QlnrupU Ham ^rljnnl Hibraty 
 
KF8845.S46"f86f '•'"■"'"^^ 
 
 3 1924 020 121 855 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020121855 
 
SELWYFS 
 
 ABRIDGMENT 
 
 LAW OF NISI PEIUS. 
 
 VOL. I. 
 
 1. ACCOUNT. 
 
 2. ADULTERY. 
 
 3. AMENDMENT. 
 
 4. ASSAULT AND BATTERY. 
 
 5. ASSUMPSIT. 
 
 6. ATTORNEY. 
 
 7. AUCTION. 
 
 8. BARON AND FEME. 
 
 9. BILLS OF EXCHANGE AND 
 
 PROMISSORY NOTES. 
 10. CARRIERS. 
 
 11. COMMON. 
 
 12. COSTS, CERTIFICATE FOR. 
 
 13. COVENANT. 
 
 14. DEBT. 
 
 15. DECEIT. 
 
 16. DETINUE. 
 
 17. DISTRESS. 
 
 18. EJECTMENT. 
 
 19. EXECUTOR. 
 
 20. FACTOR. 
 
 21. FISHERY. 
 
 Quilibet soriptor adeo anxie sit solicitus, ut ad veritatem dlcat, perinde ao si totius operis 
 fides uniusoujusque period! fide niteretur- Piuef. 6 Rep. 
 
 THIRTEENTH EDITION. 
 
 DAVID KEANE, Q.C., 
 
 RECORDER OF BEDFORD ; 
 
 AND 
 
 CHAELES T. SMITH, M.A, 
 
 ONE OF THE JUDGES OF THE SUPREME COURT OF THE CAPE OF GOOD HOPE. 
 
 LONDON : 
 
 STEVENS AND SONS, 
 
 Eafa iSoofoelte anH Ptiblisbets, 
 119, CHANCEKY LANE, FLEET STEEET. 
 
 1869. 
 
LONDON : 
 BRADBURY, eVaNS, AND CO., PRINTERS, WHITEFRIARS. 
 
ADVEKTISEMENT 
 
 TO THE THIRTEENTH EDITION. 
 
 The alterations proposed in the Law of Bankruptcy, 
 and called for by the Commercial Public, seem to the 
 Editors a sufficient reason for omitting from these Volumes 
 the Chapter with the title " Bankrupt." An article on that 
 subject will be published by the Editors soon after the 
 passing of any general Act relating thereto. 
 
 Temple, Feb. 1869. 
 
PEEFACE. 
 
 The object of the following work is to investigate and explain 
 that branch of jurisprudence, which teaches the nature and extent 
 of the remedies prescribed by the law of England for the redress 
 of private wrongs, or, as they are frequently termed, civil injuries. 
 Considering the utility and importance of the subject, it cannot 
 fail to excite the surprise of the reader, when he is informed that 
 a well-digested treatise on the law of actions remained for so great 
 a length of time a desideratum in the profession, that it was not 
 until the year 1767, that an anonymous compilation, (the first 
 deserving any notice,) entitled "An Introduction to the Law 
 relative to Trials at Nisi Prius," was published. The same work 
 was republished by the late Mr. J. BuUer, in the year 1772. 
 Although the title-page is silent as to this being a second edition, 
 yet, from an examination of the contents, it appears very clearly 
 that Mr. J. Buller's book is merely a republication of the anony- 
 mous treatise published in 1767. It is very remarkable, that so 
 many different opinions should have existed as to the real author 
 of this compilation ; some persons having ascribed it to Mr. Ford, 
 others to the late Mr. J. Olive, and others to Mr. Bathurst. It 
 was the received opinion at the bar ut ego audivi, upon the first 
 appearance of this work, that it had been compiled by Mr. Bathurst 
 (who was created Lord Apsley in 1771, and succeeded his father 
 Allen, Earl Bathurst, in 1775,) for his own private use ; but the 
 dedication by Mr. BuUer to Lord Apsley, prefixed to the edition 
 in 1772, which must have escaped the notice of those persons who 
 ascribed this work to a different author, places the question beyond 
 
VI PREFACE. 
 
 the reach of controversy. That dedication expressly recognizes 
 this treatise as owing its origin to a collection of notes formerly 
 made by Mr. Bathurst for his own private use. This book, having 
 passed through several editions, was succeeded by a similar work, 
 entitled "A Digest of the Law of Actions and Trials at Nisi 
 Prius," by Mr. Espinasse, of which there have been four editions. 
 The Compiler of the following pages conceived that a treatise 
 intended as a companion at the sittings in London and Middlesex, 
 and on the Circuit, might be cast into a more convenient form 
 than that adopted by either of the former writers : and that the 
 cases might be abridged with greater accuracy and precision. 
 Under this impression, the Abridgment of the Law of Nisi Prius 
 was prepared and published in three parts successively, in the years 
 1806, 1807, 1808. 
 
 W. Selwtn. 
 
CONTENTS OF VOL. I. 
 
 — ♦ — 
 
 CHAPTER I. 
 
 OF THE ACTION OF ACCOTJITT. 
 
 PAGE 
 
 I. In what Cases the Action of Account may be maintained . 1 
 
 II. Of the Pleadings and Evidence 3 
 
 III. Of the Judgment 4 
 
 1. To Account 4 
 
 2. Final. — Execution . . . . " . . . 6 
 
 CHAPTER II. 
 
 OF ADULTERY. 
 
 I. Of the Eemedy for this Injury . . . . . . 7 
 
 II. Of the Evidence, and herein of the Statutes relating to 
 
 Marriage . 11 
 
 Marriages Abroad 22 
 
 Proof of Adultery 25 
 
 III. Of the Damages 26 
 
 Costs 28 
 
 CHAPTER III. 
 
 OF AMENDMENT trNDBR THE COMMON LAW PEOCEDUEE ACT. 
 
 I. 15 & 16 Yict. s. 222 ; 17 & 18 Vict. c. 125, s. 96 ; and 23 & 
 
 24 Vict. c. 126, s. 36 ; and their general effect . . 30 
 II. Amendments by whom to be made 31 
 
 III. Amendments when and how to be made . . . .31 
 
 IV. Whai Amendments allowed 33 
 
 V. Amendments in case of Non-joinder and Mis-joinder of 
 
 Parties 36 
 
Vlll 
 
 CONTENTS. 
 
