1 Pick. 53 ; Smitli v. Nortli Carolina E. E. Co., 04 
 N. C. 235. 
 
 (a) As to a glass frame, see Treadwin v. Gt. East. Rail. Co., L. E., 3 C. P. 308. 
 
 (o) See Brunt v. Mid. Eail. Co., pos*, p. 584. 
 
 (6) 28 & 29 Vict. i>. 94. Tliat a carrier mfiy so li^iit liis liability, see Hopkins r. Westcott, 6 
 Blatolif. 64. 
 
Sec. l.J NOTICE BBQVIBED BT THE STATUTE. 581 
 
 son sending or delivering the same ; and the increased charge therein- 
 after mentioned, or an engagement to pay the same, accepted by the 
 person receiving such parcel or package. 
 658 Of the fixing up of notices required hy the statute. — And (s. 2) that 
 ■when any parcel or package containing any of the specified articles 
 shall be delivered, and its value and contents declared, and siich value 
 shall exceed ten pounds, it shall be lawful for such common carriers to 
 demand and receive an increased rate of charge, to be notified by 
 some notice affixed in legible characters in some public and conspicu- 
 ous part of the office, warehouse, or receiving-house where such par- 
 cels are received by them for the purpose of conveyance, stating the 
 increased rates of charge required to be paid over and above the ordi- 
 nary rate of carriage as a compensation for the greater risk and care 
 to be taken for the safe conveyance of such valuable articles, and all 
 persons sending or delivering parcels containing such valuable articles 
 at such office shall be bound by such notice, without further proof of 
 the same having come to their knowledge. And (s. '3) that when the 
 value shall have been so declared, and the increased rate of charge 
 paid, or an engagement to pay the same shall have been accepted, the 
 person receiving such increased rate of charge, or accepting such 
 engagement, shall, if required, sign a receipt for the parcel, acknowl- 
 edging the same to have been insured, which receipt shall not be lia- 
 ble to any stamp duty ; and if such receipt shall not be given when 
 required, or such notice shall not have been affixed, the common car- 
 rier shall not be entitled to any benefit or advantage under the Act, 
 but shall be responsible as at common law, and be liable to refund the 
 increased rate of charge. No public notice or declaration is (s. 4) to 
 limit, or in anywise affect the liability at common law of any such 
 common carriers. 
 
 Every office, warehouse, or receiving-house, which shall be used or 
 appointed by any common carrier, for the receiving of parcels to be 
 conveyed, is (s. 5) to be deemed and taken to be the receiving-house, 
 warehouse, or office <)f such common carrier. And where any parcel 
 shall have been delivered at any such office,. and the value and con- 
 tents declared, and the increased rate of charge paid, and such parcel 
 shall have been lost or damaged, the party entitled to recover damages 
 in respect of such loss or damage shall also be entitled (s. 7) to recover 
 back such increased charges, in addition to the value of such parcel. 
 
 Nothing in the Act is (s. 6) to annul or affect any special contract 
 between such common carriers and any other parties for the convey- 
 
582 LOSS OF GOODS BT COMMON CARRIERS. [Chap. 10. 
 
 ance of goods and merchandise ; — ^but this section only applies to con- 
 tracts, the provisions of which are inconsistent ■vyith the exemption 
 claimed by the carrier under the first section(c) ; — ^nor (s. 8) to protect 
 any common carrier for hire from liability to answer for loss or injury 
 to any goods »r articles arising from the felonious acts of any coach- 
 man, guard, book-keeper, porter; or other servant in his employ, nor 
 to protect any such coachman, etc., from liability for any loss or injury 
 occasioned by his own personal neglect or misconduct. 
 659 When a declaration of nalue is a condition precedent to any liability on 
 the part of the comtnon carrier. — The Act, it will be observed, applies 
 solely to common carries hy land. Where, however, the contract for 
 carriage is divisible, and applies to carriage partly by water and 
 partly by land, and the loss occurs during the carriage by land, 
 the carrier is entitled to the benefit of the statute(d); and where 
 the contract is to carry by land and sea also, it is divisible, so as 
 to afford a defence to the carrier if the loss in fact occurs during 
 the carriage by land(e). The effect of the Act is to prevent the owner 
 or consignor from recovering from the common carrier the value of 
 any of the enumerated articles when the value of the contents of the 
 parcel or package in which they are inclosed exceeds lOZ., and the 
 value has not been declared, and the increased rate of charge paid 
 by the consignor pursuant to the statute. The declaration of value 
 must be made by the consignor, whether the common carrier has or 
 has not a notice or tariff of charges for the increased risk of convey- 
 ance of such articles stuck up in his office, and whether the articles 
 are delivered at the office of the common carrier, at the sender's 
 house, on the road, or anywhere else. The Act requires the. person 
 who sends the goods to take the first step,, by giving that information 
 which he alone can give, and if he does not take that first step, then 
 he cannot maintain an action for the value of the lost article by reason 
 of the first section of the statute, which expressly says that the 
 common carrier shall not be liable unless the -declaration is made(/). 
 As soon, however, as this has been done, the common carrier is entitled 
 to demand and to have an increased rate of remuneration, which 
 is in the nature of a premium for insurance, provided he has a tariff 
 or notice stuck up in his office of the sums he charges above the usual 
 rate of charge for the carriage of the articles. If there is no tariff, 
 
 (c) Baxendale v. Gt. Eastern EaU. Co., L. E., 4 Q. B. 214. 
 
 (d) Baxendale v. (it. Eastern Eail. Co., supra. 
 
 (e) Le Contear v. Lend, and South-West Eail. Co., L. E., 1 Q. B. 64. 
 (/) Pianciani v. Lond. and South-West. Eail. Co., 18 C. B. 226. 
 
Sec. l.J COMMON CAEBIERS' ACT. 583 
 
 he has then no right to charge the increased rate, and he loses (pro- 
 vided the declaration of value has been duly made by the consignor) 
 the protection of the Act(g'). The declaration of value having been 
 made, the common carrier has no right to know the exact nature of 
 the contents of the parcel, unless he has reasonable grounds" for 
 believing that it contains articles of a dangerous character(A). And 
 If, after the declaration has been made, he receives the goods 
 without demanding an increased rate of charge, he is not protected 
 by the statute(4). However, the mention of the value incidentally is 
 no declaration of value within the statute(A). 
 
 660 By whom the declaration of valtce is to be 'made and the increased rate 
 of carriage paid. — In a case before Lord Ellenborough, before the 
 passing of the Common Carriers Act, it was held that where a trades- 
 man at Gosport received an order in writing for goods to be forwarded 
 to Plymouth, he had an implied authority to do all that was necessary 
 to be done to insure them a safe conveyance ; and, therefore, that when 
 it was necessary to declare their value, and pay an increased charge 
 for insurance, it was his duty to make the declaration and the pay- 
 ment, so as to enable the consignee, in case of loss, to secure his indem- 
 nity from the common carrier(Z) ; but the limitation of the liability of 
 common carriers in respect of the cai-riage of glass, china, and the 
 articles mentioned in the Carriers Act, being how established by Act 
 of Parliament, must be taken to be known to consignees and consignors 
 alike throughout the kingdom; and itis not the practice, nor, it is appre- 
 hended, is it in general the duty, of the consignor, to pay the carriage 
 and insure articles directed to be forwarded by his customers, unless 
 he receives express directions so to do(TO). If, indeed, the articles are 
 of an extremely fragile character, and likely to be damaged without 
 great care, or if they are of unusual value, it would be the duty of the 
 consignor to declare their nature and value to the common carrier, that 
 proper care might be taken of them {ante, p. 578) ; and it would be 
 prudent for the consignor, before forwarding goods of this description, 
 to require instructions from the consignee as to the insurance of them 
 
 661 Articles to which the statute extends. — ^The statute extends to all the 
 articles enumerated in the first section, although not within the worda 
 
 {ff) Baxendale v. Hart, 21 Law J. , Exch. 123 ; 6 Exch. 789. 
 
 (ft) Cronoh v. Lond. and North-West. Bail. Co., 14 C. B. 295 ; 2S Law J., C. P. 73. See aiU* 
 p. 668. 
 {«) Behrens «. Gt. North. Bail. Co., 81 Law J., Exch. 299 ; 30 ib. 153. 
 (i) Bobinson v. South-West. Bail. Co., 34 Law J., C. P. 2S4. 
 (0 Clarke v. Hatchings, 14 East, 476. 
 (m) Coshay v. Tnte, 3 Campb. 129. Bailey v. Sweelnng, 9 C. B., N. S. 867. 
 
584 LOSS 6f goods bt common carriers. [Chap. 10. 
 
 of the preamble, " an article of great value in a small compass." It is 
 not sufficent for the owner to describe in writing on the outside of a 
 parcel or box the nature of the contents. The carrier must have dis- 
 tinct information thereof, and an opportunity of demanding the 
 increased rate of carriage(w). Hat bodies made of felt, which is a sub- 
 stance composed partly of the soft fur or down of the rabbit detached 
 from the skin, and partly of the wool of sheep, have been held not to 
 be "furs" within the Common Carriers Act(o), but dresses of silk made 
 up for use are silks within the operatioi^of the Act(p) ; and "silk web," 
 which is composed one third of silk and two thirds of cotton and india- 
 rubber, as being "wrought up with other materials," is also within 
 it(g'). By the term " writings " is meant writings of value, and there- 
 fore an instrument in writing in an imperfect state, intended to secure 
 a large sum of money, but not being a valid and complete security at 
 the time of the loss, is not within the statute(r). If the contents of a 
 parcel or package exceeding lOZ. in value are of a miscellaneous 
 character, consisting partly of enumerated articles and partly of things 
 not mentioned or comprised in the Act, the common carrier is released 
 from all liability in respect of the former, but, as regards the latter, 
 his common-law liability remains the same as before the passing of 
 the statute. Thus, if a trunk containing linen and wearing apparel, 
 jewelery,''and trinkets, exceeding lOZ. in value, be delivered to a 
 carrier to be carried for the ordinary hire, or to accompany the person 
 of a passenger, and such trunk is lost by the way, the carrier is not 
 liable for the value of the jewelery and trinkets(s), but he remains 
 responsible for the value of the trunk and linen and wearing apparel, 
 as at comnion law before the passing of the Act. If, however, the 
 contents of the parcel or package consist entirely of the enumerated 
 articles, the common carrier is by the express terms of the Act freed 
 from all responsibility and liability in respect of the loss thereof, if the 
 consignee has not declared the nature and value of the article, and 
 paid, or agreed to pay, the increased charge specified in the notice, 
 .although the loss may have been occasioned by the grossest negli- 
 gence(<). If an uninsured parcel or package consists entirely of 
 
 (7^) Owen V Burnett, 2 C. & M. 353 ; i Tyr. 133. Boys v. Pink, 8 C. & P. 301. 
 
 (0) Mayhew v. Nelson, 6 C. & P. S8. 
 
 (p) Bernstein v. Baxendale, B 0. B., N. S. 259 ; 28 Law J., C. P. 265, overruling Davey e. 
 Mason, Car. & M. 60. 
 
 (g) Bnint e. Mid. Eail. Co., 33 Law J., Exch. 187 ; 2 H. & C. 889. 
 
 (r) Stoessiger v. Sorfth-East. Eail. Co., 23 Law J., Q. B. 293. As to pleading the Act, see 
 Smith V. Lond. & Brighton Eail. Co., 7 C. B. 789. 
 
 (») Bernstein v. Baxendale, supra. 
 
 (<) Hinton v. Dibbin, 2 Q. B. 646. 
 
SeO. 1.] THEFT BT carriers' SERVANTS. 585 
 
 enumerated articles, the plaintiff would not be entitled to recover even 
 the value of the box or case in which they are contained(M), but if 
 there are articles in it to which the statute does not apply, he would(a;). 
 If the consignor, after he has made the declaration of value, objects 
 to pay the ad valorem rate of carriage or premium of insurance, and 
 wishes to have the parcel carried as a parcel of ordinary value, at the 
 ordinary rate of carriage for parcels of similar bulk and weight, the 
 carrier may, if he pleases, waive his right to the increased remunera- 
 tion or premium of insurance, and agree to carry for a smaller sum 
 upon the terms that he is not then to be Responsible upon the customary 
 liability of a common carrier, as an insurer against robbery and the 
 dangers and accidents of the road. " This limitation," observes Parke, 
 B., it is competent for a common carrier to make, because, being 
 entitled by common law to insist on the full price of carriage being 
 paid beforehand, he may, if such price be not paid, refuse to carry 
 upon the terms imposed by the common law, and insist upon his own 
 terms "(y). And if, after the declaration has been made, the carrier 
 receives the parcel without demanding the increased rate or charge, 
 he receives it as an insurer of its safe conveyance ; and the same result 
 follows if he has failed to notify his increased rate of charge in 
 accordance with the terms of the statute(z). 
 
 662 Losses covered by the statute. — The term "loss" in the statute means 
 loss of things by the carrier, or his servants, in thp course of the 
 carriage of them, either by losing them from their vehicles, or mis- 
 laying them, so that it was not known where to find them when they 
 ought to have been delivered; and not the loss that may be sustained 
 by an owner or consignee by reason of the non-delivery of the chattel 
 in due time, or by reason of great delay in its delivery, whereby the 
 use of the chattel, or the means of turning it to advantage, were 
 lost(a). 
 
 663 Loss of goods from theft hy the cominon carrier's servants. — Nothing 
 contained in the Carriers Act is, as we have seen (s. 8), to protect any 
 common carrier for hire from liability to answer for loss of, or injury 
 to, any goods or articles arising from the felonious act of any servant 
 in the carrier's employ. If, therefore, the common carrier relies upon 
 
 («) WyW ». Pickford, 8 M. & W. i6'i. 
 
 {x) Treadwin v. Gt. East. Kail. Co., L. B. 3 C. P. 308. A framed picture is one entire 
 thing, and cannot be divided so as to charge the carrier for the loss of the A'ame. Henderson 
 V. L. & N.-W. Rwy., L. E., 6 Exch. 90. 
 
 (») Wyld V. Picltford, supra. 
 
 {z) Behrens v. Gt. North. Eail. Co., 6 H. & N. 366 ; 30 Law J., Exch. 153. 
 
 (a) Hcam v. Load, and South-West. Eail. Co., 10 Exch. 801 ; U Law J., Exch. 180 
 
586 LOSS OF GOODS BY COMMON CARRIERS. [Chap. 10. 
 
 the statute as a defence, contending that there ought to have been, and 
 that there was not, any declaration of value on the part of the con- 
 signor, of the article alleged to have been lost, the defence is rebutted, 
 and the case taken out of the operation of the statute, by showing that 
 the loss arose from the felonious act of the carrier's servant(6). 
 
 When the goods have been accepted by a carrier under a special 
 contract for the carriage of them, the statute does not apply. Where, 
 therefore, a common carrier has given express notice to the consignor 
 that he will not be responsible for parcels or packages above the value 
 of 101., unless the value is declared, and an increased rate of remuner- 
 ation paid according to a printed tariflf or scale of charge, and the 
 common carrier afterwards accepts a parcel to be carried, knowing it 
 to be worth more than 10^., without demanding or receiving the 
 premium for insurance, and the parcel is purloined by his own servant, 
 he is not necessarily responsible for the theft(c). Having received the 
 goods under a special contract, and not upon his customary liability 
 as an insurer of safe conveyance, he is chargeable only for negligence 
 and want of ordinary care. The loss by theft indeed is prima fade 
 proof of negligent keeping, but it is not absolutely conclusive, and the 
 carrier may exonerate himself from liability for the theft by proving 
 his own care and watchfulness, and showing that there was no want 
 of any proper precaution on his part to guard against theft by his 
 servants. "If the consignor," observes Lord Tenterden, "has con- 
 cealed the value of the parcel from the carrier, and has adopted a 
 disguise for it likely to prevent the carrier from taking any particular 
 care of the parcel, and yet not so completely concealing its nature as 
 to prevent it from being selected for depredation by a dishonest 
 servant, and the loss is the consequence of the means he has adopted, 
 then he cannot maintain an action in respect of the loss"(cZ). 
 
 All persons who are actually, though casually and incidentally, em- 
 ployed by the common carrier in doing the work of carrying, are the 
 servants of the latter, although they mp-y be the regular servants of 
 some other persons, receiving wages from them and not from the 
 carrier (e). 
 664 Inability of railway, canal, and steam-boat companies to exonerate them- 
 selves from KaMlity for their own neglect, default, or breach of duty by 
 
 (J) Metcalfe ». London and Brighton Kail. Co., 4 C. B., N. S. 307 ; 27 Law J., C. P. 206. 
 (e) Butt V. Gt. West. Eail. Co., 11 C. B. 140. Gt. West. Kail. Co. v. EimeU, 27 Law J., tt- 
 P. 204. 
 ((J) Bradley v. Waterhonse, M. & M. 154. 
 (e) Macha v. Lond. and South -West. Kail. Co., 2 Exch. 436. 
 
Sec. 1.] RAILWAY, CANAL AND STEAMBOAT COMPANIES. 587 
 
 notice, condition,, or declaration. — By s. 7(/) of the Railway and Canal 
 Traffic Act, 17 & 18 Vict. c. 31,— which by 31 & 32 Vict. c. 119, s. 16, 
 extends, so far as its provisions are applicable, " to steam vessels and 
 to the traffic carried on thereby," — every railway company and canal 
 company is made liable for the loss of, or for any injury done to, any 
 horses, cattle, or other animals, or to any articles, goods, or things, in 
 the receiving, forwg-rding, and delivering thereof, occasioned by the 
 neglect or default of such company, or its servants, notwithstanding 
 any notice, condition, or declaration made and given by such company 
 contrary thereto, or in anywise limiting such liability ; every such 
 notice, condition, or declaration, being thereby declared to be null and 
 void. But it is provided that nothing therein contained shall be con- 
 strued to prevent the said companies from making such conditions 
 ■with respect to the receiving, forwarding, and delivering of any of the 
 said animals, articles, goods, or things, as shall be adjudged by the 
 court or judge before whom any question relating thereto shall be tried 
 to be just and reasonable(g'), and that they shall not be liable to a 
 
 (/) See Baxendale v. Gt. Eastern Rail. Co., L. E., 4 Q. B. 254. 
 
 ig) As to the oonstruotion of this section, see Peek ». North Staff. Eail. Co., post, p. 482. A 
 common carrier may by special contract limit his common law liability as an insurer ; but he 
 cannot by such contract relieve himself from liability for loss, or damage caused by his own 
 negligence, or that of his servants. The Pacific, Deady, 17. Cin., Ham. & Dayton, and Day- 
 ton, etc., E. R. Co. V. Pontius, 19 Ohio St. 221. . Ashmore ». Penn. Central E. E. Co., 4Dutch. 
 180. Farnhamt?. Camden &AmboyE.E. Co., 55Penn. St. 53. American Express Co. v. Sands, 
 55 Penn. St. 140. Davidson v. Graham, 2 Ohio St. 131. Graham & Go. v. Davis, 4 Ohio St. 362. 
 Evansville, etc., E. E. Co. v. Young, 28 Ind. 516. Ketchum v. American, etc.. Express Co., 
 62 Mo. 390. Colton v. Cleveland & Pittsburg E. K. Co., 67 Penn. St. 211. Missouri Valley E. 
 E. Co. V. Caldwell, 8 Kan. 244. Indianapolis, etc., R. E. Co. v. AUen, 31 Ind. 394. Michigan, 
 etc., E. E. Co. ». Heaton, 31 Ind. 397, u. School District v. Boston, etc., E. E. Co., 102 Mass. 
 552. Southern Express Co. v. Crook, 44 Ala. 468. Christenson v. American Express Co., 15 
 Minn. 270. Pennsylvania E. E. Co. v, Butler, 57 Penn. St. 339. Mobile, etc., E. E. Co. v. 
 Hopkins; 41 Ala. 486. Baltimore, etc., E. E. Co. v. Skeels, 3 W. Va. 5.98. Purcell v. Southern 
 Express Co., 34 Ga. 315. Southern Express Co. v. Moon, 39 Miss. 822. Kallmau v. United 
 States Express Co., 3 Kan. 205. Seller v. Pacific, 1 Oregon, 409. But see Cragin v. New York 
 Central E. E, Co., 51 N. Y. 61. 
 
 But while the common law liability of a common carrier may be limited by express con- 
 tract, it cannot he limited by a mere notice, even though such notice be brought to the knowl- 
 edge of the persons whose property he carries. Blossom v. Dodd, 43 N. Y. 264. Dorr v. New 
 Jersey Steam Navigation Co., 11 N. Y. 485. HoUister v. Nowlen, 19 Wend. 234. Cole v. 
 Goodwin, 19 Wend. 251. Powell v. Myers, 26 Wend. 594. Clark v. Faxton, 21 Wend. 153. 
 Cincinnati, Hamilton & Dayton, and Dayton & Michigan R. E. Co. v. Pontius, 19 Ohio St. 221. 
 Eailroad Co. v. Manufacturing Co., 16 WaU. 319. The Pacific, Deady, 17. Southern Express 
 Co. V. Shea, 38 Ga. 519. Southern Express Co. v. Newby, 36 Ga. 6.W. Baltimore, etc., R. R. 
 Co. V. Brady, 32 Md. 333. :^lumenthal v. Brainerd, 38 Vt. 402. Steele v. Townsend, 1 Ala. 
 (S. C.) 201. Western, etc., E. E. Co. v, Newhall, 24 111. 466. Michigan Central E. E. v. Hale, 
 6 Mich. 243. Moses v. Boston & Maine E. E. Co., 32 N. H. 528. Davidson v. Graham, 2 Ohio, 
 N. S. 131. And see. Southern Express Co. v. Crook, 44 Ala. 468. But see Hopkins v. West- 
 cott, 6 Blatchf. 64. These decisions rest on the ground that notice to the owner of the goods 
 is no evidence of his assent thereto ; and that the owner has a right to rely upon the common 
 law liability of the carrier ; and that the carrier cannot relieve himself of that liability by any 
 mere act of his own. 
 
 Where a carrier has Umited his common law liability by special contract, he is merely 
 
588 NEGLIGENCE OF COMMON CARRIERS. [Chap. 10, 
 
 greater extent than certain sums named in the section for injuries to 
 horses, cattle, etc., unless the sender has declared them to be of greater 
 value at the time of delivery and paid an increased charge accord- 
 ingly. Under this provision no greater sum than 50Z. can be recovered 
 in respect of a horse which is injured by the negligence of the com- 
 pany, while being led by the owner's servant through their yard for 
 the purpose of being conveyed by their railway, unless his value had . 
 been declared previously to the injury(A). 
 
 This statute does not enable railway companies io frame such regu- 
 lations and make such conditions with respect to the receiving and 
 forwarding goods and chattels as will enable them substantially to 
 escape from their common law or statute liability to carry passengers' 
 luggage, and such things as they ordinarily profess to carry ; but they 
 may attach reasonable conditions to the receiving, forwarding, and 
 delivering them ; and then, if those reasonable conditions are not 
 assented to and signed, they may refuse to carry(j). 
 
 Where an Act of Parliament authorized a railway company to make 
 regulations respecting passengers' luggage, and the company by their 
 regulations, required the passengers to see their luggage marked with 
 the company's labels, and stated that the company would not be 
 responsible for the loss or detention of any article of luggage not so 
 marked and properly addressed, and the plaintiff, who was a passen- 
 ger, required the company's porter to label and take into the luggage- 
 van some wearing appared wrapped in a shawl and properly ad- 
 dressed, and the porter refused, as the company had made it a rule not 
 to label shawls, it was held that the company wa« responsible for the 
 porter's refusal to receive the shawl ; and that the company could not 
 make regulations having the effect of divesting them of their common- 
 law liability to receive and carry the article as luggage(A). But in the 
 case of excursion trains started for the carriage of passengers only, 
 where the railway company does not receive luggage for conveyance, 
 but allows the passenger to carry a small quantity under his own cave 
 and at his own risk, the railway company is not responsible for tb^ 
 loss of it(0. 
 
 released from liability as Insurer, and is still responsible, as a baUee for hire, for ordinari 
 negligence. Missouri Valley E. B. Co. v. Caldwell, 8 Kan. 244. 
 
 (A) Hodgman v. West Midland Kail. Co., 33 Law J., Q. B. 233 ; 35 ibid. 85. 
 
 (i) As to what is a reasonable condition, see Aldridge v. Gt. Western Eail. Co., 33 Law J., 
 C. P. 161 ; post, p. 695 ; what an unreasonable one, Rooth ». North-Easteru Rail. Co., L. E., 2 
 Exch. 173, andpos*, p. 590. See Mobile, etc. R. R. Co. v. Hopkins, 41 Ala. 48fi. 
 
 (ft) Munster v. South-Eastern Rail. Co., 4 C. B., N. S. 676 ; 27 Law J., C. P. 312. 
 
 U) Stewart ». Lend, and North- West. Rail. Co., cmte, p. 578. 
 
Sec. 1.] NOTIOBS, CONDITIONS, DECLARATIONS, ETC. 589 
 
 In cases where railway companies under the Carriers Act, or the 
 Railway Traffic Act, are entitled to demand an increased rate of charge 
 for insuring the safe conveyance of particular articles, and the con- 
 signor objects to the increased rate of charge, and it is agreed that 
 the company shall receive and forward certain articles uninsured, this 
 may be taken as doing away with their common-law liability as 
 insurers of the safe conveyance of the articles, but does not exempt 
 them from responsibility for losses by negligence through their own 
 default(77i), e.g., for delay in not forwarding the articles(n). 
 
 If goods are accepted for conveyance under a special contract, 
 whereby the carrier exempts himself from liability for loss or damage 
 of a particular character, such as leakage or breakage, this will not 
 exempt him from responsibility if the leakage or breakage has been 
 caused by his own negligence, or the negligence of his servants in 
 storing the goods(o). And the rule is the same, where the suit is 
 brought in the Court of Admiralty, against the ve6sel(p). It makes 
 no difference that the contract was made with another person, if the 
 plaintiff's goods were lawfully in the possession of the defendants, and 
 were lost or injured through their negligence(g'). Where the plain- 
 tiff's goods on board ship were injured by oil during the voyage, and 
 it was shown that there was no oil amongst the cargo, but that there 
 were two donkey engines on board in which oil was used, and which 
 were near the plaintiff's goods, it was held that this raised a presump- 
 tion of negligence against the owners of the vessel(?-). 
 665 Signature of notices, conditions, declarations and special contracts. — By 
 s. 7 of the Railway and Canal Traffic Act it is further enacted, that no 
 special contract between a railway and canal company and any other 
 parties, respecting the receiving, forwarding, or delivering of any 
 animals, articles, goods or things, as aforesaid, shall be binding upon or 
 affect any such party, unless the same be signed by him or by the person 
 delivering such animals,articles, goods or things respectively, for carriage. 
 
 (m) Peek v. North Staff. Rail. Co., 10 H. L. C. 473 ; 32 Law J., Q. B. 241. 
 
 (K) Kobinsou v. Gt. Western Rail. Co., 35 L. J., C. P. 123. 
 
 (0) PliiUipsu. Clark, 26 Law J., C. P. 168; 2 C. B., N. S. 163. M'Manus ». Lane. & TorksUr* 
 Rail. Co., infra. Missouri Valley R. R. v. Caldwell, 8 Kan. 244. Ketchum t>. American Ex. 
 press Co., 52 Mo. 390. 
 
 (p) Ohrloff r. BriBcall, L. R., 1 P. C. Ca. 231. 
 
 (q) Martin v. Gt. Indian Peninsular Rail. Co., L. R., 3 Exch. 9. 
 
 (»•) Czech V. Gen. Steam. Nav. Co., L. R., 3 C. P. 14. 
 
 By the statutes of Michigan it is provided "That no railroad company shall be permitted to 
 change or limit its common-law liability as a common carrier by any contract, or in any 
 other manner, except by a wi'itten contract, none of which shall be printed, which shall be 
 signed by the owner or shipper of the goods or property to be carried." Sess. Laws of 1867, 
 p. 165. 
 
590 NEGLIGENCE OF COMMON CARRIERS. [Chap. 10. 
 
 Before the statute, every case in which a special limited liability 
 was substituted for the general common-law obligation of the carrier, 
 whether by notice acquiesced in, or document signed by the customer, 
 was one of special contract, and the statute is to be construed with 
 reference to that state of the law ; so that every notice, condition and 
 declaration, under the statute, however reasonable, must be made in 
 writing, and be signed in the mode prescribed by the statute, in order 
 to be binding in law upon the person sought to be affected by it(s). If 
 a man has an opportunity of reading the conditions, and chooses to 
 sign them without reading them, he is nevertheless bound by them, 
 if ihey are reasonable(<). But the Act does not apply to traffic beyond 
 the company's own lines or canals, so that a condition printed on a 
 passenger's through ticket from London to Paris, that the company 
 would not be responsible for loss, etc., except on the company's own 
 lines, is valid, although not signed by the passenger(M). 
 666 What are just and reasonable conditions respecting the receiving, forward- 
 ing and delivering goods. — The reasonableness or unreasonableness of 
 the condition made by the company with respect to the receiving, 
 forwarding, and delivering of goods and chattels, will materially depend 
 upon the nature of the articles to be conveyed, the degree of risk 
 attendant upon their conveyance, the rate of charge made, and whether 
 the railway company was bound by the common law, or by statutes, to 
 carry the articles on being paid the customary hire, or whether it was 
 in its power to reject them altogether and refuse to carry them upon 
 any terms(a;). 
 
 Every stipulation or condition professing to exempt a railway com- 
 pany or canal company from liability for its own negligence or mis- 
 conduct, or that of its servants and agents, is unjust and unreasonable. 
 " It is impossible," justly observes Lord EUenborough, " without out- 
 raging common sense, to allow carriers to say, ' We will receive your 
 goods, but will not be bound to take any care of them, and \vill not be 
 answerable at all for any loss occasioned by our own misconduct, be 
 it ever so gross and injurious' "(y). 
 
 (e) M'Manus v. Lane. & York. Rail. Co., post, p. 592. Peek v. JTorth Staff. Eail. Co., utsup. 
 ■ Simmons v. Gt. West. Bail. Co., 18 C. B. 826 ; 26 Law J., C. P. 26. Beal v. South Dev. Eail. 
 Co., 5 H. & N. 886. See Southern Express Co. v. Crook, U Ala. 468. 
 
 «) Lewis V. Gt. West. Eail. Co., 5 H. & N. 874 ; 29 Law J., Exoh. 425. Hopkins v. Westcott, 
 6 Blatohf. 64. 
 
 («) Zunz «. South-East. Ewy., L. E., 4 Q. B. 539. 
 
 (a) Pardington v. South Wales Eail. Co., 1 H. & N. 396. Simons V. Gt. West. Eail. Co., 18 
 C. B. 805. Garton v. Brist. and Ex. Eail. Co., El., B. & El. 112 ; 30 Law J., Q. B. 273. Ante, 
 p. 588, innotis. As to what is a reasonable percentage charge on declared value, see Harrison 
 V. Lond., Brighton, and S. C. Eail. Co., 31 Law J., Q. B. 113. 
 
 (») Lyon ». Mells, 5 East, 438. Ld. Wensleydale in Peek v. North Staff. Eail. Co., 32 Law 
 
Sec. l.J REASONABLE OB UNREASONABLE CONDITTONS. 591 
 
 Where horses were delivered to be forwarded by a cattle-truck from 
 Liverpool to York for reward, and the owner was required to sign a 
 ticket containing a memorandum to the effect that the ticket was 
 issued subject to the owner's undertaking all risk of conveyance, load- 
 ing and unloading, as the company would not be responsible for any 
 injury or damage, however caused, occuring to live stock travelling 
 upon the railway, or in their vehicles, and the defendant's servants 
 provided a truck which, in external appearance, and so far as the 
 defendant's servants knew, was sound, and sufficient for the convey- 
 ance of the horses, but it was in fact unsound, and of insufficient 
 strength for the purpose, and a hole was made in the bottom of the 
 truck during the journey, and one of the horses got his leg through 
 the hole and was injured, it was held that the railway company was 
 responsible for the damage done to the horse, notwithstanding the 
 terms of the special contract signed by the owner of the horse. " We 
 are of opinion," observes the court, "that the condition on special 
 contract in this case is not just and reasonable. In order to bring 
 the defendants within its protection, it is necessary to construe it as 
 excluding responsibility for loss occasioned, not only by all risks of 
 whatever kind directly incidental to the transit, but also for that 
 .caused by the insufficiency of the carriages provided by the defend- 
 ants, though occasioned by their own negligence or misconduct. The 
 sufficiency or insufficiency of the vehicles by which the companies are 
 to carry is a matter, generally speaking, which they, and they alone, 
 have the means of fully ascertaining ; and it would be unreasonable 
 and mischievous if they were to be allowed to absolve themselves 
 from the consequences of neglecting to perform properly that which 
 seems naturally to belong to them as a duty. It is unreasonable that 
 the company should stipulate for exemption from liability for the 
 
 J., Q. B. 274. Allday v. Gt. West. Bail. Co., 5 B. & S. 903 ; 31 L. J., Q. B. 5 ; and see ante, 
 pp. 579, 587. 
 
 In the State of New York it is well settled that a carrier may by express contract exempt 
 himself from liability for damages resalting from any degree of negligence on the part of his 
 servants, agents, and employees ; and that so long as the freighter can insist that the carrier 
 BhaU carry his property under the common law responsibility, there can be no reason founded 
 in justice, convenience, or public policy why he may not voluntarily enter into a contract 
 founded upon sufficient consideration exempting the carrier from all responsibility for any 
 degree of negligence, whether it be gross or slight. Cragin v. New York Central K. K. Co., 
 61 N. Y. 61. BisseU v. New York Central K. E. Co., 25 N. Y. 442. Dorr v. New Jersey ,Steam 
 Navigation Co., 11 N. Y. 485. See Betts v. Farmers' Loan, etc., Co., 21 Wis. 80, 
 
 But while it is competent for common carriers to provide by contract for such exemptions, 
 it must be done in clear and unambiguous terms ; and the rule that the language of contracts, 
 if ambiguous, is to be construed against the party using it, should be rigidly applied to such 
 contracts. No presumptions will be indulged in in favor of exemptions from coramon law 
 liability. Edsall v. Camden and Amboy R. R. and Transportation Co., 60 N. Y. 6S1. 
 
592 NEGLIQEHCB OF COMMON CARRIERS. [Chap. 10. 
 
 consequences of their own negligence, however gross, or misconduct, 
 however flagrant ; and that is what the condition under consideration 
 professes to do. That condition is therefore void, and the case stands 
 simply upon the ground that the plaintiff has employed the' defend- 
 ants to carry his horses safely, and that they have used an insufficient 
 and improper vehicle for that purpose, whereby the horses have been 
 injured "(z). 
 
 The court is bound to look at the particular matter in each case to 
 see whether the condition is reasonable! or not; and it has been held 
 that a condition which seeks to relieve a railway company from the 
 consequences of the loss or non-delivery of goods, by reason of insuf- 
 ficient or improper packages, is not reasonable(a) ; and if the con- 
 dition is framed without limitation or exception, so as to exempt the 
 company from all responsibility for injury, however caused, it will be 
 vqid, as being neither just nor reasonable(6). But a condition quali- 
 
 (S!) M'ManuB v. Lane. & Yorkshire Bail. Co., 4 H. & N. 327; 28 Law J., Exch. 353. M'Cance 
 V. Lond. & North-West Rail. Co., 7 H. & N. 477 ; 31 Law J., Exch. 65. See Hawkfiis v. Great 
 Western E. E. Co., 17 Mich. 57; Great Western R. E. Co. v. Hawkins, 18 ib. 427; Peters ». 
 New Orleans, etc., E. E. Co., 16 La. An. 222; Welsh v. Pittsburg, etc., E. E. Co., 10 Ohio (N. 
 S.), 64; Harris «. Northern Indiana E. E: Co., 20 N. T. 232. 
 
 A railroad company engaging in the transportation of live stock for hire, is bound to fur- 
 nish cars sufliciontly strong to resist their struggles; and for a breach of this obligation they' 
 wiU be liable oven though the animals carried were vicious and unruly. Smith v. New Ha- 
 ven, etc., E. E. Co., 12 Allen (Mass.), 631. 
 
 H' the shipper of the stock has knowledge of defects in the cars in which the animals are 
 carried, and does not infoi"m the agent of the company, to whom the defect is unknown, the 
 company wUl not be responsible for any damages to the stock arising therefrom. Betts v. 
 Farmers' Loan, etc., Co., 21 Wis. 80. 
 
 But if the shipper points out the defect to the agent of the company, who promises to have 
 it remedied, but fails to do so, the company will be liable for the resulting damages, even 
 though the shipper of the stock expressly undertakes all risk from the identical defect. 
 Welsh V. Pittsburg, etc., E. E. Co., 10 Ohio (N. S.), 64. See Powell v. Pennsylvania E. E. 
 Co.,32Penn. St. 414. 
 
 If the owner of property to be transported makes his own selection of the cars in which it 
 is to be carried, under circumstances which charge him with full knowledge of their defects, 
 and an injury results exclusively from such defects, the carrier will not be liable. But it is 
 the duty of the carrier to see that the owner has such knowledge. Harris v. Northern In- 
 diana R. E. Co., 20 N. Y. 232. 
 
 Acceptance of a defective car for the transportation of goods, with full knowledge of the 
 defect, will not exempt a carrier from his common law liabDities for the destruction of the 
 goods through such defect while in transit, without proof of a distinct agreement on the part 
 of the owner arising from the risk. Pratt v. Ogdensburgh, etc., E. E. Co., 102 Mass. 557. 
 
 But the common law rule making a carrier responsible for the safe carriage and delivery 
 of property intrusted to his care, unless prevented by the. act of God or the public enemy, 
 does not apply in its full extent to the carriage of live stock. Cragiu v. New York Central 
 R, E. Co., 51 N. Y. 61. Michigan Southern & Northern Indiana E. E. Co. v. McDonough, 21 
 Mich. 165. Lake Shore & Michigan Southern E. E. Co. v. Perkins, 25 ib. 829. But see Kan- 
 sas Pacific E. E. Co. V. Nichols, 9 Kans. 235. 
 
 (a) Simons r. Gt. West. Eail. Co., 18 C. B. 830; 26 Law J., C. P. 25. Ld. Wensleydale, Peek 
 V. North Staff. Eail. Co., ante, p. 589. 
 
 (6) Peek v. North Staff. Eail. Co., ante, p. 689. Gregory v. West. Mid. Eail. Co., S3 Law J., 
 Exch. 165. A stipulation contained in a receipt given by a common carrier to the effect that 
 
Sec. 1.] JOELIVERT AT PLACJH OF DESTIXTATION. 593 
 
 fying their liability only, for instance, one annexed to the carriage of 
 meat, that the company will not be responsible for the loss of a mar- 
 ket, is a reasonable one(c). 
 
 667 Commencement and duration of the lidbility — Da/mage or loss of goods 
 in warekomes. — When the common carrier of goods carries on the busi- 
 ness both of warehouseman and a common carrier, the nature and 
 extent of his liability will depend upon the character in which he holds 
 the goods at the time of the loss. If they are received into his ware- 
 house to await the future orders of the owner or consignor as to their 
 destination, he is clothed only with the ordinary duties and responsi- 
 bilities of a warehouseman or bailee for hire((i). Goods received at 
 the cloak-room of a railway company, ^therefore, are not received by 
 the company in their capacity of common carriers, but simply as 
 bailees for hire(e). But if the destination is marked out, and he has 
 nothing to do but to forward the goods on the earliest opportunity to 
 the place indicated, he is responsible as a common carrier for any loss 
 or damage that may occur to the goods in the warehouse, as they are 
 then in transitu in contemplation of law(/). Whenever the common 
 carrier receives goods to kept until called for, or until he has orders 
 from the consignee to forward them, he holds them as a bailee for hire 
 and not as a gratuitous bailee, although he does not charge ware- 
 house rent(5'). 
 
 668 Delivery of goods at the place of destination. — The common carrier of 
 goods is bound, in common with all carriers for hire, to carry the goods 
 intrusted to him for conveyance to their place of destination with 
 reasonable expedition (A), and deliver them into the hands of the con- 
 signee, or of some person expressly or impliedly authorized by him to 
 receive them ; and he must, of course, in all cases, take especial care 
 
 he will not be liable for the loss of a package unless a claim is made for the loss within thirty 
 days fl-om the date of the receipt, is unreasonable and void. Southern Express Co. v. Creole, 
 U Ala. 468. 
 
 (c) Lord V. Midland Rail. Co., L. E., 2 C. P. 339. 
 