 CHAPTER IV. 
 
 OF ASSAULT AND BATTERY. 
 
 I. Of the Nature of an Assault and Battery, and in what Cases 
 an Action may be maintained 
 II. Of the Declaration 
 
 III. Of the Pleading 
 
 General Issue 
 
 Justification in Defence of Person . 
 Justification in Defence of Possession . 
 Justification by Oificers executing Process 
 Other Justifications .... 
 Eeplication 
 
 IV. Of the Verdict and Judgment . 
 
 41 
 45 
 46 
 46 
 47 
 48 
 49 
 50 
 51 
 52 
 
 CHAPTER V. 
 
 OF THE ACTION OF ASSUMPSIT. 
 
 I. Of the Action of Assumpsit, and of the Agreement, for the 
 
 Non-performance of which this Action may be maintained 54 
 
 II. Of the Indebitatus Counts 81 
 
 III. Of the Declaration 129 
 
 IV. Of the Plea 142 
 
 1. In Abatement 142 
 
 2. Of the Ceneral Issue, and the Pleading Kules . 143 
 
 3. Accord and Satisfaction 147 
 
 4. Infancy 152 
 
 5. Payment 160 
 
 6. Payment into Court 165 
 
 7. Eelease 166 
 
 8. Statutes of Limitations 168 
 
 9. Of Set-oflf 181 
 
 10. Tender 186 
 
 V. Damages. — Judgment 191 
 
 CHAPTER VI. 
 
 ATTORNEY. 
 
 Of Actions by, for the EecoTery of Fees 
 Of the Statute 6 & 7 Vict. c. 73 . 
 Liability of, for Negligence 
 Evidence 
 
 195 
 195 
 209 
 211 
 
CONTENTS. IX 
 
 CHAPTER VII. 
 
 AUCTION. 
 
 PAGE 
 
 Of Agreements relating to the Sale of Lands and Goods by- 
 Auction 213 
 
 Liability of Auctioneer 215 
 
 Eecovery of Deposit and Interest on Defect of Title . . .216 
 
 CHAPTSe VIIL 
 
 BAEON AKD FEME. 
 
 I. Of the Liability of the Husband 223 
 
 1. In respect of Contracts made by the Wife before 
 
 CoTerture 223 
 
 2. In respect of Contracts made by the Wife during 
 
 Coverture 224 
 
 3. In respect of the Children of the Wife by a former 
 
 Husband 237 
 
 II. In what Cases a Feme Covert may be considered a Feme 
 
 Sole 237 
 
 III. Of Actions by Husband and Wife 243 
 
 1. Where the Husband and Wife must join . . 243 
 
 2. Where the Husband must sue alone . . . 245 
 
 3. Where the Husband and Wife may join, or the 
 
 Husband may sue alone, at his Election . .246 
 
 IV. Of Actions against Husband and Wife 251 
 
 CHAPTER IX. 
 
 BILLS OP BXCHACfGE AND PEOMISSORT NOTES. 
 
 I. Of the Nature of a Bill of Exchange . . . .256 
 11. Of the Capacity of the Contracting Parties to a Bill of 
 
 Exchange ■ . . . 258 
 
 Corporations 258 
 
 Infant 261 
 
 Feme Covert 262 
 
 Agent 262 
 
 Partners 264 
 
 Spiritual Person . . ., 266 
 
X CONTENTS. 
 
 PAGE 
 
 III. Of the Eequisites in a Bill of Exchange . . . .267 
 
 Stamp 270 
 
 Date 274 
 
 Alteration of Bill 274 
 
 Of the Person to whom the Bill is made payable . . 277 
 
 Words " or Order " 277 
 
 Consideration 278 
 
 IV. Presentment for Acceptance 281 
 
 Acceptance 282 
 
 Qnalified Acceptance . . .... 283 
 
 Liability of the Acceptor 285 
 
 Non-Acceptance, and Notice of Dishonour . . . 286 
 
 Notice to Drawer 287 
 
 Notice to Indorser 289 
 
 Protest 291 
 
 Lost Bill 293 
 
 Liability of the Drawer on Non-Acceptance . . . 293 
 
 V. Of the Transfer of Bills of Exchange . . . . 294 
 
 Of the Party in whom the Eight of Transfer is vested . 299 
 VI. Of Presentment for Payment, and herein of the Days of 
 
 Grace 300 
 
 Non-payment and Notice thereof 302 
 
 Protest 308 
 
 Non-payment of Checks 310 
 
 Non-payment of Crossed Checks 311 
 
 VII. Of the Acts of the Holder, whereby the Parties to the Bill 
 
 may be discharged 312 
 
 VIII. Of the Action on a Bill of Exchange 316 
 
 Declaration 316 
 
 Pleas 319 
 
 Evidence 321 
 
 Eecovery of Interest 325 
 
 IX. Of the Nature of a Promissory Note .... 328 
 Stat. 3 & 4 Ann. c. 9, s. 1, placing Promissory Notes on 
 
 the footing of Inland Bills of Exchange . . . 328 
 
 What are'Negotiable Notes within the Statute . . 329 
 
 Of Bankers' Notes 335 
 
 Joint and several Notes 335 
 
 Consideration 336 
 
 Stamp 337 
 
 X. Of the time when a Note ought to be presented for pay- 
 ment 333 
 
CONTENTS. XI 
 
 PAGE 
 
 XI. Of the Declaration 340 
 
 Pleadings 340 
 
 Evidence 341 
 
 Conclusion 343 
 
 CHAPTER X. 
 
 CAEUIERS. 
 
 I. Of Common Carriers and their ijlesponsibility . . . 344 
 II. Of the Stat. 11 Geo. IV. & 1 Will. IV. c. 68, limiting 
 the Eesponsibility of Carriers by Land as to the Loss 
 of Parcels of a certain Description. Stat. 7 Geo. II. 
 c. 15 ; 53 Geo. III. c. 159. Of the Statute 17 & 18 
 Vict. c. 31, B. 7 — the Eailway and Canal Traffic Act, 
 
 1854 851 
 
 III. Of the Lien of Carriers 358 
 
 IV. By whom Actions against Common Carriers ought to be 
 
 brought 359 
 
 V. Of the Declaration 362 
 
 Pleading under the New Eules 364 
 
 VI. Evidence 365 
 
 VII. Damages 367 
 
 CHAPTER XL 
 
 COMMON. 
 
 I. Of Eight of Common 369 
 
 11. Of Common af Pasture 370 
 
 Appendant 371 
 
 Appurtenant 372 
 
 In Gross 373 
 
 III. Of the Interest of the Owner of the Soil subject to Eight 
 
 of Common 374 
 
 IV. Of Approvement and Inclosure 375 
 
 V. Of the Eemedy for Disturbance of Eight of Common . 381 
 
 VI. Of Surcharges by Commoners 382 
 
 VII. Prescription 2 & 3 Will. IV. c. 71 382 
 
 VIIL Evidence 387 
 
 Levancy and Couchancy 388 
 
Xll CONTENTS. 
 
 CHAPTER XII. 
 
 COSTS, CERTIFICATE FOR. 
 
 PAGE 
 
 I. In Actions fonnded on Contract 390 
 
 II. In Actions founded on Tort 390 
 
 III. Statutes relating to the Subject 391 
 
 CHAPTEE XIII. 
 
 COVENANT. 
 
 I. Of the Action for Breach of Covenant .... 399 
 
 Where Assumpsit, &c., will lie though there be a Deed . 400 
 
 II. Of the Construction of Covenants 402 
 
 III. Of the different kinds of Covenants : 
 
 1. Express 404 
 
 Running with the land 408 
 
 2. Implied 411 
 
 3. Alternative 414 
 
 4. Joint and several 414 
 
 5. Void and Illegal 420 
 
 IV. Of particular express Covenants : 
 
 1. For Title . , . 423 
 
 2. Not to assign without Licence . . . . 429 
 
 3. To Eepair 434 
 
 4. To Insure 435 
 
 V. By whom the Action of Covenant may be maintained : 
 
 1- Heir 437 ' 
 
 2. Executor 433 
 
 3. Assignee 439 
 
 VI. Against whom the action of Covenant may be maintained : 
 
 1. Heir • ... 444 
 
 2. Executor 
 
 3. Assignee 
 
 4. Devisee 
 
 VII. Of the Declaration 
 
 Venue 
 
 As to the statement of the Deed and Provisions 
 Dependant Covenants and Conditions Precedent 
 
 Concurrent Covenants 
 
 Independent Covenants .... 
 Breach .... 
 
 444 
 445 
 453 
 453 
 453 
 454 
 455 
 460 
 461 
 466 
 
CONTENTS. 
 
 XIU 
 
 VIII. Of the Pleadings : 
 
 1. Accord and Satisfaction . 
 
 2. ETiction .... 
 S. Illegal Purpose 
 
 4. Infancy .... 
 
 5. Limitations, Statute of . 
 
 6. Ml habuit in tenementis 
 
 7. Non est Factum 
 
 8. Non infregit CouTentionem 
 
 9. Payment of Money into Court 
 
 10. Performance . P 
 
 11. Eelease .... 
 
 12. Set-off .... 
 IX. Evidence 
 
 X. Damages 
 
 Costs 
 
 . 468 
 
 . 470 
 
 . 471 
 
 . 471 
 
 . 472 
 
 . 473 
 
 , 475 
 
 . 476 
 
 . 477 
 
 . 477 
 
 . 477 
 
 . 478 
 
 . 479 
 
 . 480 
 
 . 480 
 
 Judgment 481 
 
 CHAPTEE XIV. 
 
 DEBT. 
 
 I. Of the Action of Debt, and in what Cases it may be main- 
 tained 484 
 
 II. Debt on Simple Contract 485 
 
 III. Debt on Bond 488 
 
 Of the Pleas : 
 
 1. Non est Factum, and Evidence thereon 
 
 2. Accord and Satisfaction . 
 
 3. Duress 
 
 4. Illegal Consideration 
 
 . 490 
 
 . 496 
 
 . 497 
 
 . 498 
 
 . 498 
 
 . 498 
 
 . 502 
 
 . 503 
 
 . 506 
 
 . 508 
 
 . 511 
 
 . 512 
 
 . 514 
 
 8. Set-off 518 
 
 1. Immoral 
 
 In Eestraint of Trade, &c. 
 
 2. Gaming 
 Sale of Office 
 
 Simony .... 
 Eesignation Bonds . 
 
 5. Infancy .... 
 
 6. Payment and Evidence thereon 
 
 7. Release .... 
 
XIV CONTENTS. 
 
 PAGE 
 
 IV. Debt on Bail-bond ^19 
 
 Assignment of, nnder Stat. 4 Ann. c. 16 . • • • 524 
 
 Declaration by Assignee 525 
 
 Of the Pleas 526 
 
 V. Debt on Bond, with Condition to perform Covenants . 527 
 
 VI. Debt on Bond of Ancestor against Heir . . . . 531 
 
 Pleas Riens per Descent 532 
 
 Of the Liability of the Heir 534 
 
 Of the Liability of Devisee 535 
 
 Judgment ... 536 
 
 Execution 536 
 
 VII. Debt on Judgment 537 
 
 • Costs 539 
 
 VIIL Debt for Eent Arrear 539 
 
 Declaration 540 
 
 Pleas 541 
 
 Eviction 542 
 
 Nil habuit in tenementis 544 
 
 Payment 544 
 
 Statute of Limitations 545 
 
 For Use and Occupation 545 
 
 Against Tenants holding over, for double Value . . 546 
 
 Against Tenants holding over, for double Eent . . 549 
 
 IX. Debt for Penalties 550 
 
 Pleas 553 
 
 Bribery, &c 554 
 
 CHAPTER XV. 
 
 DECEIT. 
 
 I. Of the Action of Deceit 557 
 
 II. Of the Action for Fraudulent Misrepresentations against 
 
 Persons not Parties to the Contract . . . . 559 
 III. Of Warranty : 
 
 1. Express 565 
 
 2. Warranty of Horses 568 
 
 3. Implied 573 
 
CONTENTS. XV 
 
 CHAPTER XVI. 
 
 DETINUE. 
 
 PAGE 
 
 I. Of the Action of Detinue, and in what Cases it may be 
 
 maintained 581 
 
 II. Of the Pleadings and Evidence 583 
 
 III. Of the Judgment .... ... 584 
 
 CHAPTER XVII. 
 