 (d) CaLras v. Kobins, 8 M. & W. 26S. Garside v. Trent NaYigation Co. , 4 T. E. 582. Wade v. 
 Wheeler, 3 Lans. (N. T.) 201. Eogers v. Wheeler, 52 N, T. 262. Barron v. Bldredge, 100 Mass. 
 455. St. Louis, etc., E. E. Co. v. Montgomery, 39 HI. 335. Judsou v. Western E. R. Co., i 
 AUen (Mass.), 520. 
 
 (e) Van Toll v. South-East. Rail. Co., 31 Law J., C. P. 241. 
 
 (/) Forward v. Pittard, 1 T. E. 27 ; Buller, J., in Hyde v. Trent and Mersey Nay. Co., 5 T. 
 E. 398. Ladue V. Griffith, 25 N. Y. 364. Blossom v. Griflin, 13 N. T. 569. Southern Express 
 Co. V. Newby, 36 Ga. 635. As to accidental lires in warehouses, see amte, p. 303, et seg. 
 
 (g) White v. Humphrey, 11 Q. B. 43. But see Michigan, etc., R. E. Co. v. Shurtz, 7 Mich. 
 615. 
 
 (ft) Eaphael v. Pickford, 6 Sc. N. E. 478 ; 2 Dowl. N. S. 916. Black e. Baxendale, 1 Exch. 
 410; 17 Law J., Exch. 50. East Tennessee, etc., E. E. Co. v. Nelson, 1 Cold. (Tenn.) 272. 
 Galena & Chicago Union E. R. Co. v. Rae, 18 ni. 488. 
 
 Ad. Vol. I.— 38 
 
594 NEGLWENCE OF COMMON CARRIERS. [Chap. 10. 
 
 that they are delivered into the hands of the right person(j). If, how- 
 ever, they are imposed upon by a fictitious order, they will not be 
 responsible, if they act according to the usual custom of business, 
 and in accordance with their instructions(A). When the carriage is 
 by land, the goods must be sent to the residence of the consignee, for 
 the common carrier is not released from responsibility by leaving them 
 at the coach office, or at an inn by the road-side at which the coach 
 usually stops, unless he has received directions from the consignee so 
 to do(Z). If he tenders them at the residence of the consignee, and is 
 ready to deliver them on receiving payment of his hire, he has ful- 
 filled his contract as a carrier ; and if the hire is not paid he is not 
 bound, as we have already seen, to part with the possession of the 
 goods : but he may lawfully take them back to his own warehouse, or 
 place of business ; and he holds them thenceforward not as a common 
 carrier, but as a bailee for hire, or (if he is not entitled to charge, or 
 does not charge, warehouse rent) as a gratuitous bailee('m), and is 
 only liable, therefore, to act with reasonable care and caution with 
 respect to the goods(w). And if the consignee, having no warehouse 
 of his own, asks him to keep the goods till he can conveniently send 
 
 (s) Golden v. Manning, 3 Wils. 433 ; 2 W. Bl. 916. Birket v. Willan, 2 B. & Aid. 356. Dnff 
 V. Budd, 6 Moore, 469. Stephenson v. Hart, 1 M. & P. 357 ; 4 Bing. 476. American Express 
 Co. V. Stack, 29 Ind. 27. Ela v. American M. U. Express Co. 29 Wis. 6H. Winslow v. Ver- 
 mont & Massachusetts E. E. Co., 42 Vt. 700. Sweet v. Barney, 23 N. Y. 335. Guillaume'o. 
 Hamburgh & American Packet Co. 42 N. T. 212. McEntee v. New Jersey Steamboat Co., 46 
 N. Y. 34. Price v. Oswego & Syracuse E. E. Co., 50 N. Y. 213. 
 
 [k) If they are imposed upon by a fictitious order, see McKean v. Mclvor, L. R. 6 Exch. 36. 
 
 (J) Lond. and North- West. Eail. Co. v. Bartlett, 7 H. & N. 400 ; 31 Law J., Exch. 92. " Car- 
 riers by land are bound to deliver or tender the goods to the consignee at his residence or 
 place of business, and until this is done they are not relieved fl'om responsibility as carriers. 
 2 Kent's Com. 605. Angel on Carriers, s. 295. Gibson v. Culver, 17 Wend. 305. Fisk v. New- 
 ton, 1 Denio, 45. But when goods are safely conveyed to the place of destination, and the con- 
 signee cannot after reasonable effort be found, the carrier may discharge himself from further 
 responsibility by depositing the property in a suitable place for the owner. Fisk v. Newton, 
 1 Deriio, 45. Carriers by vessels, boats and railways are exempt from the duty of personal 
 delivery. Kedfleld on Eailw. s. 127. Thomas v. Boston E. E. Co., 10 Mete. 472. Such car- 
 riers discharge themselves ftom responsibility as such, by transporting the goods to their 
 nearest business station to the residence or place of business of the consignee, and notifying 
 the consignee of their readiness to deliver the goods at such station after the lapse of a reason- 
 able time for him to receive them. But this exemption does not extend to express companies 
 although availing themselves of carriage by rail. Eedfleld on Railw. s. 127. These were 
 established for the purpose of extending to the public the advantages of personal delivery 
 enjoyed in all cases of land carriage prior to the introduction of transportation by rail." 
 Witbeck «. Holland, 45 N. Y. 13, 17. Fenner v. Buffalo & State Line E. E. Co., 44 N. Y. 505. 
 But, where an express company receives goods marked in the care of its agent at a specified 
 place, the company will be relieved of responsibility by delivering the goods to such agent. 
 Fitzsimmons v. Southern Express Co., 40 Ga. 330. But see Eussell & Annis V. Livingston & 
 Wells, 16 N. Y. 515 ; 2 Redfield on Eailw. 65. 
 
 (m) Storr v. Crowley, M'Clel. & Y. 136. 
 
 (n) Heugh v. Lond. and North-West. Ewy., L. E., 5 Exch. 51. Weed v. Barney, 45 N. Y. 
 844. Kmner ». Southern Express Co., 6 Coldw. (Tenn.) 858, IJaftorn v. Ely, 28 N. Y. 78. 
 
Sec. l.J THROUGH CARRIAGE OR BOOKING. 695 
 
 for them, the common carrier thenceforth holds the goods only as a 
 warehouseman for hire, or a gratuitous bailee, according as he may 
 or may not be paid for his care and custody of them(o). When the 
 carriage is by water, the delivery at a wharf is not a delivery to the 
 consignee, unless it is made so by the usage and practice of the port 
 where' the delivery takes place ; but the master is bound to give the 
 consignee notice of the arrival of the goods, and is not released from 
 his responsibility for their safety until a reasonable time has elapsed 
 after the giving of the notice for the consignee to come and fetch 
 them. He cannot escape from Ms liability as a common carrier by 
 immediately landing the goods at a public wharf, without giving 
 notice to the consignee, and giving him an opportunity of receiving 
 them from the ship's side ; and if he does so land them, and they are 
 destroyed upon the wharf by an accidental "fire before the consignee 
 has had an opportunity of taking them away, the shipowners will be 
 responsible for the loss(p). 
 
 669 Delivery of liuggage at railway stations. — ^In the esse of the carriage 
 of passengers with luggage by railway, if it is the usual course for 
 the luggage to be taken from the train by the company's servants and 
 delivered to the passengers on the platform, the company is bound 
 to deliver it there. And if the company choose to provide a more 
 convenient mode of delivering luggage to passengers by employing 
 porters to carry it across the platform to the vehicles by which it is 
 to be taken away, their liability as common carriers continues until 
 the porters have discharged their duty(g'). 
 
 670 Acceptan.ce of goods and passengers to be carried hey and the limits of the 
 ordinary destination. — ^When a common carrier takes into his care a 
 parcel directed to a particular place, and does not by positive agree- 
 ment limit his responsibility to a part only of the distance(»'), that 
 is prima facie evidence of an undertaking on his part to carry the 
 parcel to the place to which it is directed, although the place may 
 be beyond the limits within which he ordinarily professes to carry 
 
 (o) In re Webb, 8 Taunt. 449 ; 6 Moore, 500. See Shepard ». Bristol and Exeter Bail. Co. 
 L. E. , 3 Exch. 189 ; Tenner v. Buffalo & State Line E. R. Co. , 44 N. T. 605. ' 
 
 ip) Bourne v. Gatliffe, 3 Sc. N. E. 1 ; 8 ib. 604 ; 7 M. & Gr. 850. Syeda ». Hay, 4 T. R. 260. 
 Wardell v. Mourillyan, 2 Esp. 693. See MoAndrew v. Whitloot, 52 N. Y. 40 ; Eussell Manu- 
 facturing Co. u. NewHaven Steamboat Co., 60 N. T. 121 ; 62 N. T, 657 ; Redmond v. Liver- 
 pool, New York and Philadelpliia Steamship Co., 46 N. Y. 678 ; Maignan v. New Orleans, 
 etc. E. E. Co. 24 La. An. 333. 
 
 (?) Richards v. Lond. and Brighton, etc.. Rail. Co., 7 C. B. 839; 18 Law J., C. P. 251. 
 Butcher v. Lond. and South-Westem EaU. Co. 16 C. B. IS. Fisher v. Geddes, 15 La. An. 14. 
 
 (r) That such a limitation is a reasonable one, see Aldridge ». Gt. Western Rail. Co., 33 
 Law J., C. P. 161. 
 
596 NEOLIGBNGB OF COMMON CABBIJSRS [Chap. 10. 
 
 on his trade of a carrier. His responsibility, therefore,- Continues to 
 the door of the address to which the goods are destined, and he can- 
 not release himself from such responsibility by transferring the goods 
 to another carrier, or sending them by another conveyaQce(s)i If a 
 railway company, for example, accepts goods for conveyance to a par- 
 ticular destination, beyond the limits of its own line of railroad, and 
 the goods are lost whilst in the hands of another railway company, 
 to whom they have been delivered-to be forwarded on their journey, 
 the first railway company is the party j« be sued by the owner of the 
 goods for the loss of them(^), unless the company has by express con- 
 
 es) Gamett v. Willan, 5 B. & AM. 53. Angle v. Mississippi, etc., E. E. Co., 9 Iowa, 487. A 
 different mle has been adopted in New York and other States of the TJnion, and it has been 
 repeatedly held that the receipt jf goods marked tor a place beyond the terminus of the car- 
 rier's route does not import a conti-act to convey them to their final destination ; but that, in 
 the absence of a special contract, and of a partnership between the connecting lines, the car- 
 rier is only responsil^le to the extent of his own route, and for the safe delivery to the next 
 connecting carrier ; that in such case the carrier is merely, a forwarder from the terminus of 
 his own line, and that when goods thus marked are delivered to a carrier, unaccompanied by 
 any particular directions, except such as might be inferred from the marks themselves, the 
 carrier is only bound at the terminus of his own line to deliver them according to the estab- 
 lished usage of the business in which he is engaged. Eoot o. Great Western K. R. Co., 45 
 S. T. 524. Van Santvoord v. St. John, 6 Hill, 158. Mills v. Michigan Central E. B. Co., 45 
 N. T. 622. Skinner v. HaU, 60 Me. 477. American Express Co. v. Second National BanlL, 69 
 Penn. St. 394. Baltimore, etc., R. R. Co.d. Schumacher, 29 Md. 176. Cincinnati, Hamilton & 
 Dayton, and Dayton & Michigan E. R. Co. ». Pontius, 19 Ohio St. 221. East Tennessee, etc.^ 
 E. R. Co. V. Nelson, 1 Coldw. (Tenn.) 272. United States Express Co. v. Rush, 24 Ind. 403. 
 Rome R. R. Co. v. Sullivan, 25 Ga. 228. Burroughs ». Norwich & Worces'ter R. E. Co., lod 
 Mass. 26. Nutting v. Connecticut R. R. Co., 1 Gray, 502. Judson v. Western R. R. Co., 4 
 Allen, 520. Darling v. Boston & Worcester R. R. Co., *11 Allen, 295. Perkins v. Portland, 
 Saeo & Portsmouth E. E. Co., 47 Me. 573. Brintnall v. Saratoga & Whitehall R. R. Co., 32 
 Vt. 665. McMUlan v. Mich. Southern & Northern Indiana R. R. Co., 16 Mich. 119, 120. Farm- 
 ers' & Mechanics' Bank v. Champlaln Transportation Co., 18 Vt. 131, 140. Hood v. New York 
 & New Haven R. R. Co., 22 Conn. 1. Elmore v. Naugatuck E. E. Qo., 23 Conn, 457. Nanga- 
 tuck E. E. Co. V. Waterbnry Button Co., 24 Conn. 468. Bat see Illinois Central R. R. Co. v. 
 Copeland, 24 HI. 332 ; Western Transportation Co. ». Newhall, 24 lU. 466 ; niinois Central 
 R. E. Co. V. Johnson, 34 HI, 389 ; Illinois Central R. R. Co. v. Frankenherg, 54 III. 88 ; Noyes 
 V. Rutland & B. R. E. Co., 27 Vt. 110 ; Bennett v. Filyan, 1 Pla. 403 ; Teal ». Sears, 9 Barb. 
 317 ; Ward v. Schenectady & Saratoga R. R. Co., 19 Wend. 634. See Cutts v. Brainerd, 42 Vt. 
 668 ; Ijawrence v. Winona & St. Peter E. R. Co., 15 lilinn. 390. 
 
 A common carrier may, however, by contract, assume to carry goods beyond his line, and 
 where siioh contract exists he will te liable as a carrier for the entire route. Hill Manufac- 
 turing Co, V. Boston & Lowell R. E. Co., 104 Mass. 122. Cutts V. Brainerd, 42 Vt. 566. Morse 
 r. Brainerd, 41 Vt. 550. Tackerman v. Stephens, etc.. Transportation Co., 3 Vroom (N. J.), 
 320. Burtis v. Buffalo & State Line E. R. Co., 24 N. T. 269, Nashua Lock Co. v. Worcester & 
 Nashua R. E. Co., 48 N< H. 339. Detroit & Milwaukee E, E. v. E. & M. Bank, 20 Wis. 122 ; 2 
 Eedf. on Eailw. 104. 
 
 (t) Muschamp ». Lane. & Preston Bail. Co., 8 M. & W. 421. Watson v. Ambergate Bail. 
 Co., 15 Jar. 488. Collins «. Bristol & Exeter RaU. Co., 11 Bxch. 790. 25 Law J., Exch. 166. 
 Brist. & Exeter Bail. Co. v. Collins, 7 H. L. C. 234, Wilby v. West, Corn. Bail. Co., 2 H. N. 
 709. Mytton t7. Midland Bail. Co., 4 H. & N. 615. Coxen v. Gt. Western Bail. Co., 5 H. & N. 
 274. 29Law J.,Bxch, 165. Hayes». South-Western Bail. Co,, 9 Ir. C. L, E. 474, Webber ». 
 Gt, Western Bail, Co,, 34 Law J., Exch. 170. Southern Express Co. ». Shea, 38 Ga. 519. Kyle 
 o. Laurens E. E. Co., 10 Eich. (Law) 282. The rule stated in the text is not in harmony with 
 the current of American authorities. See cases cited in preceding note. In Conkey». Mil- 
 waukee, etc., E. E. Co. it was held that where goods are shipped to be transported by sucoes- 
 
Sec. 1.] THROUQS CARBIAOE OR BOOKING. 597 
 
 tract limited its liability to loss and damage occurring on its own line 
 of railway(M). 
 
 In the absence of special circumstances, the responsibility of a rail- 
 way company in and about the conveyance of goods accepted by them 
 for delivery at a particular destination is the same, whether their own 
 line extends the whole distance or stops at an intermediate point, and 
 the railway companies carrying the goods- beyond the limits of the 
 first line of railway are, in respect of the conveyance and delivery 
 of such goods, to be regarded as the agents of the railway company 
 which originally received the goods(a;). The same principle applies to 
 the conveyance of passengers(2/), who are injured during the journey, 
 although the negligence be that of the company over whose line the 
 defendant company have running powers, and not of the defendants 
 themselves(z). And it applies to the commencement of the journey 
 as well as its termination. Where, therefore, the contract was to carry 
 the plaintiff from the shore to a hulk, and there wait until a vessel 
 came to carry him to his destination, and he was injured while on 
 board the hulk, it was held that the defendants were responsible, 
 though the hulk did not belong to them, and they had only acquired 
 by' agreement the right to use it for the purpose of embarking pas- 
 sengers on board their vessels(a). 
 > By the 31 & 32 Vict. c. 119, it is 'provided (s. 14), that where a rail- 
 way or canal company, or. the lessees, owners, or managers of such 
 company, by through booking, contract to carry any animals, luggage, 
 or goods partly by railway and partly by sea or canal, a condition 
 exempting the company from liability for any loss or damage arising 
 
 slve carriers, the carrier in whose possession they are when destroyed or injured, is liable for 
 the loss. 
 
 In Laughlin v. Chicago, etc., R. R. Co., 28 Wis. 204, it was held that where a box so shipped 
 had been opened before delivery to the consignee, and goods taken therefrom, without any 
 external indication of the fact, the presumption was, in the absence of evidence to the con- 
 trary, that the box came into the possession of the last carrier, and that the loss oocarred 
 through his fault. 
 
 («) Fowles ». Gt. WestA-n Rail. Co., 7 Exch. 699 ; 22 Law J., Exch. 76. Aldridge v. Gt. 
 Western Rail. Co., supra. See Zunis v. South-East. Bwy., ante, p. 590 ; Illinois Central R. S. 
 Co., «. Frankenberg, 54 111. 88. <f 
 
 (») Crouch ». Gt. West. Rail. Co., 26 Law J., Exch. 345. Scothom o. South Staff. Bail. Co., 
 8 Ex. 345. 
 
 [y) Blake v. Gt. Western Rail. Co., 7 H. & N. 987 ; 31 Law J., Exch. 346. Buxton ». North- 
 Eastem Rail. Co., L. R., 3 Q. B. 649. 
 
 («) Thomas v. Rhymney Rwy. Co., L. R., 6 Q. B. 226; 6 ibid. 266. See Kessler v. New 
 York Central R. R. Co., 7 Lans. (N. T.) 63 ; Railroad Co. v. Harris, 12 Wall. 65 ; Check v. 
 Little Miami B. R. Co., 2 Disney (Ohio), 237 ; Caudee v. Pennsylvania B. R. Co., 21 Wis. 582 ; 
 Bissell V. Michigan Southern & Northern Indiana B. R. Companies, 22 N. Y. 268 ; Railroad 
 Co. V. Barrow, 5 Wall. 90 ; Sprague v. Smith, 29 Vt. 421 ; Sohopman v. Boston & Worcester 
 R, B Co., 9 Cush. (Mass.) 24 
 
 (a) John V. Bacon, L. R., 6 C. P. 437. 
 
598 NEGLIGENCE OF COMMON CABRIERS. [Chap. 10. 
 
 during the carriage by sea from the act of God, the king s enemies, 
 fire, accidents from machinery, boilers, or steam, and all other acci- 
 dents of seas, rivers, and navigation of whatever kind, shall, if pub- 
 lished in a conspicuous manner in the office where the through booMng 
 is effected, and legibly printed on the receipt or freight note, be valid 
 as part of the contract between the consignor and the company. 
 
 By the 34 & 35 Vict. c. 78, it is provided (s. 12), that where a rail- 
 way company under a contract for carrying persons, animals, or goods 
 by sea, procure the same to be carried in a vessel not belonging to the 
 railway company, the railway company shall be answerable in dam- 
 ages, in respect of loss of life, or personal injury, or in respect of loss 
 of or damage to animals or goods, in like manner and to the same 
 amount as the railway company would be answerable if the vessel had 
 belonged to the railway company, provided that such loss of life, or 
 personal injury, or loss, or damage to animals or goods, happens to 
 the persons, animals, or goods (as the case may be), during the car- 
 riage of the same in such vessel, the proof to the contrary to lie upon 
 the railway company. 
 671 Loss of passengers' luggage hy railway companies. — Most of the Rail- 
 way Acts provide that, without extra charge, it shall be lawful for 
 every passenger by railway to take with him ordinary luggage or 
 articles of clothing of a certain weight and dimensions, and that the 
 company shall not be responsible for the safe carriage or custody of, or 
 for any loss of or injury to, articles carried upon the railway with, or 
 accompanying the person of, or belonging to, any passenger, Or deliv- 
 ered for the purpose of being carried, other than such passenger'? 
 articles of clothing. But these enactments do not prevent railway 
 companies from running excursion trains for passengers only, without 
 luggage(6), or from making a special contract that luggage, if carried 
 by such a train, shall' be at the passenger's own risk(c). Articles of 
 clothing or ordinary luggage, in an Act of Parliament mean such 
 things as a man generally requires and takes with him, and are ordi- 
 narily used by travellers, and may extend to a dressing-case, but not 
 to title-deeds, law papers, and bank notes(d). A railway company 
 
 (6) Eumsey v. North-Eastem Rail. Co., U C. B., N. S. 461 ; 32 Law J., C. P. 244. 
 
 (0) Stewart v. Lond. & North -West. Bail. Co., 33 Law J. , Exoh. 199. 
 
 (d) Phelps V. Lond. & North -Western Rail. Co., 34 Law J., C. P. 269. See ante, p. 670. It 
 is well settled that common carriers of passengers, with their ordinary baggage, for hire, are 
 liable for losses occurring from any accident to the baggage while it is in their keeping as 
 carriers, except those arising from the act of God or the public enemy. Roth v. Buffalo & 
 state Line R. E. Co., 34 N. T. 548. Hollister v. Nowlen, 19 Wend. 234. Cole v. Goodwin, 19 
 Wend. 251. Powell v. Myres, 26 Wend. 591. 
 
 This liability, once commenced, does not necessarily terminate with the transit, but con 
 
Sec. 1.] passengers' luggage. 599 
 
 has no power to make a by-law abridging the rights of passengers in 
 respect of their luggage ; and, therefore, where the Great Western 
 Railway Company made a by-law to the effect that they would " not 
 be responsible for the care of luggage unless booked and paid for," it 
 was held that the by-law was null and void(e). 
 
 Railway companies are responsible for the acts and omissions of 
 their porters in the management and delivery of passengers' luggage, 
 and are responsible for its safe delivery into the hands of the passen- 
 ger, or into those of his appointed agent or servant, on the termination 
 of the journey. If it is the usual course to deliver the luggage of 
 passengers at a particular part of the platform, the company is bound 
 to deliver it there. If a railway porter, at the request of a passenger 
 calls a cab, and places the passenger's luggage on a cab, and there 
 leaves it, and comes away without having the means of identifying 
 the vehicle, and the cab-driver goes off with the luggage before the 
 passenger has taken his seat in the vehicle, the railway company will 
 be responsible for the loss(/). If the luggage of a passenger is, with 
 the knowledge of the servants of the company and with their assent, 
 placed in the carriage in which the passenger sits, the luggage is, in 
 point of law, in the custody of the company, so as to render them 
 responsible for its loss, unless the loss appears to have been occasioned 
 by some misconduct or carelessness of the passenger himself in deal- 
 ing with such luggage(p'). 
 672 Loss of merchandise carried as luggage. — If a person packs merchan- 
 dise in carpet-bags and portmanteaus, and passes it off upon a rail- 
 
 tinues until the owner of the baggage has a reasonable time to remove it. Dininny v. New 
 York & New Haven E. E. Co., 49 N. Y. 546. Both v. Buffalo & State Line E. E. Co., 34 N. Y. 
 648. Louisville, etc., E. E. Co. u. Mahan, 8 Bush (Ky.), 135. Quimit v. Henshaw, 35 Vt. 605. 
 
 The carrier's liability for loss of a -passenger's baggage is the same whether the baggage is 
 carried with the passenger or without him. Wilson v. Chesapeake, etc., E. E. Co., 21 Gratt. 
 (Va.) 654. Warner v. Burlmgtou, etc., E. E, Co., 22 Iowa, 166. 
 
 In order to relieve the carrier from liability for the safe custody of baggage'carried by him, 
 it is his duty to have a baggage master ready to deliver baggage for a reasonable time after 
 its arrival, and at reasonable hours thereafter. Dininny t>. New York & New Haven E. B. 
 Co.,49N. Y. 546. 
 
 As to what is reasonable time, see Burnell v. New York Centr'al E. R. Co., 45 N. Y. 184. 
 
 (e) Williams v. Gt. Western Bail. Co., 10 Exoh. 15. Gt. Western Rail. Co. v. Goodman, 12 
 C. B. 813 ; 21 Law J., C. P. 197. Munster v. South-Easteru Bail. Co., 4 C. B., N. S. 698 ; 27 
 Law J., C. P. 312. Mobile, etc. E. E. Co. v. Hopkins, 41 Ala. 486 ; Bawson ». Pennsylvania 
 R. B. Co.,48N. Y. 212. 
 
 (/) Butcher v. Loud. & South- West Rail. Co., 16 C. B. 13 ; 24 Law J., C. P. 137. Richards v. 
 Lond., Brighton and South Coast Bail. Co., 7 C. B. 839. See Perkins v. Wright, 87 Ind. 27. 
 
 (^) Gt. Northern Bail. Co. i). Sheperd, 8 Exch. 30 ; 21 Law J., Exoh. 114. Robinson v. Dun- 
 more, 2 B. & P. 416. Talley v. Gt. Western Rwy., L. B., 6 C. P. 44-. See Gore v. Norwich, 
 etc. Transp. Co., 2 Daly (N. Y.), 254. Some of the special Acts of Parliament incorporating 
 railway companies, appear to contain the unreasonable provision, that every passenger trav- 
 elling the railway shall take his luggage at his own risk. Mytton v. Midland Bail. Co., 4 H. 
 & N. 621. 
 
600 NEGLIGENCE OF COMMON CABRIERS. * [Chap. 10. 
 
 way company as personal luggage which he is entitled to have catried 
 gratis, he commits a fraud upon the company, and cannot recover for 
 the loss of it ; but if the company have express notice that what the 
 passenger takes with him is merchandise, and the company think fit 
 to carry it without demanding any. extra remuneration, they will be 
 responsible for the loss of ii{h): 
 
 673 Imnitathn of the liability of ship owners. — The Merchant Shipping 
 Acts limit the liability of shipowners in respect of loss of or damage 
 to goods by fire, and in respect to the loss of gold, silver, watches, or 
 jewels, by robbery or embezzlement,* unless their value has been 
 declared(j). 
 
 674 Refusal of the consignee to receive the goods — Liability of the carrier as 
 bailee. — If the consignee refuses to receive the goods, or cannot be 
 found, the carrier is not thereby exonerated from the duty of taking 
 reasonable care of them, and doing what is reasonable in the matter 
 for the benefit of the consignor, or the owner of them. If the person 
 to whom they are addressed is not ready to receive them at the place 
 of delivery, the carrier must keep them a reasonable time, if he has a 
 convenient place of deposit there, and if he has no place of deposit, he 
 must deal with them as any reasonably prudent person might be ex- 
 pected to deal with his own property. If the consignor or owner oi 
 the goods is known to him, it would be reasonable to expect that he 
 would give him notice of the refusal of the consignee to receive them, 
 and seek instructions for the disposal of the property. If the con- 
 signor or owner is unknown to him, no such notice can, of course, be 
 given, or be reasonably expected(^') ; but he should deposit the goods 
 in some place of safety, and ought not at once to send back the goods 
 to the place from whence thoy came(A). 
 
 675 Landing of goods by shipowners where the consignee fails to take them 
 
 (ft) Gt. Korthem Bail. Co. v. Shepherd, ut aup. CahiU v. Lond. So North-West. Eail. Co., 13 
 C. B., N. S. 818 ; 31 Law J., C. P. 271 ; 30 ib. 269. Belfast and Ballymena Eail. Co. v. Keys, 9 
 H. L. Ca. 65G. See ante, p. 569 ; Hellman v. HoUaday, 1 Woolw. 365 ; Mississippi Central E. 
 E. Co. «. Kennedy, 41 Miss. 671 ; Cincinnati, etc., E. E. Co. v. Marcus, 38 HI. 219 ; Stimson B. 
 Connecticut, etc., E. E. Co., 98 Mass. 83; Smith d. Boston, etc.,E. E. Co.,44N. H. 325; Hutch- 
 ingsi?. Western, etc., E. E. Co. 25 Ga. 61. 
 
 (i) See mite, p. 536; see also, ante, pp. 482, 486. See Chamberlain v. Western Transportation 
 Co., 44 N. Y. 305. 
 
 (J) Hudson V. Baxendale, 27 Law J., Exch. 93. See McAndrew v. Whitloot, 52 N. T. 40 ; 
 Weed ». Barney, 45 N. T. 344 ; Kremers. Southern Express Co., 6 Coldw. (Tenn.) 356 ; Hirsch 
 V. Quaker City, 2 Disney (Ohio), 144; Ziun v. New Jersey Steamboat Co., 49 N. T. 442; Fenner 
 V. Buffalo & State Line E. E. Co., 44 N. T. 505 ; Goodwin v. Baltimore & Ohio Eailroad Co., 
 50 N. Y. 154. 
 
 (ft) Gt. Western Eail. Co. v. Crouch, 3 H. aX 169; 27 Law J., Exoh. 345. Heugh v. L. & 
 N.-W. Ewy., L. E., 5 Exoh. 51. 
 
Sec. 1.] * LIEN FOR CARRIAGE. 601 
 
 away, is pFovided for by the Merchant Shipping Act, in cases where 
 the goods are imported from foreign part8(Z). 
 676 lAen of common carriers. — The common law accords to common car- 
 riers, who are bound, as we have seen, to receive and carry the goods 
 of persons who tender them for conveyance, and are ready and willing 
 to pay the customary hire, a right to retain the goods and chattels of 
 such persons until they have received the customary remuneration for 
 the services "they have been compelled to render them, whether the 
 goods are the property of the persons who have tendered them for con- 
 veyance, or the property of third parties from whom they have been 
 fraudulently taken or stolen. Thus, where goods were stolen and de- 
 livered to a carrier to be carried to Exeter, and the owner finding' them 
 in the possession of the carrier demanded them of him, and the carrier 
 refused to deliver them without being paid the price of their carriage, 
 it was held that he was justified in so doing, "for when the robber 
 brought them to him he was obliged to receive them and carry them, 
 and, therefore, since the law compelled him to carry them, it wilFgive 
 him remedy by retainer for the price of the carriage "{m). 
 
 But the carrier has no right of lien by the common law for anything 
 beyond the price of the carriage of the goods conveyed. He cannot 
 detain them until he has received payment of a general balance due, 
 to him from the owners of such goods. Common carriers have often- 
 times attempted to obtain a lien of this description, and to secure the 
 payment of debts due to them for the previous conveyance of goods, by 
 giving notices to the effect that all goods delivered to them for convey- 
 ance will be held as security for the payment of such debts, as well as for 
 the payment of the price of their own carriage(w). But the common car- 
 rier has no right to make any such bargain or stipulation. He is bound, 
 
 {I) 25 & 26 Vict. 0. 63, b. 67. 
 
 (m) Exeter Carriers' case, cited 2 Ld. Kaym. 867. A ooramon carrier has a lien on the goods 
 carried for liis freiglit. Wilson v. Grand Trunlt R. E. Co., 56 Me. 60.- Langworthy v. New 
 Torlc & Harlem R. R. Co., 2 E. D. Smith, 195. Galena & Chicago Union R. R. Co. v. Rae, 18 
 111. 488. And also for sums paid for freight earned by preceding carriers of the same goods. 
 Briggs V. Boston, etc., E. R. Co., 6 Allen (Mass.), 246. Travis ». Thompson, 37 Barb. (N. Y.) 
 236. Bissel v. Price, 16 111. 408. 
 
 But if he received the goods from a wrongdoer, he has no lien thereon against the rightful 
 owner, even for freight paid to a previous carrier by whom the owner had ordered them car- 
 ried. Stevens v. Boston, etc., R. E. Co. ,8 Gray (Mass.), 262. Clark v. LoweU, etc., E. R. Co., 
 9 Gray (Mass.), 231. \ 
 
 TSov has he a lien for services voluntarily rendered, and not within the scope of his duty as 
 a carrier. Thus a carrier by water can create no lien for cartage by voluntarily delivering 
 goods at the place of business of the consignee. Richards D.iRicli, 104 Mass. 156. 
 
 Nor can he have a lien on the property of the United States. Dufolt «. German, 1 Minn. 
 301. Leonardo. Winslow, 2 Grant's Gas. (Penn.) 139. See Lane v. Old Colony, etc., R. K. 
 Co., 14 Gray (Mass.), 143. 
 
 (») Wright ». SneU, S B. & Aid. 353. 
 
602 NEQLIQENGE OF COMMON CARRIERS. ' [Chap. 10 
 
 as we have already seen, so long as he has room in his cart or carriage, 
 to convey the goods of all persons on being tendered his hire for the 
 carriage of the particular goods sought to be conveyed ; and if he does 
 obtain a promise from the consignor to the effecj; that he shall, if he 
 carries the goods, have a right to retain them in his hands as a secu- 
 rity for the payment of an antecedent debt, such promise is a mere 
 nudum paetu/m, of no force or eflfect in the eye of the law(o). Where 
 an Order in Council under an act of Parliament(p), directed that every 
 cattle-truck should be disinfected once in every twenty-four hours 
 during its use, it was held that the railway company had no lien for 
 the expense of such cleansing upon the person sending cattle by the 
 truck, as it was riot a service done for such person individually as dis- 
 tinguished from the rest of the public(g'). 
 
 The 97th section of the 8 Vict. c. 20, gives no lien upon goods fo*' 
 tolls or charges due to a railway company for other goods previously 
 conveyed by them as carriers, but only for tolls previously due for the 
 use of the line by persons conveying goods in their own carriages(r). 
 
 If a person goes to a coach-office, and orders a plaee to be booked 
 for him by a particular coach, and that be done, and he then leaves 
 his portmanteau at the coach-office, the coach-proprietor will, it seems, 
 have -a lien upon the portmanteau for his reasonable and customary 
 remuneration and charge for booking' ; but if the person merely leaves 
 his portmanteau, and no place is booked, the coach-proprietor has no 
 lien upon the portmanteau at all(s). When goods delivered to be car- 
 ried are received from the wagon of the common carrier by the con- 
 signee, and are merely carried into the warehouse to be weighed, the 
 carrier has no right to charge for warehouse room ; and if the goods 
 ^re taken up on the road, and have never been booked, he has no 
 right to charge for the booking of them ; and if, after tender of the 
 price of the carriage, he detains them for these small charges, the 
 detention is unlawful, and an action may be brought against him in 
 respect thereof (<). A common carrier of passengers and luggage has 
 a right of lien upon the luggage for the payment of the fare of the pas- 
 senger as well as for the carriage of his effects, but he has of course no 
 
 (o) Butler v. Woolcott, 2 B. & P. N. R. 64. Oppenheim v. Russell, 3 B. & P. 47. Rushfortli 
 V. Hadfleld, 6 East, •627 ; 7 ib. 227. See 32 & 33 Vict. c. 70, e. 64, arete, p. 669. 
 
 (p) 11 & 12 Vict. 0. 107. This Act is repealed by the 32 & 33 Vict. o. 70, by which, however, 
 SB. 62 and 63, similar in provisions are made. 
 
 (9) Cox V. Gt. Eastern Rail. Co., L. R., 4 C. P. 181. 
 
 r) WaUis v. L. & S.-W. Rwy., L. R., 5 Exoh. 62. 
 
 s) Higgins v. Bretherton, 5 C. & P. 2. Vhether, if the place be booked, the coach-propri- 
 etor would also have a lien for the full amount of the fare, qutBre, S. C. 
 
 (t) Lambert v. Robinson, 1 Esp. 119. 
 
Sec. l.J EXTORTION OF COMMON CABRIERS. 603 
 
 right to detain the person of the passenger or the clothes he is actually 
 wearing(M). And if the carrier once parts with the possession of the 
 goods he loses his lien, as in other cases. But if he loses the possession by 
 . fraud, the lien revives if possession is recovered(a;). 
 ■677 Railway charges must be equal and reasonable, and no undue pre- 
 ference given to one person or class of persons over another(j^). If 
 overcharges are made they may be recovered back(0). Therefore, 
 where a railway company charged a certain rate upon the aggregate 
 weight of several packages, if addressed to the same consignee at the 
 same place, it was held that they could not charge a common carrier 
 separately upon the weight of the packages consigned to him, although, 
 in addition to .the carrier's address on the packages, there was also 
 labelled the address of the person to whom the carrier (through his 
 agent) intended to deliver them(a). However, this will not prevent a 
 railway company from charging through rates to places beyond their 
 termini, at a rate lower in proportion than that charged for part of the 
 distance, although such part is the whole of their line, and a common 
 carrier is not, therefore, entitled to have his packages carried over the 
 line for such lower rate(6). 
 
 The 31 & 32 Vict. c. 119, provides (s. 16) for equal charges to pas- 
 sengers, where a railway company is authorized to maintain and work 
 steam vessels in communication with their railway, and prohibits any 
 reduction or advance in the fare in consequence of the persons using 
 the steamboat having travelled, or being about to travel, by the rail- 
 
 («) Wolf ». Summers, 2 Campb. 631. 
 
 (x) Wallace v. Woodgafce, Ey. & M. 194. A delivery of a portion of the goods carried is not 
 necessarily a waiver of the lieu upon the residue. Boggs v. Martin, 13 B. Mon. 239. See 
 T>ane v. Old Colony, etc., R. E. Co., U Gfray (Mass.), 143. 
 
 (j^) See Eansome v. East. Co. Rail. Co., 20 Law J., C. P. 91. See post, p. 513, et seq. It 
 seems that the convenience of the public is an element in the consideration of what may con- 
 stitute an "undue" preference. See Palmer ». Lond. & Brighton Rwy. Co., L. E.,6 C. P. 194. 
 Railroad corporations have power to divide passengers and freight passing over their roads 
 into classes. The rule merely requires that their charges shall be uniform for the carriage 
 of all persons and freight within the several classes. Chicago, Burlington & Quincy R. R. 
 Co. 1). Parks, 18 lU. 460. 
 
 [z) Pegler v. Monmouth, etc., Eail. Co., 6 H. & JT. 644. Garton v. Bristol and Exeter Eail. 
 Co., 30 Law J., Q. B. 273. Ante, p. 574. Chicago, etc., E. R. Co. v. Herring, 57 111. 69. 
 
 As to the liability of railroad companies to penalties for charging excessive fares in the 
 State of New York. See Laws of 18S7, ch. 185 ; Fisher v. New York Central & Hudson E. R. 
 Co.,46N. Y. 644. 
 
 As to the right to charge additional fare where the passenger falls to procure a ticket. See 
 Porter v. New York Central R. R. Co., 34 Barb. 35? ; Chase ». New York Central R. E. Co., 
 26 N. Y. 52i ; Nellis v. New York Central E. E. Co., 30 N. Y. 605 ; Crocker v. New London, 
 Willimantio & Palmer E. E. Co., 24 Conn. 249 ; Chicago, Burlington & Quinoy R. R. 6o. ». 
 Parks, 18 111. 464 ; Jeffersonville E. E. Co. v. Eogers, 28 lud. 33 ; Du Lauransr. First Division 
 of the St. Paul & Paoiflo E. E. Co., 15 Minn. 49. 
 
 (a) Baxendale v. Lond. & South. -West. Eail. Co., L. E., 1 Bxch. 137. 
 
 (6) 5. C. 
 
604 PACKED PARCELS, ETC. [Chap, l(Vr 
 
 way or not. Where an ag-gregate sum for the fare by boat and rail is 
 charged, the ticket must distinguish the amount charged for each 
 (Ibid.). Where two railways are worked by one company the calcula- 
 tion of charges by distance must be reckoned as if it was one railway 
 (s. 18). 
 
 678 Cha/rges for padked parcels. — It is unreasonable to make different 
 rates of charge to different persons for parcels, whether they be packed 
 
 ' parcels or not(c). In some cases deciding that an extra charge may 
 be made for packed parcels-, the company claimed to charge extra to 
 carriers for packed parcels, and not to charge extra to customers who 
 were not carriers, for what they called inclosures, which were in reality 
 packed parcels, and the courts have held that an extra charge for a 
 packed parcel to a carrier was against the statutes, imposing upon 
 railway companies the duty of charging equally to all persons in re- 
 spect of all goods of a like description(ii) ; but the company has a 
 right to divide goods into classes by descriptions appropriate to the 
 different classes it chooses to make, and to make different charges for 
 the different classes(e). By 31 & 32 Vict. c. 119, s. 17, it is provided 
 that, on application by writing to the secretary of the company, by 
 any person who has paid for the conveyance of goods, the company 
 shall render an account to the applicant distinguishing how much of 
 the charge is for conveyance — ^including tolls for the use of the railway,, 
 the use of carriages, and for locomotive power — and how much for 
 loading and unloading, covering collection, delivery, and other ex- 
 penses, but without particularizing the items of such last-mentioned 
 charge. 
 
 679 Passenger fares — Right of a passtinger to alight at intermediate stations, 
 — Where a railway company, under the influence of competition, 
 charged a low rate of fare to a distant locality, and sought to prevent 
 passengers from getting down at intermediate stations, to which a 
 higher fare was charged, on the ground that they had not- paid the 
 fare to such intermediate station, and were answerable to a by-law, 
 subjecting to a penalty any person who should enter a carriage with- 
 out having previously paid his fare, it was held that the by-law was 
 wholly inapplicable ; that the passenger had paid his fare ; and that 
 
 (c) Garton v. Bristol and Exeter Eail. Co., 4 H. & N. 49 ; 28 Law J., Exch. 169. Baxendale 
 V. Gt. Western Rail. Co., 14 C. B., N. 8. 1. 
 
 (d) Parker v. Gt. Western Eail. Co., 11 C. B. 545. Crouch v. Gt. Northern Bail Co., 11 Exch. 
 742 ; 26 Law J., Exch. 137. Gt. West. Rwy. v. Sutton, L. K., 4 Eng. & Ir. App. 226. And see 
 Addison on Contracts, 6th ed. p. 487. See Chamblos v. Philadelphia, etc., E. E. Co., 4Brew8. 
 (Pa.) 563. 
 
 (e) Erie, J.,Branly t>. South-Eastern Rail. Co.,12C. B.,N. S. 6it; 31 Law J., C. P. 280. 
 
See. 1.] RESPONSIBILITIES OF fBRRYMEN, ETC. 605 
 
 the company had no right to prevent him from getting down at any 
 intermediate station(/). 
 
 680 Duties and responsibilities of common ferrymen. — A common ferryman 
 is a common C3,rrier, and is bound to provide safe and secure ferry- 
 boats, and safe slips and landing-stages, and all proper means and 
 appliances for the safe transit of persons who may hq,ve occasion to use 
 the ferry for themselves, or for the transit of their horses and carriages, 
 luggage and merchandise(#). Where, therefore, the defendants, as 
 ferrymen, used steam-boats for transit across the river Mersey, from 
 which passengers and animals could not safely land without lapding- 
 stages and slips, and they provided an insecure hand-rail to a landing- 
 stage, which broke and caused the death of the plaintiffs mare, it was 
 held that they were bound to make good the loss(g'). 
 
 681 Loss of goods hy common \ f&rrymen and covimon hoymen. — Common 
 ferrymen and common hoymen, being common carriers, are responsi- 
 ble for the safe delivery of goods intrusted to them for conveyance, 
 unless they have been prevented by storm, lightning, tempest, or 
 inevitable accident{A). In Mouse's case it was resolved, " that if the 
 
 (/) Eeg. «. Frere, 4 Ell. & Bl. 698. As to the construction of this by-law, see Jennings v. 
 Gt. Northern Kail. Co., L. H., 1 Q. B. 7 ; Dearden v. Townaend, ibid., 10. 
 
 (ff) Jabine v. Midgett, 25 Ark. 475 ; Shinmer ». Merry, 23 Iowa, 90 ; Whitmore v. Bowman, 
 4 Greene (Iowa), 148 ; Sanders v. Young, 1 Head (Tenn.), 219 ; May v. Hanson, 5 Cal. 360 ; 
 Richards v. Fugna, 28 Miss. 792 ; Osbom v. Union Perry Co., 53 Barb. (N. Y.) 629. Not only 
 mtist a ferry company provide safe and secure boats, slips and landing bridges, and aU other 
 necessary appliances for the safe transit of the public, but they must use the utmost care, 
 vigilance and skill in the management of the same ; and for any neglect or failure to exercise 
 such care which results in injury to a person carried, the company will be liable, H-azman 
 V. Hoboken Land and Improvement Co., 50 N. Y. 63. 
 
 A miUer who keeps a ferry for his own use and the convenience of his customers, charging 
 no ferriage, is not a common carrier, and is not liable as such. Self v. Dunn, 43 Ga. 528. But 
 a private ferryman may incur all the liabilities of a common carrier by undertaking to 
 transport for hire, all persons indifferently, with their carriages and goods. Hall v, Renfro, 
 3 Met. (Ky.) 61. 
 
 (g) Willonghby v. Horridge, 12 C. B. 761 ; 22 Law J., C. P. 90. See Clarke v. Union Ferry 
 i3o.,a5N. Y. 485. 
 
 (ft) Amies v. Stevens, 1 Str. 128 ; Bac. Abr. Carkieks, B. Oakley v. Portsmouth, etc., 
 Steam Packet Co., ante, p. 576. " Ferrymen, like all other common carriers, are regarded in 
 law as insurers of the property committed to their care, and are responsible for all losses or 
 damage to it, which do not come within the excepted cases of the acts of God or the public 
 enemy. As a common carrier » public ferryman is compelled to receive all goods and 
 property offered to him for transportation, and when he has received property for that pur- 
 pose the presumption is that it is in his chai-ge as a common carrier, and the burden is upon 
 him of showing that he has not had such control over it as invests him with the character of 
 a common carrier in respect to it. His responsibility is not modifled or diminished by the 
 fact that it was accompanied by the owner, unless it affirmatively appears that the owner 
 did not trust the care of the same to him, but retained the exclusive management and control 
 of it himself. When the care and control of the property has not been intrusted to him, but 
 retained by the owner, he is not, if loss occurs, chargeable as a common carrier or an insurer, 
 but is only answerable for actual negligence ; and if, in such case, the owner, by his negli- 
 gence or wilful wrong, contributed to the loss so that but for it the loss would not have 
 happened, he will not be entitled to recover except where the direct cause of the loss is the 
 
606 VUTIES OF INNKEEPERS. [Chap. 10. 
 
 ferryman surcharge the barge, it is lawful for any of the passengers 
 in time of accident and'necessity to cast the things out of the barge 
 for safety of the lives of the passengers ; and the owners shall have 
 their remedy upon the surcharge against the ferryman, for the fault 
 was in him upon the surcharge'; but if no surcharge was, but the 
 danger accrued only by the act of God, as by tempest, no fault being 
 in the ferryman, every one ought to bear his loss for the safeguard 
 and life of a man, for 'interest republicae quod homines conser- 
 ventur'"(j). 
 
 SECTION II. 
 
 NEGLIGENCE OP COMMON INNKEEPERS AND LODGING-HOXISB KEEPERS. 
 
 682 Of the duty of common innkeepers to provide food and shelter for 
 travellers and wayfarers. — Every man who opens an inn by the way- 
 side, and professes to exercise the business and employment of a 
 common innkeeper, is, by the custom of the realm, bound to afford 
 such shelter and accommodation as he possesses to all travellers(A) who 
 apply for it and tender, or are able and ready to pay, the customary 
 hire, and are not drunk or disorderly, or laboring under contagious or 
 infectious diseases ; and if he neglects or refuses so to do, he is liable 
 to an action for the recovery of any damages that may have been 
 sustained by reason of such refusal; and also to an indictment at 
 common law(Z). The innkeeper is bound, moreover, to receive and 
 
 oiuisEion of the ferryman, after becoming aware of the owner's negligence, to use a proper 
 degree of care to avoid the consequences of such negligence." Harvey v. Rose, 26 Ark, 3.» 
 Shearman and Kedf. on Neg., ss. 25, 26. White v. WinisimmetCo., 7 Cush. (Mass.) 156. • Wil- 
 lett's admr. v. BuQalo & Rochester R. R. Co., U Barb. (N. T.) 685. Smith v. Smith, 3 Pick. 
 621. Wyckoff «. Queens County Ferry Co., 52 N. Y. 32. 
 
 There are a class of cases which hold that the ferryman is chargeable as a common carrier 
 for the absolute safety of the property retained by the passenger in his own custody and 
 under his control while being transported by the former ; and that the owner, in taking care 
 of the property during the passage of the boat, may be regarded as a mere agent of the ferry- 
 man. Fisher ». Clisbee, 12 111. 314. Powell ». Mills, 37 Miss. 691. Wilson ». Hamilton, 4 Ohio 
 St. 722. And see Albright ». Penn, 14 Texas, 290. This doctrine has been expressly dis- 
 approved by the court of last resort in the State of New York. See Wyckoff*. Queens 
 County Ferry Co., 62 N. T. 32, 34. 
 
 (t) Mouse's case, 12 Co. 63. 
 
 (fc) Taylor v. Humphreys, 30 Law J., M. C. 242. See Copley v. Burton, Li R., 5 C. P. 489. 
 See Pinkerton v. Woodward, 33 Cal. 557. 
 
 (i) Hawthorn v. Hammond, 1 C. & K. 404. Howell v. Jackson, 6 C. & P. 72S. Rex v. Ivens, 
 7 C. & P. 219. 
 
Sec. 2.] WBO IS A COMMON INNKEEPER. 607 
 
 provide for the horses of all travellers who alight at his inn, if he has 
 room in his stables ; even, it is said, of those' who choose only to put 
 up their horses, resorting elsewhere for lodging and entertainment. 
 But he is not bound to receive the goods of a person who professes to 
 merely make use of the inn as a place of deposit, and not to lodge there 
 as a guest(m). Neither is he bound to provide for his guest the precise 
 room that the latter may choose to select, nor provide him with a 
 bedroom, if he declares it to be his intention to sit up all night. All 
 that he is required to do is to find reasonable and proper accommo- 
 dation for his guests ; and if he tenders such accommodation, and the 
 guest refuses it, he may compel the latter to quit the inn, and seek 
 for accommodation and lodging elsewhere(w). 
 
 The extent of the public duty and obligation of the innkeeper 
 depends mainly upon the nature of his public profession. If he has 
 only a stable for a horse he is not bound to receive a carriage. If he 
 professes only to receive ordinary luggage accompanying the person 
 of a traveller, he is not bound to take in articles of unusual, extra- 
 ordinary, and inconvenient bulk, nor goods which do not accompany 
 the person of the guest(o). 
 
 The innkeeper cannot discharge himself of the duty and burthen 
 imposed upon him by the common law by express notice to his 
 guests(p), or under pretence of sickness, want of understanding or 
 absence from home(g) ; but if an infant keeps a common inn, an action 
 upon the custom of inns will not lie against him, for his privilege of 
 infancy shall be preferred, and take place of the custom(r). 
 683 "Who may he said to^e a common innkeeper. — "Every person who 
 makes it his business to entertain travellers and passengers, and 
 provide lodging and necessaries for them and their horses, and attend- 
 ants, is a common innkeeper ; and it is in no way material whether 
 he have any sign before his door or not"(s). A London "coffee- 
 house," where beds and provisions are furnished by the day or for 
 the night, or for a longer period, to persons in certain stations of life, 
 
 (ns) Saunders v. Plummer, Orl. Bridg. 227. 
 
 (») Tell V. Knight, 8 M. & W. 276. 
 
 (o) Broadwood v. Granara, 10 Exch. 4SS ; 24 Law J., Exch. 1. 
 
 {p) Morgan v. Kavey, 6 H. & N. 265 ; 30 Law J., Exoli. 131. BodweU V. Bragg, 29 Iowa, 
 232. 
 
 (g) Bac. Abr iNtfS, C. 4. 
 
 (r) Cross v. Androes, Koll. Abr. 2 ; Carth. 161. 
 
 \s) Bac. Abr. Inns, B. Parker v. Flint, 12 Mod. 255. Diokerson v. Bodgers, i Humph. 
 179. Overseers of Crown Point v. Warner, 3 Hill, 150. See Commonwealth v. Weatherbee, 
 101 Mass. 2U ; Walling o. Potter, 35 Conn. 183 ; People v. Jones, 54 Barb. (N. Y.) 311 ; Crom- 
 well V. Stephens, 2 Daly (N. Y. C. P.), 15 ; Krohn v. Sweeny, id. 200. 
 
608 DUTIES OF INNKBBPERS. [Cha^. 10. 
 
 who may think fit to apply for them, is a common inn(<). But if a 
 man merely opens a house for the sale of provisions and refreshments, 
 and does not profess to furnish beds and lodging for the night, he is 
 not a common innkeeper(M). And if he professes to let only private 
 lodgings, and doee not offer his house to the public as a place of 
 reception, and entertainment, and lodging, for all comers who are 
 able and willing to pay for the accommodation offered, he cannot be 
 said to keep a common inn(MM). 
 684 Duty of the innkeeper to protect his guest from robbery and theft. — It 
 has been justly observed^ by the civilians, that the common wants and 
 necessities of mankind compel men to trust valuable property to the 
 keepers of public inns, who have frequent opportunities of combining 
 and colluding with thieves, to the prejudice of those who trust them ; 
 and it was thought right in the Roman law to deprive such persons of 
 the temptation to do wrong, and to compel them to be honest by 
 making them responsible for the safety of the goods intrusted to their 
 keeping. By a public edict of the Roman praetor it was ordained, that 
 if shipmasters and carriers, innkeepers and stablekeepers, did not 
 restore what they had received to keep safe, he would give judgment 
 againt them(a;). 
 
 The construction put upon this edict was, not that the shipmaster, 
 carrier, or innkeeper was bound to deliver the goods safe at all events ; 
 but that he was bound to deliver them, unless prevented by Sifatale 
 da/mnmn, or a loss by what was teriJied the decree of fate, or order of 
 destiny, such as a loss by lightning, or an earthquake, or a sudden 
 inundation that could not have been foreseen, and that no human care 
 or skill could have provided against or avoided ; or an irresistible 
 attack by pirates and hostile forces, the enemies of the state. The 
 spirit of this edict has been universally adopted by the jurisprudence 
 of continental Europe, and was introduced at an early period into our 
 common law. 
 
 (t) Thompson p. Lacy, 3 B. & AJd. 283. 
 
 («) Doe V. Laming, 4 Campb. 77. Carpenter v. Taylor, 1 Hilt. N. Y. C. P.) 193. People v 
 Jones, 51 Barb. (N. Y.) 31. 
 
 (a») One T^ho merely keeps a lodging house for a season, as at a watering place, is not an 
 innkeeper. Southwood v. TAjetB. 3 Bush (Ky.), 681. 
 
 Nor is one who entertains travellers occasionally for pay, an innkeeper, if he does not 
 hold himself out as such. Lyon v. Smith, 1 Morris, 184. But see Howth v. Franklin, 20 
 Tex. 798. 
 
 (a;) "Ait Prator Nautffi, caupones, stabularii, quod cujusque salvum fore receperint nisi 
 re^ituunt in eos judicium dabo." — Dig. lib. 4, tit. 9. ** Maxima est utilitas' hujus edicti ; quia 
 necesse est plerumque eorum fidem sequi, et res custodiaj eorura committere . . . . et 
 nisi hoc esset statutum materia daretur cum fUribus adversus eos, quos reoipiunt, eoeundi."— 
 Dig. lib. 4, tit. 9, s. 1. 
 
Sec. 2.] ROBBERY IN COMMON INNS. 609 
 
 The original W7it against an hostler or innkeeper for the loss of the 
 goods of his guest declares that "secundem legem et consuetudinem 
 regni nostri Angliae hospitatores qui hospitia commania tenent ad hos- 
 pitandos homines, per partes ubi hujusmodi hospitia existunt transe- 
 untes, et in eisdem hospitantes, eorum bona et catalla infra hospitia 
 ilia existentia absque subtractione, sen amissione, custodire die et 
 nocte tenentur, ita quod pro defectu hujusmodi hospitatorum seu ser- 
 vientum suorum hospitibus hujusmodi damnum non eveniat ullo 
 modo"(j'). 
 
 From the terms of this writ, which is the foundation of the common 
 law concerning hostlers, it was resolved in Calye\ case{z) : — 
 
 " 1. That the lodging ought to be a common inn : for if a man be 
 lodged, at his request, with another who is not an innholder, if he be 
 robbed in his house by the servants of him who I6dged him, or any 
 other, he shall not answer for it, for the words are, 'hospitatores 
 qui communia hospitia tenent.' And so are the books, etc. And 
 the plaintiff ought to declare that the defendant keeps * commune 
 hospitium.' 
 
 " 2. That it appears from the words of the writ, that common inns 
 are instituted for passengers and wayfaring men, and therefore if a 
 neighbor, who is no traveller, as a friend, at the request of the inn- 
 holder, lodges there, and his goods be stolen, etc., he shall not have 
 an action, for the writ is ' ad hospitandos homines,' etc., ' transeuntes, 
 et in eisdem hospitantes,' etc. 
 
 " 3. That the words ' eorum bona et catalla infra hospitia ilia ex- 
 istentia ' show that the innholder, by law, shall answer for nothing 
 that is out of his inn, but only for those things which are ' infra hos- 
 pitium,' and the books agree that the innholder is bound to answer 
 for himself and for his family of the chambers and stables, for they 
 arg ' infra hospitium ;' and that if an innholder lodges a man and his 
 horse, and the owner requires the horse to be put to pasture, and there 
 
 (jr) Eeg. Br. F. N. B. 94, a, b. » 
 
 (a) 8 Co. 33 ; 1 Smith's I/. C, 6th ed. 105. An innkeeper Is liable for all injuries to the goods 
 of his guests happening in his inn, unless caused by the act of God, the public enemy, or the 
 fault, direct or implied, of the guest himself. Sibley v. Aldrich, 33 N. H. 653. Hulett v. Swift. 
 33N. T. 571. Packard o. Nortlicraft, 2 Met. (Ky.) 439. Shaw «. Berry, 31 Me. 478. Sasseen 
 V. Clark, 37 Ga. 242. Eamaley v. Leland, 43 N. Y. 639. Purvis v. Coleman, 21 N. Y. Ill, 112, 
 117. Wells V. Steam Navigation Co., 2 N. Y. 204, 209. Berkshire Woolen Co. v. Proctor, 7 
 Cueh. 437. Mason v. Thompson, 9 Pick. 280. Towson i). Havre de Grace Bank, 6 Harr. & 
 Johns. 47. Thiekston v. Howard, 8 Blackf. 535, 537. Kiston ji. Hildebrand, 9 B. Mou. 73. 
 Clute V. Wiggins, 14 Johns. 175. Grinnell v. Cook, 3 Hill, 488. 
 
 The innkeeper's common-law liability as an insurer extends to wearing apparel, jewelry, 
 money, and even to the horses, wheat, butter and other articles of bulk belonging ^o the guest, 
 if received into his care and within his place of entertainment. Wilkins ». Earle, 44 N. Y. 172, 
 
 Ad. Vol. I.— 39 
 
610 DUTIES Of INNKEEPEBS. [Chap. 10. 
 
 he is stolen, the innholder shall not answer for him ; but that if the 
 owner doth not require it, but the innholder, of his own head, puts 
 his guest's horse to grass, he shall answer for him if he be stolen. 
 
 " 4 That the words ' pro defectu hospitatorum seu servientum su- 
 orum ' show that the innholder shall not be charged, unless there be a 
 default in him, or his servants, in the well and safe-keeping and cus- 
 tody of their guest's goods and chattels within his common inn, for 
 the innkeeper is bound in law to keep them safe, without any stealing 
 or purloining; and it is no excuse for the innkeeper to say that he 
 delivered the guest the key of the chamber in which he is lodged, and 
 that he loft the chamber-door opeti, but he ought to keep the goods 
 and chattels of his guest there in safety. And although the guest doth 
 not deliver his goods to the innholder to keep, nor acquaints him with 
 them, yet if they' be carried away or stolen the innkeeper shall be 
 charged, although they who stole or carried away the goods be un- 
 known. But if the guest's servant, or he who comes with him, or he 
 whom he desires to be lodged with him, steals or carries away his 
 goods, the innkeeper shall not be charged, for there the fault is in the 
 guest to have such a companion or servant. But if the innkeeper 
 appoints one to lodge with him, he shall answer for him(zz). If the 
 innkeeper requires his guest that he will put his goods in such a 
 chamber under lock and key, and then he will warrant them, other- 
 wise not, and the guest lets them lie in an outer court, where they are 
 taken away, the innkeeper shall not be charged, for the fault is in the 
 guest. 
 
 " 5. That although the words ' bona et catalla ' do not of their proper 
 nature extend to charters and evidences concerning freehold, or inher- 
 itance, or obligations, or other deeds or specialties, being things in 
 action, yet in this case it is expounded by the latter words to extend 
 to them; and, therefore, if one brings a bag or chest, etc., of e>vi- 
 dences into the inn, or obligations, deeds, or other specialties, and, by 
 default of the innkeeper, they are taken away, the innkeeper shall 
 answer for them; but the words, 'bona et catalla* extend only to 
 moveables, and, therefore, if the guest be beaten in the inn, the inn- 
 keeper shall not answer for it. These words aforesaid extend to all 
 moveable goods, although of them felony cannot be committed "(a). 
 
 W^ere a guest laid a reticule containing money on her bed, and 
 afterwards went into her sitting-room, the door of which was opposite 
 
 (zz) See GUI v. Libby, 3S Barb. (N. T.) 70. 
 
 (a) Calye's case, 8 Co. 82. See WUkins v. Earle, 44 N. T. 172, 186. 
 
Sec. 2.] ROBBERY IN COMMOK INNS. 611 
 
 the bedroom, and r'^mained there a.bout five minutes, and then sent 
 her companion for the reticule, which was missing, and could not 
 afterwards be found, it was held that the innkeeper was bound to 
 make good the loss(6). 
 
 A traveller went to an inn, taking with him divers packages of silk, 
 some of which were taken up-stairs to his bedroom, and others were, 
 by his directions, carried into the commercial room, into which he 
 was shown. After remaining for some days therein, and after having 
 been several times taken out and brought back again by the traveller, 
 the goods were stolen, and an isiction having been brought against the 
 innkeeper to recover the value of the property, it was shown to be the 
 practice of the inn to take all the luggage of the guests into their 
 bedrooms, unless orders to the contrary were given ; and it was con- 
 tended that the traveller, by ordering the goods to be taken into the 
 commercial room, which was a place of common resort for all the 
 guests indiscriminately, had taken the goods under his own protec- 
 tion, and could not therefore make the innkeeper responsible for the 
 loss ; but the court held, that if the innkeeper had intended not to be 
 responsible for goods deposited by the guests in the commercial room, 
 he should have declared his intention to them at the time the goods 
 were placed there(c). But if the guest is guilty of gross negligence 
 in leaving a box containing money or bank-notes in the commercial 
 room, after having opened it and exposed the contents to the bystand- 
 ers, he cannot, if the money is stolen, charge the innkeeper with the 
 loss((Z). 
 
 A servant having been sent witli goods to market, and being unable 
 to sell them, went to an inn, and asked if he could leave the goods 
 there until next market-day. The innkeeper's wife said they were 
 very full of parcels, and declined to take charge of them. The ser- 
 vant then sat down in the inn, ordered something to drink, and put 
 the goods on the floor immediately behind him. When he got up 
 again the goods were gone, and were never afterwards seen or heard 
 of, and it was held that the innkeeper was responsible for the loss(e). 
 But " if a guest come to a common innkeeper to harbor there, and he 
 say that his house is full of guests, and do not admit him, etc., and 
 the party say he will make shift among the other guests, and be there 
 
 (6) Kent e. Shuckard, 2 B. & Ad. 803. See Wilkins ». Earle, U N. Y. 187. 
 (ci Richmond v. Smith, 8 B. & C. 9. 
 
 (d) Armistead e. WMte, 20 Law J., Q. B. 524. S. C. nom. Armistead t>. Wilde, 17 Q. B- 
 261. 
 
 (e) Bennett ». Mellor, 5 T. E. 276. See Wilkins ». Earle, 44 N. Y. 172, 187. 
 
612 DUTIES OF INNKEEPERS. [Ch'ap. 10. 
 
 robbed of his goods, the innkeeper shall not be charged "(/)• And' if 
 a guest takes upon- himself the exclusive charge of the goods which he 
 brings into the house of an innkeeper, he cannot afterwards charge the 
 innkeeper with the loss(g'). " I agree," observes Lord Ellenborough, 
 " in what is stated in Calye's case, that the mere delivery of the key of 
 a room will not dispense with the care and attention due from the land- 
 lord, and that he cannot exonerate himself by merely handing a key 
 over to his guest ; but if the guest take the key, it is a very proper 
 question for a jury, whether he takes it animo custodiendi, and for the 
 purpose of exempting the landlord from his liability, or whether he 
 takes it merely because the landlord forced it upon him, or for the sake 
 of securing greater privacy, in order to prevent persons from intruding 
 themselves into his room"(7j). And where a guest, having the key 
 delivered to him, omits to use it, and a thief comes into his room by 
 the door and steals his goods, that is, or may, be, evidence for the jury 
 of contributory negligence, which will disentitle him to recover against 
 the innkeeper. The questioij is, whether the loss would or would not 
 have happened, if the guest had used the ordinary care that a prudent 
 man might be reasonably expected to take under the circum- 
 stances(i) ; " what would be prudent in a small hotel in a small town 
 might be the extreme of imprudence in a large hotel in a large city, 
 where, probably, three hundred bedrooms are occupied, by people of all 
 sorts "(A). 
 
 Whenever the goods and chattels of the guest have been actually 
 delivered to the innkeeper or his servants the latter cannot, of course, 
 discharge himself from the strict common-law responsibility by show- 
 ing that the goods were stolen outside the inn, if he has himself placed 
 them in the spot from whence they have been taken(AA). Where the 
 
 (/) White's case, Dyer, 158 b. 
 
 {,g) Farnworth v. Packwood, 1 Stark. 249. See Packard v. Northcraft, 2 Met. (Ky.) 439 ; 
 Vance v, Throckmorton, 5 Eush (Ky.), 41. But an innkeeper -will be held liable for loss by 
 fobbery of pocket-money retained by the guest in his own possession. Weisenger v. Taylor, ' 
 1 Bush (Ky.), 275. 
 
 (ft) Burgess v. Clements, 4 M. & S. 310 ; 1 Stark. 252, n. See Classen v. Leopold, 2 Sweeny 
 (N. Y.), 705. 
 
 (i) Oppenheim v. White Lion Hotel Co., L. K., 6 C. P. 615. See Hadley*. Upshaw, 27 Tex. 
 5i7. 
 
 (7c) Per Montague Smith, J., 5. C. 
 
 (kk) The test of an innkeeper's liability for the loss of the goods of his guest, is not the place 
 where the goods were deposited, but whether they were in the custody of the innkeeper or 
 at the risk of the guest. Centlivre v. Ryder, 1 Edm. Sel. Cas. 273. Generally speaking it is 
 not necessary to fix the liability of the innkeeper that the lost goods were in his special keep- ' 
 ing ; but it will be sulficient if they were in the inn and under his implied care. Packard v. 
 Northcraft, 2 Met. (Ky.) 439. Nor does the liability of the innkeeper cease in aU cases with 
 the departure of the guest. If the servant of the innkeeper takes charge of the goods or bag- 
 gage of a guest to deliver for the latter at the cars, the liability of the innkeeper will con- 
 
Sec. 2.] LIABILITY OF INNKEEPERS. 613 
 
 plaintiff, a farmer, drove his horse and gig to an inn on a market-day, 
 and the hostler took the horse out of the gig and put him into a stable, 
 and then placed the gig outside of the inn-yard, in a part of the open 
 street where the innkeeper was in the habit of placing the carriages 
 of his guests on fair-days, and the gig was stolen therefrom by some 
 person unknown, it was held that the innkeeper was responsible for 
 the loss(Z). And the innkeeper is liable, although sick at the time, 
 and incapable of attending to his affairs, for he is bound to retain 
 trusty servants to secure the goods of his guests when incapable of 
 doing so himself()?i). This extended responsibility of the innkeeper, 
 which makes him an insurer of the goods against loss by robbery, does 
 not extend to losses occasioned by an accidental fire {ante, p. 249, et 
 seq.), nor to damage or injury to the goods which is the result of acci- 
 dent. The innkeeper is not responsible for injuries which the horses 
 of guests inflict upon each other in the stables of the inn, provided he 
 has taken all due care to prevent the introduction into the stables of 
 vicious and kicking horses(w). 
 685 Limitation by statute of the liability of innJieepers. — By 26 & 27 Vict. c. 
 41, s. 1, it is enacted, that no innkeeper shall be liable to make good 
 to any guest any loss of, or injury to, goods or property brought to his 
 • inn, not being a horse or other live animal, or any gear appertaining 
 thereto, or any carriage, to a greater amount than the sum of thirty 
 pounds; except where such goods or property shall have been stolen, 
 lost, or injured through the wilful act, default, or neglect of such inn- 
 keeper, or any servant in his employ, or where such goods or property 
 shall have been deposited expressly for safe custody with such inn- 
 keeper. 
 
 If any innkeeper refuses to receive for safe custody any goods or 
 property of his guest, or if any guest, through any default of such 
 innkeeper, is unable to deposit such goods or property as are men- 
 tioned in the Act, the innkeeper will not be entitled to the benefit of 
 the Act in respect of such goods or property (s. 2). In the case of a 
 deposit for safe custody, the innkeeper may require, as a condition of 
 his liability, that the goods or property be deposited in a box or other 
 
 tinue until such delivery. Sasseen v. Clavk, 37 Ga. 242. Giles v. ranntleroy, 13 Md. 126. 
 Dickinson v. Winchester, 4 Cush. 114. 
 
 '{D Jones v. Tyler, 1 Ad. & E. 522 ; 3 N. & M. 576. See Albin v. Presley, 8 N. H. 408 ; Piper 
 V. Manny, 21 Wend. 283. 
 
 (TO) Cross V. Andrews, Cro. Eliz. 622. Houser v. Tally, B2 Pa. 92. 
 
 (n) Ddwson v. Chamney, 5 Q. B. 105, explained and qualified by Morgan v. Eavey, 30 Law 
 J.; Exoh. 131. See Seymour v. Cook, 53 Barb. (N. Y.) 451. 
 
614 DUTIES OF INNKEEPMBS. [Chap. 10. 
 
 receptacle, fastened and sealed by the person depositing the same 
 (s. V){nn). 
 
 Every innkeeper is required to. cause at least one copy of the first 
 section of the Act, printed in plain type, to be exhibited in a con- 
 spicuous part of the hall or entrance to his inn, and he is entitled to the 
 benefit of the Act in respect of such goods or property only as shall be 
 brought to his inn while such copy shall be exhibited (s. 3). By the 
 interpretation clause (s. 4) it is declared, "that the word inn shall 
 mean any hotel, inn, tavern, public-hpuse, or other place of refresh- 
 ment, the keeper of which is now by law responsible for the goods and 
 property of his guests, and the word" 'innkeeper' shall mean the 
 keeper of any such place." 
 686 Losses occasioned hy the misconduct of the guest.-, — If a guest at an inn 
 asks for a private room for ,the purpose of exhibiting goods for sale, 
 and receives customers, and invites the admission of strangers into the 
 inn, upon whose ingress and egress the innkeeper has no check, the 
 latter is not responsible for the safety of the goods in the room so 
 used(o). And if the guest is himself guilty of negligence in leaving 
 money and valuables about in rooms of common resort, he cannot, if 
 the money and valuables are stolen, charge the innkeeper with the 
 loss(p). 
 
 (ji») In the State of New Tort it is provided by statute that " whenever the proprietor or 
 proprietors of any liotol shall provide a safe in the ofBce of such hotel or other convenient 
 place, for the safe keeping of any money, jewels or ornaments belonging to the guests of such 
 hotel, and shall notify the guests thereof by posting a notice (stating the fact that such is pro- 
 vided, in which such money, jewels or ornaments may be deposited) in the room or rooms 
 occuiaied by such g-uest in a conspicuous manner, and if such guest shall neglect to deposit 
 such money, jewels or ornaments in such safe, the proprietor or proprietors of such hotel 
 shall not be liable for any loss of such money, jewels or ornaments, sustained by such guest 
 by theft or otherwise." Laws of 1855, ch. 421. 
 
 A similar act was passed in the State of New Jersey in 1866. See Hyatt v. Taylor, 42 N. T. 
 258. 
 
 And an act containing somewhat the same general provisions was passed in Wisconsin in 
 1864. SeeL.awsofl864, ch. 818. Stewart «. Parsons, 24 Wis. 241. 
 
 The effect of the New York statute limiting the liability of the innkeeper is merely to re- 
 lieve him from losses arising from a neglect to deposit money, jewels or ornaments in the 
 safe provided for that purpose, and does not relieve him from losses happening at a time 
 when such valuables, if once dei^osited, would have been returaed to the guest to be packed 
 prior to departure. Bendetson v. French, 46 N. Y. 26B. Wilkins v. Earle, 44 N. Y. 172. 
 
 The statutory exemption of the innkeeper from the application of the common-law rule 
 making him liable as an insurer for the safe keeping of the goods of his guests, is limited to 
 the particular species of property named and being in derogation of the common law, cannot 
 be extended in its operation and effect by doubtful implication, so as to include property not 
 fairly within the terms of the statute. Ramaley v. Leland, 43 N. T. 539 
 
 Personal notice to a guest at au inn that a safe is provided for keeping money, jewels etc.' 
 and that the innkeeper will not be liable for their loss if not deposited therein, is equivalent 
 to posting up a written or printed notice. Purvis v. Coleman, 21 N. T. 111. 
 
 (0) Burgess v. Clements, 1 Stark. 251 ; 4 M. & S. 306. 
 
 f,p) Aimistead v. White, ante, p. 611. Sanders v. Spencer, Dyer, 266a ; and imU; p. 609. 
 
Sec. 2.] WffO ARE GUESTS AND TRAVELLERS. 615 
 
 The rule of law resulting from all the authorities is, that the goods 
 remain under the charge of the innkeeper and the protection of the 
 inn, so as to make the innkeeper liable for a breach of duty, unless 
 the negligence of the guest occasions the loss in such a Away as that 
 the loss would not have happened, if the gaest had used the ordinary 
 care that a prudent man may be reasonably expected to have taken 
 under the circumstances(5'). 
 687 Who are guests and travellers.— H.^ who seeks to charge another as an 
 innkeeper for the loss of goods must show that he was a traveller and 
 guest at the ma{qq). If a man who has been a guest gives up his 
 room and quits the inn for a few days, intending to return, and asks 
 for permission to leave his goods at the inn, and the innkeeper takes 
 charge of them, the latter is clothed only with the ordinary duties and 
 responsibilities of a bailee, for a man does not become a guest at an inn 
 by the mere delivery of goods to the landlord to keep(?'). It has been 
 said, however, that a man may become "a guest by leaving his horse 
 as much as if he had staid himself, because the horse must be fed, by 
 which the innkeeper has gain, otherwise than if he had left a trunk or 
 a dead thing "(s). " If an host invite one to supper, and, the night 
 being far spent, invites him to stay all night, if he is afterwards 
 robbed, yet shall not the host be charged (as an innkeeper), for this 
 guest was no traveller "(0- 
 
 The length of time that a man may remain at an inn does not affect 
 o; alter his character as a traveller, or in any way qualify or vary the 
 common-law liability of the innkeeper. Thus, " If 4 comes with 
 goods to an inn in London, and stays there' for a week, month, or 
 longer, and is there robbed of them, he shall have an action against 
 his host ; though, perhaps, being at the end of his journey, he cannot 
 then be said to be transeuns according to the writ in the register(M). 
 But if a man takes apartments in an inn for a term, by the week, 
 month, or year, for example, or if he resides in the inn under a special 
 contract for his bed and board, he is not in contemplation of law 
 sojourning at the inn as a traveller, but rather in the character of a 
 lodger at a private boarding-house. If, therefore, he is robbed in the 
 
 (g) Cashill v. Wright, 6 Ell. & Bl. 900. See ante, p. 612. 
 
 (gg) Mateer v. Brown, 1 Cal. 221. Ingallsbee v. Wood, 33 N. T. 577. 
 
 (r) Gelley v. Clerk, Cro. Jac. 188. Smith v. Dearlove, 6 C. B. Vii. Adams v. Clem, 41 Ga. en. 
 
 (s) York o. (irindstone, 1 Salk. 388. Batheru. Day, 32 Law J., Exch. 171. See McDaniels ». 
 Robinson, 26 Vt. 316. 
 
 («) Bae. Abr. INNS, C. 5. Any one away from home, receiving accommodations at an inn 
 as a traveller, is a guest though he be a townsman or neighbor. Walling v. Potter, 35 Conn. 
 183. 
 
 (u) Ibid. 
 
616 DUTIES OF INKKEEPERS [Chap. 10. 
 
 house, he cannot charge the landlord as an innkeeper(a;). Holt, C.J., 
 is reported to have held, "that if one come to an inn and make a 
 previous contract for lodging for a set time, and do not eat or drink 
 there, he is no guest, but a lodger, and as such he is not under the inn- 
 keeper's protection ; but if he eat and drink there it is otherwise, or if 
 he pay for his diet there, though he do not take it there "(2/). 
 688 Lien of innkeep&i's. — As the law imposes upon the common innkeeper 
 the burthen of receiving and taking care of the goods and chattels of 
 all travellers and guests who alight at, and take up their abode within 
 the inn, it gives him a right to retain such goods and chattels as a 
 pledge for the payment of the reckoning of the guest. If a horse or 
 carriage is put up in the stables of the inn by a guest, the innkeeper 
 has a lien on the horse for its keep, and on the carriage for its stand- 
 ing-room, whether the horse or the carriage be the property of the 
 guest or of some third person from whom it has been fraudulently taken 
 or stolen, unless the innkeeper knew at the time he received the guest 
 that he was not the true owner of the horse or the carriage(z). But if 
 the property does not accompany the person of the guest when he 
 comes to the inn, but is afterwards brought there for the use of the 
 guest, and is known by the innkeeper to be the property of another at 
 the time it is brought to the inn, the innkeeper cannot set up any lien 
 upon it for the debt due from his guest(a). He has no lien upon an 
 animal put into his stable unless it be brought by a guest(6). The 
 innkeeper has no right to take a parcel or other property out of the 
 hands of the guest, nor can he detain the property of the guest if he 
 
 [x) W."irl)nrton J. , Watbroke v. Griffith, Moore, 877. Grimston v. Innkeeper, Hetl. 49. John- 
 eon V. Eeynolds, 3 Kansas, 275. JBut see Berkshire Woolen Co. v. Proctor, 7 Cnsh. 417 ; Shoe- 
 craft V. Bailey, 25 Iowa, 553. 
 
 (2/) Parker v. Flint, 12 Mod. 255. Purchasing liquor at an inn will make the purchaser a 
 guest. McDonald v. Edgerton, 5 Barb. 560. Manning v. HoUenbeck, 27 Wis. 202. Dnnlap v. 
 Thorne, 1 Rich. 213. But see Carlisle v. Quattlebaum, 2 Bailey, 453. 
 
 The innkeeper has a lien on the baggage of an infant guest for the price of his entertain- 
 ment, if furnished in good faith, and also for money furnished the infant and expended for 
 necessaries. Watson v. Cross, 2 Duvall (Ky.), 147. 
 
 (2) York V. Grenaugh, 2 Ld. Raym. 866. Skipwith v. , 1 Bulst. 170. Johnson v. jflill, 
 
 3 Stark. 172. Turrill v. Crawley, 13 Q. B. 197 ; 18 Law J., Q. B. 165. Snead v. Watkins, 1 C. 
 B., N. S. 267 ; 2B Law J., C. P. 57. Ency. du Dr. (Ahbeege) 25. Trefall v. Berwick, L. II., 
 7 Q. B. 711. See Manning v. HoUenbeck, 27 Wis. 203. 
 
 (a) Broadwood v. Granara, lOExch. 422 ; 24 Law J., Exch. 1. 
 
 (6) Binns ». Pigot, 9 C. & P. 209. An innkeeper's lien does not exist, unless aa against the 
 goods of one actually or constructively the guest of the inn. Grindell v. Cook, 3 Hill, 485. He 
 has no lien upon goods of one boarding with him under a special contract. Hursh v. Bycrs, 
 29 Mo. 469. But this distinction is valueless in States where, by statute, the keeper of a board- 
 ing-house has a lien upon the baggage and eCfects of a hoarder, of the same character and 
 extent as that which an innkeeper has at common law. Nichols v. Holliday, 27 Wis. 406. 
 Laws of Wis. 1863, ch. 89. 
 
 If several persons travel together, and become guests at an inn, the goods of one cannot 
 be detained for the board of all. Clayton v. Butterfleld, 10 Rich. Law (S. C), 300. 
 
Sec. 2.] AND LOOGING-nOnSE KEEPERS. 617 
 
 has, previously agreed to give the latter credit for his entertainment; 
 nor can the innkeeper detain goods as a security for the payment of 
 the reckoning for beer and ale drunk by a guest, unless the require- 
 ments of the 11 & 12 Wm. 3, c. 15, as to selling beer in stamped 
 vessels, and rendering an account of the number of quarts and pints 
 drunk, have been complied with ; nor can he detain any goods not 
 received by him in his character of innkeeper, and not brought to the 
 inn by a person who is received and lodged in the inn as a guest(o). 
 