 DISTEESS. 
 
 • 
 
 I. Of the Nature and Origin of a Distress . . . . 585 
 
 II. Of the Causes for which a Distress may be taken . . 586 
 
 III. Of the Things which may or may not be distrained . . 588 
 
 IV. Who may distrain 593 
 
 V. Of the Time at which a Distress may be taken . . . 597 
 
 VI. Of the Place where a Distress may be taken . . . 599 
 VII. The Manner of disposing of Distresses ; and herein of the 
 
 Sale of Distresses for Pent Arrear 602 
 
 VITI. Of Pound Breach and Eescue 607 
 
 IX. Of abusing the Distress, and of Irregularity in the Pro- 
 ceedings by the Party distraining 609 
 
 CHAPTER XVIII. 
 
 EJECTMENT. 
 
 I. Of the Nature of the Action of Ejectment . . . 614 
 
 Of the Requisites to support an Ejectment . . . 617 
 
 II. By whom an Ejectment may be brought .... 621 
 
 III. For what Things an Ejectment will lie .... 627 
 
 IV. Of Entry 629 
 
 V. Notice to Quit 630 
 
 Eequisites of Notice 635 
 
 Waiver of 639 
 
 Waiver of Forfeiture 640 
 
 Where Notice is not required 642 
 
 VI. Of the Proceedings in Ejectment 645 
 
 VII. Of the Proceedings under 15 & 16 Vict. c. 76, s. 210, in 
 order to obviate the Difficulties attending Re-entries 
 
 at Common Law, for Non-payment of Rent Arrear 650 
 
 Where the Possession is vacant 652 
 
XVI 
 
 CONTENTS. 
 
 PAGE 
 
 VIII. Of the Statutes of Limitations, 21 Jac. I. c. 16; 3 & 4 
 
 Will. IV. c.,27 654 
 
 IX. Of the Statute of Inheritance, 3 & 4 Will. IV. c. 106 . . 664 
 X. Evidence : 
 
 For Plaintiff 665 
 
 For Defendant 679 
 
 XI. Verdict, Judgment, &c 680 
 
 XII. Error 683 
 
 XIII. Of the Action for Mesne Profits 684 
 
 Evidence 685 
 
 CHAPTEE XIX. 
 
 EXECUTORS AMD ADMINISTEATORS. 
 
 I. 
 II. 
 
 III. 
 
 Of Probate 688 
 
 Of the Interest of an Executor or Administrator in the 
 
 Estate of the Deceased 691 
 
 In what Oases it is transmissible 694 
 
 Where an Administration de bonis non is necessary . 695 
 
 Of limited or temporary Administrations : 
 
 During Minority 696 
 
 During Absence 697 
 
 Pendente Lite .... .... 698 
 
 During Lunacy 698 
 
 Of an Executor de son Tort . .' . . . . 699 
 
 Of the Disposition of the Estate of the Deceased . . 701 
 
 Of Admission of Assets 707 
 
 VII. Of Actions by Executors and Administrators . . . 710 
 
 What Actions may be brought 710 
 
 Executors and Administrators must join . . . 714 
 
 Of joining several Causes of Action . . . . 715 
 
 Of Actions against Executors and Administrators . .716 
 
 What Actions may be maintained 716 
 
 What Causes of Action may be joined .... 719 
 
 What Executors are to be Defendants . . . . 720 
 
 Of the Pleadings 721 
 
 Eight of Eetainer 724 
 
 X. Evidence 726 
 
 XI. Judgment 728 
 
 Costs 729 
 
 IV. 
 
 V. 
 
 VI. 
 
 VIII 
 
 IX. 
 
■ CONTENTS. XVU 
 OHAPTEE XX. 
 
 FACTOE. 
 
 PAGE 
 
 Of the Nature of his Employment 731 
 
 Power and Authority 733 
 
 Lien 740 
 
 Liability of Principal 742 
 
 Stat. 6 Geo. IV. c. 94 742 
 
 Stat. 5 & 6 Vict. c. 39 746 
 
 CHAPTER XXir 
 
 FISHEKY. 
 
 I. Of the Eight of Fishery in the Sea, and in the Creeks and 
 
 Arms thereof, and in Fresh Rivers . . . . 749 
 II. Of the different Kinds of Fishery. 
 
 Seyeral Fishery 751 
 
 Free Fishery 753 
 
 Common of Fishery 755 
 
 VOL. I. 
 
NAMES OF CASES. 
 
 
 PAGE 
 
 
 PAGE 
 
 Abbott, Ee . 
 
 . 201 
 
 Alderson v, WaisteU 
 
 41, 48 
 
 — V. Aslett , 
 
 . . 316 
 
 Aldis 1), Chapman 
 
 . . 232 
 
 — w. Blofield 
 
 . 250 
 
 Arared's case 
 
 . 1068 
 
 — V. Braere . 
 
 . . 478 
 
 Aldridge v. Harper . 
 
 . . 1148 
 
 — V. Hendricks . 
 
 . 342 
 
 — V. Johnson 
 
 87, 797, 1283 
 
 — ■». Plumbe . 
 
 . . 492 
 
 Aleberry v. Walby . 
 
 . . 247 
 
 Abel V. Sutton 
 
 . 265 
 
 Alexander v. Angle 
 
 . 1210 
 
 Aberorombie v. Slickman 
 
 . . 718 
 
 — V. Gardiner 
 
 . ; 87 
 
 Abingtou v. Lipscombe . 
 
 . 1284 
 
 — V. Gibson 
 
 . . 573 
 
 Abitbol V. Eiistow . 
 
 959, 960 
 
 — V. Lane 
 
 701, 720, 725 
 
 Ablet V. Skinner . 
 
 . 680 
 
 — i>. Mackenzie . 
 
 . 262 
 
 Abraham v. Beynolds 
 
 . . 1058 
 
 — V. Simms . 
 
 . . 1174 
 
 Abrahams v. Skinner 
 
 . 272 
 
 — ■». Thomas 
 
 . 332 
 
 Absalom v. Enight . 
 
 . . 1163 
 
 — 1), Vane . 
 
 . . 92 
 
 Aby V. Bazton 
 
 . 538 
 
 Alfred «. Farlo-w . 
 