 The innkeeper holds the chattels detained by him in the nature of a 
 pledge, so that if he once permits his guest to take them away, and so 
 relinquishes his pledge, he cannot afterwards retake them. Therefore, 
 if the innkeeper allows his guest to remove his horses after a debt has 
 been incurred for keeping them, and they are afterwards brought to 
 the inn, and a new debt contracted, the innkeeper can detain them for 
 the latter portion of the debt, but not for the former(d). And it said 
 that if several horses are brought to an inn by the guest, each is a 
 pledge for his own keep, but not for the keep of the others ; so that if 
 the hostler permit him to take away all but one, he cannot retain that 
 one until the expense of the whole is paid(e). If the guest takes the 
 chattel away without the hostler's consent, the latter may take it on a 
 fresh pursuit as a distress rescued, if he follow promptly, but not other- 
 wise(/). However long horses may remain at an inn, the relative 
 duties and obligations of innkeeper and guest continue until some 
 fresh contract or arrangement is made(^). 
 
 689 Detention of the pei'son of the guest. — It was thought at one time that 
 the law accorded to the common innkeeper the right or privilege of 
 detaining the person of a guest who had eaten food in the inn, until 
 he had received payment of his reckoning(A) ; but this is said to have 
 been a vulgar error, founded on the dictum of a single judge, and has 
 been overruled, as it would arm the innkeeper with the power of 
 detaining a man perhaps for life, without any legal process or adjudi- 
 cation in the matter(i). 
 
 690 Liability of lodging-house keepers. — We have seen, by the first resolu- 
 tion in Calye's case {ante, p. 609), it was held, " that if a man be lodged 
 with another who is not an innholder, if he be robbed in his house by 
 
 (c) SunT)olf'». Alford, 3 M. & W. 248. Smith v. Deariove, 6 C. B. 132 ; 17 Law J., C. P. 219. 
 
 ((?) Jones V. Thurloe, 8 Mod. 173. Jones v. Peaiie, 1 Str. 55S, 557. 
 
 (c) Moss V. Townsond, 1 Bulstr. 207. See Clayton v. Butterfleld, 10 Eich. Law (S. C), 300. 
 
 (/) Kosse V. Bramsteed, 2 KoU. 438. 
 
 (g) Allen v. Smith, 12 C. B., N. S. 638 ; 81 Law J., C. P. 306. 
 
 (ft) Bao. Ahr. Inns, D. 
 
 (i) Sunbolf V. Alford, 3 M. & W. 254. 
 
618 hegligbnce ar common carbiers. [Chap. 10. 
 
 the servants of him who lodged him or any other, he shall not answer 
 for it." But it is the duty of every lodging-house keeper to take such 
 care of his house as every prudent householder might be expected to 
 take, and to be careful in the choice of his servants. If articles 
 belonging to the lodger are actually placed in his hands, he will be 
 responsible, like any other bailee {ante, p. 522), for the loss of them ; 
 but he is not a bailee of them merely by reason of their having accom- 
 panied the person of the lodger and been placed in his house by the 
 latter. The law is, that the lodger must take care' of his own goods in 
 his lodgiugs(A). 
 
 SECTION III. 
 
 REMEDIES AGAINST CCyMMON CARRIEES AND COMMON INNKEEPERS FOR 
 NEOLIOENCE AND BREACH OF DUTY. 
 
 69 L Summary proceedings against railway and canal companies. — Persons 
 complaining against railway or canal companies for not affording 
 reasonable facilities for receiving, forwarding and delivering traffic 
 upon and from the several railways and canals belonging to and worked 
 by such companies, or of anything done, or omitted to be done, in 
 contravention of the Railway and Canal Traffic Act {ante, p. 586, et 
 seq.), may obtain relief by summary application to the Court of Com- 
 mon Pleas, or to any judge of such court, by motion or summons(Z). 
 
 692 Pa/rties to be made plaintiffs in actions against carriers. — The action 
 against a carrier for the loss of goods intrusted to him for conveyance 
 should, in the absence of an express contract for the carriage of them, 
 be brought by the owner of the goods, as the party damnified. 
 
 Where goods have been delivered to a carrier to be carried to a 
 person designated by the consignor, the consignee is primd facie the 
 owner of the goods, and the person to whom the carrier is responsible 
 for their safe conveyance(ZZ). This is generally the case when goods 
 are delivered to a carrier to be conveyed to a purchaser in fulfilment 
 
 (fc) Holder v. Soulby, S C. B., N. S. 354 ; 29 Law J., C. P. 246. Dansey v. Riohardaon, 3 EU. 
 & Bl. 114 ; 23 Law J., Q. B. 223. 
 
 {D 17 & 18 Vict. c. 31, 88. 3-«. 
 
 (tt) Ki'Ulder v. Ellison, 47 N. Y. 36. Sweet V. Barney, 23 N. J. 23S. Price r. Powell, 3 N. Y. 
 822. Everett v. Saltus, 15 Wend. 474. Ang. on Carriers, s. 497. Southern Express Co. c. 
 Caperton, 44 Ala. 101. Thompson v. Fargo, 49 N. T. 188. Green v. Clarke, 12 N. T. 348. 
 
Sec, 3,]: ACTIONS — PARTIES. 619 
 
 of a contract of sale, for as soon as the goods are delivered to the car- 
 rier they become the property of the purchaser ; so that if they are 
 lost, the purchaser, and not the vendor, must sue for the loss of them(TO). 
 But if they are not delivered to the carrier in execution of a contract 
 of sale, but by the consignor and owner to be conveyed to his servant 
 in the country, then the consignor, and not the consignee, would be 
 the proper person to sue for the loss of them. So, if from fraud or 
 non-compliance with the Statute of Frauds, no actual sale has taken 
 place, and no interest in the goods has vested in the consignee by 
 reason of the delivery to the carrier, then the consignor is the proper 
 person to sue for the loss of the goods(w). 
 
 Where the consignor had delivered goods to a carrier, in obedience 
 to a fictitious order, which professed to come from a well-known trades- 
 man of respectability, but had in reality been sent by a swindler, it 
 was held that as no bona fide sale had taken place, the consignor had 
 not been divested of his property in the goods, and that he was, there- 
 fore, the proper person to sue the carrier for neglect of duty in deliver- 
 ing them to the swindler, who applied for them at the carrier's office, 
 instead of delivering them at the residence of the tradesman to whom 
 they were addressed(o). But when the carrier, in consideration of a 
 sum of money paid, or agreed to be paid, by the consignor, as the 
 price of the carriage of goods, agrees with him to convey them to the 
 consignee, it is no answer to an action brought by the consignor 
 against the carrier, upon such special contract, to say that he is not 
 
 (m) Dawes v. Peck, 8 T. K. 332. Coombs v. Bristol and Exeter Kail. Co., 27 Law J., Excli. 
 269, 40^ ; 3 H. & N. 510. To sustain an action against a common carrier for failing to deliver 
 goods, the plaintiff must be the owner, or have some special interest in them. Thompson v. 
 rargo, 49 N. Y, 188. Green v. Clarke, 12 N. Y. 34,3. Krulder v. Ellison, 47 N. Y. 3G. 
 
 Where goods are delivered to a carrier pui-suant to a written order from a purchaser, in 
 ■which the mode of conveyance is stated, the title to the goods passes to the purchaser, sub- 
 ject only to the right of stoppage in transitu, and the consignee only can maintain an action 
 for their loss. Krulder v. Ellison, 47 N. Y. 36. 
 
 But where goods are delivered to a carrier pursuant to an order fi-om the purchaser, in 
 which the mode of conveyance is not stated, but only the place where they are to be sent, 
 the consignor may maintain an action for their loss, as the title to the goods would not pass 
 by mere delivery to the can'ier. Thompson v. Fargo, 49 N. Y. 188. But see Magruder and 
 Brother v. Gage, 33 Md. 344. 
 
 One who has a beneficial interest in the perfoi*raance by a carrier of the conti'act for the 
 safe carriage of goods, or who has a special property or interest in the subject-matter of th* 
 agreement, may maintain an action against the carrier for the loss of the goods. Southern 
 Express Co. v. Caperton, 44 Ala. 101. 
 
 -And a shipper named in a bill of lading may maintain an action against a can-ier for an in- 
 jury to the goods carried, although he has no property general or special tiferein ; the ship- 
 per's right of action in such case, arises by force of the original contract for safe carriage, 
 made by the carrier with him. Blanchard ». Page, 8 Gray, 281 ; Hooper v. Chicago & North- 
 western E. K. Co., 27 Wis. 81. 
 
 (B) Coats V. Chaplin, 3 Q. B. 489. Addison on Contracts, 6th ed., p. 488, et seq. 
 
 (o) Dun V. Budd, 6 Moore, 409. Stephenson v. Hart, 1 H. & P. 857 i 4 Bing. 176. 
 
620 DUTIES OF COMMON CARRIERS, ETC. [Chap. 10^ 
 
 the owner of the goods. In such a case the action may be brought 
 either by the consignor or by the consignee(p). Thus, where a 
 laundress, residing at Hammersmith, was in the habit of employing 
 a carrier to convey the linen she washed from Hammersmith to the 
 owner in London, and the carrier was paid by the laundress, it was 
 held that the latter was entitled to maintain an action against the 
 carrier for the loss of the goods by the way, athough they belonged to 
 the consignee(g'). In these cases, the bailee of the goods, who has a 
 special property in them, may enfoijpe the express contract entered 
 into with tjie carrier, unless his principal interferes to prevent him. 
 " The rule is, that either the bailor or the bailee may sue, and which- 
 ever first obtains damages it is a full satisfaction "(r). 
 
 Every person who has been injured by the negligent performance 
 of the work of carrying may maintain an action for damages against 
 the carrier, although the work was done under a special contract to 
 which he is no party. A servant, for example, may maintain an 
 action against a railway company, or other carrier, for injuries sus- 
 tained by him from the negligent management of a train by which 
 he was a passenger, or from the negligent execution of the work of 
 carrying, although the contract for his conveyance was made, and the 
 hire or fare paid, by his master, the duty of carrying carefully being 
 a duty which arises independently of the contract(s). So, where a 
 railway company was bound by statute to carry the mails, and the 
 officers of the post-office who accompanied them, it was held that the 
 company must exercise a reasonable care in performing the duty cast 
 upon them by the statute, and were bound to carry safely ; so that if 
 any officer of the post-office was injured by the negligent management 
 of their trains, he was entitled to maintain an action against them for 
 damages, although the contract for his conveyance had been entered 
 into between the company and the Postmaster-General(<). 
 693 Parties to be made defendants. — When goods have been delivered to, 
 the driver of a stage-coach to be carried, and have been lost by the 
 way, an action ex contractu for negligence should be brought against 
 the coach-proprietor, and not the mere servant or agent(M). But as all 
 who participate in a wrongful act are responsible ex delicto for the inju- 
 
 (p) Davis ». James, 5 Bun'. 2680. Bell v. Chaplain, Hard. 321. Moore v. Wilson, 1 T. E. 
 659. Dunlop V. Lambert, 6 CI. & Fin. COO. 
 (J) Freeman v. Birch, 1 N. & M. 420. 
 (r) NicoUs V. Bastard, 2 C. M. & E. 660. , 
 
 (.9) Marshall v. York, Newcastle, and Berwick Rail. Co., 11 C. B. 655. 
 («) Collett V. Lond. & North -Westera Bail. Co., 16 Q. B. 989. 
 («) Williams «. Cranston, 2 Stark. 82. 
 
Sec. 3.] ACTIONS-^PABTIES — PLEADINGS., ; 621 
 
 rious consequences of it, the servant may be sued for the breach of 
 duty as well as the master or the employer. The 8th section of the 
 Carriers Act {ante, pp. 582-3) provides that the Act shall not protect 
 the coachman, guard, book-keeper, or other servants of the common 
 carrier from liability for losses or injuries occasioned by their own 
 personal neglept or misconduct. 
 
 Every railway company is responsible for the detention or conver- 
 sion, by its officers and servants, of the property which has come into 
 the hands of such servants and agents in the course of their employ- 
 ment in the business of the company. There must be some one 
 authorized on the part of the company at every station to receive and 
 deliver out goods, and to do things promptly that require immediate 
 attention, and whoever is permitted by the company to have dominion 
 over their stations, and to exercise authority over their property, and 
 over their porters and servants, will be presumed to be clothed with 
 the necessary authority, and his acts, done within the scope of his 
 ordinary employment, will be binding on the company. Thus, where 
 some young quicks were forwarded by railway to the plaintiff, and 
 the general superintendent of the company, at the request of the 
 plaintiff, in order to keep the quicks alive, permitted them to be put 
 into the company's ground at the railway station, where they remained 
 iunder the control and charge of the superintendent, and the latter 
 subsequently refused to deliver them up to the plaintiff, it was held 
 that the railway company was responsible for the unlawful detention 
 of the property by their servant(a;). 
 
 The common carrier cannot qualify or limit his liability in respect 
 of the negligence, want of skill, or carelessness of his servants and 
 agents, in and about the carrying of the goods, by any private 
 arrangement as to remuneration out of the profits of the business or 
 otherwise, between himself and such servants or agents. " If a com- 
 mon carrier should allow his driver of the carriages some small things 
 as perquisites, the master wx)uld, without all doubt, be still liable; 
 and that is only a private agreement between master and servant, 
 and only a different way of paying his servant's wages "{y). 
 
 When goods have been delivered to a railway company, to be car- 
 ried to a particular destination beyond the limits of their own line of 
 railway, and the goods are lost by the negligence of the servants em- 
 ployed upon an intermediate line, the railway company to whom the 
 
 (X) Taff Vale Rail. Co. v. Giles. 23 Law J., Q. B. 43. 
 
 (y) Page, J., Cas. temp. HarU. 90. And see Hyde V. Trent & Mersey Nay. Co., 5 T. E. 397. 
 
. 622 NEGLIGENCE OF COMMON CAHRIERS. [Chap. 10. 
 
 goods were first delivered, and with whom the contract for their con- 
 veyance was made, is the proper party to be sued for the loss, and 
 not the company on whose line the loss actually took place(z). But 
 every , railway company which allows its railway to remain open for 
 public traiSc, and takes toll f6r the use of it by other lines, is responsi- 
 ble to persons who sustain injury from the line being unsafe and dan- 
 gerous, although such persons are conveyed along it in the carriages 
 of some other company(a). 8ee ante, p. 219. 
 
 694 Declarations against a common canier for. refusing to carry should 
 show that the defendant is a common carrier of goods plying for hire 
 between the place where the goods were tendered to him for convey- 
 ance and the place to which they were addressed ; that the plaintiff 
 tendered to the defendant certain goods to be carried from the one place 
 to the other ; that the defendant had room and means of receiving 
 and carrying them, and the plaintiffs were ready and willing to pay 
 
 'him his customary hire, yet the defendant would not receive and 
 carry the goods, whereby the plaintiffs were put to great loss and 
 inconvenience, setting forth any special damage that may have been 
 sustained, and concluding with a claim for damages(6). 
 
 695 Declarations against an innkeeper for the loss of chattels deposited within 
 the precincts of the inn need not set out the general custom of the realm 
 making the innkeeper responsible for the safety of the goods of his 
 guests, as the general custom is part of the common law(c), and need 
 not be proved at the trial ; but the declaration should allege that the 
 defendant kept a common inn for the reception, lodging and enter- 
 tainment of travellers, that the plaintiff being a traveller came to the 
 said common inn of the defendant, and was received and lodged 
 therein, and that the plaintiff brought into the said common inn certain 
 articles (describing them), and that the defendant, whilst the plain- 
 tiff abided in the said common inn as a guest, and the said articles 
 remained within the inn, did not keep the said articles, etc., safely, 
 but so negligently conducted himself in the matter, that they were 
 through the pegligence of the defendant taken and carried away, 
 and have become wholly lost to the plaintiff; concluding with a claim 
 of damages((^). 
 
 696 Plea of not guilty. — The plea of not guilty in actions for negligence 
 
 («) Mytton V. Mid. Kail. Co., 4 H. & N. 621 ; 28 Law J., Exch. 385. See arUe, pp. 595-6. 
 (a) Bivliett v. Wliitehaven, etc., Eail. Co., 4 H. & JT. 738. 
 (6) riclcford v. Grand Junction Bail. Co., 8 M. & W. 372. 
 
 (c) Dale V. Hall, 1 Wils. 281. 
 
 (d) Jones v. Tyler, 1 Ad. & E. 522. 
 
Seo. 3.] ACTIONS— PLEAVINOS — EVIDENCE. 623 
 
 operates as we have seen, as a denial only of the wrongful act alleged 
 to have been committed by the defendant, and no defence other than 
 such denial is admissible under that plea. Thus, in actions against 
 a carrier for loss of, or damage to, goods, the plea of not guilty will 
 operate as a denial of the loss or damage, but not of the receipt 
 of the goods by the defendant as a carrier for hire, or of the purpose 
 for which they were received, or of the plaintiflf's property in the 
 goods(e). 
 
 697 Special pleas. — If, therefore, the defendant denies the receipt of the 
 goods to be conveyed by him as a common carrier, or denies his 
 receipt of them altogether, he must, by special plea or traverse, allege , 
 that he did not receive the goods to be carried as in the declaration 
 mentioned. If the plaintiff has declared against him upon his 
 liability as a common carrier, insuring the safe conveyance of the 
 things he carries, and it appears that the things were delivered to 
 him under a special contract, the cause of action will be disproved 
 under this plea or traverse(/). If he denies the plaintiff's title or 
 right to the possession of the property, he must plead a plea alleging 
 that the property was not, at the time he received it to be carried, 
 the property of the plaintiff(p') ; or, admitting that the plaintiff was 
 the owner of the property at the time it was delivered to him, he 
 may show that the plaintiff's right to the possession of it ceased, or 
 had been determined, and that some third party had, since the 
 bailment, become entitled to the property, and had demanded it of 
 the defendant(^). 
 
 If the defendant relies upon the Common Carriers Act, he must by 
 his plea show that the articles delivered to him for conveyance were 
 of the description mentioned in the statute, and that at the time of 
 the delivery of them to him to be carried, the value and nature of the 
 goods were not declared by the plaintiff(i). 
 
 698 Evidence at the trial — Proof of the bailment. — ^To charge the common 
 carrier for the loss of goods, however occasioned, it must of course be 
 shown that the goods were either actually or constructively bailed to 
 him or his servants to be carried. They must either have been deliv- 
 ered into his hands or into the hands of his servant or agent, or some 
 
 (e) Reg. Gen. Hil. Term, 16 Vict ; 1 Ell. & BI. App. Ixxxi., Ixxxii. 
 
 (/) White o. Gt. Western Eail. Co., 2 C. B., N. S.'7. 
 
 {g) Ante, pp. 460-1. Cheesman v. Exall, 6 Exch. 311. 
 
 (ft) Sheridan v. JTew Quay Co., 4 C. B., N. S., 618. Europ. and Austral. E. M. Co. v. E. M. 
 St. P. Co., 30 Law J., C. P. 247. 
 
 (i) Pianciani v. London and South- Western Eail. Co., 18 C. B. 229. Hart V. Baxendale, 
 6 Exch. 789 ; 21 L. J.. Exch. 123. 
 
624 NEGLIGENCE OF COMMON CARRIERS. [Chap. 1;0. 
 
 person authorized by him to receive theni(w). If they were merely 
 deposited in the yard of an inn, or upon a wharf to which the carrier 
 resorts, or were placed in his cart, vessel, or carriage, without his 
 knowledge and acceptance, or that of his servants or agents, there has 
 of course been no bailment or delivery of the goods to him(A), and he 
 
 , cannot consequently be made responsible for the loss of them. If the 
 common carrier's servant has been induced by the consignor to depart 
 from the usual course of dealing, and to receive goods which he was 
 
 , not bound to receive and carry, undicr circumstances of hazard known 
 to the consignor, but not disclosed to the carrier's servant, or on terms 
 
 , different from those on which alone he was authorized to receive them, 
 the carrier will either not be responsible for the loss of the goods, as 
 never having been delivered to him, or, at all events, not on his com- 
 
 , mon-law liability of an insurer(Z). If the consignor has made a pri- 
 vate bargain with the driver of the cart or coach of the common car- 
 rier for the conveyance of a parcel for a gratuity which, was not 
 intended by the parties to find its way into the pocket of the carrier, 
 there has been then no bailment to the latter, and he is not conse- 
 quently liable in case the parcel is lost. The bailment in such a case 
 is a bailment to the driver alone, and he alone is responsible for the 
 loss(m). 
 
 If the plaiiltiff ha« merely hired the cart or carriage of the common 
 carrier, and has sent his own servants with the goods to take charge of 
 them, and there has been no actual delivery or bailment of the goods 
 to the carrier, the latter is not responsible for their safety(M). If a 
 passenger travelling on the outside of a stage-coach has kept a parcel 
 or package in his own hands, and under his own care, or taken it with 
 him into the interior of the. vehicle, without the knowledge of the car- 
 rier or his servants, and the thing is lost, the carrier is not responsible 
 for the loss, as the article was never delivered to him or to his serv- 
 ants, or in any way intrusted to his or their keeping(mw). But if the 
 thing has been tendered to the carrier for conveyance, and the latter 
 
 (it) Michigan Southern, etc., E. E. Co. «. McDonongh, 21 Mich. 165. Grosvenor v. Ne'Y 
 York Central K. E. Co., 39 N. Y. 34. Trowbridge v. Chapin, 23 Conn. 595. Wells v. Wilminjr- 
 ton, etc., E^ E. Co., 6 Jones' Law (N. C), 47. Blanchard v. Isaacs, 3 Barb. (N. Y.) 388. Cronk- 
 ite ». Wells, 32 N. Y. 247. 
 
 (ft) See Packard v. Getman, 6 Cow. 757 ; Selway v. Hollo way, 1 Ld. Eaym. 46 ; Buokman ? 
 Levi, 3 Campb. 414. Lovett v. Hobbs, 2 Show. 128. 
 
 (i) Edwards v. Sherratt, 1 East, 604. Slim v. Gt. Northern Bail. Co., 23 Law J., C. P. 1(.6 
 
 (m) Butler v. Basing, 2 C. & P. 613. Bignold v. Waterhouse, 1 M. & S. 259. Middleton v 
 Fowler, 1 Salk. 282. See Blanchard v. Isaacs, 3 Barb. (N. Y.) 388. 
 
 («) East India Co. v. Pullen, 2 Str. 690. 
 
 (tin) First National Bank of Greenfield v. Marietta & Cincinnati E. B. Co., 20 Ohio St. 259. 
 
Sec. 3.] ACTIONS — CONTRACTS, ETC. 625 
 
 has directed the passenger to place it in or upon any portion of the 
 vehicle, there has been a constructive bailment or delivery and accept- 
 ance of the goods, so as to charge the carrier for the loss of them. If 
 luggage is placed, with the knowledge of the carrier or his servants, 
 under the seat on which the passenger sits, the carrier will be responsible 
 for its safe conveyance and delivery to the passenger at the place of 
 destination(o). A delivery of goods to a person sent or appointed by 
 the carrier to receive them, is, of course, a delivery to the carrier him- 
 self(p). 
 
 699 Proof of a special contract. — We have seen that every special contract, 
 notice, ' or condition, respecting the acceptance and carriage of goods 
 by railway and canal companies, must be signed by the party sought 
 to be affected thereby {ante, p. 589) ; and the signature must be fairly 
 obtained, for where a person who was unable to read was told by a 
 clerk of the company that the paper was a mere matter of form and of 
 no consequence, and he signed the paper relying upon this assurance, 
 it was held that the paper so foisted upon him was not binding(5). 
 
 If the plaintiff has declared against the defendants as common car- 
 riers, alleging that they received the goods to be carried by them as 
 common carriers, and it turns out that they were received under a 
 special contract {ante, p. 589), the evidence will fail to support the 
 declaration, unless it be shown that the special contract was unreason- 
 able and void(r). 
 
 700 Proof of felony iy a carrier's servants. — ^When, in consequence of the 
 plaintiff's not having paid the extra price for lost articles of value, he 
 is not entitled to recover, unless he shows that the things have been 
 stolen by the carrier's servants, it is not enough for him to make out 
 a probable case against one or more of the carrier's servants. He must 
 show that the things were lost under circumstances wholly inconsist- 
 ent with their having been stolen by a stranger(s). 
 
 701 Proof of jus tertii by a common carrier. — ^A carrier who has received 
 goods from a consignor is not estopped from denying the title of the 
 
 <o) Eichards v. London, Brighton, etc., Kail. Co., 7 C. B. 848 ; 18 Law J., C. P. 251 ; ante, p. 
 599. 
 
 (p) Syms V. Chaplin, 5 Ad. & E. 634 ; 1 N". & P. 129. 
 
 (8) Simons v. Gt. Western Rail. Co., 2 C. B., N. S. 620. As to what will not be deemed suffi- 
 cient proof of a special contract to limit the carrier's liability, see Baltimore, etc., R. R. Co., 
 V. Brady, 32 Md. 333 ; Blossom v. Dodd, 43 N. Y. 264 ; The Pacific, Deady, 17 ; Railroad Co. i). 
 Manufacturing Co., 16 Wall. 319. 
 
 No presumptions will be Indulged in in favor of exemptions from common-law liability. 
 Edsall V. Camden & Amboy R. R. & Transportation Co., 50 N". Y. 6G1. 
 
 (r) White v. Gt. Western Rail. Co., 2 C. B., N. S. 17. Latham v. Eutley, 2B. & 0. 20. 
 
 («) Metcalfe v. London & Brighton, etc.. Rail. Co., 27 Law J., C. P. 333. Bliven & Mead v. 
 Hudson River R. R. Co., 36 N. Y. 403. See Great Western R. E. Co. v. McComas, 33 lU. 165. 
 
 Ad. Vol. I.— 40 
 
626 NEGLIGENCE OF COMMON CARRIERS, ETC. [Chap. 10. 
 
 latter to the goods. Common carriers are bound to receive goods 
 properly tendered to them for carriage, and can make no inquiries 
 into the ownership of them. " The law protects them against the real 
 owner if they have delivered the goods in pursuance of their employ- 
 ment without notice of his claim. It ought equally to protect them 
 against the pseudo owner, from whom they could not refuse to receive 
 the goods in the event of the real owner claiming the goods, and their 
 being given up to him. The compulsory character of the employment 
 of a common carrier furnishes ample ground for so holding"(i). 
 
 702 Damages recoverable. — In all actions against common carriers for 
 unlawfully refusing to receive and carry a passenger or goods, sub- 
 stantial damages are recoverable, as there is an injury to a right ; and 
 if the plaintiff, in consequence of the wrongful refusal(M) of the com- 
 mon carrier to carry him, has been obliged to take a special convey- 
 ance, and incur extraordinary expenses to reach the place to which he 
 ought to have been carried, all such expenses are recoverable, if 
 claimed by the plaintiff, and specified in his declaration as part of the 
 damage he has sustained. So if a common innkeeper unlawfully 
 refuses to receive and provide accommodation for a traveller, substan- 
 tial damages are recoverable for the injury done to the plaintiff's right 
 as a traveller and wayfarer to have shelter and accommodation in the 
 common inn"; and if he has been put to expense in seeking shelter and 
 accommodation elsewhere, and has been obliged to hire conveyances 
 to reach it, he is entitled to recover such special damage, if claimed. 
 
 703 All persons are responsible for all the natural and legal conse- 
 quences resulting from acts done by them in violation of the rights of 
 others. The jury are entitled to look at all the surrounding circum- 
 stances, and at the conduct of the parties, to see where the blame is, 
 and to assess the damages according to the way in which the parties 
 have conducted themselves(a;). 
 
 Loss of, or injury to, chattels from negligence. — The amount of damages 
 recoverable from common carriers for loss of, or injury to, goods, is 
 regulated and controlled by the several Acts of Parliament, requiring 
 consignors in certain cases to declare the value of the article at fhe 
 time it is delivered to the common carrier to be carried J{ante, p. 580). 
 No greater damages than 50Z. are to be recovered for loss of, or injury 
 to, a horse through the neglect or default of a railway company or its 
 
 («) Sheriflan o. New Quay Co., 4 C. B., N. S. 618 ; 28 Law J., C. P. 53. Cheesmau v. Exall, 
 6 Exch. 3il, overruling Laclouch v. Towle, 3 Esp. 114. 
 («) Ante, pp. 17, 18 ; post, ch. 22. 
 (X) Davis V. North- Western Kail. Co., 4 Jur. N. S. 1303 ; post, ch. 22. 
 
Sec. 3.] ACTIONS — DAMAGES RECOVERABLE. 627' 
 
 officers ; 15L per head for neat cattle ; and 21. per head for sheep and 
 pigs ; unless the person sending pr delivering the animals to the com- 
 pany shall, at the time of delivery, have declared them to be of higher 
 value (y). 
 
 Proof of the value and of the amount of injury lies in all cases upon 
 the person claiming compensation. If the value of horses has been 
 declared at the time of the delivery of the animals to a railway com- 
 pany to be carried, and the contract between the parties has been 
 made upon that basis, the plaintiff is bound by his declaration of 
 value, and cannot recover beyond the declared value(0). 
 
 If special circumstances exist which would render the loss of the 
 goods, or delay in the delivery of them, productive of more than 
 ordinary injury and damage to the owner, those special circumstances 
 ought to be communicated to the carrier at the time the goods are 
 delivered to him, in order to make him responsible for special and 
 extraordinary damages in cases of non-delivery(a). Thus, where the 
 plaintiff delivered to the defendant certain machinery, contained in 
 several cases, which was intended for the erection of a saw-mill abroad, 
 and on the arrival of the vessel at its destination, one of the cases 
 containing a part of the machinery, without which the rest could not 
 be erected, was missing, and the defendant, although he knew gener- 
 ally of what the shipment consisted, did not know that the missing 
 box contained a material part of the machinery without which the 
 mill could not be put together, it was held that the measure of 
 damages was the cost of replacing the lost articles abroad, with interest 
 
 [y) 17 & IS Vict. c. 31, o. 7. 
 
 (s) M'Cauee v. London and North-Westem Eail. Co., 7 H. & N. 477 ; 31 Law J., Exoh. 65 ; 
 34 ib. 39. 
 
 (a) Hiidley v. Baxendale, 9 Exch. 354 ; 23 Law J., Exch. 179. Black v. Baxendale, 1 Exch. 
 410. Gee v. Lane, and York. Rail. Co., 6 H. & N. 217. Where a publishing company were 
 about to start a newspaper and were awaiting the arrival of machinery purchased for that 
 jiurpose, and a carrier, with full knowledge of the facts, contracted to transport the ma- 
 chinery in a specified time, but lost on the M'ay a portion of the machinery, which could 
 only be replaced by ordering it at the manufactory, the carrier was held liable for the direct 
 and necessary consequences of his negligence, including the wages of men who were idle for 
 want of the machinery from the time when it should have been delivered, the cost of efforts 
 made to recover the machinery and the cost of replacing that which was lost. Cincinnati 
 Chronicle Co. v. White Line Transit Co., 1 Cine. (Ohio) 300. 
 
 Anticipated or speculative profits are not allowed in a claim of damages for the loss ol 
 goods by a common carrier. Vioksburg, etc., E. K. Co. v. Eagsdale, 46 Miss. 458. Bazine v. 
 Steamship Co., 3 Wall. jr. 329. 
 
 The measure of damages in an action against a common canier for a failure to transport 
 and deliver goods in accordance with his contract is the value of the goods at the place of 
 destination at the time they should have been delivered under the contract and in the condi- 
 tion he undertook to deliver them less his freight. Sturgess i). Bissell, 48 N. T. 462. The 
 Boston, 1 Low. 464. 
 
628 DUTIES OF COMMON CABRIEB8. [Chap. 10. 
 
 at 5Z. per cent, for the delay, but not the profits which the plaintiff 
 might have made by the working of the mill(6). 
 
 When the consignor has been guilty of no intentional deception to 
 conceal the risk {ante, p. 24), and his own conduct or omission to declare 
 the nature and value of the article has not in any way conduced 
 to the loss, but the loss has been caused solely by the negligence 
 and want of care of the common carrier, the latter is bound by the 
 common law to make compensation for the loss so occasioned, to the 
 extent, at all events, of the a^arent and presumable value of the 
 article' at the time it was bailed to him to be carried. But he is not, 
 it seems, responsible for any extraordinary or unusual value which 
 may have accidentally been imparted to it, and which could not, from 
 the apparent nature and general character and appearance of the 
 thing, be fairly presumed to exist. Thus, where the plaintiff had 
 put a 50Z. bank-note into his carpet-bag amongst his linen and wear- 
 ing apparel, and got on a coach and delivered the carpet-bag to the 
 coachman, and on the arrival of the coach at its place of destination 
 the bag was missed and never afterwards seen, the jury gave a verdict 
 for the value of the linen and wearing apparel, but not for the value 
 of the note, and the court afterwards refused to increase the verdict 
 by the amount of the note(c). In other cases, however, the plaintiff 
 has recovered the full value of the article lost(d). 
 704 Damages in respect of delay in delivery. — If by reason of goods not 
 having been delivered in due time, the season for finding customers 
 for them has passed away, and they are consequently of less value 
 to the plaintiff, the deterioration in value may be considered in esti- 
 mating the amount of damage, but not the profit which would have 
 been made upon the sale of them if they had been delivered at the 
 proper time(e) ; or, where the goods consist of machinery, the pre- 
 sumed profit which would have been made by the use of them, during 
 
 (6) British Columbia Saw Mill Co. v. Nettleship, L. E., 3 C. P. 499 ; 37 Law J., C. P. 235. 
 (e) iVEiles v. Cattle, 4 M. & P. 630 ; 6 Bing. 743. 
 
 [d) Sleat «. Fagg, 5 B. & Aid. 342. Walker «. Jacksou, 10 M. & W. 161 ; 2 M. & P. 342. See 
 Angell on Carriers, s. 262. 
 
 (e) Wilson n. Lane, and York. Rail. Co., 9 C. B.,N. S. 642. Simmons ». Sonth -Eastern Kail. 
 Co., 7 Jar. N. S. 849. Gt. Western Rail. Co. v. Redmayne, L. R., 1 C. P. 329. And see farther, 
 as to damages in actions against carriers, Addison on Contracts, Gth ed. 1083. When a com- 
 mon carrier from negligence fails to transport merchandise within a reasonable time and in 
 the meantime its market value falls, the measure of damages is the difference in its value at 
 the place of delivery at the time it ought to have been delivered and at the time of its actual 
 delivery. Ward v. New York Central R. R. Co., 47 N. Y. 29. Doming v. Grand Trunk R. R. 
 Co., 48 N. H. 455. Scott V. Boston, etc.. Steamship Co., 106 Mass. 468. Cutting v. Grand 
 Trunk R. R. Co., 13 Allen (Mass.), 631. But if the merchandise was to be delivered under a 
 special contract of sale by the shipper the damages should be estimated with reference to the 
 contract price. Illinois Central R. R. Co. v. MoCleUan, 54 111. 59. 
 
Sec. 3.] _ ACTIONS — injunction: 629 
 
 the time it took to replace thein(/). The right measure is the market 
 value of the goods at the place and time at which they ought to have 
 been delivered, or, if there is no market,- then the price at the place 
 of manufacture, with the cost of carriage, and a reasonable sum for 
 importer's profit(g'). Thus, where the plaintiff bought caustic soda 
 of the defendant, to be shipped at a certain time, which the defend- 
 ant neglected to do, and there was no market for caustic soda, it was 
 held that the plaintiff was entitled to recover the increased freight and 
 insurance which had become necessary by reason of the defendant's 
 delay, and also the loss of his profit upon a re-sale of the soda to A, 
 but not the amount of damages which he (the plaintiff) had paid A on 
 a sub- sale made by him to a consumer of the article(A). Hotel 
 expenses incurred by the consignee while waiting for the delivery of 
 the goods by the carrier are not recoverable(i). 
 705 Injunction against railway companies to enforce compliance with the 
 Railway and Canal Traffic Act.-^'Bj 17 & 18 Vict. c. 31, s. 3, it is 
 enacted, that it shall be lawful for any company or person complain- 
 ing against any railway company or canal company of anything done, 
 or any omission made in contravention of the Railway and Canal 
 TrafB.c Act (ante, pp. 572, 586), to apply in a summary way to the 
 Court of Common Pleas, or any judge thereof, and that it shall be 
 lawful for the court or judge to hear and determine the matter of the 
 complaint, and to make inquiry, in the mode therein directed, and to 
 issue a writ of injunction or interdict, restraining such company or 
 companies from further continuing such violation or contravention of 
 the Act, and enjoining obedience to the same(A) ; and in case of diso- 
 bedience of any such writ of injunction or interdict, to order that a 
 writ of attachment, or any other process of such court incident or 
 applicable to writs of injunction or interdict, shall issue against any 
 one or more of the directors of any company, or against any owner, 
 lessee, contractor, or other person failing to obey such writ of injunc- 
 tion or interdict ; and to make an .order directing the payment by any 
 one or more of such companies of a sum of money not exceeding for 
 each company the sum of £200 for every day, after a day to be named 
 in the order, that such company or companies shall fail to obey such 
 injunction or interdict, such moneys to be payable as the court or judge 
 
 (/) British Columbia Saw Mill Co. v. Nettleship, supra. Vioksbnrgh etc., E. B. Co. v. 
 Ragsdale, 46 Miss. 458. 
 ig) O'Hanlan v. Gt. Western Eail. Co., 34 Law J., Q. B. 154. 
 (A) Borries v. Hatchinson, 34 Xi. J., C. P. 169. 
 [{) Wooclger v. Gt. Western Eail. Co., L. E., 2 C. P. 318. 
 (i) See Eansome ». East. Co. Eail. Co._, 26 Law J., C. P. 91. 
 
630 DVTIES OF COMMON CABRIERS. [Ctap. 10. 
 
 may direct, either to the party complaining, or into court to abide the 
 ultimate decision of the court, or to her Majesty ; and payment there- 
 of may, without prejudice to any other mode of recovering the same, 
 be enforced by attachment, or order, in the nature of a writ of execu- 
 tion; and, in any such proceeding, the court or judge may order and 
 determine that all or any costs thereof or thereon incurred shall be 
 paid by or to the one party or the other, as the court or judge shall 
 think fit(Z). 
 
 " It is abundantly clear," observes Cockburn, C.J., " from the statu- 
 tory enactments which enjoin on railway companies the obligation to 
 afford accommodation on equal and reasonable terms, and from the 
 provisions of the statute by which jurisdiction is given to the Court 
 of Common Pleas against the affording of undue preference, or the 
 imposing of undue prejudice or disadvantage, that it was not the in- 
 tention of the legislature to leave to railway companies the unfettered 
 exercise of their rights as proprietors of their respective lines ; bnt in 
 return for the great powers which it has, conceded to them, and for the 
 monopoly of the carrying business of the country, which in a great 
 degree they have been enabled to acquire, has imposed on them the 
 obligation of affording accommodation on equal terms to the whole of 
 the public ; " and they cannot promote their own interests as carriers 
 at the expense of the right of the public to that equality(w2), or give 
 to one individual greater advantages at their stations(n), or upon their 
 line, than they allow to another(o). 
 
 Where a railway company in order to compete with a particular 
 carrier in the collection and delivery of .parcels, makes a man who has 
 his own wagons and horses, and therefore does not require the com- 
 pany to collect and deliver parcels for him, pay more than he ought 
 to pay for the transit on the railway, it is a case of undue prejudice 
 against the person not wanting the accommodation. The company 
 have no right to make a charge nominally for carriage upon the rail- 
 way, which is in reality for that and something else, and so impose 
 upon a portion of the public services which they do not desire to avail 
 themselves of(p). So if a number of tradesmen in a country town 
 
 (Z) Forms of proceeding, etc., Eeg. Gen. C. P. Hil. Term, 18 Vict., 15 C. B. 473. 
 
 (m) Baxendale v. Gt. Western Kail. Co., 6 C. B., N. S. 354 ; 28 Law J., C. P. 69. 
 
 (n) Marriott ». Lond. & S.-W. Bail. Co., 1 C. B., N. S. 499 ; 26 Law J., C. P. 154. Beadell V. 
 East. Co. Kail. Co., ib. 260. Baxendale, In re, 11 C. B., N. S. 787 ; 12 ib. 758. 
 
 (0) Baxendale v. North Devon Bail. Co., 3 C. B., N. S. 324. See 31 & 32 Vict. u. 119, s. 16, 
 ante, p. 603. 
 
 (p) Cockburn, C.J., Garton v. Gt. Western Kail. Co., 5 C. B., N. S. 678. Baxendale v. Gt, 
 Western Kail. Co., 16 ib. 137 ; 33 Law J., C. P. 197. See 31 & 82 Vict. c. 119, a. 17, ante, p. 604. 
 
Sec. 3.] INJUNCTION m\DI!Ji RAILWAY AND CANAL ACT. 631 
 
 request a railway company to deliver all goods addressed to them to 
 a local carrier for distribution by him, the company cannot, in order 
 to compete with that carrier, under the pretence of requiring a special 
 order as to each package, in effect cause the delivery by such carrier 
 to be so delayed as to become impracticable(g'). Nor can a railway 
 company exclude carriers' vans from the delivery of' goods at a station 
 after a certain hour, if they admit vans, with goods collected from 
 their own receiving houses, after that hour(?-). 
 
 In execution of the powers conferred on them by this statute, the 
 courts will issue writs of injunction, enjoining railway companies 
 proved to have given an undue preference to one person or set of per- 
 sons over anotljer in respect of the conveyance of particular classes or 
 descriptions of commodities, to desist from giving such undue prefer- 
 ence(s). But the operation of the statute is confined to undue pref- 
 erences given to one person or class of persons over another in the 
 traffic along the same railway or canal(<), and travelling between the 
 same places, and not to superior advantages which may be given to 
 one town over another town on the same line of railway(M). And it 
 has been held that the statute is not contravened by a railway com- 
 pany carrying at a lower rate, in consideration of a guarantee of large 
 quantities, and full train-loads at regular periods, provided the real 
 object of the railway company be to obtain thereby a greater remuner- 
 ative profit by the diminished cost of the carriage, although the effect 
 may be to exclude from the lower rate those persons who cannot give 
 such a guarantee(a;). 
 
 Before the court will put the powers of the Railway and Canal 
 Traffic Act in motion, as regards the granting of an injunction, the 
 court must in general be satisfied that some substantial injury or 
 inconvenience is sustained by the public by the act complained of, and 
 that the complaint is bona fide made on behalf of the public(2^). And 
 it has been held that the exercise of this special jurisdiction being 
 
 (g) Parkinson v. Gt. Western Ewy., L. E., 6 C. P. 654. See Chamblos v. Philadelphia, etc., 
 E. E. Co., 4 Brews. (Pa.) 563; Eogers' Locomotive, etc.. Works ». Erie E. E. Co.,20N. J. Eq. 
 (5 C. E. Green) 379 ; New England Express Co, v. Maine Central E, E. Co., 57 Me. 188. 
 
 (r) Palmer v. Lond., Brighton & South Coast Ewy., L. E., 6 C. P., 195. 
 
 (s) Harris v. Cockermouth, etc., Kail. Co., 3 C. B., N. S. 693 ; 27 Law J., C. P. 1G3. Eau- 
 some V. East. Co. Eail. Co., ib. 166 ; 8 C. B., N. S. 709. Cooper v. Lond. & S.-W. Rail. Co., 27 
 Law J., C. P. 324. 
 
 («) Bennett v. Manch., Sheff. & Line. Eail. Co., 6 C. B., N. S. 715. 
 
 (M) Jones J). East. Co. Eail. Co., 3 C. B., N. S. 718. 
 
 (X) Nicholson v. Gt. Western Hail. Co., 6 C. B., N. S. 441. Strick v. Swansea Canal Co., 31 
 Law J., C. P. 240. 
 
 \p) Painter v. Lond. & Br. Eail. Co., 2 C. B., N. S. 702. lie Caterham Rail. Co., 1 C. B., 
 N. S. 410. 
 
632 DUTIES OF COMMON- CABRIMRS. [Chap. 10. 
 
 subject to no review, and depending in each instance upon the special 
 facts of the case, cases previously decided under it are not binding on 
 the court in the same way that precedents in law are binding(a). 
 
 (z) Palmer v. Lond. & Soath-West. Bail. Co., L. E., 1 C. P. 589 ; diss. Willes and Keating, 
 JJ. 
 
CHAPTER XI. 
 
 OF WRONGFUL DISTRESS— DISTRESS FOR RENT— DISTRESS DAMAGE 
 
 FEASANT. 
 
 Section I. — Of unkvwful and excessive distresses. — Distress for rent in arrear — 
 Of condition precedent to the rig-iit to distrain — Distress for rent payable in 
 advance — Distress after the termination of the term of hiring — Distress by 
 agents, joint-tenants, tenants-in-common, etc. — Agreements not to distrain — 
 Acceptance of bill or note by way of payment — Tender before distress — Time, 
 mode, and place of distraining — Things distrainable and not distrainable — 
 Distress of gi-owing crops — Mortgaged chattels and things in the custody of 
 the law — Things distrainable under a license to distrain — Things fraudulently 
 removed — What amounts to a distress — Abuse of the right to distrain render- 
 ing persons trespassers ab initio — Distress when no rent in arrear — Excessive 
 distresses — Distress for more rent than due — Repeated distresses — Impound- 
 ing — Pound-breach — Abandonment of distress — Statutory power of sale — 
 Tender of rent before sale — Notice of distress — Appraisement and sale — Costs 
 and expenses — Non-compliance with the statutes authorizing the sale — Keep- 
 ing the distress without selling — Indemnification of bailiffs. 
 
 Sbotion II. — Of distress damage feasant. — Seijiure and impounding of animals 
 damage feasant — Trespass on unfenced land — What things may be distrained 
 damage feasant — Distress by railway companies of locomotive engines damage 
 feasant — Tender of amends — Sale of impounded animals — Liabilities of pound- 
 keepers. 
 
 Sbctiow III. — Remedies for unlawful and excessive distresses. — Replevin of things 
 distrained — Actions — Parties, pleadings, defences, and evidence — Damages 
 recoverable. 
 
 SECTION I. » 
 
 OP UNLAWFUL AND EXCESSIVE DISTRESS. 
 
 706 Distress for rent in arrear(z). — By the common law, landlords to whom 
 rent is due, and who are clothed with the immediate reversion of the 
 
 («) In many of the States of the Union the common law remedy by distress has cither heea 
 wholly abolished or materially modified by statute. Among the States where distress for rent 
 is nninown are New York (Laws of 1846, ch. 274), North Carolina (Dalgleish v. Grandy, C. & 
 N. 22), Missouri (Crocker ». Mann, 3 Mo. 472), Mississippi (Marye v. Dyche, 42 Miss. 374), and 
 Montana (Bohm v. Dunphy, 1 Mont. 333). 
 
634 WRONGFUL DISTRESS. [Chap. 11. 
 
 premises out of which the rent issues, have the power of entering in 
 person, or by deputy, upon the demised premises(a), and seizing the 
 moveables and personal property thereon, with certain exceptions, and 
 holding them as a pledge for the payment of the rent, and they have 
 now by statute the power of selling the things, distrained. This rem- 
 edy by distress is said to have come to us from the civil law, where the 
 land farmed out to the tenant was hypothecated, or pledged in his 
 hands to answer the rent agreed to be paid, the whole profits arising 
 from the soil being liable to the lord's«seizure(6). 
 
 It is essential to the lawful exercise of the power of distress, that 
 there be a tenancy(c) for a term, or at will, at an ascertained rent(d), 
 and that the distrainor be the person entitled to the reversion of the 
 premises distrained upon, on the determination of the existing ten- 
 ancy(e). "If he has made a lease without having any right or title 
 to grant a lease, or if, after the making of the lease, he has sold and 
 transferred his estate or interest to some third party(/), or being him- 
 self only a lessee, he has assigned his lease, or if, after granting an 
 under-lease, he has forfeited his estate by some breach of covenant or 
 otherwise, and the superior landlord has entered, and the tenant has 
 
 (a) See Selby v. GreaTes, L. E., 3 C. P. 594. 
 (6) Gilbert on Eents, 5 ; on Distresses, 2. 
 
 (c) See Clowes v. Hughes, L. K., 5 Exch. 160, in whioli ease the distress was made by a 
 mortgagee upon the moi'tgaged lands ^nder an agreement contained in the mortgage deed. ' 
 Sec Slocum v. Clark, 2 Hill, 475 ; Hale v. Burton, Dudley, 105. 
 
 (d) Anderson ». Mid. Rail. Co., 30 Jjaw J., Q. B. 94. Howe u. Scarrott, 28 Law J., Exch. 
 325. Jolly w. Arbuthnot, 28 Law J., Ch 547. Addison on Contracts^ p. 310, 6th ed. Bcnoist 
 II. SoUee, 1 Brevard, 251. Helser v. Pott, 3 Barr. 179. V.alentine v. Jacksou, 9 Wend. 302. 
 Beeves v. M'Kenzie, 1 Bailey, 497. Wells v. Hornish, 3 Penn. 30. Steel v Thompson, id. 34. 
 Scott V. Fuller, id. 55. Grier v. Cowan, Addis. 847. Marshall v. Giles, Const. Eep. 637. 
 Jacks V. Smith, 1 Bay, 315. Eoberts v. Tennell, 4 J. J. Marsh. 160. 
 
 In Kentucky, distress lies only for rent reserved, in money. Myers v. Mayfield, 7 Bush 
 (Ky.), 212. Poer v. Peebles, 1 B. Men. 1. In other States it has been held that distress lies for 
 the recovery of rent payable in iron. Jones v. Gundrim, 3 Watts & Serg. 531. Owens v. 
 Conner, 1 Bibb, 605. . ' . 
 
 In repairs. Smith v. Colson, 10 Johns. 91 ; or other services, Valentine v. Jackson, 9 Wend. 
 302. Smith v. Colson, 10 Johns. 91. Smith v. Pyler, 2 Hill, 648. Or in any thing susceptible 
 of valuation. Eraser v. Davie, 5 Eich. Law, 59. But to entitle the landlord to distrain for 
 rent, the rent must be certain either in money or services, or such as may be reduced to a 
 certainty. Valentine v. Jackson, 9 Wend. 302. 
 
 A distress does not lie where the rent is payable in iron drawn according to order, where 
 the tenant does not and cannot know when, how much, or what size of iron to tender. 
 Helser v. Potts, 3 Barr. 179. Nor does it lie on a contract to pay a specified sum as rent, in 
 State scrip. Purcell v. Thomas, 7 Blackf. 306. Nor does it lie on a contract to deliver as ' 
 rent a third part of the corn raised on the demised premises. Clark v. Fraley, 3 Blackf. 264. 
 But it has been held that it will lie on a contract to deliver one-third of the toll for rent of a 
 grist-mill. Fry v. Jones, 2 Eawl. 11. 
 
 (e) 8 & 9 Viet. c. 106, s. 9. 
 
 (/I Parmenter v. Webber, 8 Taunt. 593 ; 2 Moore, 656. Prceoe v. Corrie, 2 M. & P. 64 ; S 
 Bing. 24 ; 6 M. & Ky. 157, 162. Smith v. Mapleback, 1 T. E. 441. 
 
Sec. 1.] DISTRESS FOB RENT IN ARRBAR. 635 
 
 attorned to the latter, he has no right or- power to distrain(g'). It has 
 been held, that a teuant from year to year underletting from year to 
 year, has a reversion which enables him to distrain for rent reserved 
 upon such under-lease "{h). However, although the distrainor be not 
 entitled to the immediate reversion, the distrainee may be estopped 
 from denying that he is entitled to it(i). 
 
 If the lease has been put an end to by a surrender of the term, or 
 by a notice to quit, and the tenant, notwithstanding the termination 
 of the demise, continues to hold, with the permission of the landlord, 
 as tenant-at-will, or adversely and against the will of the lord as a 
 wrong-doer, the lessor has no power at common law to distrain the 
 goods and chattels of the tenant for rent in respect of such occupa- 
 tion(^). Neither can he distrain, except under the statute of Anne 
 {post, p. 640), for rent that accrued due before the determination of 
 the lease. But any slight evidence of a renewal of the tenancy, and 
 of an agreement to hold upon the former terms, would be sufficient to 
 justify the landlord in distraining for the old rent(A). 
 
 If the tenant becomes bankrupt or files a petition for liquidation by 
 arrangement, the landlord or other person to whom any rent is due 
 may still distrain, but if the distress be levied after the commence- 
 ment of the bankruptcy, it is not available for more than one year's 
 rent accrued due prior to the date of the order of adjudication (Z). 
 A fortiori therefore if the trustee in bankruptcy declines to take the 
 lease, the lessor is not, in case the bankrupt tenant continues to hold 
 the property, deprived by the bankruptcy of his right to distrain('m). 
 Nor is he so deprived, if the creditors determine to accept a com- 
 position under s. 126 and the bankrupt tenant remains in possession («). 
 If a lessee, having granted an under-lease, becomes bankrupt, such 
 
 (g) Bume v. Eichardson, 4 Taunt. 720. Hoporoft v. ICeys, 2 M. & So. 760 ; 9 Bing, 613. 
 Langford v. Selraes, 3 K. & J. 2-29, 
 
 (7i) Curtis V. Wheeler, M. & M. 493. A lessee who has assigned his term for years entire, 
 cannot distrain without a reservation to that effect. But the rule is otherwise where his lease 
 is from year to year, and he assigns a part. Ege v, Ege, B Watts, 134. See Han-ison v. Guill, 
 46 Ga. 427. 
 
 (i) Morton v. Woods, L. B., 3 Q. B. 658 ; 4 ib. 293 ; 28 Law J., Q. B. 81. 
 
 [}) Jenuer v. Clegg, 1 M. & Bob. 213. Alford v. Vickory, 1 Car. & Marsh. 283. Phen6 v. 
 Popplewell, 12 C. B., N. S. 334 ; 31 Law J., C. P. 235. Dailey «. Griihes, 27 Md. 440. 
 
 (h) Zouchr. Wdling'ale, 1 H. Bl. 311. Beavan v. Delahay, 1 H. Bl. 8. See Webber v. 
 Shearman, 3 Hill, 547 ; 6 Hill, 20 ; 2 Denio, 362 ; BeU v. Potter, 6 Hill, 497 ; Sherwood ». 
 Phillips, 13 Wend. 479. * 
 
 (i) 33 & 33 Vict. c. 71, s. 84. Ex parte Birm. & Staff. Gas Light Co., L. E., 11 Eq. Ca. 615. 
 See Be Lundy Granite Co., post, p. 650. 
 
 (m) Briggs v. Sowry, 8 M. & W. 729. Newton v. Scott, 10 M. & W. 471. Phillips r. Sherrill, 
 6 Q. B. 944; 14 Law J., Q. B. 144. See 32 & 33 Vict. c. 71, ». 23. / 
 
 («) Ex parte Birm. Gas Light Co., L. E., 11 Eq. Ca. 204. 
 
636 WRONGFUL DISTRESS. [Chap. 11. 
 
 bankrupt lessee is not deprived by the bankruptcy of his right to 
 distrain, unless the assignees have taken to the lease and discharged 
 the bankrupt from the rent payable to the superior landlord(o). The 
 power of distress is always subservient to prerogative process issued 
 by the crown, such as an extent; and the sheriff may consequently 
 take goods that have been distrained out of the hands of the landlord 
 or his bailiff, and sell them for the benefit of the crown(p). A land- 
 lord, moreover, cannot distrain twice for the same rent, unless the 
 distress has been withdrawn at the instance or request of the tenant, 
 or unless there- has been some mistake as to the value of the things 
 taken. It is vexatious and actionable in a landlord to make repeated 
 distresses nnnecessarily(g'). 
 707 When there is no certain ascertained rent there is no right to distrain(qg). 
 — If lands and houses have been demised together at one entire rent, 
 and the lease is void as to part of the subject-matter of the demise 
 and good for the residue, the lessor cannot distrain for the rent, as 
 there is no distinct and ascertained rent fixed in respect of the part 
 for which the lease is good(r). Where there was a lease of one 
 hundred acres of land at an annual rent of 79L, and eight of these 
 acres were in the possession of another tenant under a prior demise, 
 it was held that the lessor could not distrain for any part of the rent, 
 as it was reserved in respect of the whole one hundred acres, and the 
 rent was entire and unapportionable(s). But where a new agreement 
 is come to providing for a specified reduction of rent, or for an ascer- 
 tained and settled compensation in respect of the part held under the 
 prior demise, such agreement may operate as a re-demise at an 
 ascertained rent, recoverable by distress(^). 
 
 Where an oral agreement was entered into between the proprietor 
 of a marl-pit and brick-mine, and a potter and brickmaker, upon the 
 terms that the latter should pay 8d. per solid yard for all the marl that 
 he got out of the marl-pit, and Is. 8d. per thousand for all the bricks 
 
 (0) Peskett v. Somers, coram Wilde, C.J., Sittings after Hil. Term, 1850. But see 32 & 33 
 Vict. c. 71, s. 23. 
 
 {p) Eex V. Cotton, Tarier, 112. And see 32 & 33 Vict. c. U, 3. 31, as to a distress at suit of 
 the crown on property of bankrupt for duties, etc., under that Act. 
 
 (2) Bagge ». Mawby, 8 Exch. 649. Dawson v. Cropp, 1 C. B. 961. 
 
 (gg) "Wells v. Hovnish, 3 Penn. 30. Steel v. Thompson, 3 Penn. 34. Scott v. Fuller, id. 55. 
 Grier v. Cowan, Addis. 347. Mfvrshall v. Giles, Const. Eep. 637. Jacks ». Smith, 1 Bay, 315. 
 Koberts v. Tennell, 4 J. J. Marsh. 180. Valentine v. Jackson, 9 Wend. 302. See Smith e. 
 Fyler, 2 Hill, 648. 
 
 (r) Gardiner v. Williamson, 2 B. & Ad. 339. 
 
 (s) Neale v. Mackenzie, 1 M. & W. 763. Hatfield V. rullerton, 24 Dl. 278. French ». Law- 
 rence, 7 HiU, 519. 
 
 («) Watson V. Waud, 8 Exch. 336. 
 
Sec. 1.] WHEN NO ASCERTAINED BENT. 637 
 
 that he made from the brick-mine, by quarterly payments at the usual 
 quarter-days, and the brickmaker took possession of the pit and mine, 
 and dug marl and burnt* bricks, and made several quarterly payments, 
 it was held that this was a demise from year to year at a rent capable 
 of being ascertained with certainty, and that the lessor, therefore, was 
 entitled to distrain(M). And where land was held upon the terms ijiat 
 the plaintiff should not sell hay off the demised premises under a 
 penalty of 2s. Qd. a yard, to be recovered by distress as for rent in 
 arrear, it was held that the penalty might be treated as a rent pay- 
 able in respect of every sale made in breach of the agreement, that 
 the amount due was capable of being ascertained with certainty, and 
 might be recovered by distress(o). 
 
 If a tenant has entered into possession under an agreement which 
 does not operate as a present demise at a fixed rent, but merely as an 
 executory contract for a future lease afterwards to be granted, and the 
 landlord neglects to grant the lease, and the tenant continues to occupy 
 without paying any rent or making any absolute and unconditional 
 admission of any specific sum being due as rent in respect of such ■ 
 occupation, the landlord has no right to distrain(w). But whenever 
 there is an agreement for a tenancy at a fixed rent, though it be a 
 tenancy-at-will only{«), or whenever by payment of rent, or otherwise, 
 any tenancy at a fixed rent can be implied, the landlord may distrain 
 for all rent subsequently accruing due(2/). And if the tenant, after he 
 has taken possession, " promises to pay a rent certain, or settles it in 
 account, the landlord will then have a right to distrain "(a). So, if a 
 man, on being let into possession under an agreement for purchase, 
 signs an agreement admitting that he is tenant at a certain rent, he 
 may be distrained upon(a). 
 
 By the 14 & 15 Vict. c. 25, s. 1, it is provided, that where the lease 
 of any farm or lands shall determine by the death or cesser of the es- 
 tate of a landlord entitled for life or for some uncertain interest, instead 
 of a claim to emblements, the tenant shall continue to hold till the 
 expiration of the then current year, and shall then quit as if his lease 
 had expired by efB.uxion of time, and the succeeding landlord shall be 
 entitled " to recover and receive of the tenant " a fair proportion of the 
 
 («) Daniel p. Graeie, 6 Q. B. 145. 
 
 (») Pollitt V. rorest, 11 Q. B. 9« ; 16 Law J., Q. B. i24. 
 
 (eo) Hegan e. Johnson, 2 Tannt. 14S. 
 
 <afj Anderson p. Mid. Kail. Co., 30 Law J., Q. B. 96. 
 
 ill) M'Leish v. Tate, Cowp. 783. 
 
 («) Kniglit c. Bennett, 11 Moore, 232 ; 3 Bing. 361. Co.^ v. Bent, 2 M. & P, 281 ; 5 Bing. 185. 
 
 (a) Yeoman e. Ellison, L. E., 2 C. P. 681. See Morton v. Woods, ante, p. 635. 
 
638 WRONGFUL BisTBErs. [Chap. 11. 
 
 rent for the period since the lessor's death. The above act applies to 
 all tenancies in respect of which there exists a valid claim to emble- 
 ments, and confers a right to distrain for the rent, as well as to recover 
 it by action (6). 
 
 708 Of conditions precedent to the right to distrain. — The right to distrain 
 may be made conditional, or may be postponed by the contract of the 
 parties(c). Where a lessee agreed to take, and the lessor to let, a 
 house and premises at a yearly rent, payable quarterly, and the lessor 
 agreed to complete the house, and fix a bresummer in the window, 
 and allow the lessee IM. towards erecting an oven, and the lessee took 
 possession and built the-oven, but the lessor never completed the house 
 nor fixed the bresummer, and the lessee refused payment of the rent, 
 whereupon the lessor distrained, it was held that the distress was 
 illegal, as the condition upon which the rent was to become due 
 remained unaccomplished(d). And where an oral agreement was 
 entered into for the letting and hiring of a house and furniture at an 
 annual rent, payable quarterly, the house to be furnished completely, 
 in a mann,er suitable to a ladies' school, and the lessee took possession, 
 it was held that the furnishing of the'house by the lessor in the man- 
 ner agreed upon was a condition precedent to his right to distrain for 
 the rent(e). Whenever a covenant or promise to pay rent is condi- 
 tional and dependent, and the lessor is ready and willing to fulfil the 
 condition on his part, but the lessee prevents him, the lessor will have 
 his power of distress. 
 
 709 Distress for rent payable in adxiance{f) — Rent when dice — Several 
 demises. — Rent may be made payable in advance, so as to entitle the 
 landlord to distrain for it at the commencement instead of at the end 
 of each quarter(p'). When there is a reservation of an annual rent, or 
 a covenant, or agreement by a tenant to pay so much a year, a stipula- 
 tion for the determination of the tenancy at the expiration of any one 
 quarter of a year, by a six or three months' notice, will not raise a 
 presumption that the rent was to be paid quarterly(A). Where a land- 
 lord agreed to let a house at a yearly rent of 501., and likewise a sta- 
 ble and loft at a further rental of 251. per annum, to be paid on the 
 
 (6) Haines v. Weloli, L. R.. i C. P. 91. See 33 & 34 Vict. c. 35, " The Apportionment Act, 
 1870." 
 
 (c) Giles V. Spencer, 3 C. B., N. S. 253 ; 26 Law J., C. P. 237. 
 
 (d) Kegnert v. Porter, 5 M. & P. 370. 
 
 (e) Meolielen v. Wallace, 7 Ad. & E. 64, n. 
 (/) See De Nichols v. Saunders, post, p. 641. 
 
 {g) Lee v. Smith, 9 Exch. 665. Conway v. Starkweather, 1 Denio, 113. 
 (ft) Collett V. Curling, 10 Q. B. 785 ; 16 Law J., Q. B. 390. 
 
Sec. 1.] TERMINATION OF TERM OF BIRINQ. 639 
 
 usual quarter-days, it was held that this was a demise of two different 
 sets of premises at separate rents, payable at diiferent periods ; that 
 the 50Z. rent was payable yearly, and the 25L rent payable quar- 
 terly (i). Where a contract was entered into for the letting and hiring 
 of a house for a year certain, at a rent payable quarterly, " or half- 
 quarterly if required," and the tenant entered into possession, and paid 
 his rent quarterly for the first year of the tenancy, at the expiration 
 of which period the lessor, without any previous demand or notice to 
 the tenant, distrained for half a quarter's rent then alleged to be due, 
 it was held that the lessor had no right so to do without giving a pre- 
 vious intimation and notice to the tenant of his election to take the 
 rent half-quarterly(^). 
 
 If the lessor distrains befose the rent has become due, the tenant 
 may resist the entry and seizure by force, and after a seizure has been 
 made, he may rescue his goods at any time before they have been 
 impounded ; but when once the goods have been impounded, they are 
 in the custody of the law, and the tenant cannot then break the pound 
 and retake them(A:). 
 710 Distress after the termination of the term of hiring. — ^At common law 
 the landlord could not, it seems, have distrained after the expiration 
 of the term for rent that accrued due before the termination thereof, 
 as his reversion was then gone, the entire estate being revested in 
 him in possession(Z), but now, by 8 Anne, ch. 14, ss. 6, 7, it is enacted, 
 that it shall be lawful for him to distrain for arrears of rent due upon 
 any lease ended or determined after the determination of the lease, 
 in the same manner as he might have done if such lease had not 
 been ended or determined ; provided such distress be made within 
 six calendar months after the determination of the lease, and during 
 the continuance of the landlord's title or interest, and during the 
 possession of the tenant from whom such arrears became due(W). 
 Prima facie, therefore, the executors or other personal representatives 
 of a tenant could not be distrained upon. But the Court of Queen's 
 
 (t) Coomber v. Howard, 1 C. B. 440. 
 
 ij) Mallam ». Arden, 3 M. & So. 795 ; 10 Bing. 299. 
 
 (4) 1 Inst. 47b, 161a ; Gilbert on Distress, 61. See Bailey v. Wright, 3 McCord, 484 ; Mjera 
 e. Mayfield, 7 Bush (Ky.), 212 ; Evans v. Herring, 3 Dutch. (N. J.) 243 ; Fry v. Breoltenridge, 
 7 B. Mon. 31 ; O'FarriU v. Nance, 2 Hill (S. C), 484. 
 
 {I) Williamsc. Stiven, 9Q. B. 14; 15LawJ., Q. B. 321. 
 
 (tt) See Burr v. Van Busliirk, 3 Cow. 263 ; Pemberton v. Van Eensaelaer, 1 TVend. 307 ; WU- 
 liams f?. Terboss, 2 ib. 148. 
 
 In Pennsylvania, the landlord's right to distrain after the termination of the term is not 
 limited as to time ; the statute giving him this right whenever the rent is in the an'ear, if the 
 title remains in him. Moss' Appeal, 35 Penn. St. 162. 
 
640 WRONGFUL VI8TRESS [Chap. 11, 
 
 Bench has held a distress to be good during the possession of the 
 executQrs, -when the tenancy was not deternained by the death of the 
 tenant(mi). "Where, however, there is no possessiou by any. one who 
 can be said to be the representative of the tenant, and the tenancy ia 
 determined by the death of the tenant, the statute of Anne does noi 
 apply, and there is no power to distrain(n). Where a tenant went 
 away, leaving behind him a cow and a few pigs, without asking per - 
 mission to leave them, or saying when he was going to take them 
 away, and the succeeding tenant eqjtered and took possession, it was 
 held that the lessor had no right to distrain the things so left, as the 
 tenant was not then in the possession and occupation of the prem- 
 ises(o). The customary right of the tenant to an away-going crop 
 always operates as a prolongation of the term as to the land on which 
 the crop grows for the period allowed by the custom for getting in and 
 gathering the crop. All the rights and properties belonging to the 
 original contract are continued during the period in question, and 
 among them the landlord's right to distrain. Therefore, where a part 
 of the tenant's corn remained in a barn on the demised premises 
 beyond the period of six calendar months, but within the term 
 allowed by custom for the outgoing tenant to get in and dispose of his 
 crop, it was held that the corn might be distrained by the landlofd(f)). 
 If, by the tacit consent of the landlord and tenant, the contract 
 between them continues beyond the time for which they originally 
 contracted, all the rights and properties belonging to the original con"- 
 tract are also continued, and among them the landlord's right to 
 distrain. It has often been determined that if there be a lease, and 
 after the determination of it, the tenant holds over, with the consent 
 of the landlord, he must hold upon the terms, and is liable to all the 
 conditions and covenants, of the lease(g). If after the determination 
 of a tenancy by the expiration of a notice to quit the tenant holds 
 over, and the landlord distrains for rent, the landlord thereby waives 
 the notice, and aflBlrms and continues the tenaucy(r). 
 
 (m) Braithwaite v. Cooksey, 1 H. Bl. 465. In Maryland, it has been heM that a distrees for 
 rent due from a deceased tenant may be made on the premises so long as they are in the 
 possession of any person claiming by, IVom or under the deceased tenant, although letters of 
 administration have not been granted. Keller v. Weber, 27 Md. 660. See Mickle v. Miles, 1 
 Grant's Cas. (Penn.) 320. 
 
 («) Turner v. Barnes, 31 Law J., Q. B. 170. See 33 & 34 Vict. c. 35. 
 ■ (o) Taylerson v. Peters, 7 Ad. & E. 110 ; 2 N". & P. 022. 
 
 ip) Beavan v. Delahay, 1 H. & Bl. 9. Lewis v. Harris, ib. 7, u. (o). Nnttall ». Staunton, 4 
 B. & C. 81. 
 
 (2) Beavan v. Delahay, 1 H. Bl. 9 ; ante, p. 635. 
 
 (r) Zouch V. Willingale, 1 H. Bl. 311. 
 
Sec. 1.] BT AOMUfTS, JOINT-TBNAJfTS, ETC. 6^1 
 
 711 Distress hy agents — Joint tenants — Tenants in common, etc. — A mere 
 receiver of rents (not being a receiver appointed by the Court of 
 Chancery) has no power to distrain, although he may be authorized to 
 collect and receive the rents ifor his own benefi.t(s). And when an 
 agent or bailiif receives a special authority from the lessor to levy a 
 distress upon the demised premises, the authority should be given and 
 acted upon in the name of the lessor or reversioner. But if the agent 
 distrains in his own name, and gives a notice in writing, stating the 
 rent to be due to himself, he may, nevertheless, justify in the name 
 and as the bailiff of the lessor. A person beneficially interested in 
 the demised premises may use the name of the owner of the legal 
 estate to levy a distress. The cestui que trust, therefore, may distrain 
 in the name of the trustee, and a mortgagor, in certain cases, in the 
 name of the mortgagee(<). A receiver appointed by the Court of Chan- 
 cery has a power of distress, and need not previously apply to th^ 
 Court for a particular order for that purpose(M). One joint-owner or 
 joint-reversioner may distrain alone, but he must, it seems, avow and 
 justify the taking of the distress in his own right, and as bailiff to the 
 other(-u). He may also sign a warrant of distress, and appoint a 
 bailiff to distrain for rent due to all, unless the others expressly dis- 
 sent(w). The same rule prevails in the case of co-parceners and co- 
 heirs in gavelkind, any one of whom may avow and justify the distress 
 in his own right, and make conusance as the bailiff of the others with- 
 out averring or showing any express authority from them to distrain(a;). 
 If one of several joint-tenants of the , reversion to which the rent is 
 incident conveys away all his estate and interest in the demised prem- 
 ises, the right to distrain for the rent is extinguished, for there can be 
 no apportionment of the rent by the severance of the reversion(2/). 
 The payment of rent in advance to a landlord mortgagor, unless by 
 
 ' agreement the tenant is bound to do it, is not valid as against mort- 
 gagees, who may consequently distrain for it(z). 
 
 Tenants in common who have several estates, and are severally 
 entitled to the rent and the reversion of the demised premises, should 
 make several distresses. They may, of course, authorize a bailiff to 
 
 («) Ward V. Shew, 2 M. & Sc. 756 ; 9 Bing. 608. 
 
 (<) Trent v. Hunt, 9 Exch. 14 ; 22 Law J., Exoh. 320. Snell t>. Finch, 32 Law J., C. P. 177 ; 
 13 C. B., N. S. 6fil. 
 (M) Brandon v. Brandon, 6 Madd. 473. Bennett v. EoMna, 5 C. & P. 379. 
 (») PuUen V. Palmer, 5 Mod. 73, 150 ; 3 Salk. 207. 
 (w) Eobinson v. Hoffman, 1 M. & P. 474 ; 4 Bing. 562 ; 3 C. & P. 234. 
 (as) Leigh v. Shepherd, 6 Moore, 297 ; 2 B. & B. 465. 
 (y) Staveley v. Allcoclt, 16 Q. B. 636 ; 20 Law J., Q. B. 321. 
 (s) De Nioholls v. Saunders, L. E. , 5 C. P. 589. See Cooic V, Guerra, L. E., 7 C. P. 138. 
 
 Ad. Vol. L— 41 
 
642 WRONOFUL DISTRESS. [Chap. 11. 
 
 d' strain on behalf of all, or one tenant in common may distrain on his 
 own account, and as the bailiff and agent of others, but they must 
 avow and justify the taking of the distress separately in respect of 
 their several sh'ares(a). And one tenant in common may distrain for 
 his own share of the rent, although the rent has been reserved in one 
 sum payable to all generally, and not in several sums payable to each ; 
 and therefore, where a lessee holding under two tenants in common, 
 at a yearly rent of 18Z., payable quarterly, received notice from one of 
 them to pay to him a moiety of th#rent as soon as it became due, and 
 the lessee, notwithstanding such notice, paid the whole rent to the 
 other tenant in common, it was held that the one who had thus given 
 the notice might distrain upon the land for his moiety of the rent(6). 
 Where fifty acres of arable land were demised by four persons (whose 
 original title did not appear) at one entire rent of 94Z. per annum, to 
 be divided and paid to the four lessors separately in equal portions, it 
 was held that as between themselves and the lessee they must be taken 
 to be tenants in common of the reversion, and that one of the four was 
 entitled to distrain for a fourth part of the rent independently of the 
 rest(c). 
 
 712 Distress hy executors and achninistrators. — By 3 & 4 Wm. 4, c. 42, 
 ss. 37, 38, the executors and administrators of a lessor or landlord may 
 distrain upon lands demised for any term or at will for arrearages of 
 rent due to such lessor or landlord in his lifetime. 
 
 713 Agreements not to distrain. — ^The right to distrain maybe waived, 
 abandoned, or postponed by the express contract or agreement of the 
 landlord, for it is not an inseparable incident to a rent service((^. If, 
 therefore, a landlord has agreed with the owner of cattle not to dis- 
 train them if they are put into a particular close, and they are after- 
 wards distrained there by the landlord, in violation of his agreement, 
 an action for a trespass in taking the cattle is maintainable against 
 him(e). 
 
 714 Acceptance of a hill or note by way of payment. — ^A landlord is not 
 deprived of his right to distrain by taking a bill, or note, or other 
 security for the rent, unless it be proved that the landlord, at the time 
 he accepted the security, bound himself not to distrain(/), or unless 
 
 (o) Lltt. sec. 314-317. 
 
 (6) Harrison e. Bamby, 5 T. R. 246. 
 
 (c) Whitley ». Boterta, McL. & T. 107. 
 
 (d) Giles V. Spencer, 3 C. B., N. S. 244 ; 26 Law J., C. P. 237. 
 
 (e) Hqrsford ». Webster, 1 C. M. & E. 699. Welsh ». Rose, 6 Bing. 638 ; 4 M. & P. 490. 
 
 (/) Davis ». Gyde, 2 Ad. Sn E. 626. See Bramwell v. Eglinton, 33 Law J., Q. B 130. Hen 
 derson e. Boyer, 44 Penn. St. 220. Sherman v. Dutch, 16 m. 288. 
 
- Sec. l.J TUIB, MODE A2VD FLA CE OF DISTRESS. 643 
 
 it be proved that the note was paid at maturity(g'). If the landlord's 
 receiver or bailiflf relinquishes a distress on receiving a bill or note for 
 the rent from the tenant, and pays over the amount of the note to the 
 landlord, and the note is subsequenly dishonored, the landlord may 
 return the money to the bailiff or treat it as an advance or loan from 
 him, and distrain again for the unpaid rent(^). 
 
 715 Tender of rent before distress renders the distress wrongful ah initio. 
 If, therefore, after a broker has received a wari-ant of distress, but, 
 before it is executed, the rent is tendered, the right to distrain is 
 gone(i). 
 
 716 Time, mode, and place of distraining. — The tenant has the whole day 
 on which the rent becomes due to pay such rent, and a distress there- 
 fore cannot be made until the day after the day appointed for the 
 payment of the rent(^). A landlord or his bailiff cannot lawfully 
 break open gates, or break down inclosures, or force open the outer 
 door of any dwelling-house or building(Z), or even enter by a window 
 which is shut but not fastened(m), in order to make a distress, but he 
 may enter by, a door which is shut but not fastened, for that is the 
 ordinary method of entry, and a person who leaves his door unfastened 
 implies a license to any one who, has business to enter the premises, 
 and so he may draw a staple or undo fastenings which are ordinarily 
 opened from the outside of the house(ra), or perhaps enter by an open 
 window(o). A distress, moreover, cannot be made after sunset, or 
 before sunrise(yi) ; nor upon land which does not form part or parcel of 
 the demise, and from which the rent reserved does not issue, unless 
 the goods of the tenant have been removed thereto from the demised 
 premises within sight of the lord coming to distrain, or unless they 
 have been fraudulently removed thereto by the tenant to avoid the 
 distress. If, therefore, a tenant enjoys an easement over, or a right 
 to use, the land of a third person, and has, in the bona fide exercise 
 of such right, placed his goods and chattels on the land of such third 
 person, the lessor has no right to distrain them there. Thus, where a 
 
 {g) Harris v. Shipway, Bull. N. P. 182a. Giles v. Ebeworth, 10 Md. 333. Snyder v. Kunkle 
 man, 3 Penn. 487. Bailey v. Wright, 3 M'Cord, 484. 
 
 (A) Parrotte. Anderson, 7 Excli. 93 ; 21 Law J., Excli. 291. 
 
 (i) Bennett v. Bayes, 5 H. & N. 391 ; 29 Law J., Excli. 224. 
 
 (*) 21 Hen. 6, 40. Duppa v. Mayo, 1 Saund. 287. 
 
 (Vi Brown v. Glenn, 16 Q. B. 254 ; 20 Law J., Q. B. 205. Dent v. Hancock, S Gill, 120. 
 
 (m) Nash v. Lnoas, L. E., 2 Q. B. 690. 
 
 (TO) Ryan v. Shilcock, 7 Exoh. 72 ; 21 Law J., Exoh. 85. 
 
 (o) Nixon V. Freeman, 5 H. & N. 647. 
 
 (jP) Co. Litt. 142a ; Gilbert on Distress, 50. Tutton v. iJarte, 5 H. & N. 654 ; 29 Law J 
 Exch. 271. Sherman v. Dutch, 16 111. 283. Fry v. Breckinridge, 7 B. Men. 81. 
 
644 WRONGFUL DISTRESS. [Chap. 11 . 
 
 wharf on the hanks of a tidal river was demised to a tenant at an an- 
 nual rent, with a right to use part of the bed of the river, between 
 high and low- water mark, as a place of deposit for boats, and barges 
 resorting to the wharf, it was held that the lessor of the wharf had no 
 right to distrain the barges of the tenant lying on such land and bed 
 of the river alongside the wharf, although they were attached to the 
 wharf by head and stern-ropes, inasmuch as the land oh which the 
 barges were lying belonged to the crown, and had never been demised 
 to the tenant(5). For the same reason a landlord could not, by the 
 common law, distrain the beasts and cattle of a tenant feeding upon a 
 common, and which had been placed there by the tenant in the horn, 
 fide exercise of a right of common vested in him in his own jfight, or 
 as appurtenant to the land demised to him by the lessor. But this 
 has been altered by 11 Geo. 2, c. 19, s. 8, which empowers landlords to 
 take and seize, as a distress for arrears of rent, any cattle or stock of 
 their tenants feeding or pasturing upon any common appendant or 
 appurtenant. 
 717 Things not distrainable. — Tenants' fixtures annexed to the freehold 
 by nails and permanent fastenings, such as furnaces, chimney-pieces, 
 kitchen-ranges, stoves, coppers, grates, blinds, etc., are not distrain- 
 able, as they cannot be removed and restored without sustaining some 
 injury(r). But if they are attached to the freehold by bolts and screws, 
 so as to be moveable, they may be distrained and taken. Therefore 
 cotton- spinning machines fixed to a wooden floor by screws, or soldered 
 to a stone flooring, but fastened so as to be readily removable, are dis- 
 trainable(s). A millstone in a mill, and an anvil in a smith's shop, 
 however, cannot be distrained for rent, although the anvil be removed 
 out of the stock, or the millstone out of the socket to be picked, for the 
 anvil is accounted part of the forge, and the millstone part of the mill, 
 though when taken it is not actually affixed to the freehold(<). Tram- 
 plates and sleepers of a railway merely laid upon the ground, although 
 they have become indented in the soil by user, are disfcrainable(w) ; 
 but if they have been packed in ballast, so that they cannot be 
 removed without making holes in the ballast, they are not(«). 
 