 1203, 1216 
 
 Acheson v.. Fountain . 
 
 . . 297 
 
 Alivon V. Fumival . 
 
 . . 486 
 
 Ackerman v. Ehrensperger 
 
 . 327 
 
 Allam V. Heber 
 
 . 533 
 
 Acraman v, Morrice . 
 
 . .794, 1238 
 
 Allan V. Dunn . 
 
 . . 584 
 
 Acton V. BlundeU . 
 
 . 1077 
 
 — V. Gomme . 
 
 . 1269 
 
 Adams v. Andrews . 7 
 
 61, 1086, 1260 
 
 — V. Lake . 
 
 . . 574 
 
 — 0. Bankart 
 
 . 1098 
 
 AUason v. Stark . 
 
 . 622 
 
 — V. Bristol, Inhabita 
 
 ttts of . 710 
 
 AUday v. Great West; Rail 
 
 356, 367 
 
 — V. Buckland 
 
 . 692 
 
 Allen ». Aldridge 
 
 . . 200 
 
 — V. Gibney 
 
 . . 412 
 
 — 1). Bennett . 
 
 . 801 
 
 — V. Grane . 
 
 . 591 
 
 — V, Dundas 
 
 691, 693 
 
 — V. Kerr . , 
 
 . . 494 
 
 — V. Edmundson ■ . 
 
 . 304, 308 
 
 — V. Palk . 
 
 . 160 
 
 — V. Flicker 
 
 . . 607 
 
 — V. Richards . 
 
 . . 577 
 
 — V. Gripper . 
 
 . 1236 
 
 — V. Sanders . 
 
 . 922 
 
 — V. Holden 
 
 . . 636 
 
 Adamson v. Jarvis , 
 
 . 95, 666 
 
 — t). Impett 
 
 . 99 
 
 Addison v. Preston, Mayor 
 
 of . 1028 
 
 — -ii. Mawson 
 
 . . 269 
 
 Addie v. Western Bank of 
 
 Scotland 1058 
 
 — V. Ormond . 
 
 . 1071 
 
 Addy V. Grix 
 
 . 814 
 
 — V. Pink . 
 
 . . 668 
 
 Adney v. Vernon 
 
 . . 863 
 
 ■ — V. Sea Fire Life Ass. 
 
 Co. . 260 
 
 Agar V. Blethyn 
 
 . 232 
 
 — V. Sharp . 
 
 . . 1142 
 
 Aggs V. Nicholson 
 
 260, 335 
 
 — V. Sngrue . 
 
 . 907 
 
 Agra and Masterman's ] 
 
 Bank v. 
 
 — 1). Walker 
 
 . . 296 
 
 I'Leighton 
 
 . . 184 
 
 . — V. Wood . 
 
 . 17 
 
 Agnilar v, Rodgers 
 
 . 967 
 
 — V. Wright 
 
 . . 865 
 
 Aiken v. Short . 
 
 . 97, 118 
 
 AUsop V. Allsop . 
 
 . 1206 
 
 Aitkenhead i). Blades 
 
 . 1252 
 
 AUwood V. Henckell . 
 
 . . 909 
 
 Akerman v. Humphrey 
 
 . . 1240 
 
 Alsager v. Spalding 
 
 . 106 
 
 Alban v. BrounsaU 
 
 . 1270 
 
 Alston V. Atlay 
 
 . . 608 
 
 Alchorne v. Gomme . 
 
 . . 1163 
 
 — V. Scales . 
 
 . 1082 
 
 Alcinous V. Nigren . 
 
 . 928 
 
 Alton V, Midland Rail. Co. 
 
 S62, 1064 
 
 Alcock V. Royal Exch. Ass 
 
 Co. . . 909 
 
 Alvea V. Bunbury 
 
 . . 486 
 
 Alcorn v. Westbrook 
 
 . 87 
 
 Amery v. Rogers . 
 
 . 958 
 
 Aldenburgh v. People 
 
 . . 599 
 
 Amicable Ass. Society v. B 
 
 oUand . 975 
 
 Alderson v. Langdale 
 
 . 164 
 
 Amies v. Stevens . 
 
 . 345 
 
 — B. Pope 
 
 1104, 1108 
 
 Amiss, Re , . 
 
 . . 814 
 
 7. n 
 
 b 2 
 
XX 
 
 NAMES OF CASES. 
 
 PAOE 
 
 Anmer v, Clark 
 
 . 272 
 
 Amor V. Fearon 
 
 . . 1049 
 
 Amott V. Holden . 
 
 . S14 
 
 Ancher v. Bank of England 
 
 . . 296 
 
 Anderson «. Edie . 
 
 . 971 
 
 — v. Fitzgerald 
 
 . . 975 
 
 — V. George 
 
 . 339 
 
 — V. Hayman 
 
 . . 770 
 
 — w. Martindale 
 
 414, 415, 418 
 
 — V. Pitcher 
 
 . .941 
 
 — V. Smith . 
 
 . . 584 
 
 — -0. Wallis . 
 
 886, 906, 915 
 
 — V. Warburton . 
 
 . 581 
 
 — V. Weston. , 
 
 . . 321 
 
 Andree v. Fletcher 
 
 . 113, 955 
 
 Andrew v. Bough ey . 
 
 . . 147 
 
 — 0, Pearce . . ,. 
 
 . 422 
 
 — ■0. KobinsQji . 
 
 . . 121 
 
 Andrews, Exp 
 
 . 1316 
 
 — , V. Chapman 
 
 . . 984 
 
 — r .V. Franklin . 
 
 , 334 
 
 — V. Hawley 
 
 . . 209 
 
 — V. Marris 
 
 . 863 
 
 — V. Pugh . 
 
 . . 1090 
 
 — ,v. Kussell 
 
 , 605 
 
 — : ».. Smith . 
 
 . 773, 775 
 
 — ■». Turner . . 
 
 . 830 
 
 Angel V. Smith . . . . 
 
 . . 630 
 
 Angle V. Alexander , . 
 
 . 991, 1216 
 
 Anglesey, Marquia of, v- I 
 
 ord Ha- 
 
 thei-ton 
 
 . . 679 
 
 Angrove v. Tippett 
 
 . 168 
 
 Ankerstei;^ v. Clarke . 
 