 (g) Buszard v. Capel, 8 B. & C. 141 ; 3 M. & P. 494 ; 6 Bing. 150. 
 
 (r) Co. Litt. 47b. Pitt v. Shew, 4 B. & Aid. 207. Darby ». Harris, 1 Q. B. 898. Dalton V. 
 Wliitten, 3 Q. B. 961. 
 
 (8) Hellawell ». Eastwood, 6 Exch. 309 ; 20 Law J., Exch. 155. See Longbottom v. Berry 
 L. E., 5 Q. B. 123 ; Holland v. Hodgson, L. K., 7 C. P, 328. 
 
 (*) Bro. Abr. Distress, pi. 23. 
 
 («) Beaufort <Duke of) v. Bates, 3 De G., F. & J, 381 ; 31 Law J., C*. 481. 
 
 (V) Turner ». Cameron, L. E., 6 Q. B. 306. 
 
Bee. 1.] PERISffABLE ARTICLES, OR0WIN6 CROPS, ETC. 645 
 
 By 51 Hen. 3, stat. 4, it is provided that no man of religion, nor 
 other person, shall be distrained by his beasts that profit his land, nor 
 by his sheep, by the king's or other bailiffs, so long as they can find 
 other distress, or other chattels sufficient for the levying of the distress. 
 Beasts of the plough are by common law exempt from distress ; but to 
 render other anjmals exempt on the ground that they profit the land, 
 •within the above statute, it is not enough to show that they are occa- 
 sionally used in manuring the soil : it must be proved that they have 
 been broken to harness, and are regularly employed in ploughing, 
 harrowing, or drawing carts or wagons upon the farm, in the ordinary 
 cultivation of the land. Heifers and steers, therefore, and young colta 
 not broken to harness, are not "beasts that profit the land" within 
 the meaning of the statute. Sheep, also, are exempt from distress at 
 common law, independently of the statute, so long as there are other 
 distrain able chattels and animals, not being beasts of the plough, 
 sufl5.cient to satisfy the rent(w). 
 
 Implements of husbandry are also exempt from distress, and so are 
 the tools and instruments of a man's trade or profession, such as the 
 books of the scholar, the axe of the carpenter, the anvil of the smith, 
 the stocking-loom of the weaver, the threshing-machine of the farmer, 
 and the spade and axe of the laborer, so long as they are in actual use, 
 or there are other goods on the demised premises sufficient to satisfy 
 the rent without them(a!). Wearing apparel, also, in actual use about 
 the person of the wearer, is not distrainable, whether it be the wearing 
 apparel of the tenafit himself or of a guest in his house(y). 
 718 Perishable articles, growing crops, fruit, money, etc., have always been 
 considered to be unfit to be taken and detained as a pledge for rent, 
 inasmuch as they are liable to rapid deterioration, and cannot be 
 restored to the tenant in as good plight as they were in when taken, 
 within the period allowed by law for their redemption. Therefore 
 fruit, milk, the flesh of animals recently slaughtered(2), and other 
 things of a perishable nature, could not be distrained ; but as the 2 
 W. & M. c. 5, s. 3, directs the distress to be sold within five days un- 
 less replevied, perhaps the ancient rule of the common law with respect 
 to the perishable nature of the distress no longer extends, in the case 
 
 (w) Keen v. Priest, 4 H. & N. 236 ; 28 Law J., Exch. 157. 
 
 (a) Simpson v. Hartopp, Willes, 612. Wood v. Clarke, 1 Cr. &. J. 484. Harvey v. Pocook, 
 11 M. & W. 740 ; Co. Litt. 47a. Nargatt v. Nias, 28 Law J., Q. B. 143. McDowell v. Shotwell, 
 2 Whart. 26. 
 
 (y) Bac. Abr. INNS, B. 
 
 (s) Morley e. Pinoombe, 2 Excli. 101. 
 
646 WRONGFUL DISTRBSS. [Chap. 11. 
 
 of a distress for rent, to anything which is not liable to deterioration 
 within the period prescribed by the statute for the sale of it. As the 
 things distrained were regarded at common law in the light of a pledge, 
 to be returned to the tenant when the rent was paid, it was held that 
 money ,could not be distrained unless in a bag, because the identical 
 pieces could not be known and restored ; and that grain or flour could 
 not be taken out of a sack, or hay from a barn, because it could not 
 well be ascertained whether the identical quantity taken had been 
 returned. Corn in the sheaf was ^ot djstrainable unless found in a 
 cart(z0). Growing corn, grass, fruits, hops, roots, and growing produce, 
 also, were not distrainable, as the crop was attached to the freehold, 
 and could not be taken up and returned to the tenant, in case he chose 
 to redeem the pledge, in the same state and condition as it was when 
 removed(a). But the 2 W. & M. sess. 1, c. 5, s. 3, and 11 Geo. 2, c. 19, 
 ss. 8 and 9, now enable the lessor to distrain loose com and corn in the 
 sheaf, straw and hay, growing corn, grass, hops, roots, fruit, pulse, 
 and growing produce generally. These Acts, however, do not extend 
 to trees, shrubs, and plants growing in nursery gardens, nor to 
 money(6). 
 719 Property of strangers on the demised premises in their own possession. — 
 The landlord has no right to distrain the carriage and horses of a 
 morning visitor standing at the door of the tenant's dwelling house, 
 or under a shed upon the demised premises ; or the horse of a stranger 
 who has called at the house on business, and tied up the animal to the 
 gate or the stable-door. He cannot distrain a horse which has brought 
 corn to be ground at the tenant's mill, and has been fastened to the 
 mill door whilst the corn was being ground to be taken hack, nor a 
 horse which has brought yarn to a private weighing machine belong- 
 ing to the tenant to be weighed, and has been placed in a stable on 
 the demised premises whilst the weighing was accomplished; the 
 horse in each of these cases being in the possession and use, and 
 under the control, of the owner or his servant(c). Neither can the 
 landlord distrain the boat or barge of a third person lying in. a private 
 dock or private canal, or alongside a wharf upon the demised prem- 
 ises, provided such boat or barge is in the hands and under the care of 
 the master and crew of the owner, and is at the time employed in the 
 owner's business, and is, in his use and possession, and not in the use 
 
 (s«) Given v. Blann, 3 Blatchf. 64. 
 
 (a) 1 Roll. Abr. 667 ; Bradley on Distress, 213 ; GUbert on Distress, 32. 
 
 (6) Clark r. Gaskartb, 2 Moore 491. 
 
 (c) Bead v. Burley, Cro. ISllz. 596. 
 
Sec. l.J PROPERTY OF STRANGERS ON DEMISED PREMISES. 647 
 
 and possession nor under the control of the tenant ; but if it is aban- 
 doned and left upon the premises, in the possession or use, or under 
 the care, of the tenant or his servants, then it is distrainable(d). 
 
 The goods and chattels and wearing apparel of a guest in the ten- 
 ant's house, in the actual possession and use of such guest cannot be 
 distrained for rent, whether the house in which the guest is lodged is 
 a private dwelling-house or a common inn ; nor the goods and chattels 
 of third persons placed upon the demised premises, in the possession 
 and under the care of the tenant, in the ordinary course of trade ; nor 
 the goods and chattels, horses and carriages of travellers, deposited in 
 hostelries and public stables, or in a market or fair where things are 
 taken to be bought or sold ; nor goods delivered to a carrier to be 
 carried for hire. The horse in the smith's shop shall not be distrained 
 for the rent issuing out of the shop, nor the horse, etc., in the hostelry, 
 nor the materials in the weaver's shop for the making of cloth, or cloth 
 or garments at a tailor's, nor sacks of corn nor meal in a mill, nor in a 
 market, for it is in custody (protection) of law(e). 
 720 Property of strang&i's placed on the demised premises, if placed there 
 with the leave and license of the landlord, is not distrainable'. If, for 
 • example, the landlord's permission to place cattle on the demised 
 premises has been sought for and obtained, and the beasts are placed 
 thereon with his authority, he is held impliedly to have undertaken 
 not to exercise his power of distress against them(/). By 34 & 35 
 Vict. c. 79, if the goods of a lodger are taken as a distress by the 
 superior landlord, the lodger may make and serve upon the landlord 
 or his bailiff a declaration that such is the fact, accompanied by a 
 correct inventory of the goods, and a tender of the rent, if any, which 
 the lodger then owes to the tenant, and if after service of such decla- 
 ration and inventory the landlord proceeds with the distress, he will 
 be guilty of an illegal distress, and liable to an action at law at the suit 
 of the lodger. The lodger may also apply to a magistrate for an order 
 for the restoration of the goods. By 35 & 36 Vict. c. 50, the rolling 
 stock of a railway company at any works to which there is a railway 
 siding, which rolling stock is not the property of the tenant of such 
 works, is exempt from distress, if marked with the name or brand, 
 etc., of the actual owner. 
 
 (it) Mnspratt v. Gregory, 3 M. & W. 677. 
 
 (e) 7 Hen. 7, lb ; Bro. Abr. DISTKESS, pi. 57, 71 ; 1 Roll. Abr 688, pi. 12 ; Co. Lltt. 47a. Gie- 
 boum V. Hurst, 1 Salk. 249. 
 
 (/) Joyce V. Fowkes, 2 Vern. 129. Horseford «. Webster, 1 C. M. & E. 696. Giles v. Spen- 
 cer, 3 C. B., N. S. 253. 
 
648 WRONGFUL DISTRESS. [Chap. 11. 
 
 72 1 Materials placed on the demised premises to he manufactured or worked 
 upon. — The goods and chattels of third persons placed on the demised 
 premises for trading or manufacturing purposes are, by the policy of 
 the law, exempt from distress ; such as the yarn of a stocking-manu- 
 facturer, placed in the house of the tenant, a stocking-weaver, to be 
 woven into stockings, but not the frame or machinery of the manufac- 
 turer, delivered to the weaver to enable him to weave the yam(^) ; 
 also the silk of a velvet-manufacturer, delivered to a tenant, a silk- 
 weaver, and taken home by him to be made into velvet at his own 
 house(A); bullocks sent to a slaughterer or carcase-butcher, to be 
 slaughtered and cut up in the way of his trade, and sent back in 
 j oints to the owner to be sold or consumed(i) ; corn sent to a miller to 
 be ground ; clothes sent to a tailor's, casks sent' to a cooper's, or boats 
 to a boat-builder, to be repaired; goods sent to a weigher to be 
 weighed, or to an auctioneer, commission-agent, factor, warehouse- 
 man, granary-keeper, wharfinger, or other agent, to be sold or exported, 
 or otherwise to be dealt with in the course of trade(A). And so of 
 goods in the possession of a pawnbroker as security for money ad- 
 vanced(Z). "The principle of the exemption," observes Parke, B., 
 " is the public good ; that is, that all men may freely, and without 
 interruption or danger of the loss of their goods, deal with those who 
 carry on trades or businesses for the benefit of all indiscriminately ; 
 or buy or sell in markets or fairs, and thus supply themselves with the 
 commodities of life "{m). 
 
 722 Property of guests at a common inn cannot be distrained for the rent 
 of the inn, for it would be a sore detriment to travellers and way- 
 farers who are obliged by necessity to resort to common inns, if their 
 goods and effects were liable to be seized and sold in case of non- 
 payment of the rent of the inn(w). 
 
 723 Chattels in the custody of the law are not distrainable. — Goods and 
 
 ig) Wood V. Clarke, 1 Cr. & J. 484. Unflnished cloth eent to a mill to be wrought is not dis- 
 trainable unless it belongs to the tenant. Hoskins v. Paul, 4 Halst. HO. 
 
 (ft) Gibson v. Ireson, 3 Q. B. 39. 
 
 (») Brown v. Shevill, 2 Ad. & E. 138. 
 
 (*) Bao. Abr. Distkess, B. Williams o. Holmes, 8 Exoh. 861. Adams v. Crane, 1 C. & M. 
 380. Brown v. Arundel, 10 C. B. 54. GUman v. Elton, 6 Moore, 243. Thompson v. Mashiter, 
 8 Moore, 254. Matthias v. Mesnard, 2 C. & P. 363. Himely v. Wyatt, 1 Bay, 102. Brown v. 
 Simttis, 17 S. & R. 138. .Walker v. Johnson, 4 M'Cord, 652. McCreery ». GlaMin, 37 Md. 435. 
 BeTan v. Crooks, 7 Watts & Serg. 452. Owen v. Boyle, 9 Shep. 47. Connah v. Sale, 2S Wend. 
 463. Briggs v. Large, 30 Penn. St. 287. But see Elford v. Clark, 2 Brevard, 88. 
 
 (i) Swire v. Leach, 34 L. J., C. P. 150. 
 
 (m) Joule V. Jackson, 7 M. & W. 451. 
 
 («) Bro. Abr. DISTRESS, pi. 57, 71 ; 1 EoU. Abr. 68, pi. 12. Stone v. Matthews, 7 Hill, 428. 
 Eiddle v. Welden, 6 Whart. 9. But see Trieber v. Knabe, 12 Md. 491. Harris v. Boggs, 6 
 Blackf. 489. 
 
Sec. l.J STATUTORY EXEMPTION FROM DISTRESS. 649 
 
 chattels whicli have been actually seized under a ^. fa. or taken under 
 an attachment, and are in the possession of a sheriff's officer or bailiff, 
 cannot be distrained for rent, as they are in the custody of the law(o), 
 but if the landlord is beforehand with the sheriff, and puts in a dis- 
 tress before the sheriff's officer has got possession, the sheriff cannot 
 then seize them. The landlord is entitled to distrain for six years' 
 arrears of rent(p), and if he gets possession before the sheriff he is 
 entitled to retain and sell, and satisfy the whole six years' arrears if 
 they be due. 
 
 If growing crops have been taken in execution and sold by the 
 sheriff, such crops, as long as they remain on the demised premises, 
 are liable to be distrained for rent accruing due subsequently to the 
 execution and sale (14 & 15 Vict. c. 25, s. 2), in default of sufficient 
 distress of the goods and chattels of the tenant ; and if the execution 
 is fraudulent(g), or the sheriff's officer, after the seizure of the goods, 
 relinquishes the possession, and leaves no one in possession of them, 
 then they may be distrained and taken(7'). 
 
 The landlord is entitled, in some cases, to a year's rent, and in 
 
 other cases to four weeks' arrears of rent, before goods taken in 
 
 ■ execution by the sheriff or the officers of the county court can be 
 
 removed from the premises(s). 
 724 Statutory exemption from distress in favor of foreign ambassadors, and 
 pvblio companies in liquidation. — It is enacted by 7 Anne, c. 12, s. 3, 
 on grounds of public policy, that process of distress against the goods 
 of any ambassador, or other public minister of a foreign state, or of 
 his domestic servants, shall be void. 
 
 By the 25 & 26 Vict. c. 89, s. 163, it is enacted that where any 
 company is being wound up by the court, or subject to the supervision 
 of the court (of Chancery), any attachment, distress, execution, etc., 
 put in force against the estate and effects of the company after the , 
 commencement of the winding-up, shall be void to all intents(i). 
 And the 87th section provides that after a winding-up order, no suit, 
 action, or other proceeding shall be commenced or proceeded with 
 against the company without the leave of the court. Ho'Wever, if a 
 company, being equitable owner of a lease, continues in occupation 
 
 (0) Wharton v. Naylor, 12 Q. B. 673. Pierce v. Scott, 4 Watts & Serg. 344. 
 (p) Humfrey v. Gery, 7 C. B. 667. Cattle taken to be pastured by a tenant for hii'e are not 
 liable to distress for rent. Cadwalder v. Tindall, 20 Penn. 422. 
 (g) Smith v. Russell, 3 Taunt. 400. St. John's College v. Murcott, 7 T. E. 263. 
 (r) Blades v. Arundale, 1 M. & S. 713. 
 
 (s) As to this, and as to Distress by Bailifl's of the County Court, see pout, ch. 14, 8. 1. 
 (<) See Re Progress Assurance Co., L. E., 6 Eq. Ca. 370. 
 
650 WRONGFUL DISTRESS. [Chap. 11. 
 
 after a winding-up order, tl& landlord is not prevented by ss. 87 or 
 163 of the above Act from distraining upon the goods of the company 
 for rent accrued since the •winding-up(M). 
 
 725 Things distrainable — Chattels of traders left on the demised premises in 
 the possession of the tenant. — If a trade can be carried on with profit 
 and advantage, without the things used in the trade being left on the 
 demised premises in the custody and possession of the tenant, they 
 are not there ex necessitate, and are consequently distrainable. Thus 
 it has been held that if a brewer's ^sks be left with a publican until 
 the beer is consumed, the casks do not fall within the exemption, and 
 are not privileged from distress, inasmuch as it is nowise essential 
 to the carrying on the trade of the publican, that the brewer should 
 find the casks(u). So, if the barge of a purchaser of salt is left at the 
 salt-works in the possession of the vendor of the salt, it is distrainable 
 for rent, inasmuch as "it is not necessary for the protection of trade 
 that the boat should be delivered into the custody of the person manu- 
 facturing and selling salt. The trade may well be carried on at the 
 salt-works without the possession of the boat being at all parted with 
 by the owner." Upon the same principle it has been held that a 
 farmer's cart which has brought malt to a brewer, and has been left 
 in the brewer's yard, in possession of the brewer or his servant, to 
 be loaded with a return cargo of grains, or beer, is distrainable for the 
 rent of the brewing premises(w). 
 
 If a carriage which has been sent to a coach-maker to be repaired 
 is left on the premises after the repairs have been completed, for pur- 
 poses foreign to the trade of a coach-maker, it is distrainable, unless 
 the coach-maker exercise some other trade thereon, and the carriage 
 is left with him for the purpose of being dealt with by him in the 
 
 , exercise of such trade. If he exercises the trade of a commission agent 
 for the sale of coaches and carriages, as well as the trade of a coach- 
 maker, and the carriage is left with him to be sold, it would then come 
 within the principle of the exemption(a;). It has been held that a car- 
 riage standing at livery is distrainable(y). Whenever a chattel, such 
 as a threshing machine, or a loom, found upon the demised premises, 
 has been lent or let by the owner to the tenant, it is distrainable, if it 
 
 («) Re Lundy Granite Co., L. E., 6 Ch. App. 162. Whether the leare of the Conrt is 
 necessary, quare. S. C. 
 (») Joule V. Jackson, 7 M. & W. 451. 
 (w) Muspratt v. Gregory. 3 M. & W. 677 
 (X) Kindon v. M l,aren, 6 Q. B. 891. 
 (ff) Francis v. Wyatt, 3 Biut. 1498 ; 1 W. Bl. 483. Parsons V. Gingell, 1 C. B. 546. 
 
Sec. l.J GOODS MOBTGAGBD ST THE TENANT. 651 
 
 is not in actual use at the time of the levying the distress(z). There 
 is a decision to the eflfect that cattle on their way to market in charge 
 of a dxover, and turned into a close on the demised premises in the 
 night, are distrainable(a) ; but this decision appears to be directly at 
 variance with numerous authorities, and with the principles estab- 
 lished for the benefit of trade, arid cannot now be considered law(6). 
 
 With the exception of fixtures, perishable articles, and things used 
 xn trade or placed on the demised' premises for trading or manufactur- 
 ing purposes, or standing there in the custody or possession of the 
 owner, as previously mentioned {ante, p. 645), all the goods and chat- 
 tels on the demised premises, whether they belong to the tenant him- 
 self or to strangers who have placed them in the custody or posses- 
 sion of the tenant, are distrainable for the rent due from such prem- 
 ises(6J). This is the case with the horses and carriages of strangers 
 standing at livery on the demised premises, and not being at the time 
 of the distress under the charge or in the possession of the owner or 
 his servants(c). 
 726 Distress of chattels mortgaged hy the tenant. — Where a tenant from 
 whom rent was due assigned all his goods and chattels by a registered 
 bill of sale by way of mortgage, and was left in possession of the 
 mortgaged chattels, and the landlord distrained them for rent, and 
 eaused them to be appraised, and removed to an auction-room to be 
 sold, and the mortgagee, before the sale, and whilst the goods were 
 in the custody of the law, gave notice to the landlord of the mortgage, 
 , and required the landlord to deliver to him, the mortgagee, any goods 
 that might remain after the landlord had sold enough to satify the 
 distress and costs, and the landlord promised so to do, and part of 
 the goods remained unsold, and the landlord carried them back to the 
 demised premises and returned them to the custody and possession of 
 his tenant, from whom he took them, taking no heed of the notice 
 given him by the mortgagee, or of his promise to return the goods to 
 the latter, it was held that the landlord was not liable to an action 
 at the suit of the mortgagee, as it did not appear that he had been 
 guilty of any tortious act, or that the mortgagee had sustained any 
 damage in respect of the removal of those goods which had been taken 
 
 (2) Fenton v. Logan, 3 M. & Se. 82. Gorton v. Falkner, 4 T. E. 565. 
 
 (a) Fowkes v. Joyce, 3 Lev. 260 ; 2 Ventr. 50. 
 
 (6) Tate v. Gleed, 2 Saund. 290a. 
 
 (66) Kessler v. M'Conachy, 1 Ilawle, 438. Himely v. Wyatt, 1 Bay, 102. Spencer ». M'Gowen, 
 13 Wend. 256. Blanche v. Bradford, 38 Penn. St. 344. 
 
 (c) Parsons V. GingeU, 4 C. B. 546 ; 16 Law J., C. P. 230. But see Toungblood v. Lowry. 2 
 McCord, 39. 
 
652 WRONGFUL DISTRESS. [Chap. 11. 
 
 away from and returned to the mortgagor, in whose possession the 
 mortgagee had left them, and which were as much subject to the pro- 
 visions of the bill of sale after their return as they had been before 
 they were taken away(d). 
 
 If, after the tenant has mortgaged the goods and chattels on the 
 demised premises, the mortgagee enters and takes possession, and 
 the tenant becomes bankrupt, owing more than a year's rent, and the 
 landlord distrains, he is entitled to make the distress available for the 
 whole rent due to him, as the Bankrupt Act was never intended to 
 favor the mortgagee at the expense of the landlord(e). 
 727 Things distraindble under a license to distrain. — If a debtor gives his 
 creditor a license to enter upon the debtor's land and distrain all the 
 goods and chattels upon the debtor's premises(/), and sell them in 
 satisfaction and discharge of the debt, this will not enable the creditor 
 to seize and sell the property of a stranger, for a license of this sort 
 cannot be made to extend to and bind those who are not parties to 
 it(p'). If, therefore, the occupier of a farm borrows money, and binds 
 himself to pay interest, and covenants that if the interest should be 
 in arrear for a certain time, the covenantee shall have power to enter 
 upon the farm and distrain for the arrears in the same manner as land- 
 lords may distrain for rent, this will be a license to the covenantee to 
 enter and seize all the goods on the premises then belonging to the 
 covenantor, but will not enable him to take the goods of a stranger(A). 
 A license to peize chattels is a mere personal authority, to be exercised 
 by the licensee, and cannot be granted over or assigned to another(i). 
 
 The grantee of a rent-charge, with power of distress, may justify 
 the taking corn, etc., in a stack or in trusses, under the 2 Wm. & M., 
 sess. 1, c. 5 {ante, p. 645), in the same way as a landlord under a dis- 
 tress for rent ; also the taking of the goods of a stranger on the prem- 
 ises charged with the rent. If the plaintiff whose goods have been 
 taken held under a demise prior to the rent-charge, he ought to reply 
 that fact(A). 
 
 (d) Evans V. Wright, 2 H. & N. 527 ; 27 Law J., Exoh. 50. Chattels in the possession of the 
 tenant, hut under a bona fide mortgage, are not distrainable. Stamps v. Oilman, 43 Miss. 456. 
 
 (e) Brocklehurst v. Lawe, 7 EU. & Bl. 185 ; 26 Law J., Q. B. 107. The 129th section of the 
 old Act (12 & 13 Vict. c. 106), under which this case was decided, and the 34th section of the 
 present Act (32 & 33 Vict. c. 71) are substantially the same. 
 
 (/) As to after-acquired property, see Eeeve v. Whitmore, 33 Law J., Ch. 497. 
 (g) Howes v. Ball, 7 B. & C. 481. 
 (ft) Freeman v. Edwards, 2 Exch. 739. 
 
 (j) Brown v. Metrop. County Society,! Ell. & Ell. 838 ; 28 Law J., Q.B. 236 ; ante, p. 116. 
 (A) Johnson v. Faulkner, 2 Q. B. 936. As to a distress for tithe rent-charge, see Ex parte 
 Amison, L. B., 3 Exch. 3^. 
 
Sec. 1.] SISTBESS AND SEIZURE OF CHATTELS. 653 
 
 728 Distress and seizure of things fravdulently removed. — ^By 11 Geo. 2, 
 c, 19, s. 1, it is enacted, that if any tenant of any lands or tenements, 
 upon the demise or holding whereof any rent is reserved, shall fraudu- 
 lently or clandestinely convey away from the demised premises his 
 goods or chattels, to prevent the landlord from distraining for arrears 
 of rent, it shall be lawful for the landlord, or any person by him for 
 that purpose lawfully empowered, within thirty days next ensuing the 
 carrying away of the goods, to seize the same wherever they shall be 
 found, as a distress for the rent, and sell and dispose of them as if 
 they had been actually distrained upon the demised premises, provided 
 (s. 2) they have not, before the seizure, been sold bona, fide and for a 
 valuable consideration to a person ignorant of the fraud. Where the 
 goods have been placed in any building or inclosure locked or fastened, 
 the landlord, his bailiflf or agent, ja.rst calling to his assistance a con- 
 stable or peace-oflScer, etc., may in the dayiime break open the build- 
 ing and seize the goods ; but before breaking open a dwelling-house, 
 oath must be made (s. 7), before a justice of the peace, that there is 
 reasonable ground to suspect that such goods and chattels are in the 
 dwelling-house(?). 
 
 If it appears that rent was due at the time of the removal of the 
 goods, and that the goods were taken away on or after the day the 
 rent became due, for the purpose of putting them out of reach of a 
 distress, the removal is a fraudulent removal within the meaning of 
 the statute(m). 
 
 If, therefore, goods are removed on quarter-day, they may be 
 followed, though the rent is not in arrear, and there is no right to 
 distrain until the day after(??). But if the rent is not due, or there 
 is sufficient distress on the demised premises, independently of the 
 goods removed, to satisfy the rent, the removal is not fraudulent, and 
 the lessor cannot consequently follow and distrain the goods(o). The 
 statute applies solely to the goods of a tenant and not to those of a 
 stranger. If, therefore, a lodger removes his goods to prevent them 
 from being distrained for rent due from the tenant whose lodger he is, 
 the landlord cannot follow them and distrain them(?)). To deter 
 tenants from fraudulently removing their goods to avoid a distress, a 
 
 (l) Aa to pleas of justification of the seizure of goods under this statute, see Williams ». 
 Boberte, 7 Exoh. 629. 
 
 (m) Opperraaa v. Smith, 4 D. & R. 33. Johns v, Jenkins, 1 Cr. & M. 227. See Purfel v. 
 Sands, 1 Ashmead, 120 ; Rogers v. Brown, 1 Spears, 283. 
 
 (n) Dibble v. Bowater, 2 BU. & Bl. 564. 
 
 (o) Band v. Vaughn, 1 Sc. 670. 
 
 (p) Thornton v. Adams, 6 M. & S. 33. See Sleeper v. Parrish, 7 Phil. (Pa.) 247. 
 
654 WRONGFUL DISTRESS. [Chap, 11. 
 
 penalty to the amount of double the value of the things distrained is 
 imposed upon the offender, which may be recovered by an action of 
 debt, or (if the goods do not exceed 50Z. in value) by a summary 
 proceeding before two justices(g'). 
 729 What amounts to a distress for rent. — It is not necessary, in order to 
 make a distress for rent, that the lessor or his agent should take 
 corporal possession of the things intended to be distrained. It is 
 sufficient if the lessor, in person or by deputy, enters upon the demised 
 premises and announces to the tenant, or his servants, or the persons 
 in actual occupation of the property, that he detains them for his 
 rent. Thus, where a stranger was about to remove some goods he 
 had deposited on the demised premises, and the lessor, hearing of his 
 intention, came upon the land and declared that he would not suffer 
 the things to be removed until his rent was paid, and then went 
 away, and in the course of the day sent a broker, who made a formal 
 distress, but in the meantime the stranger had removed his property 
 off the demised premises, it was held that the distress was com- 
 menced by the landlord's entry and declaration, and that the landlord 
 was justified in retaking the goods at the place to which they had 
 been removed(r). So, where the landlord's agent entered upon the 
 demised premises in the absence of the tenant, and told' the servants 
 of the latter that he was come to distrain for rent, and walked round 
 the premises, took an inventory, and left his inventory at the dwel- 
 ling-house, with a notice of distress addressed to the tenant, informing 
 him that he had distrained the goods mentioned in the inventory for 
 rent due to his landlord, it was held that the distress was completed 
 and accomplished by these acts of the agent, and that the subsequent 
 departure of the latter without leaving any one in possession of the^-^ 
 things distrained was not an abandonment of the distress(s). And 
 where the agent of the lessor went into a field forming part of the 
 .demised premises, where the /tenant's cattle were grazing, and placing 
 his hand upon one of the beasts, declared that he distrained the whole 
 of them for the rent then due, it was held that this was an actual levy- 
 ing of a distress on all the cattle in that particular .inclosure(<). But a 
 mere notice by a landlord that he has distrained things which are not 
 
 (g) Horseft,U e. Davy, 1 Stark. 169. Bromley v. Holden, M. & M. 175. Bach e. Meats, 6 
 M. & S. 200. 
 (r) Wood V. Nutm, 2 M. & P. 30 ; 5 Bing. 10. Cramer v. Mott, L. E., 5 Q. B. 357, 
 («) Swann «. Falmouth (Earl of), 8 B. & C. 156 ; 3 M. &. By. 634. 
 (() Thomas v. Harries, 1 Sc. K. B. 621. 
 
Sec. 1.] ABUSE OF THE BIGHT TO DISTRAIN. 655 
 
 distrainable, unaccompanied by any seizure or removal of the goods, 
 will not constitute any cause of action(M). 
 
 If a warehouse-keeper, who lets out warehouse-room and places of 
 deposit for goods, or receives goods to be warehoused and kept at a 
 certain rent, and has power to distrain the goods in his hands for the 
 warehouse-rent, gives notice to the owner of the goods that he will not 
 deliver certain goods in his warehouse to the order of the latter until 
 the rent due for warehouse-room is paid, and then detains the goods, 
 the detainer and notice amount to a distress for the rent(iB). Where a 
 lodging-house keeper, to whom rent was due for the hire of furnished 
 apartments, refused to permit the wearing apparel, jewels, and chat- 
 tels of his tenant to be removed from the apartments, saying that he 
 should detain them until his rent was paid, and the tenant brought an 
 action against him for a conversion of the chattels, it was held that 
 the detainer amounted -to a distress for rent, and that the action was 
 not maintainable(2/). And where a lodging-house keeper, claiming 
 rent to be due to him from his lodger, locked up the goods of the latter 
 in the room which the lodger held, and in which they had been placed 
 by him, and kept the key in his pocket, refusing the lodger access to 
 them, saying that nothing should be removed until his bill was paid, 
 and the lodger brought an action of trespass for a seizure of the goods, 
 it was held that the action was not maintainable(z). 
 730 Abuse of the right to distrain, rendering persons trespassers ab initio. — If 
 a landlord going to distrain breaks open an outer door, or gets in 
 through a window, and then breaks the door open and seizes the goods • 
 in the house, this is not a distress (ante, p. 264), but a trespass, and he 
 is responsible for all the damage sustained by the tenant(a) ; and if a 
 distress has been lawfully effected in the first instance, but the land- 
 lord or his bailiflf abuses the distress by using or working horses or 
 animals distrained, he becomes, at common law, a trespasser ah initioQ}); 
 but, by 11 Geo. 2, c. 19, s. 19, where any distress shall be made for 
 any rent justly due, and any irregularity or unlawful act shall be 
 afterwards done by the party distraining, or his agent, the distress 
 shall not be deemed unlawful, nor the distrainer a trespasser ab initio 
 but the party grieved may recover satisfaction for the damage in a 
 
 ,B) Beck ». Denbigh, 29 Law J., C. P. 273. 
 
 (X) Green ». St. Kath. Dock Co., 1!) Law J., Q. B. 53. 
 
 [y) Cotton V. Ball, Eastern Term, 1857, C. P. Cramer V. Mott, ante, p. 654. 
 
 («) Ilartley v. Moxham, 3 Q. B. 701. 
 
 (o) Attack V. Bramwell, 32 Law J., Q. B. 148. 
 
 (6) Oxley v. Watts, 1 T. E. 12. Six Carpenters' case, 8 Co. 146a. 
 
656 WRONGFUL DISTRESS. [Chap. 11 
 
 special action of trespass, or on the case, at the election of the plaintiff, 
 and if he recover he shall have full costs. This statute, however, does 
 not apply where the original entry was unlawful, and no valid distress 
 has been effected(c). 
 
 If a distrainer abuses a distress by working an animal distrained, 
 the owner may interfere to prevent it, and an action cannot be main- 
 tained against him for pound-breach or rescue(cZ). 
 
 731 Of unlaiofvl distress when no rent was in arrear. — If the lessor dis- 
 trains before the rent, has become due, the tenant may resist the entry 
 and seizure by force, and, after a seizure has been made, he may rescue 
 his goods at any time before they are impounded ; but when once the 
 goods have been impounded, they are in the custody of the law, and 
 the tenant cannot then break the pound and retake them(e). By the 
 2 Wm. & M. sess. 1, c. 5, s. 5, it is enacted, that if any person shaU 
 distrain for rent pretended to be due or in arrear when no rent was 
 due, the party so distraining shall forfeit double the value of the chattels 
 so distrained and sold, together with full costs of suit (post, ch. 22). 
 
 732 Excessive distresses. — By the statute of Marlbridge, 52 Hen. 3, c. 4, it 
 is enacted, that distresses shall be reasonable and not too great ; and 
 that he that taketh great and unreasonable distresses shall be griev- 
 ously amerced for the excess of such distresses. Lord Coke, in his 
 reading on this statute, observes, that it is worthy of observation "how 
 provident the makers of the statute be that men's beasts, cattell, or 
 goods be not excessively distrained," and that " this agreeth with the 
 reason of the common law"(/). It is the duty, therefore, of every 
 person who has by law a right to distrain, to make a fair and reason- 
 able distress ; and if there be a breach of that duty, and the landlord 
 distrains goods and chattels beyond what is reasonably and fairly 
 necessary for the purpose of realizing the rent and expenses, he renders 
 himself liable to an action for damages at the suit of the tenant, even 
 although the tenant has not, in fact, sustained any damage(g'). If he 
 distrains the crops growing in two fields, when the crop growing in 
 one would be sufl5.cient, when at maturity, to satisfy the rent and 
 charges, the distress is an excessive distress(A). But it is not for 
 every trifling excess that an action is maintainable ; it'must be clearly 
 
 (c) Attach V. Bramwell, ante, p. 656. 
 
 id) Smith o Wright, 6 H. & N. 821 ; 80 Law J., Exoh. 313. 
 
 (e) Gilbert on Distress, 61. 
 
 (/) 2 Inst. u. 4, p. 107. 
 
 ig) Chandler v. Donlton, 34 Law J., Exch. 89. 
 
 (ft) Piggott V. Birtles, 1 M. & W. UL. 
 
Sec. l.J SEIZURE OF MORE GOODS THAN NECESSARY. 657 
 
 disproportionate and ex(fessive(i). And "if there is but one thing 
 which can be taken, so that it must be taken or the party must go 
 •without his distress, for taking it no action lies, though it much ex- 
 ceeds the sum for which the distress is taken"(^). A distress may be 
 excessive although the goods when sold may not realize enough to 
 cover the rent due and the expenseR(Q. The action may be brought 
 by a lodger or under-tenant whose goods have been taken, as well as 
 by the lessee himself(«2); and if the lessee, after the distress, .enters 
 into an agreement with the landlord respecting the sale and dis- 
 position of such distress, or authori«es him to dispense with some or 
 all of the usual forms preparatory to a sale, he does not thereby waive 
 or abandon his right of action for the excessive distress(w). The 
 tenant is entitled to recover damages for a wrongful distress, although 
 he had the free use of the goods all the time they were in the con- 
 structive custody of the law(o). 
 733 Distress for more rent than is dvs. — If a landlord who has distrained, 
 not excessively, for rent in arrear demands a larger sum for arrears 
 than the tenant admits to be due, that alone ddes not make the 
 detention of the goods by the landlord or his bailiff unlawful. The 
 tenant must be taken to know, that neither the validity of the distress 
 nor of the detainer depends on that demand, and that if he wishes to 
 make the latter unlawful he should tender the sum which he alleges 
 to be really due, together with the costs of the distress(p). A declara- 
 tion, therefore, which alleges that the plaintiff held certain premises 
 as tenant to the defendant at a certain rent, and that the defendant 
 wrongfully seized certain goods of the plaintiff on the demised 
 premises for certain arrears of rent alleged to be due, and aferwards. 
 sold the goods for the said arrears, whereas a small part only of the 
 rent claimed to be due was due, discloses no cause of action in the 
 absence of an allegation that the defendant sold more than was 
 enough to satisfy the rent actually due and the costs of the distress(g). 
 The distraining of chattels on a claim of more rent being in arrear 
 
 (fl Eoden v. Byton, 6 C. B. 430. 
 
 (/r) ITield V. Mitchell, 6 Esp. 71. 
 . (?) Smith V. Ashfoi-th, 29 Law J., Exch. 259. 
 
 (m) Fiaher v. Algar, 2 C. & P. 374. Bail v. Mellor, 19 Law J., Exoh. 279. 
 
 ;«) Willoaghby v. Marshall, 4 D. & K. 539 ; 2 B. & C. 821. 
 
 ;o) Baylis v. Usher, 4 M. & P. 790. 
 
 i^) Glynn v. Thomas, 11 Bxoh, 870 ; 25 Law J., Exoh. 127. Trespass will not lie against a 
 landlord for distraining for more rent than is due and in arrear. Hamilton v. Windolf, 38 
 Md. 301. But see McBlroy v. Dice, 17 Penn. St. 163. 
 
 (q) Tancred ». Leyland, 16 Q. B. 669. French v. Phillips, 26 Law J., Exoh. 82. 1 H. & 
 N. 664. 
 
 Ad. Vol. I.— 42 
 
658 WRONGFUL DISTRESS. [Chap. 11. 
 
 than is in fact in arrear, and selling them, is not actionable ; firstly, 
 because the distrainor for rent is not bound by the amount for which 
 he claims to distrain, and though he takes the distress, alleging that 
 he does so for an amount exceeding the real arrears of rent, he may 
 sell afterwards only for that which is really due ; secondly, because, 
 from a mere allegation that the distrainor sold for the alleged arrears 
 and costs, it is not to be inferred that he sold more than was necessary 
 to raise the amount of the arrears actually due. If, however, the 
 untrue claim has been followed by a'^sale of more of the goods taken 
 than was sufficient to raise the amount of rent really in arrear, with 
 the legal charges, then there is a cause of action. It is not enough 
 in an action against a landlord for distraining for more rent than is 
 really due to allege it to have been done maligiously, for an act which 
 does not amount to a legal injury cannot be actionable because it is 
 done with a bad intent(r). 
 
 734 Repeated ^distresses for the same rent. — ^A landlord cannot lawfully dis- 
 train twice for the same rent, unless the distress has been withdrawn 
 at the instance of the tenant, or unless there has been some mistake 
 as to the value of the things taken(.9) ; or unless the distress has been 
 rendered abortive by the threats of misconduct of the tenant. If, 
 after a sale of chattels that have been distrained and sold in due 
 course of law, the tenant by force or threats prevents the purchaser 
 from taking the chattels off the land, the landlord may re-enter arid 
 distrain again(i). And if the landlord's receiver or bailiff relinquishes 
 a distress on receiving a bill or note for the rent from the tenant, and 
 the note is dishonored when it arrives at maturity, the landlord may, 
 as we have seen, distrain again(M). 
 
 735 Impounding the goods — Pound-breach. — The landlord may now 
 impound the things distrained in any barn or building, hovel or rick, 
 or on any lit part of the demised premises(a!). No formal impound- 
 ing is required, as in ancient times, in order to remove the goods from 
 the possession and control of the tenant, and place fhem in the cus- 
 tody of the law. As soon as the distrainor has made out and deliv- 
 ered to the tenant, or has left upon the premises, an inventory of the 
 goods he has taken, they are impounded within the meaning of the 
 statut.e. Thus, where the landlord distrained four casks of beer in a 
 
 (r) Stevenson e. Newnham, 13 C. B. 297 ; 22 Law J., C. P. 110. 
 
 (s) Smith V. Goodwin, 4 B. & Ad. 13. Bagg ». Mawby, 8 Exch. 649. Dawson v. Cropp, 1 
 C. B. 961. 
 («) Lee V. Coote, 2 H. & N. 584 ; 3 H. & N. 203 ; 27 Law J., Exch. 837. 
 («) Parrott ». Anderson, 7 Exch. 93 ; 21 Law J., Exch. 291. 
 (X) 2 Wm. & M. sess. 1, c. 5 ; 11 Geo. 2, o. 19, b. 10. 
 
Sec. 1.] IMPOUNDING THE GOODS. 6P9 
 
 cellar, and gave the usual notice of the distress to the tenant, and left 
 the casks where he found them, in the cellar, without placing them 
 under lock or key, or leaving any person in charge of them, it was 
 held that the casks were duly impounded(j^). So, where cattle which 
 had been distrained for rent were left in a field on a farm where they 
 were taken, and the gates of the field, which had been properly 
 secured by the broker who levied the distress, were opened, and the 
 beasts taken out and driven away, it was held that this was a pound- 
 breach, rendering the person who committed the act liable to treble 
 damages under the statute(z). And if the distrainor enters and 
 niakes a general announcement of the distress on one day, and follows 
 up the proceeding on the next, by giving the tenant notice of the par- 
 ticular things distrained and taken, the impounding is complete, at 
 all events from the time of such notice(a). 
 
 Formerly the distrainor, in removing the goods distrained, might 
 have removed them to any place he thought fit for the purpose of im- 
 pounding them, but the 1 & 2 Ph. & M. c. 12, s. 1, amending the 
 statute of Marlbridge {ante, p. 656), prohibits the distrainor from 
 driving the distress out of the hundred, rape, wapentake, or lathe in 
 which it has been taken, except it be to a pound-overt within the 
 same shire, not above three miles distant from the place where such 
 distress was taken, and enacts that no cattle or goods distrained shall 
 be impounded in several places, whereby the owner shall be con- 
 strained to sue several replevies for the delivery of ^he distress so 
 taken at one time. If the distrainor uses or consumes for his own 
 private use things distrained and impounded ; if he draws beer out 
 of a barrel(6), tans hides, or uses or works beasts or cattle, he of course 
 subjects himself to an action for damages at the suit of the owner 
 thereof(c). As soon as the goods are impounded they are in the cus- 
 tody of the law, and the tenant cannot retake them without being 
 guilty of pound-breach, and subjecting himself to an indictment(d), 
 and also to an action for treble damages and costs of suit, although 
 the distress may be wrongful or irregular, and no rent may be in 
 arrear or due(e). But where the distress is being used in a manner 
 
 (») Firth V. Pttrvis, 5 T. E. 432. 
 
 (2) Castleman v. Hieks, Car. & M. 266. 
 
 (a) Thomas ». Harries, 1 So. N. R. 534. 
 
 (6) Dod e. Monger, 6 Mod. 216. 
 
 («) Duaoomb p. Eeeve, Cro. Eliz. 783. 
 
 (d) Rex V. Bradshaw, 7 C. & P. 233. 
 
 (e) 2 Wm. & M. sess. 1, 0. 6, s. 4 ; 11 Geo. 2, o. 19, B. 10 ; Co. Litt. 47b. Costworth r. Betison, 
 I Ld. Eaym. 104. 
 
660 WRONGFV.L DISTRESS. [Chap. 11. 
 
 which the law will not justify, the owner may interfere to prevent the 
 abuse(/). If the pound is broken, and the goods are unlawfully taken 
 away, the landlord may follow them and recapture them, but he must not 
 break open the doors of a private house, or stable, or inclosure, nor 
 enter the grounds of a third person for the purpose of retaking the 
 goods, except it be on fresh pursuit(p'). ' 
 
 Penalties are imposed by 12 & 13 Vict. c. 92, and 17 & 18 Vict. c. 
 60, on parties neglecting to feed impounded cattle. 
 
 If the landlord refrains, at the request of the tenant, from removing 
 the goods from the different rooms in which the landlord or his bailitf 
 finds them, but takes an inventory of the goods, puts a man in posses- 
 sion, and hands to the tenant a notice of distress referring to the 
 inventory, this is to all intents and purposes a distraining and im- 
 pounding of the goods. Each room is, for the convenience of the 
 tenant, and with his assent, converted into a pound for the goods 
 therein(^). 
 
 736 Abandonment of distress. — Leaving possession of goods distrained is 
 not necessarily an abandonment of the distress. If, therefore, a bailiff 
 or party in possession goes away for a temporary purpose, and is then 
 locked out, he may break open the outer door of the house to recover 
 possession of the distress(i). 
 
 737 Statutory power of sale. — The 2 Wm. & M., c. 5, s. 1, recites that, 
 distresses not being to be sold, but only detained as pledges for en- 
 forcing the payment of rent, the persons distraining have little benefit 
 thereby, for remedying whereof it is enacted (s. 2), that where any 
 goods and chattels shall be distrained for any rent reserved or due 
 upon any demise, lease, or contract whatsoever, and the tenant or 
 owner of the goods shall not, within five days next after such distress 
 taken, with notice thereof and the cause of such taking left at the 
 chief mansion-house, or other most notorious place on the premises 
 charged with the rent, replevy the same with suflScient security, etc. 
 {post, s. 2) ; that then, after such distress and notice, and after the 
 expiration of the said five days, the person distraining " shall and 
 may," with the sheriff or under-sheriff of the county, or with the con- 
 stable, etc., cause the goods and chattels to be appraised by two sworn 
 appraisers, and after such appraisement "shall and may lawfully 
 
 (/) Smith V. Wright, 6 H. & N. 821. 
 
 (g) Elch V. Woolley, 5 M. & Jf . 675 ; 7 Bing. 851. 
 
 (ft) Teiinant v. Field, 8 Ell. & Bl. 336 ; 27 Law J., Q. B. 
 
 (i) Bannister v. Hyde, 29 Law J., Q. B. 141. 
 
Sec. 1.] POWEJl OF SALE, ETC. 661 
 
 sell(A-) the goods so distrained for the best price that can be gotten 
 towards satisfaction of the rent and charges." 
 
 738 Tender of rent rendering a sals unlawful. — If, after the impounding, 
 and before the sale, a tender of the rent and expenses is made, the 
 landlord cannot lawfully proceed to sell the things distrained; for it 
 has been held that upon the equity of the above statute, which gives 
 the tenant five days to replevy the things distrained (s. 2), the tenant 
 ought to have the same time for tendering the rent and expenses, and 
 that an action is maintainable against a landlord who persists in 
 selling after tender of the rent and costs at any time within five 
 days(Z). In the case of a distress of growing crops the tenant may, at 
 any time before the corn is ripe and fit to be cut, tender the rent due, 
 and if, after that,-the landlord takes the corn, he may be proceeded 
 against as a trespasser(m). 
 
 Whenever goods have been seized as a distress for rent, and a ten- 
 der is made of a sum sufficient to cover the rent actually due, and the 
 costs of the distress up to the time of the tender, and the bailiff refuses 
 to give up the goods, and the tenant is obliged to pay a larger sum to 
 get back his goods, he Is entitled to an action for damages(w). But if 
 the landlord distrains for a larger sum than is due, but not excessively, 
 the tenant should tender the amount really due, if he wishes to make 
 the detention of the goods unlawful(o). 
 
 739 Parties to whom tender may be made. — ^A bailiff authorized to distrain 
 for rent has power given him at the same time to receive the rent, and 
 the landlord has no right to circumscribe the bailiff's authority in this 
 respect, for a tenant whose goods are seized under the extraordinary 
 power vested in the landlord of distraining, ought to be enabled in all 
 cases to release them at once by tender of the rent and costs to the 
 bailiff. The power to receive the rent is therefore necessarily annexed 
 to the warrant to distrain(p) ; but it does not follow that because the 
 tender may be made to the bailiff who distrains, it may be made also 
 to any bailiff's follower who may be put into temporary possession of 
 the goods(g'). 
 
 740 Power of sale of growing crops and things fraudulently removed — Ten- 
 der before sale. — The 11 Geo. 2, c. 19, which enables landlords to dis- 
 
 {pl See King v. England, post, p. 666. 
 
 If I Johnson v. Upham, 21 Law J., Q. B. 252, overruling, on this point, Ladd V. Thomas, 12 
 Ad & E. 117, and Ellis v. Taylor, 8 M. & W. 415. 
 (m) Owen v. Legli, 3 B. & Aid., 473. 
 
 («) Loring v. Warburton, 28 Law J., Q. B. 31. Johnson v. Upham, supra. 
 (o) Glynn v. Thomas, 11 Exch. 878. 
 (p) Hatch V. Hale, 15 Q. B. 15 ; 19 Law J., Q. B. 289. 
 (q) Boulton V. Reynolds, 29 Law J., Q. B. 11. 
 
662 WRONGFUL DiSTJBHss. [Chap. 11. 
 
 train things fraudulently removed from the demised premises, also 
 cattle or stock of their tenants depasturing on commons appurtenant, 
 or in anyways belonging to the demised premises, and growing crops 
 (ante, p. 645), enacts that it shall be lawful for the landlord, in con- 
 venient time, to appraise, sell, or otherwise- dispose of the same 
 towards satisfaction of the rent and charges, in the same manner as 
 other goods and chattels may be appraised and disposed of, the 
 appraisement to be -taken when the crops are cut, gathered, cured and 
 made, and not before ; but it is enacted (s. 8), that, if after any dis- 
 tress for arrears of rent so taken, and at any time before the crops 
 shall be ripe and cut, cured or gathered, the tenant or lessee, his exec- 
 utors, etc., shall pay to the landlord, or to the steward or other person 
 usually employed to receive the rent, the whole rent then in arrear, 
 with the costs and charges of the distress, then, and upon such pay- 
 ment, or lawful tender thereof actually made, whereby the end of such 
 distress will be fully answered, the same shall cease, and the crops 
 and produce distrained shall be delivered up to the tenant. 
 741 Notice of distress is not essential at common law to the validity of the 
 distress(r). It has been expressly laid down, that if the lord distrain 
 for rent or services, he has no occasion to give notice to the tenant for 
 what thing he distrains, for the tenant by intendment knows what 
 things are in arrear for his lands as rent and services, etc.(s) ; but the 
 2 Wm. & M. c. 5, s. 1, requires, as we have seen {ante, p. 660), notice 
 of the distress to be given preparatory to a sale by the landlord, and 
 the 11 Geo. 2, c. 19, authorizing the distress and sale of goods fraudu- 
 lently removed {ante, p. 653), and of the cattle and stqck of tenants 
 depasturing on commons appurtenant or belonging to the demised 
 premises, and growing crops {ante, p. 644), requires (s. 9) notice of the 
 place where the goods and chattels distrained shall be lodged, to be 
 given within one week to the tenant, or left at his last place of abode. 
 As the tenant is to have five days, under the statute of Wm. & 
 Mary, to replevy from the time he receives notice of the distress, the 
 notice should be given as soon as the distress has been levied. If the 
 distress is not clearly intended to include all the goods and chattels 
 upon the demised premises, the landlord must give the lessee distinct 
 notice of the things included in such distress, in order that he may 
 know what he is to replevy. And for this purpose, as soon as the 
 distress is made, whether by the lessor or his bailiff, in inventory of 
 
 (r) Trent v. Hunt, 9 Exch. 20. 
 
 (s) 1 Boll. Abr. 671, DiSTBESS, pi. 1. Tancred v. Leyland, 16 Q. B. 680. 
 
Sec. 1.] APPRAISEMENT AND SALE — COSTS AND EXPENSES. 663 
 
 the goods distrained should be made and served upon the lessee, 
 together with the notice of the distress. The notice of the distress 
 «hould set forth the amount of rent distrained for, and the particular 
 things taken(i). A written notice of distress is not invalidated by a 
 statement that the rent is due to A, whereas it is due to B, provided 
 JB ha^ authorized the distress(M). If the landlord removes and sells 
 goods and chattels which were not included in the inventory and 
 notice, and which have not consequently been comprised in the dis- 
 tress, he is liable to an action for damages at the suit of the tenant(a;). 
 
 742 Appraisement and sale. — If the tenant, after he has received notice 
 of the distress, neglects for five days, to be reckoned exclusively both 
 of the day of distress and of the day of sale, to pay the rent, the lessor 
 or distrainor may cause the goods to be appraised in the mode 
 appointed by the statute {ante, p. 660), and pay afterwards sell them 
 for the best price that can be got for them, and apply the purchase- 
 money in discharge of the rent and the costs of the sale(y), leaving 
 the surplus, if any, in the hands of the sheriff, under-sheriff, or con- 
 stable, for the owner's use. The schedule of the 57 Geo. 3, c. 93, 
 regulating the costs of appraisements, " whether made by one broker 
 or more," refers only to the case of the employment of a single 
 appraiser by consent, and does not dispense with the attendance of 
 the two sworn apj)raisers(z). If the broker or person actually making 
 the distress on behalf of the landlord constitutes himself one of the 
 appraisers, the appraisement is wrongful and irregular(a). If the 
 tenant holds under a covenant not to carry hay or straw off the 
 demised premises, the landlord who has distrained hay or straw 
 must, nevertheless, sell it in the ordinary way for the best price. If 
 he sells it, subject to a condition that the purchaser shall consume it 
 on the land, he is liable to an action by the tenant for not selling at 
 the best price(6). 
 
 743 Costs and expenses. — By 57 Geo. 3, c. 93, it is enacted, that no per- 
 sons making any distress for rent under 20Z. shall take or receive out 
 of the produce of the things distrained and sold any more than the 
 
 «) Wakeman ». Lindsey, 14 Q. B. 635 ; 19 Law J., Q. B. 166. Zorby v. Harding, 6 Exoh. 
 234 ; 20 Law J., Exch. 1S3. 
 
 («) Trent v. Hunt, 9 Exch. 14. 
 
 (a) Bishop v. Bryant, 6 C. P. 484. 
 
 (y) Robinson o. Waddington, 18 Law J., Q. B. 250. The marginal note of this case, in 13 
 Q. B. 768, is incoiTcct. 
 
 (a) Allen v. Fliclter, 10 Ad. & E. 640. 
 
 (ffl) Westwood V. Cowen, 1 Stark. 172. 
 
 (li) Kidgeway v. Ld. Stafford; 6 Exch. 404 ; 20 Law J., Exoh. 228, 
 
664 WRONGFUL DISTRESS. [Chap. 11. 
 
 ■ 
 
 following costs and charges : i.e. for levying the distress, 3*. ; for the 
 man in possession, 2s. Qd. per day (and even this charge may not 
 nnder all circumstances be justifiable(i;) ) ; for the appraisement, Qd.' 
 in the pound, and the amount of the stamp ; for advertisements,. 10«. ; 
 for catalogues, sale, and commission, and delivery of goods to the 
 purchaser. Is. in the pound on the net produce of the sale. If more 
 costs and charges are levied than those allowed by the Act, the party 
 aggrieved has a summary remedy before two justices for treble the 
 amount of the charges, or he may bring an action for the recovery 
 of them ; but it is provided (s. 4) that no judgment shall be given 
 against the landlord for such treble costs, unless he has persofially 
 levied the distress. Every broker or other person who sh^ll make 
 and levy any distress is to give a copy of his charges, and of all the 
 costs and charges of the distress, signed by him, to the person on 
 whose goods and chattels any distress shall have been levied, 
 although the rent demanded may exceed the sum of 20Z.(d). "When 
 the rent distrained for exceeds Wl., the costs are not limited to any 
 particular amount or fixed scale of charge, but they must be fair and 
 reasonable(e). 
 744 Effect of non-compliance with the statutes authorizing the sale. — ^The 11 
 Geo. 2, c. 19, s. 19, after reciting that it hath sometimes happened that 
 upon a distress made for rent justly due, the directioUs of the 2 W. & 
 M. c. 5, for enabling the sale of goods distrained for rent, have not 
 been strictly pursued, but through the mistake or inadvertency of the 
 landlord or other person entitled to such rent, and distraining for the 
 same, or of the bailiif or agent of such landlord or other person, some 
 irregularity or tortious act hath been afterwards done in the disposi- 
 tion of the distress so seized or taken, for which the party distraining 
 hath been deemed a trespasser ab initio, and in an action brought 
 against him, the plaintiff hath recovered the full value of the rent for 
 which the distress was taken, enacts, that where any distress shall be 
 made for rent justly due, and any irregularity or unlawful act shall be 
 afterwards done by the party distraining, or his agents, the distress 
 itself shall not be deemed to be unlawful, nor the parties making it be 
 therefore deemed trespassers db initio ; but the party aggrieved by 
 such unlawful act or irregularity may recover full satisfaction for the 
 special damage he shall have sustained thereby, and no more. 
 
 (c) Ex parte Amison, L. E.. 3 Exch. 56. 
 
 (d) 1 & 2 Ph. & M. 0. 12, 8 2. Child v. Chamherlain, 5 B. & Ad. 1049. 
 (e). Lyon r. Tomkies, 1 M. & W. 603. 
 
Sec. l.J SALE WITHIN FIVE DAYS. 665 
 
 The plaintiif, therefore, can only recover for an irregularity in dis- 
 training and selling where actual damage is proved. For the original 
 taking there is to be no action ; the distrainor is to be considered as 
 being in possession of the goods, notwithstanding a subsequent irreg- 
 ularity. And although he holds the goods with a special authority to 
 deal with them in a particular way, and is liable for abusing that 
 authority, yet the Act says that the tenant shall recover full satisfac- 
 tion for the damage, and no more. Where, therefore, there is no 
 special damage there can be no satisfaction, and a verdict for nominal 
 damages is not sustainable. Wherever the damages are merely nomi- 
 nal the defendant is entitled to a verdict(/). Where, therefore, the 
 plaintiff in his declaration complained of the sale of his goods within 
 five days, and proved that they were sold too soon, but there was no 
 evidence to show that he had sustained any damage thereby, it was 
 held that the judge ought to direct a verdict for the defeudant(g'). But 
 the statute, as we have seen, does not apply to cases where the original 
 entry upon the premises was effected in an unlawful manner, as by 
 breaking open an outer door, and where, consequently, no valid dis- 
 tress has ever been effected(A). 
 745 Keeping the distress without selling. — It has generally been considered 
 that the words in the 2 Wm. & M. c. 5, " shall and may lawfully sell," 
 mean that the landlord must give the statutory notice of the distress, 
 and must proceed to appraise and sell, if the tenant does not replevy 
 within the five days, or desire the landlord not to sell. If, however, 
 the landlord should neglect to give notice of the distress, and to 
 appraise and sell, but should content himself with, keeping the goods 
 in his hands, he will not be liable to an action for the detention or 
 conversion of the chattels, unless the tenant can prove that he had 
 gained a right to have the goods delivered up to him, and that he had 
 sustained some special damage by the detention(j). The landlord has 
 a lien for his rent upon the things distrained, and has at common law 
 a right to keep them as a pledge until his rent is paid {ante, p. 633), 
 and he can only be made responsible for not selling in an action 
 founded upon the statute. 
 
 The landlord may, with the assent of the tenant, detain the thinga 
 distrained, or convert them to his own use in satisfaction and dis- 
 
 (/) Rogers v. Parker, 18 C. B. 112 ; 25 Law J., C. P. 220. 
 
 {g) Lucas v. TarletOD, 3 H. & N. 116 ; 27 La-ff J., Exch. 248. 
 
 (ft) Attack V. Bramwell, ante, p. 655. 
 
 (i) West V. Nibbs, 4 C. B. 186.- Glynn v. Thomas, 11 Exch. 870. Rpdgcrs «. Parker, tupra. 
 
666 DISTRESS DAMAGE FEASANT f Chap. 11. 
 
 charge of the rent(A). But to obtain a title as against a third person 
 whose goods have been distrained, there must be an actual sale. A 
 taking of the goods by the landlord at the appraised value is not 
 sufficient(Z). 
 746 Indemnification of bailiffs. — We have already seen, that if a landlord 
 employs a bailiff to make a distress on a tenant for rent alleged to be 
 due from such tenant to the landlord, and it turns out that the land- 
 lord had no right to distrain, and the bailiff has to pay damages for 
 the unlawful distress in an action brought against him by such tenant, 
 the bailiff may maintain an action against the landlord for compensa- 
 tion(wi). 
 
 A distress for rent affirms the continuance of the tenancy up to the 
 day when the rent distrained for becahie due(w). 
 
 S E C T 1 N 1 1. 
 
 OP DISTRESS DAMAGE FEASANT. 
 
 747 Seizure and impounding of animals and chattels damage feasant. — 
 Every occupier of land has a right to seize animals and chattels tres- 
 passing upon and doing damage to his land, and to detain them until 
 he is tendered or paid a fair compensation for the injury. The dis- 
 tress must be taken at the time the damage is done, for if the damage 
 was done yesterday, and the distress taken to-day, that would be 
 illegal(o). " If, therefore, a man coming to distrain beasts damage 
 feasant sees the beasts on his ground, and the owner of the beasts, or 
 his servants, chases them out before the distress be taken, though it be 
 of purpose to prevent the distress, yet the owner of the soil cannot 
 distrain them ; and if he doth, the owner of the cattle may rescue 
 them, for the beasts must be damage feasant at the time of the dis- 
 tress. A man may, therefore, distrain cattle damage feasant iji the 
 night, for otherwise, perhaps the cattle will be gone before he can take 
 them." 
 
 (ft) Jones e. Sawklns, 5 C. B. 142. 
 
 {I) King V. England, 33 Law J., Q. B. 145. 
 
 (m) Rawlings V. Bell, 1 C. B. 959. Ibbett v. De t.a Salle, 6 H. & N. 237 ; 30 Law J., Exch. 44 
 
 («) Cotesworth e. Spokes, 10 C. B., N. S. 103 ; 30 Law J., C. P. 220. 
 
 (o) Wormer ». Biggs, 2 C. & K. 31. Linden v. Hooper, Cowp. 41'i. 
 
Sec. 2.] ON LAND ADJOINING RIG SWAY. 667 
 
 "If a man takes my cattle and puts them into the land of another 
 man, the tenant of the land may take these cattle damage feasant, 
 though I, who was the owner, was not privy to the cattle's being dam- 
 age feasant; and he may keep them against me until he has obtained 
 satisfaction of the damages." 
 
 A commoner may justify the taking of the cattle of a stranger upon 
 the land damage feasant. And if a man hath a right of common for 
 ten cattle, and he puts in more, the surplusage above the ten may be 
 distrained damage feasant. If many cattle are doing damage, a man 
 cannot take one of them as a distress for the whole damage, but he 
 may distrain one of them for its own damage, and bring an action of 
 trespass for the damage done by the rest(p). If cattle get out of the 
 close before the party coming to distrain has got into it, they cannot 
 be followed and distrained when off the land(5). 
 
 The lord may distrain in respect of injuries done to his soil, and to 
 his hedges, fences, and trees, although he has no interest in the 
 herbage(r). 
 748 Right to distrain animals trespassing and doing damage on unfenced 
 lands adjoining public highways. — If the owner of lands adjoining a 
 highway is bound by a statute or prescription {a^ite, pp. 149, 327), to 
 fence against the highway, and he neglects to do so, and cattle, while 
 passing along the highway under the care of the owner or his servants, 
 stray therefrom intp the adjoining land, and do damage there, the 
 owner of such adjoining land, who has brought the mischief on himself 
 by neglecting to fence, has no right to distrain the cattle, unless they 
 are abandoned and left there by the owner or his servants an \inreason- 
 able time. And if a man who haSland adjoining a highway plants 
 tempting green crops close adjoining the highway, and neglects to 
 fence them off therefrom, so that cattle being driven along the public 
 thoroughfare are irresistibly invited to trespass on the adjoining land 
 through the operation of the tempting food upon their natural instincts, 
 the owner of such adjoining land who has so neglected to fence has 
 no right to distrain the trespassing animals, unless the drovers who 
 have charge of them fail in their duty in endeavoring to prevent them 
 from trespassing and from continuing on the adjoining land(s). 
 
 Whilst cattle are lawfully passing along a highway the owners of 
 the cattle are, as we have seen, using the highway according to the 
 
 (p) Gilbert ou Distress, 4th ed., p. 22. Co. Lilt. 161a. Bac. Abr. DISTKESS, F. 
 
 (q) Clement v. Milner, 3 Esp. 95. Wormer v. Biggs, 2 C. & K. 33. 
 
 (r) Hoskins v. Robins, 2 Wms. Sannd. 327a. 
 
 («) Goodwyn v. Chevely, 4 H. & N. 631 ; 28 Law J., Exoh. 298. See ante, p. 213, 
 
668 DISTRMSS DAMAGE FEASANT. [Chap. 11. 
 
 dedication of the owner of the soil, and, being there with his consent, 
 they are occupying the highway ; but if the cattle have strayed into 
 the high road, and have passed therefrom into the adjoining close, 
 they may be distrained there damage feasant, notwithstanding the 
 owner of that close was bound to repair the fence 'between his close 
 and the road, because the cattle were wrongfully on the road, and the 
 owners were not occupying it so as to cast any obligation to repair the 
 fence upon the distrainor, who is not bound to fence against trespass- 
 ers(i). 
 
 If a landowner neglects to repair and maintain a fence which he is 
 by law bound to repair, and by reason thereof his neighbor's cattle 
 stray into his land, he has no right io distrain them damage feasant, 
 as he is himself the occasion of the injury(M). 
 
 749 What things may he distrained damage feasant. — The right of the 
 owner or occupier of land to seize and detain animals and chattels 
 trespassing upon and doing damage to his land is restricted to such 
 animals and chattels as are not in the actual possession and use, and 
 under the personal care, of some human being(a;). If a man rides 
 upon my corn I cannot take his horse damage feasant, for that would 
 lead to a breach of the peace(j^) ; neither can I take a horse and cart 
 away from a man who is actually driving it, nor a horse or a dog 
 which a man is leading by a string, nor any animal which is under 
 . the immediate control of the owner(3). It is not enough, however, to 
 
 ' ej^mpt a dog from seizure damage feasant, to allege that the dog was 
 in the possession and under the personal care of the plaintiff, for that 
 may be so and yet the dog ma-j^e running about trespassing, and 
 may not be under his immediate control. "Where, therefore, to a plea 
 justifying the seizure of a dog damage feasant, the plaintiff replied 
 that the dog when taken was in the actual possessioniof the servant 
 of the plaintiff, and was then under his personal care, and was being 
 used by him, it was held that these allegations as applied to a dog 
 were insui&cient to establish such a possession and user as would 
 exempt the dog from seizure. " The allegations," observes Patterson, 
 J., " would be satisfied by* proof that the dog was within sound of the 
 servant's whistle, though the servant was out of sight"(a). 
 
 (i) Manch., SheflSeld & Line. Kail. Co. v. Wallis, 14 C. B. 213 ; 23 Law J., C. P. 85. 
 
 («) Singleton c WiHiamson, 31 Law J., Exch. 17 ; 7 H. &. N. *10. 
 
 (x) Gilbert on Distress, 4th ed., p. 21. See ante, p. 644, 
 
 (y) 9 Vin. Abr. 1-21. Distress, A., pi. 4. 
 
 (z) Field V. Adames, 12 Ad. & E. 619. 
 
 (a) Bunch v. Kennington, 1 Q. B. 680. 
 
Sec. 2.] RAiLWAr engines — tender of amends. 669 
 
 Shocks of corn may be taken damage feasant. If turves lie upon a 
 common, damage feasant, a commoner may distrain them, but he 
 cannot burn them. A greyhound may be distrained running after 
 conies in a warren, and so may a ferret brought into a warren. If a 
 man brings gins and nets through my warren I cannot take them out 
 of his hand, but if men are rowing upon my water, and endeavoring 
 ■with their nets to catch fish in my several fishery, I may take their 
 oars and nets, and detain them as damage feasant, to stop their 
 further fishing(6). 
 
 If domestic pigeons come upon land sown with corn, and eat up the 
 corn, the occupier of the land is justified in shooting them, as he has 
 no other means of taking them damage feasant(c). 
 
 750 Distress by railway companies of locomotive engines damage feasant. — 
 A.11 railway companies have a common-law right to distrain engines 
 and carriages encumbering their railway and obstructing the right of 
 passage along the line ; and the provisions of the Railway Clauses 
 Consolidation Act, with respect to the introduction of engines upon 
 the railwaj' and the removal of improperly constructed engines, do 
 not control or qualify this right, but give a cumulative remedy(d). 
 
 75 1 Tender of amends. — If the lord or his bailiff comes to distrain beasts 
 damage feasant, and before the distress the owner of the beasts tenders 
 sufiicient amends, and the distrainer refuses it, the latter becomes a 
 wrong-doer if he then distrains. Tender before the distress makes 
 the distress tortious. Tender after the distress, and before the fca- 
 pounding, makes the detainer and not the taking wrongful. Tender 
 after the impounding is of no avail, as the distress taken' is then in 
 the custody of the laW(6). But tender in *ases of distress for rent 
 renders a subsequent sale unlawful, as we have seen, ante, p. 541, 
 
 Th^haz«rd|Of the sufiiciency of the tender rests upon the wrong- 
 doer whose cattle have trespassed, and not upon the party who has 
 suff'ered by the trespass. If the latter, therefore, demands an exor- 
 bitant sum for compensation, that 'Will not dispense \*th the necessity 
 , of a tender of a proper compensation, and will not relieve the owner 
 of the trespassing cattle from the oblig-atio]! of estimating and tender- 
 ing, at his own risk, the proper amount of damage(/) ; for he, being 
 
 (6) Bac. Abr. DISTKESS, Y. 
 
 (c) Ante, p. 329. 
 
 (d) jVmbergate, etc., Rail. Co. ». Mid. Eail. Co., 2 EU. & Bl. 793. 
 
 (e) Singleton v. Williamson, 31 Law J., Exoh. 287. 'Thomas v. Harries, 1 M. & Gr. 695 ; 1 
 Sc. N. E. 6'M. 
 
 (/; Gulliver V. Cosens, 1 C. B. 795. 
 
670 DISTRESS DAMAGE FEASANT. [Chap. 11. 
 
 the original -wrong-doer, by suffering his cattle to trespass, is bound 
 to teiider the sum which he maintains to be sufficient, before he is in 
 a position to complain of the exorbitant amount of compensation 
 claimed. If he has tendered a sufficient sum before distress made, 
 his remedy would be by replevin or action for a trespass, and if, after 
 the distress, but before impounding, an action for the unlawful deten- 
 tion of the things tsiken{ff). 
 
 The 2 W. & M. c. 5, which enables landlords to sell things dis- 
 trained for rent, does not extend to dil^resses damage feasant. Con- 
 sequently they remain as they were at common law, mere pledges, 
 and the sale of them will make the party distraining a trespasser ab 
 initio, imless the sale was necessary to cover the expense of finding 
 food and water for the animals distrained, and can be justified under 
 17 & 18 Vict. c. 60 (infra). 
 
 The distrainor must at his peril find a proper pound. Generally, the 
 manor pound would be the proper place, but if that is not in a fit state 
 he must find another. He cannot impound so as to injure or destroy 
 the subject-matter of the distress(^). 
 752 Sale of impounded animals. — By 12 & 13 Vict. c. 92, s. 5, it is 
 enacted, that every person who shall impound or confine any animal in 
 any common pound or inclosed place, shall provide it with food and water, 
 and by 17 & 18 Vict. c. 60, s. 1, it is further enacted, that every per- 
 son who has supplied such animal with food and water, shall be at lib- 
 er^, after the expiration of seven clear days after the time of impound- 
 ing the same, to sell any such animal openly in the public market, 
 after having given three, days' public printed notice thereof, and to 
 apply the produce of the sale in discharge of the value of such food 
 and nourishment and the expenses of the sale, rendering the overplus 
 to the owner of the animal. Where several beasts have been dis- 
 trained and impounded damage feasant, the distrainor cannot justify 
 the sale of each beast individually in discharge of the cost of its food 
 and the expenses. Parties availing themselves of the statute must 
 show that it was necessary to sell the number they did sell, or that 
 they sold one, and that it did not produce enough, and then that they 
 sold more. " The power is measured by the necessity of the case, 
 and if the distrainor is obliged to keep the distress for an indefinite 
 period, there is nothing to prevent him from selling from time to time 
 to defray the expenses."(i) 
 
 ig) Glynn v. Thomas, 11 Exch. 870 ; 25 Law J., Exch. 128. 
 
 (ft) Wilder v. Speer, 8 Ad. & E. 547. Bignell v. Clavke, 5 H. & N. 486 ; 29 Law J., Exch. 257. 
 
 (i) Layton ». Hurry, 8 Q. B. 819 ; 15 L. J., Q. B. 244. 
 
Sec. 3.] DUTIES OF POUND-KEEPERS. 671 
 
 By the Roman law, he who took the cattle of another person feeding 
 in his ground, or doing any other damage, was responsible for any 
 violence doing hurt to the cattle, or for driving them in any other 
 manner than he would his own ; and if he caused any damage to the 
 cattle, he was bound to make it good(^). 
 753 Duties and responsibilities of pound-keepers. — It has been held, that 
 if an officer charged with the performance of certain public duties does 
 that which belongs to his office, and intermeddles no further, he shall 
 not be liable for any precedent tortious act of which he could know 
 nothing. A pound-keeper, therefore, who only does the duties of his 
 office by impounding things brought to him, does not by detaining 
 them in the pound, render himself responsible for the unlawfulness of 
 the distress. The pound-keeper is bound to take and keep whatever 
 is brought to him, at the peril of the person who brings it, without 
 any judgment, discretion, examination or warrant; and if the things 
 have been wrongfully taken, the persofa bringing them to the pound 
 and not the pound-keeper, is responsible for the wrong. " It would be 
 terrible," observes Lord Mansfield, " if a pound-keeper were liable to 
 an action for refusing to take cattle in, and were also liable to another 
 action for not letting them go "(Z). 
 
 SECTION III. 
 
 REMEDIES FOR UNLAWFUL AND EXCESSIVE DISTRESSES 
 
 754 Replevin of things distraint. — By the common law, whenever the 
 goods of one man had been wrongfully distrained by another (not 
 being a sheriff or his officer acting in execution of the process of a 
 superior court), and the person out of whose possession the goods had 
 been taken wished to have them restored to him, and to try the lawful- 
 ness of the seizure, he might get back his goods by giving security to 
 the sheriff of the county to prosecute an action with success, and make 
 out the injustice of the taking. The proceeding by which this was 
 accomplished was called a replevin, or the getting back of a chattel 
 taken and detained as a pledge or security, by substituting another 
 pledge in the place of the thing taken(?K). 
 
 (A) Domat, liv. 2, tit. 8, s. 2, S 6. 
 
 (Z) Badkin v. Towell, Cowp. 478. 
 
 (i») Co. Lit. 145b ; Spelm. Gloss. 485 . Gilbert on Eeplevins. 
 
672 WRONGFUL DISTRESS — REPLEVIN [Chap. 11. 
 
 The authorities all lay it down that replevin can only be maintained 
 where goods are taken by one man out of the possession of another ; 
 not where they have been delivered upon a contract ; and this is clear 
 upon the form of pleading, which always is, that the defendant " took 
 and detained " the goods, the plea to which allegation is non cepit{n). 
 
 Replevin does not lie for goods which were taken abroad, but are 
 detained here(o), as the object of the proceeding is to restore the pos- 
 session as it was before the taking. 
 
 The writ of replevin, observes Lord»Redesdale, "is merely meant to 
 apply to the case where A takes goods wrongfully from B, and B 
 applies to have them redelivered to him upon giving security, until it 
 shall appear whether A has taken them rightfully. But if A be in 
 possession of goods and B claims a property, this is not the writ to try 
 that right "(i?). Where therefore, a bailee, who had the lawful posses- 
 sion of chattels by delivery from the owner, placed the chattels in the 
 hands of the defendant, who set up a lien upon them, and the plaintiff 
 proceeded to replevy the goods and bring an action of replevin, it was 
 held that he had mistaken his remedy and could not proceed -by 
 replevin, but should have proved his prior right in an action for detain- 
 ing, or for wrongfully converting, the chattels. " The whole proceed- 
 ing of replevin at common law," observes Coleridge, J.(g), "is distin- 
 guished from that in trespass, in this, amongst other things, that while 
 the latter is intended to procure a compensation in damages for goods 
 wrongfully taken out of the actual or constructive possession of the 
 plaintiff, the object of the former is to procure a restitution of the goods 
 themselves, and this it effects by a preliminary ex-parte interference 
 by the oflB.cers of the law with the possession. This being done, the 
 action of replevin, apart from the replevin itself, is again distinguished 
 from the action of trespass by this, that, at the time of declaring, the 
 supposed wrongful possession has been put an end to, and the litigation 
 proceeds for the purpose of deciding whether he, who by the supposi- 
 tion was originally possessed, and out of whose possession, the goods 
 were originally taken, and to whom they have been restored, ought to 
 retain that possession, or whether it ought to be restored to the- 
 defendant." 
 
 " As a general rule, it is thought just that a party in the peaceable 
 possession of goods should remain undisturbed, either by the parties 
 claiming adversely or by the officers of the law, until the right be 
 
 (B) Galloway v. Bird, 4 Bing. 301. (y) Wilsons, In re, 1 Sch. & Lef 820n, 
 
 (0) Nightingale v. Adams, 1 Show. 91. (a) In Mennie v. Blake, infra. 
 
Sec. 3.] IN TBE COUNTY COURT. 673 
 
 determined and the possession shown to be unlawful. But where, 
 either by distress or merely by a strong hand, the peaceable posses- 
 sion has been disturbed, an exceptional case arises ; and it is thought 
 just that even before any determination of the right the law should 
 interpose to replace the parties in the condition in which they were 
 before the act done, security being taken that the right shall be tried, 
 and the goods be forthcoming \A abide the decision "(r). 
 
 The proceedings in replevin were formerly originated by a writ 
 sued out of the High Court of Chancery, by the person whose goods 
 had been taken and directed to the sheriff of the county, commanding 
 him to replevy the goods and to do justice in the matter. But the 
 statute of Marlbridge (52 Hen. 3, c. 21) authorized the sheriff to 
 replevy on his own authority, and without any suit in replevin, on 
 complaint being made to him of the wrongful taking, and the requi- 
 site sureties and pledges being tendered(s). The statute, 19 & 20 Vict. 
 c. 108, for amending the Acts relating to the county courts, enacts (s. 
 63), that the powers and responsibilities of the sheriff with respect to 
 replevins shall thenceforth cease; and the registrar of the county 
 court of the district in which any distress subject to replevin is taken 
 is empowered to approvs of replevin bonds, and to grant replevins on 
 security being given (ss. 65, 66), and to issue all necessary process in 
 relation thereto to be executed by the high bailiff. 
 755 Replevin in the county court. — If the replevisor wishes to proceed in 
 the county court, he must give security, to be approved of by the regis- 
 trar, for the rent or damage in respect of which the distress was made 
 and the costs in the county court, and must bind himself with sureties 
 to commence an action of replevin against the distrainor in the county 
 tonvi of the district within which the distress was taken within one 
 month from the date of the security, and to prosecute such action with 
 effect and without delay, and to make a return of the goods, if a 
 return thereof shall be adjudged. 
 
 The action of replevin in the county court may be removed by cer- 
 tiorari into the superior court by the defendant, on security being 
 given by him to the master conditioned to defend the action with effect, 
 and to prove that the defendant had good ground for believing that 
 title, etc., was in question,- or that the rent or damage in respect of 
 which the distress was taken exceeded 201. The county court, how- 
 ever, has power to try an action of replevin, although the title to land 
 
 (r) Mennie v. Blake, 6 Ell. & Bl. 851 ; 25 Law J., Q. B. 401. 
 {«) See the statute of Westminster the 2nd, 13Edw. 1, stat. 1, 
 
 Ad. Vol. I.— 43 
 
674 WRONGFUL DISTRESS — REPLEVIN. [Chap. 11 
 
 may come in question, if the defendant has not removed the cause 
 under the above provision(i). An appeal from the decision of the county 
 court is allowed where the amount of the rent or damage exceeds 30Z., 
 and in all actions where the parties have agreed to the jurisdiction. 
 
 Replevip cannot be joined with any other form of action in the 
 county court{t«). 
 