 . . 247 
 
 Annen v. Woodman 
 
 . 953 
 
 Anscomb v. Shore 
 
 , . 115 
 
 Anaell v. Baker, . . . 
 
 . 400 
 
 — V. Eol?Bon , . . 
 
 . . 461 
 
 Anstey v. Edwards 
 
 . 683 
 
 — V. Harden . . 
 
 773, 776 
 
 Anthony v, Haney . . 
 
 1262, 1325 
 
 — ■». Itfoline . , 
 
 . . 930 
 
 Appleby v, Bid41e . 
 
 . 331 
 
 — V. Dods , . . 
 
 . . 1186 
 
 Applegarth v. Cplley . . 
 
 . 279 
 
 Appleton V. Campbell ^ 
 
 . . 80 
 
 — V, Doily . 
 
 . 594 
 
 — V. Lord Braybrooli 
 
 : . . 486 
 
 Arbouin v^ Anderson . , 
 
 . 298 
 
 Arcangelo v. .Thorspson , 
 
 . . 961 
 
 Archer v. Jaynea . . . 
 
 . 800 
 
 — v. English. . . 
 
 . . 166 
 
 — .«. ^ale. . . . 
 
 . 1148 
 
 — V. Pritchard . 
 
 . . 5 
 
 — v. Snapp . 
 
 . 650 
 
 Arden v- Ooodacre . 
 
 . . 1170 
 
 — V. Puilen, . 
 
 . 1342 
 
 — V. Sullivan 
 
 762, 765 
 
 — V. Tucker . 
 
 . 196 
 
 Arding v. J/omax 
 
 . , 1050 
 
 Ards V, Watkin . 
 
 . 540 
 
 Arkle v. Henzell 
 
 . . 1176 
 
 Arkwrjght v, Gell . 
 
 . . 1077 
 
 Ai-lett V. Ellis . . 
 
 . 370 
 
 Armani v. Castrique . 
 Armfield v. AUport 
 Armitage v. Insole . 
 Armory v. Delamirie 
 Armstrong, Ee 
 
 — V. Christiani 
 
 — V. Lewis . 
 ^— -v. Smith 
 
 Arnold v, Arnold 
 
 — V. Bainbrigge 
 
 — 0. Jefferson . 
 
 — 11. Poole, Mayor of 
 
 — V. Webb 
 Arnsby.i'. Woodward .. 
 Arris ■;;. Stukeley 
 Arrowsmith v, Le Mesurier 
 Arthur v. Barton 
 
 — V. Vanderplank . 
 Afundell v. Short . . 
 
 — ■ V. Tregono 
 Ash V. Abdy 
 Ashbee v. Pidduck. 
 Ashby V. Ashby . 
 ■ — ■ V, James .. 
 
 — v. Minnitt 
 
 — V. Vere 
 Ashcroft V. BouEne . 
 
 — V. Morrin. 
 Ashley a. Freckleton. . 
 
 — V, Harrison 
 
 — V. Pratt 
 Ashmole v. Waiuwright . 
 Ashmore v. Hardy .. 
 Ashnrst v. Mlngay 
 Ashworlh v. Stanwix 
 Aspdin V. Austin .. 
 Aspindall v. Brown . 
 Aspital V. Bryan .. ,. 
 Astey V, Emery. , 
 Astley». Reynolds 
 Aston V. Blagraye . 
 
 ■ — V. Heaven .. 
 
 — V, Pjerkea 
 Atkins .V. Bauwell 
 
 — V. Eilby 
 
 — V. Kinnier.. 
 
 — V. Qwen . , 
 
 — V. Pearce . 
 Atkinson v. Bell 
 
 — V. Banby 
 
 — V, Davies . 
 
 — V. Hawdon . 
 
 — V. Hornby , 
 
 — V, Jameson 
 
 — ». Matteson 
 
 — V. Mattheson . 
 
 — 1), Ealeigh , 
 
 — V. Ritchie 
 
 — , V. Teasdale . 
 Atlee V. Backhouse . 101 
 Attack,«. Bramwell . 
 Atteuborougb v. London . 
 
 — v^ Mackenzie 
 
 PAGE 
 
 . . 325 
 
 . 286 
 
 136, 137 
 
 . 1287 
 
 1029, 1118 
 
 . 307 
 
 . . 1095 
 
 . 1185 
 
 . . 130 
 
 182, 185 
 
 . . 1286 
 
 84, 162 
 
 . . 3 
 
 . 641 
 
 . . 97 
 
 .. 848 
 
 1195, 1196 
 
 . 410 
 
 . 245 
 
 . 1012 
 
 . 767 
 
 514, 615 
 
 . 719 
 
 , 173 
 
 . 1310 
 
 . 266 
 
 . 663 
 
 . 800 
 
 . 1081 
 
 . 1205 
 
 879, 924, 947 
 
 . 104 
 
 , 601 
 
 . 409 
 
 . 1061 
 
 . 414 
 
 . 1270 
 
 . 277 
 
 . 796 
 
 . 105 
 
 . 1203 
 
 . -349 
 
 . 165 
 
 . 67 
 
 . 867 
 
 . 193 
 
 . 1302 
 
 . 229 
 
 86, 1283 
 
 . 106 
 
 . 320 
 
 164, 277 
 
 . 861 
 
 . 1169 
 
 . 850 
 
 . 869 
 
 . 1013 
 
 . 406 
 
 382 
 
 116,' 121, 123 
 
 , . 600 
 
 . 1303 
 
 - . 281 
 
NAMES OF CASES. 
 
 XXI 
 
 
 PAGE 
 
 
 PACE 
 
 Atterbury v. Fal^maner . 
 
 . 670 
 
 BailliQ V. Kell , , 
 
 . . 87 
 
 Atter^ol V. Briant 
 
 . . 1326 
 
 — w. Macanley 
 
 93, 1089 
 
 Attorney-Greneralii. Andrews 
 
 . 812 
 
 — 0. Moore 
 
 . . 164 
 
 — V. Barnes 
 
 . . 812 
 
 — V. Moudigliani 
 
 . 892 
 
 — V. Coventry, 
 
 Mayor 
 
 Bainbridge «>. Firmstone , 
 
 . . 55 
 
 .of 
 
 . 594 
 
 — V. Neilson 
 
 . 914 
 
 — V. Day . 
 
 . . 784 
 
 — 1). Pickering 
 
 . . 157, 
 
 — 1). MatHas 
 
 . 383 
 
 — V. Wade 
 
 771, 789 
 
 — V. MuUay 
 
 . . 18 
 
 Baine v. Swainson 
 
 . . 745 
 
 — V. Parsons 
 
 . 834 
 
 Baines v. Holland ... 
 
 . 939 
 
 — . V. Riddell 
 
 . . 1054 
 
 Baird v. Eobertsofl . , 
 
 . . 124 
 
 Attwood V. Taylor . 
 
 . 166, 326 
 
 Baker & Wife v. Brereman 
 
 249, 1156 
 
 AttwooU V. AttwpoU . 
 
 . . 184 
 
 — V. Berkely 
 
 . . 835 
 
 Atty V. Parish 
 
 . 540 
 
 — d. Nelson v. Eeynolds 
 
 . 759 
 
 Aubert v. Gfray 
 
 . . 901 
 
 — V. Baber 
 
 . . 235 
 
 — ■». Maze 
 
 . 108 
 
 •— V. Charlton . , . 
 
 . 266 
 
 — V. Walsh . 
 
 . Ill, 112 
 
 — V. Dening 
 
 802, 814 
 
 Audley v. Duff . . 
 
 940, 941 
 
 — V. Garratt . 
 
 . 1149 
 
 AuncelmQ v. Auncelme 
 
 . . 623 
 
 — V. Gostling 
 
 . . 439 
 
 Auriol?;. Mills , . 
 
 . 409 
 
 — V. Hearne . 
 
 . 1216 
 
 Austen v. Bewley 
 
 . . 59 
 
 — V. Holtpzaffell . 
 
 . . 1336 
 
 — , V. Howard 
 
 . 1148 
 
 — V. Lade 
 
 . 1166 
 
 Austin v._ Culpepper . 
 
 . . 982 
 
 — V. Langhorn . 
 
 . . 732 
 
 — V. Debnam . 
 
 . 1009 
 
 — V. Marsh 
 
 . 1129 
 
 — V. Drewe 
 
 . . 978 
 
 — V. Mouuford . 
 
 . . 508 
 
 — V. Gfreat Western Railway . 350 
 
 — V. Bush . . 
 
 . 556 
 
 Austin's case 
 
 . . 1263 
 
 — V. Samp^son , . 
 
 . . 213 
 
 Australian S. N. Co. v. Marzet 
 
 i . 84 
 
 — V. Wilkinson . 
 
 . . 1002 
 
 Auworth V. Johnson . 
 
 . . 435 
 
 Baldey v. Parker . 
 
 757, 797 
 
 Avard v. Rhodes . 
 
 . 393 
 
 .Baldwin v. Elphinston 
 
 . . 990 
 
 AvarUlo v. Kogers 
 
 . . 1214 
 
 Ball V. Gordon 
 
 . 323 
 
 Aveline v. Whissou ' . 473, 476, 759 
 
 Ballard «. Dyson 
 
 . . 1263 
 
 Avenall v. Croker 
 
 . . 605 
 
 — V. Way 
 
 . 220 
 
 Avery v. Cheslyn . 
 
 1294, 1296 
 
 Ballingall v, Gloster . 
 
 . . 293 
 
 — V. Scott . 
 
 . . 458 
 
 Ballinger v. Ferris . 
 
 . 858 
 
 Awdeley v. Joye . 
 
 . 1018 
 
 Balls V. Westwood 
 
 . . 620 
 
 Awder v. Nokes . , 
 
 . . 443 
 
 Bally V. Wells 
 
 447, 448 
 
 Axford ih Perrett . . 
 
 . 1147 
 
 Balme v. Hutton 
 
 . . 1291 
 
 Aylet 1). Williams 
 
 . . 1339 
 
 Balston v. Baxter , 
 
 . 496 
 
 Ayliff «. Archdale . 
 
 159, 511 
 
 Bamfield v. Massey . 
 
 . . 1065 
 
 Ayling v. Whieher 
 
 246, 1309 
 
 Bamford v. Harris 
 
 . 185 
 
 — V. Williams _ 
 
 . 1319 
 
 — V. Shuttleworth 
 
 121, 124 
 
 Ayre v. Craven 
 
 . . 1208 
 
 — V. Turnley 
 
 1069, 1070 
 
 
 
 Bampton v. Paulin . 
 
 . . 774 
 
 Babek 1). Harris . 
 
 55, 400 
 
 Banbury v. Lisset . 
 
 . 270 
 
 Babington v. Wood . 
 
 . . 508 
 
 — Corporation of, case 
 
 . . 1019 
 
 Babonneau v. Farrell 
 
 . 991 
 
 — Peerage 
 
 673, 677 
 
 Bach V. Owen . 
 
 . . 134 
 
 Banister v. Usbome , . 
 
 . 1332 
 
 Bachelour v. G-age . 
 
 . 410 
 
 Bank of Australia v, Nias . 
 
 . . 85 
 
 Bacon i". Searles 
 
 . . 312 
 
 — England v. Kewmnu . 
 
 . 294 
 
 Badeley v. Vigiers . 
 
 . 440 
 
 — — ii. Morice 
 
 . 705, 722 
 
 Badger v. Ford . 
 
 . . 370 
 
 — Ireland v. Beresford . 
 
 . 315 
 
 Badkin v. Powell . 
 
 . 608 
 
 — Scotland v. Anderson 
 
 . . 572 
 
 Bagge V. Mawby 
 
 . . 613 
 
 Banks v. Angell . 1152, 
 
 1157, 1158 
 
 Bagiehole v. Walters 
 
 . 667 
 
 — V. Whetston . 
 
 . . 582 
 
 Bagott V. Orr . 
 
 . . 750 
 
 Bannister v. Hogarth 
 
 . 294 
 
 Bagshaw v. Bossley 
 
 508, 509 
 
 — V. Hyde 
 
 . . 600 
 
 Bagueley v. Hawley 
 
 . 576 
 
 Bannerraan v. White 
 
 568, 678 
 
 Baikie v, Chandless . 
 
 . . 210 
 
 Barber Surgeons v. Pelson . 
 
 . . 85 
 
 Bailey 0. Appleyard . 
 