 756 Replevin in the superior courts. — The action of replevin may be com- 
 menced in any superior court in the form applicable to personal actions 
 therein. By 19 & 20 Vict. c. 108, s. Q5, it is enacted that if the re- 
 plevisor shall wish to commence proceedings in any superior court, he 
 shall at the time of replevying give security, to be approved of by the 
 registrar of the county court, for such an amount as such registrar shall 
 deem sufficient to cover the alleged rent or damage in respect of which 
 the distress shall have been made, and the probable costs of the cause 
 in the superior court ; conditioned to commence an action of replevin 
 against the distrainor in such superior court as shall be named in the 
 security within one week from the date thereof, and to prosecute such 
 action with effect and without delay, and unless judgment thereon be 
 obtained by default, to prove before such superior court that he had 
 good ground for believing either that the title to some corporeal or 
 incorporeal hereditament, or to some toll, market, fair, or franchise, 
 was in question, or that such rent or damage exceeded 201., and to 
 make return of the goods if a return thereof shall be adjudged. 
 
 757 Actions of replevin of things distrained damage feasant, when tried in 
 the county court, are to be tried in a summary way, as other actions 
 in those courts held under the authority of 9 & lO Vict. c. 95(a;). 
 Where the distress is for damage feasant, and the defendant in the 
 county court is entitled to judgment for a return of the things dis- 
 trained, the plaintiff is entitled to have the amount of the damage 
 done found, and to have judgment found for the defendant in the al- 
 ternative, for a return of the distress, or for the amount of the damage 
 so found(y). 
 
 758 Actions for unlawfully selling impounded animals and eattle. — To ena- 
 ble a person to avail himself of the power to sell impounded animals, 
 given by 17 & 18 Vict. c. 60, s. 1 (ante, p. 670), it must be shown that 
 tlie animals had been impounded by some person in the exercise or 
 intended exercise of a right to distrain. The word " confined " ia 
 
 («) rordham v. Akers, 33 Law J., Q. B. 67. 
 
 («) Mnngean v. Wheateley, 6 Exch., 88. 
 
 (a:) County Court Rules, Rule 179 ; 2 Jnr. N. S. 551, part a. 
 
 ti/) County Court Rules, Rule 181 ; 2 Jur. N. S. 551, part 2. 
 
Sec. 3.'] ; actio ns^-pabtibs. 675 
 
 the 12 & 13Vict. c. 92, s. 5 (ibid.), does not apply to all takings and 
 confinement of animals under all circumstances(z). 
 
 759 Actions for Unlaipful and excessive distresses. — If a landlord has dis- 
 trained for rent, no rent being in arrear or due, the proper remedy is 
 by action upon the statute for double the value of the things distrained 
 (ante, p. 656). If the landlord has distrained for more rent than is 
 due, and the tenant has tendered the amount due before the distress 
 made, his remedy, if a distress is afterwards made, would be either 
 by replevin, or an action for a trespass, or for a wrongful seizure and 
 conversion of the things distrained. If the tender is made after the dis- 
 tress, an action would be maintainable for the detention of the prop- 
 erty(a). The mere retaining by the landlord of the goods distrained 
 after the tenant has gained a right to have them delivered up to him 
 will not render the landlord liable to an action for a trespass. A land- 
 lord, therefore, who refuses a proper tender, is not to be regarded as 
 a trespasser merely by reason of his non-feasance in failing to deliver 
 up the distress on being required so to do, but his refusal may amount 
 to evidence of a conversion(&). 
 
 If a la;ndlord makes a second distress for the same rent when he 
 might have taken sufficient at first, he is liable to an action for 'the 
 wrongful conversion of the things seized under the second distress(c). 
 
 The wrongful seizure of beasts of the plough, or of the tools and 
 implements of a man's trade, may be made the foundation of an action 
 of trespass as well as of an action upon the case(cZ). 
 
 By the 30 & 31 Vict. c. 142, s. 10, a defendant against whom aii 
 action for malicious prosecution, illegal arrest, illegal distress, assault, 
 false imprisonment, libel, slander, seduction, or other action of tort 
 has been brought in a superior court, may, on an affidavit that the 
 plaintiff has no visible means of paying costs in case of a verdict 
 against him, apply to a judge to stay proceedings, until the plaintiff 
 gives security for costs, or satisfies the judge that he has a cause 
 of action fit to be tried in a superior court ; and the judge may make 
 an order accordingly, or may remit the ease for trial before a county 
 court, as he may think best. 
 
 760 Parties to be made phifitiffs. — ^A person from whose, possession goods 
 . and chattels have- been taken is entitled to replevy them, and try the 
 
 (a) Machell v. Ellis, 1 C. * K. 6S5. Mason v. Newiand, 9 C. & P. 575. 
 
 (a) Gulliver v. Cosens, 1 C. B. 788. Glynn v. Thomas, 11 Exeh. 878 ; ante, p. 662. 
 
 (6) West c. Nibl(S, i 0- B. ,172- 
 
 (e) Dawson v. Cropp, 1 C. B. 981. 
 
 id) Nargett v. Nias, 1 EU. & EU. 439 ; 28 Lavf J.,, Q, B, 143. 
 
676 WRONGFUL DISTRESS. [Chap. 11. 
 
 lawfulness of the taking. Thus, he who hath the goods of another 
 pledged to him, or who hath the cattle of another to manure his' land, 
 has a sufficient property to maintain replevin(e). If the cattle of a 
 feme sole be taken, and afterwards she marry, the husband alono must 
 bring the action, for the cattle rest exclusively in the husband by the 
 marriage ; but if the goods taken are those which the feme has as an 
 executrix, she may join with her husband in the replevin(/). 
 
 An action for an excessive distress may be brought by. a lodger or 
 under-tenant whose goods have been taken, as well as by the lessee 
 himself(p). Where the plaintiff was tenant of a house, in which were 
 goods that had been assigned to his wife's trustee, who lived with 
 them, but the plaintiff had the actual use and enjoyment of the goods, 
 it was held he had sufficient special property in the goods to entitle 
 him to maintain an action for an excessive distress(A). 
 761 Parties to he made defendants. — If a servant, authorized merely to 
 distrain cattle damage feasant, drives cattle from the highway into 
 his master's close, and there distrains them, the master will not be 
 responsible for the wrongful act(i). "Where a landlord authorized his 
 bailiff to distrain for rent due to him from his farm tenant, and the 
 bailiff by mistake distrained the cattle of another person beyond the 
 boundary of the farm, and sold them, and paid over the money he 
 received for them to the landlord, it was held that the landlord was 
 not responsible for the trespass, unless he received the money knowing 
 of the wrongful seizure, or unless he meant to adopt the act of the 
 bailiff at all hazards(A). But if the landlord has appointed an inexpe- 
 rienced, insolvent, or incompetent bailiff, or has neglected to furnish 
 him with proper instructions, he will be responsible in damages in an 
 action for negligence {ante, p. 30). And every landlord who gives a 
 broker a general authority to distrain is responsible if his broker 
 exceeds his authority, by distraining things which are not distrain- 
 able(Z), or if he sells goods without having them duly appraised(w) ; 
 but a landlord who does not personally interfere in making a distress 
 
 (e) Co. I/itt. 145 ; Winch, 28 ; Bac. Abr. Ebplevin, F. G. 
 
 (/) Powes V. Marshall, 1 Sid. 172 ; Bro. Abr. Bar. & Feme, pi. 85. Blackbom v. GreaTes, 
 2 Lev. 107. Serrea v. Dod, 2 B. & P. N. E. 405. 
 
 (jr) Fisher «. Algar, 2 C. & P. 374. Bail ». MeUor.MIjaw J.,Exch. 279. And see further as 
 to parties to actions for the unlawful seizure and conversion, and unlawful detention of chat. 
 tels, ante, pp. 443-448, 553-555. 
 
 (ft) Fell V. Whittaker, L. K., 7 Q. B. 120. 
 
 (i) Xijons V. Martin, 8 Ad. & £. 512 ; ante, p. 31. 
 
 (h) Lewis v. Bead, 13 M. & W. 837. Freeman v. Bosher, 13 Q. B. 780. 
 
 (I) Gauutlett v. King, 3 C. B., N. S. 69. 
 
 (n>) Hasler v. Lemoyne, 5 C. B., K. S. 530. 
 
Sec. 3.] ACTIONS — PLEADINGS. 677 
 
 is not liable for the neglect of the broker in not delivering a copy of 
 his charges, etc., pursuant to the statute(M) (ante, p. 663). 
 
 All persons who aid, or counsel, or direct, or join in a trespass, are, 
 as we have seen, joint-trespassers, but one partner cannot drag 
 another into a trespass without his previous consent, or without his 
 subsequent concurrence. Where, therefore, one of several partners 
 signed a distress-warrant in his own name on behalf of the firm, it 
 was held that this was no proof that the distress was authorized by 
 the firm, so as to render the other partners responsible for it. It 
 must be shown, either by evidence before t]ie transaction that they 
 all joined in ordering the distress, or by evidence afterwards that they 
 concurred in and received the benefit of it(o). 
 
 762 Declarations in replevin simply set forth that in a certain dwelling- 
 house, or in a certain close or common, in a certain named parish and 
 county, the defendant took certain cattle or goods and chattels of the 
 plaintiiF (describing them), and that the plaintiff unjustly detains 
 them against sureties and pledge until, etc., claiming damages. 
 
 763 Declarations for a wrongful and excessive distress. — If beasts of the 
 plough or the tools of a man's trade have been wrongfully distrained, 
 there being other goods of sufiicient value on the demised premises to 
 satisfy the rent, the ordinary declaration for a trespass in seizing and 
 taking away the plaintiff's chattels correctly describes the true cause 
 of action(p). A plaintiff cannot, under the common count for an 
 excessive distress, i.e., for seizing more than was necessary, show thai 
 the defendant distrained for and sold goods exceeding the rent due, 
 and a count for such a cause of action will not be allowed to be added 
 at the trial, where it does not appear to have been a matter in dispute 
 between the parties at the commencement of the action(5'). 
 
 764 Declarations for distraining and selling goods without notice of distress. 
 or without appraisement, or for not selling for the best price. — A good 
 cause of action may be shown by a declaration which alleges that the 
 defendant wrongfully seized divers goods and chattels of the plaintifl ■ 
 (enumerating them), of a certain specified value, then being upon 
 certain premises of the defendant, as and for a distress for rent 
 claimed by the defendant to be in arrear and due from the plaintiff 
 to the defendant for the said premises, and afterwards wrongfully 
 sold the said goods and chattels, without having given to the plaintiff 
 
 (») Hart V. Leaoh, IM. &W. 560. 
 
 (o) Petrie v, Lamont, Car. & M. 96 ; ante, pp. 33, 446-4'18. 
 
 (p) Nargett v. Niaa, ante, p. 675. 
 
 (S) Lucas V. Tarleton, 3 H. & N. 116 ; 27 Law J., Exch. 246. 
 
678 WRONG FTTL DISTRESS. [Chap. 11 
 
 a notice of the said distress and of the cause of taking the same, or 
 left such , notice at the chief mansion-house or other most notorious 
 place on the said premises ;---or wrongfully sold the said goods and 
 chattels, without causing them to be duly appraised by two sworn 
 appraisers(r) ; — or wrongfully sold the said goods and chattels for 
 much less than the best price that could have been gotten for them, 
 had they been sold with reasonable care and diligence. Selling under 
 value is a distinct ground of complaint, and ought to be distinctly 
 stated on the face of the declaration, if the plaintiff means to rely 
 upon \i{s). , 
 
 765 Pleas in replevin — Non cepit. — Pleas in replevin are generally either 
 pleas in bar, or in justification, or by way of cognizance, or by way 
 of avowry. The defendant may either avow or justify, at his election. 
 The general issue in replevin is non cepit, and this may be pleaded 
 by one of several defendants. It is a simple traverse of the allegation 
 in the declaration of the taking of the chattels, and merely alleges 
 that the defendant did not take the cattle or the goods and chattels in 
 the declaration mentioned. This is the proper plea when the defend- 
 ant denies that he was the party distraining, or that he distrained in 
 the place described in the declaration. If the defendant wishes to 
 dispute the plaintiff's jDroperty in the goods, he must plead a plea 
 specially alleging that the goods and chattels in the declaration men- 
 tioned were, at the said time when, etc., the property of the defendant, 
 or of some named third party, and not the property of the plaintiff(<). 
 
 Under a plea of non cepit in an action of replevin the defendant 
 may, under the Municipal Corporations Act, show that he was a con- 
 stable appointed for a borough, and took the goods within the county 
 wherein the borough is situate, but without the borough, on a charge 
 that they had been stolen(M). 
 
 766 Avowries in replevin.- — By 11 G-eo. 2, c. 19, s. 22, it is enacted, that 
 all defendants in replevin may avow or make cognizance generally 
 
 •that the plaintiff or other tenant of the lands and tenements whereon 
 a distress was made enjoyed the same under a grant or demise at 
 such a certain rent during the time wherein the rent distrained for 
 accrued, which rent was then due, and still remains due, without 
 further setting forth the grant, tenure, demise, or title of such land- 
 land or landlords, lessor or lessors, owner or owners of such manor 
 
 (r) Bishop V. Byrant, 6 C. & P. 484. 
 
 (s) Thompson v. Wood, 4 Q. B. 493. 
 
 («) Com. Dig. Plkadee, 3 K. 11. Dover «. Rawlings, 2 M. & Eob. 544. 
 
 («) MeUor v. Leather, 1 Ell. & Bl. 619 ; 5 & 6 Wm. 4, c. 76, s. 76 ; past, eh. 12, n. 1. 
 
Sec. 3.] AVOWRIES IN SEPLEVIN. 679 
 
 The common avowry or cognizance should show that the tenancy 
 continued up to the time of the making of the distress(a;). If the 
 tenancy was determined at the time of the distress, but the tenant 
 still continued in possession, and the distress was founded on 8 Anne, 
 c. 14 (ante, p. 639), the avowry should be based on that statute. After 
 setting forth the tenancy, the amount of rent in arrear, the time when 
 it became due, etc.(y), the avowry or cognizance avows generally that 
 the defendant took the cattle, goodg, and chattels in the close in the 
 declaration mentioned, as and for a distress for the rent due and in 
 arrear, or that he took them as bailiff of the landlord. The landlord 
 who authorized the distress, and the bailiff who seized by his direc- 
 tions, may both join in making the common avowry and cognizance. 
 
 The general form of avowry, authorized by 11 Geo. 2, c. 19, s. 22, 
 applies to rents only ; but penalties for breaches of covenants respect- 
 ing the cultivation of the demised premises, granted by deed, . to be 
 levied by distress, may be treated as rent(z). 
 
 A cognizance by a defendant, as bailiff of an executor, for rent due 
 to the testator is supported by proof of a distress by him in the name 
 of the testator, and by his direction, but after his death, such distress, 
 though made before probate, having been afterwards adopted and 
 ratified by the executor(a). 
 
 767 Anowries for double rent, under the 11 Geo. 2, c. 19, s. 18, should 
 show the nature of the tenancy : that the tenant had power to deter- 
 mine it by giving notice to quit ; that he did give notice to quit at a 
 time mentioned in such notice ; that the tenancy became thereby 
 determined ; that the defendant did not deliver up possession at the 
 time mentioned in such notice, and then became liable to pay double 
 the rent which he would otherwise have paid ; that a certain specified 
 sum, being half a year, or three quarters of a year, of such double 
 rent, became due, arid that the plaintiff took the goods in tho declara- 
 tion mentioned as and for a distress for such rent(6). 
 
 768 Avowries hy joint-tenayis, coparceners, and tenants-in-common. — We 
 have seen that any one of several coparceners and co-heirs in gavel- 
 kind who has levied a distress may avow and justify the distress in 
 his own right, and make conusance as the bailiff of the others, without 
 averring or proving any express authority from them to distrain {ante, 
 
 (a;) "Williams v. Stiven, Q. B. U. 
 
 (y) Boski-uge v. Caddy, 7 Exch. 840. 
 
 (z) PoUitt V. roi-rest, 11 Q, B. 9G7. 
 
 (a) Whitehead v. Taylor, 10 Ad. & B. 210. 
 
 (6) Humberstone v. Dubois, 10 M. & W. 765. See Addison on Contracts, 316, 6th ed. 
 
680 WRONOFUL DISTRESS. [Chap. 11. 
 
 p. 641). If the distress is made by a bailiff or agent on behalf of all, 
 all must join in the avowry and conusance(c). Tenants in common, 
 on the other hand must avow the taking of the distress in respect of 
 their several shares. Thus, if three tenants in common distrain thirty 
 beasts, one of them must avow for ten, the other for ten, and the third 
 for ten more(d). But one of several tenants in common may, as we 
 have seen, distrain and avow for his own share of the rent {ante. p. 
 642). 
 769 Pleas in bar to an avowry — Non tenuit—Rlens in arrere. — The plain- 
 tiff may, by a plea in bar, deny generally all the' allegations contained 
 in the avowry(e), unless he is compelled by a judge's order, under the 
 provisions of the Common Law Procedure Act, to traverse separately 
 the tenancy, the fact of the rent being in arrear, or the authority to 
 distrain. The plea of non tenuit is a traverse of the demise stated in 
 the avowry. It alleges that the plaintiff did not hold the said mes- 
 suage or tenement, land and premises, under 'the alleged demise 
 thereof in the avowry mentioned. Under this plea it may be shown 
 that the tenure alleged in the avowry was extinguished and put an 
 end to before the time of the distress, either by twenty years' adverse 
 possession under the statute of limitations(/), or by a transfer of the 
 landlord's reversionary estate to an assignee or mortgagee who has 
 demanded the rent(p'). 
 
 The plea of riens in arrere simply alleges that no part of the rent 
 alleged in the avowry to be in arrear was in arrear. Under this plea 
 payments made to a ground landlord, or other incumbrancer having 
 claims paramount to the claim of the immediate landlord making the 
 distress, may be given in evidence in reduction of the rent, as such 
 payments are always presumed to be authorized by the landlord, he 
 being obliged to protect the tenant from them, and are treated a? 
 payments of rent by the tenant(^). But payments which are not a 
 direct charge upon the demised premises cannot be given in evidence 
 in satisfaction and discharge of the rent, unless they were directed o] 
 sanctioned by the landlord(i). The meaning of the plea of riens in 
 arrere is, that the plaintiff at the time of the distress was in arrear 
 
 (c) Stedman v. Bates, 1 Salk. 389. 
 
 (d) Litt. see. 314r-317. Philpott v. Doljtiinson, 3 M. & P. 320. 
 
 (e) Trent v. Hunt, 9 Exch. 20. 
 
 (/) De Beauvoir v. Owen, 6 Exch. , 177. 
 (g) Wheeler v. Branscombe, 5 Q. B. 379. 
 
 (ft) Jones V. MoiTls, 3 Exch. 746. Aa to payments under the Metropolis Management 
 Amendment Act, 1S62, 25 & 26 Vict. c. 102, o. 96, see Ryan v. Thompson, L. B., 3 C. P. la. 
 (i) Davies r. Staoey, 12 Ad. & E. 611. 
 
°^'^- 3.] ACTIONS— PLEAVINGS. 681 
 
 to nobody ; and if ne has not paid anybody, he cannot, under this 
 ^ plea, contest the defendant's right to the rent(A). 
 < 70 Payimnt-of money into court. — If goods have been" taken in closes 
 A and B, and the defendant can jostify as to part of the taking in A, 
 but not as to the taking in B, as, for instance, if B was not part of 
 the demised premises, the defendant may give up the case wholly as 
 to B, by paying money into court in respect of the goods there taken, 
 and partially as to A, by paying in respect of those which he does 
 not propose to justify the taking of, and making avowry as to the 
 residue(Z). 
 771 Of the plea of not guilty " by statute " in actions of trespass, or upon the 
 case for an unlawful distress. — By the 11 Geo. 2, c. 19, s. 21, it is enacted, 
 that in all actions of trespass, or upon the case, against persons entitled 
 to rents or services, their bailiffs or other persons, relating to any 
 entry upon premises chargeable with such rents or services, or to any 
 distress or seizure thereupon, it shall be lawful for the defendants to 
 plead the general issue, and give the special matter in evidence, 
 inserting in the margin of the plea the words "by statute "(to). 
 Under the plea of not guily " by statute," therefore, the defendant 
 may give in evidence that he entered the plaintiffs house under a 
 warrant of distress for rent, and was forcibly turned out of possession, 
 and that he thereupon re-entered, and broke open the door of the 
 house, in order to seize the plaintiff's goods. Everything which he 
 might lawfully do in order to make the distress is admissible in evi- 
 dence under this plea(?i). The plea puts in issue not only the matter 
 of justification, but the tenancy and ownership of the goods(o). 
 
 A plea of justification of trespass on the ground that the plaintiff 
 had a right to distrain, must show that the plaintiff' had such an estate 
 and interest in the premises as would entitle him to distrain(:p) ; or 
 that he had some express authority or license to distrain. The com- 
 mon avowry of a distress for rent does not set out title, because the 11 
 Geo. 2, c. 19, s. 22, gives a statutory form, and therefore a lawful 
 demise is implied ; but that statute is confined to actions of replevin. 
 772 Pleas justifying an entry upon land for the purpose of distraining 
 goods fraudulently removed, should set forth the fact of the tenancy, of 
 
 (J) Wigbtman, J., Wheeler v. Bransoombe, B Q. B. 379. 
 
 (I) Lambert v. Hepworth, 2 Q. B. 739 ; 3 & 4 Wm. 4, t. 42, s. 21. As to payment into court 
 generally, see post, ch. 21. 
 (m) Keg. Gen. Hil. Term, 16 Tict. R. 21 ; 1 BU. & Bl. App. Ixxxiii. 
 (n) Eagleton v. Gutteridge, 11 M. & W. 469. 
 (0) Williams v. Jones, 11 Ad. & E. 643 ; and see post, oh. 21. 
 I p) Pinhom v. Souster, 8 Exch. 138. 
 
682 WMONGFUL DISTRESS. [Chap. 11. 
 
 rent being in arrear, and of the fraudulent removal of the goods by 
 the tenant from the house demised to him by the defendant, in order 
 to prevent the defendant from distraining the goods, and the deposit 
 of the goods in the plaintiff's house, and should then go on to justify 
 the entering the house in order to seize the goods under the provisions 
 and in the mode prescribed by the 11 Geo. 2, c. 19, s. 1(g). 
 
 773 Pleas justifying the seizure of animals damage feasant, should set 
 forth the defendant's possession of a close or of land whereon certain 
 cattle of the plaintiff were trespassing* and doing damage, and that 
 the defendant thereupon took the cattle by way of a distress for the 
 damage, and drove them to a common pound and there impounded 
 them, and that this act of the defendant is the injury complained of 
 by the plaintiff in his declaration(7'). If the plaintiff's cattle strayed 
 from a high road into a defendant's close, through the defendant's 
 neglect to repair fences-, which he was bound by statute or prescription 
 to repair, this must be replied specially by a replication, alleging that 
 the cattle were lawfully using the highway, that it was the duty of 
 the defendant to have fenced against the highway, and that he neg- 
 lected go to do(.s). 
 
 774 Plea of a recovery of the goods in an action of replevin. — A plea by the 
 defendant, setting forth that the plaintiff commenced and prosecuted 
 an action against the defendant in the county court of the district 
 within which the distress was taken, and obtained the judgment of the 
 court for the return of the goods, and has recovered his goods, and 
 damages for the taking and detaining them, is a good plea in bar to 
 an action for an excessive distress, as it shows that the plaintiff has 
 already had his remedy(i). 
 
 775 Evidence at the trial — Proof of distress. — In order to establish the fact 
 of a distress having been made by the defendant upon the goods and 
 chattels of the plaintiff', it is not necessary to prove an actual seizure 
 of the plaintiff's goods. If the landlord's agent goes upon the plain- 
 tiff's premises, and declares that he has come to distrain for rent, and 
 that nothing shall be removed, this, as we have seen, is evidence of the 
 making of a distress, though no single article is touched by such agent 
 {ante, p. 654). Where a warehouse-keeper or lodging-house keeper 
 refused to let the goods and chattels of his tenant or lodger be removed 
 
 (g) See the forms in Norman v. Wescombe, 2 M. & W. 349. Eioh v. WooUey, 7 Bing. 651. 
 Bowler v. Nicholson, 12 Ad. & E. 341. 
 (r) Bond v. Downton, 2 Ad. & E. 26. 
 (s) Goodwyn v. Chevely, 4 H. & N. 631. 
 (<) Phillips V. Berryman, 2 Doug. 283 ; post, oh. 21. 
 
Sec. 3. J AcflOA'S — EVIDSNOM. 683 
 
 until rent claimed by him to be due was paid, this was held to be 
 evidence of the making of a distress {ante, p. 655). So, where the 
 defendant's broker appeared upon the plaintiff's premises, and said, 
 "Unless you pay me 21L for rent, and three guineas for expenses, I 
 shall take your goods," and the plaintiff paid the money, it was held 
 that it did not lie in the defendant's moutJi, after receiving the money, 
 to say there was no distress(M)., 
 776 Proof of no rent being due, and of unlawful and excessive distresses. — 
 If the plaintiff sues the defendant on the statute for distraining when 
 no rent was due, he must prove that he held the land on which the 
 distress was taken as tenant to the defendant, and must in general 
 produce and prove the lease, if he holds under a written demise. If 
 the lease is in the hands of the landlord, he should give the latter notice 
 to produce it ; he should then prove the amount of the rent, the period 
 at which it became payable, and that it had been paid to and received 
 by the landlord or his authorized agent, at the time of the levy of the 
 distress. If the plaintiff complains of the wrongful seizure of goods 
 not distrainable, he must prove the nature and character of the goods 
 seized, and that they were privileged from distress {ante, pp. 644, et 
 seq.), and it is for the defendant to show any circumstances rendering 
 the distress in the particular instance lawful, such as that there were 
 no other distrainable goods on the demised premises sufficient to satisfy 
 the rent {ante, p. 645). If the plaintiff complains of an excessive dis 
 tress, he must prove the tenancy ; the amount of rent payable to tho 
 defendant ; the value of the goods distrained, and that some actual or 
 special damage has been sustained from the defendant's having die;- 
 trained and taken an unreasonable quantity of the plaintiff's goods. 
 It is not, as we have seen, for every trifling excess that an action is 
 maintainable for an excessive distress. It must be disproportionate 
 to some considerable extent {ante, p. 657), and must be, productive of 
 actual loss or damage to the plaintiflf(a;). 
 
 If the ground of action is that the defendant distrained for more 
 rent than was really due, the plaintiff must prove that he tendered to 
 the defendant the sum really due, with enough to cover the lawful 
 charges of the distress(2^) ; or that the defendant sold the things dis- 
 trained, and realized by the sale of them more than was sufficient to 
 satisfy the rent really due with the costs of the distress(z). A distress 
 
 («) HutcMns V. Scott. 2 M. & W. 811. 
 
 (x) Lucas t). Tarleton, 3 H. & N. 120 ; 27LaTr J.,Exch.246. Piggott». Birtles.l M.-&W.4B0. 
 
 {y) Glynn v. Thomas, 11 Exch. 878 ; 25 Law J.. Exch. 125. 
 
 (s) Tanorea v. Leylandj 16 Q. B. 680. Frenoli v. PhiUips, 1 H. & N. 507. 
 
684 WRONGFUL DISTRESS. [Chap. 11. 
 
 may, as we have seen, be excessive, although the goods when sold may 
 realize less than the rent and expenses(a). 
 
 777 Proof of material averments in the declaration. — ^The statement in a 
 declaration for an unlawful distress of the name of the person to whom 
 the rent distrained for is due, is material, and must be proved as 
 laid(6). But it is not necessary to prove the precise amount of rent 
 alleged in the declaration to be due(c). 
 
 778 Proof that the defendant ordered or authorized the distress. — In order to 
 prove that the distress was made by the order or authority of the 
 defendant, the warrant should, if the distress was authorized by war- 
 rant in writing, be produced and proved, or a notice to produce it 
 should be given to let in secondary evidence of it ; but it is not neces- 
 sary, as we have seen, to prove the warrant in order to fix the defend- 
 ant as the author of the unlawful proceeding. His conduct, and acts, 
 and admissions in the matter are evidence against him, although he 
 has clothed his agent with an authority in writing. If he has received 
 the money realized by the distress {ante, p. 677), or has personally 
 interfered with the impounding or sale of the goods, or has ratified 
 and adopted the act of the broker levying the distress, these circum- 
 stances are admissible in evidence against him, to show that he ordered 
 or authorized the distress (see ante, p. 676, and po^t, ch. 20, s. 2). 
 
 779 When proof of special damage is necessary. — We have already seen 
 that the 11 Geo. 2, c. 19, s. 19, provides that where a distress has been 
 made for rent justly due, and an irregularity or unlawful act has after- 
 wards beerf committed by the distrainor or his agents, the distress is 
 not to be deemed unlawful, nor the parties making it trespassers ab 
 initio, but that the party aggrieved by the unlawful act or the irregu- 
 larity may recover full satisfaction for the special damage he has sus- 
 tained and no more (ante, p. 664), and that, to enable a tenant to main- 
 tain an action against his landlord for an irregularity in selling goods 
 distrained, it must be proved that he has sustained actual damage from 
 the wrongful act, and if no such proof is forthcoming, it is the duty 
 of the judge to direct a verdict for the defendant((i). 
 
 780 Proof of waiver of right of action. — A right of action foi an unlawful 
 or excessive distress once vested, can only be destroyed by a release 
 under seal, or by the acceptance and receipt of something in satisfac- 
 tion of the wrong done. A tenant, therefore, does not waive his right 
 
 (a) Smith «. Ashforth, ante, p. 637. 
 
 (6) Ireland «. Johnson, 1 B. X. 0. 166. 
 
 (c) Gwinnett «. PhiUipB, 3 T. E. 643. Sells v. Hoare, 8 Moore, 454. 
 
 (d) Eodgers ». Parker, 18 C. B. 112 ; 25 Law J., C. P. 220. Lucas ti. Tarleton, 3 H. & K. 116. 
 
Sec. 3.] ACTIONS — EVIDENCE. 685 
 
 of action for an excessive distress, though he afterwards enters into a 
 written agreement with his landlord respecting the sale of the efl'eets 
 seized(e). 
 
 781 .Proof of tenancy as between plaintiff and defendant, if not admitted 
 upon the record, may be established by parol evidence of the fact, not- 
 withstanding that the tenancy has been created by a lease or agree- 
 ment in writing not produced(/). Proof of payment and acceptance 
 of rent will establish the fact of the relationship of landlord and tenant 
 between the person paying and the person receiving the rent, notwith- 
 standing the existence of a written contract of demise between them 
 which is not produced(g'). And " I have no doubt," observes Bayley, 
 J., " that submitting to a distress acknowledges the tenancy. The 
 landlord after distraining cannot bring an ejectment ; and the occupier, 
 if he does not replevy, is, I think, precluded from denying the title of 
 the landlord "{h). But payment of rent under a distress is not a con- 
 clusive admission of the title of the distrainor. Counter-evidence may 
 be given on the part of the tenant to show that the distrainor never 
 had any title(i). 
 
 Proof of payment of rent by a tenant to an agent of the landlord 
 who has received it on account of the landlord, and paid it over to him, 
 is evidence against the tenant that he holds of such landlord, although 
 the latter was unknown to him, and he supposed at the time he paid 
 the money that the agent received it on account of another person(^). 
 But proof of payment of rent to a particular individual claiming to be 
 entitled to receive it, is only primd facie evidence of a tenancy under 
 the claimant, and the presumption of the particular tenancy may be 
 rebutted by proof that the payment was made by mistake or under a 
 false representation(Z). 
 
 Proof of an attornment by the tenant to a receiver appointed by the 
 Court of Chancery, is proof of a tenancy by estoppel as between the 
 tenant and the receiver ; but the attornment does not enure to the 
 benefit of the person subsequently declared by the court to be the 
 owner of the proper ty(m). 
 
 782 Proof of the nature and terms of a tenancy will best be effected by 
 
 (e) Willoaghby v. Backhouse, 2 B. & C. 821. Baylis ». Usher, 4 M. & P. 790 ; 7 Bing. 153. 
 
 {/) Rex V. Hall, 7 B. & C. 611 ; 1 M. & By. 418. 
 
 (^1 Doe V. Morris, 12 East, 237, 239n. 
 
 (ft) Panton v. Jones, 3 Campb. 372. Cooper v. Blandy, 4 M. & So. 669 ; 1 B. N. C. 45. 
 
 (J) Knight V. Cox, 18 C. B. 615. 
 
 (4) Hitohings v. Thompson, 5 Exch. 54. 
 
 (I) Fenner v. Duploek, 9 Moore, 40. 
 
 (m) Evans v. Matthias, 7 Ell. & Bl. 590 ; 26 Law J., Q. B. 309. 
 
686 WRONGFUL DISTRESS. [Chapi. 11 
 
 production of the written demise, where the tenant holds under a lease 
 or agreement in writing. If the contract is in the hands of the de- 
 fendant, the plaintiff who desires to prove the amount of the rent, the 
 time at which, or the circumstances under which, it became due, 
 should give notice to the defendant to produce it at the trial, in order 
 to let in secondary evidence of its contents(w). The old rule of laW, 
 that the terms of a tenancy or the amount of the rent can be proved 
 only by the production . of the writing when the tenant holds under a 
 written contract of demise, does not exclude evidence of admissions 
 and acknowledgments of those terms made by a defendant holding 
 under a lease in writing not produced. It has been held that what- 
 ever a person says, or his acts amounting to admissions, are evidence 
 against himself, although they relate to the contents of some deed or 
 writing, and go to prove the nature and contents of a written instru- 
 ment not produced(o). Where,, therefore, a defendant held lands 
 under a written demise, it was held that the defendant's verbal 
 declarations of the existence of the tenancy, and of the amount of the 
 rent paid by him to the plaintiff, were admissible in evidence- against 
 him, without the production of the writing under which he held(^). 
 
 Where on the letting of lands the terms of the demise were read from a 
 printed paper by the landlord's agent, and the tenant entered and occu- 
 pied, and paid rent, it was held that the agent might give oral evidence 
 of the terms, using the printed memorandum to refresh his memory(g). 
 783 Damages recoverable — Double value. — By 2 W. & M. sess. 1, c. 5, s. 
 5, it is enacted that if any distress and sale be made by virtue and 
 under color of that Act for rent pretended to be arrear and due, 
 where no rent is arrear or due to the person distraining, the owner of 
 goods distrained and sold may by action of trespass, or upon the case, 
 against the person distraining, recover double the value of the chattels 
 so distrained and sold, together with full costs of suit. When an 
 action is brought upon this statute for the seizure and sale of goods 
 for rent pretended to be iu arrear and due, when in truth no rent is in 
 arrear or due to the person distraining, and the plaintff claims double 
 the value of the goods distrained, the jury should be directed, if they 
 find for the plaintiff, to ascertain in the first place the actual value of 
 the goods, and then to give damages to the plaintiff to the amount of 
 
 {n) Post, ch. 21. 
 
 y(o) Slatterie v. Pooley, 6 M. & W. 66S. Boulter v. Peplow, 9 C. B. 493 ; 19 Law J., C. P. 
 193^ Earle ». Pieken, 6 C. & P. 542. 
 (p) Howard v. Smith, 3 M. & Gr. 254 ; 3 Sc. N. K. 574. 
 (g) Bolton (Lord) v. Tomlin, 5 Ad. & E. S63. 
 
Sec. 3.] DAMAGES BECOVEBABLE. ,687 
 
 double the value. If the jury assess the damages generally at a certain 
 sum, and it turns out that they have assessed only the actual value or the 
 single damage, the mistake cannot be rectified, and judgment cannot be 
 entered up for the double or treble value. But if they expressly find 
 and assess only the actual value, the plaintiif may apply to the court to 
 have judgment entered ixp for double value, according to the statute(r). 
 Whenever the landlord has distrained, without any right or author- 
 ity to distrain, there is a trespass upon, and injury to, the realty, 
 independently .of the trespass in regard of the seizure of the chattels, 
 and the tenant is entitled to recover substantial damages for the dis- 
 turbance of the peaceable possession of his house, as well as. for the 
 unlawful seizure of his goods. 
 
 784 2%e damages recoverable where the entry upon the premises was effected 
 in an unlawful manner, and the parties had no right to touch the goods 
 after they had entered, by reason of the trespass in entering, are the 
 same as would be recoverable from a stranger who had broken and 
 entered the house without any color of authority, and it does not lie 
 in the defendant's mouth to say, in mitigation . of damages, that he 
 has sold the goods, and applied the proceeds of the sale in satisfaction 
 and discharge of the rent(s). Where a distress is wrongful, the party 
 distrained upon has a right to be replaced in the situation in which he 
 was before the seizure, for " parties are not to extort even what is 
 justly due by the improper execution of a warrant." If goods, there- 
 fore, wrongfully distrained have been sold, or money has been paid to 
 procure the liberation of goods distrained, the value of the goods in 
 the one case and the money paid in- the other will be recoverable, as 
 well as aay special damage 'that may have been sustained, and the 
 landlord cannot appropriate the money he has received by trespass 
 and wrong in payment of the rent due to him(<). 
 
 785 Recovery of special damage. — ^We have already seen that by the 
 express terms of the 11 Geo. 2, c. 19, s. 19, the party injured by an 
 unlawful act committed after a lawful distress, is only to recover the 
 amount of damage he has actually sustained. This daniage, in the 
 case of a wrongful seizure and sale of growing crops, is the difference 
 between the amount for which the crops would have been sold if the 
 sale had been regular, and what they actually sold for ; and where 
 
 (r) Masters -d. Farris, 1 C. B. 716 ; post, ch. 21. Eeooveet of Double and Treble 
 Damages. 
 (») Attack V. Bramwell, 33 Law J., Q. B. 146. 
 («) Attack V. Bramwell, 3 B. & S. 530 ; 33 Law J., Q. B. 146. Sowell t>. Champion, 6 Ad. & 
 
 E. 407. 
 
688 WRONGFUL DISTRESS. [Chap. 11. 
 
 there is no difierence, or it is proved that the crops were sold for more 
 than they were worth, no damages are recoverable, and the defendant 
 is entitled to a verdict(M). 
 
 In an action for selling goods distrained for rent without an 
 appraisement, and without complying with the provisions of 2 Wm. & 
 M., sess. 1, c. 5 (ante, p. 660), the measure of damages is the reaF 
 value of the goods sold minus the rent. The wrong-doers cannot get 
 off by handing over to the plaintiff the mere proceeds of the sale(a;). 
 
 In an action for an excessive distress, where the excess consists 
 wholly in seizing growing crops, the probable produce of which is 
 capable of being estimated at the time of the seizure, the plaintiff is 
 not entitled to recover the full value of the crops beyond the amount 
 for which the distress ought to have been levied. " The true measure 
 of damage is simply a compensation for the additional expense of a 
 distress, and of keeping possession of that part of the crops which it 
 was unnecessary to take during the time of possession ; and some 
 compensation for the loss of the absolute ownership and power of dis- 
 position for the same, time ; or, if the tenant has replevied, then a- 
 compensation for the additional expense and inconvenience of replevy- 
 ing to a greater amount "(2^). 
 
 Where the plaiptiff in his declaration for a wrongful distress claimed 
 damages for the loss of divers lodgers, without naming any. Lord Ellen- 
 borough refused to allow him to prove that he had in fact lost a lodger, be- 
 cause the name of the lodger had not been specified in the declaration(z). 
 
 If the landlord takes some things that are distrainable, and other 
 things which are not, this does not render the distress wrongful ab 
 initio ; but the wrong is limited to the seizure of the goods which 
 were not distrainable, and the tenant is entitled to recover only the 
 actual damage sustained by him from the seizure of those particular 
 chattels(a). In respect of the things not distrainable, the distrainor is 
 a trespasser ab initio, and the full value of them is recoverable(6). 
 786 Nominal damages are recoverable in an action for an excessive dis- 
 tress where no actual damage is proved(c). 
 
 («) Bodgers o. Parker, 18 C. B. 112. Lucas v. Tarleton, 3 H. & N. 116. Proudlovfi v. Trem- 
 low, 1 Cr. & M. 326. 
 
 (a;) Kuight v. Egerton, 7 Exch. 407. Biggins t>. Goode, 2 Cr. & J. 367. Whitworth v. Maden, 
 2 C. & K. 517. 
 
 (») PiSSOtt "• Birtlee, 1 M. & W, 451. 
 
 (s) Westwood V. Cowne, 1 Stark. 172. 
 
 (a) Harvey », Pocook, 11 M. & W. 740. 
 
 (6) Keen v. Priest, 4 H. & K. 236 ; 28 Law J., Exch. 157. Attack r. Bramwell, ante, p. 656. 
 Edmondson v. Nattall, 34 Law J., C. P. 102. See farther as to damages, post, ch. 22. 
 
 (c) Chandler v. Doulton, 3 H. & C. 653 ; 34 Law J., Exch. 89.