 385, 1080 
 
 — V. Dennis . 
 
 . 1063 
 
 — V. BedweU . 
 
 . 321 
 
 — V, Fletcher 
 
 . . 934 
 
 — «. Croft . 
 
 . 65, 58 
 
 — V. Pox . . 61, 531, 768 
 
 — V. Stephenson 
 
 . 386 
 
 — V. Gingell 
 
 , . 118 
 
xxn 
 
 NAMES OP CASES. 
 
 Barter i)..Tilso!i 
 
 PAGE 
 
 . 560 
 
 Barclay Exp. . 
 
 , . 288 
 
 — V. CoDsins . . 
 
 . 891 
 
 — V. Stirling 
 
 . . 894 
 
 Barden v.. De Keyerterg . 
 
 . 240 
 
 Barfoot v. Goodall . 
 
 . . 1107 
 
 — V. Eeyuolds 
 
 . 47 
 
 Barford v. Nelson 
 
 . . 365 
 
 Bartam v, Caddy . 
 
 . 281 
 
 Baring v. Cbristie 
 
 . . 943 
 
 — V. Clagett . 
 
 . 944 
 
 — V. Corrie 
 
 . . 736 
 
 — V, Grieve 
 
 . 789 
 
 — V. Eoyal Exch. Ass. Co. 
 
 . 945 
 
 Barker «. Beardwell . 
 
 . . 443 
 
 — •«. Birt 
 
 128, 129 
 
 — V. Blakes 
 
 909, 943 
 
 — V. Borne 
 
 . 537 
 
 — !/. Braham 
 
 . . 849 
 
 — V. Damer , 
 
 453, 540 
 
 — V. Janson 
 
 . . 881 
 
 — V. Malcolm 
 
 . 321 
 
 — ■». Midland Eailway 
 
 . . 357 
 
 — V. Eioliards 
 
 . 295 
 
 — 0. St. Quintin 
 
 209, 848 
 
 — „. Stead . 
 
 . 495 
 
 — ■!;. Stntts 
 
 . . 1108 
 
 — V. Thorold , 
 
 . 481 
 
 — r. "Windle 
 
 . . 465 
 
 Barlow v. Bishop . 
 
 . 262. 
 
 — V. Browne . 
 
 . . 123 
 
 Barnard v. Aaron . 
 
 . 1095 
 
 — V. Goodsoall . 
 
 . . 409 
 
 — v.- Higdon 
 
 . 729 
 
 Bamardiston v. Chapman . 
 
 1307, 1308 
 
 Barnes v. Constantine 
 
 . 1012 
 
 — V. Holloway . 
 
 . . 1214 
 
 — V. Hnnt 
 
 . 1260 
 
 — ■». Peterson . 
 
 . . 627 
 
 — V. Ward . 
 
 . 1072 
 
 Bamett v. Allen 
 
 1200, 1204 
 
 — V. Glossop . 
 
 . 147 
 
 — V. Guildford, Earl oi 
 
 , 629, 685, 
 
 
 694, 1246 
 
 Bamewell v. Williams 
 
 . . 584 
 
 Bamfather v. Jordan 
 
 . 449 
 
 Baron v. Hushand 
 
 . . 120 
 
 Barough v. White . 
 
 . 324, 343 
 
 Barr v. Gtibaon . 
 
 . . 574 
 
 Barraclongh v. Greenhow 
 
 . 690 
 
 ' — V. Johnson 
 
 . . 1264 
 
 Barrel! v. TmsseU 
 
 . 765, 774 
 
 Barrett v. Glubb 
 
 . . 508 
 
 — V. Long 
 
 . 998, 1211 
 
 — V, Bolph 
 
 . . 763 
 
 Barrow v. Bell 
 
 . 884 
 
 — V. Coles 
 
 . . 1239 
 
 Bariy v. Croskey . . ] 
 
 09, 560, 562 
 
 — V. Bobinson 
 
 . . 716 
 
 — V. Rush 
 
 . 709 
 
 Bartlett v. Bartlett . 
 
 . . 133 
 
 — V. Benson 
 
 . 295 
 
 — V. Emery , .- 
 
 . , 126 
 
 PAGE 
 Bartlett «. Pentland . . 922,923 
 
 — V. Pumell . • • ■ 213 
 
 — V. KobbinB . ■ • 1217 
 . — V. Salmon • ■ . . 79 
 _ V. Yinor . . 72, 506 
 
 Barton v. Bricknell . . .45, 853 
 
 — V. Brown .... 1309 
 
 — V. Fitzgerald . . 411, 423 
 
 — V. Hanson .... 1094 
 Bartonshill Coal Co. v. M'Gnire . . 1059 
 
 — V. Eeid . . 1059 
 
 Bartrumr. Caddy . . . . 335 
 
 — V. Parebrotter . . . 1230 
 Barwell v. Adkins . . 997, 998 
 
 — «. Brooks .... 238 
 Barwick v. English Joint Stock Bank 563, 
 
 1054, 1058 
 
 — ». Matthews 
 
 — V. Thompson 
 Barzillai v. Lewis . 
 
 Bass V. Clive 
 Bassett v. Collis 
 
 — v. Dodgin 
 
 — V. Mitchell 
 Bastard v. Bastard 
 Basten v. Carew . 
 Batard v. Hawes 
 Batchelor v. Dudley 
 Bate V. Hill 
 Bateman v. Blnok . 
 
 — V. Elman 
 
 — V. Joseph 
 
 — V. Margerison 
 
 — V. Mid-Wales EaU. Co. 
 
 — V. Phillips 
 
 — i: Pinder . 
 Bates V. Sandy 
 
 — V. Qrabham 
 
 — V. Pilling 
 Bateson v. Green . 
 Bathe V. Taylor 
 Batley v. Catterall 
 Battishill v. Beed . 
 Battley v. Faulkner 
 Batty V. Chester . 
 
 — V. Marriott 
 Baumann v, James 
 
 374 
 
 619 
 
 . 943 
 
 131, 322, 323 
 
 . 570 
 
 337 
 
 1254, 1273 
 
 . .344 
 
 92 
 
 390 
 
 1065 
 
 1264 
 
 581 
 
 ' 307 
 
 . 691 
 
 , 258 
 
 . 790 
 
 , 173 
 
 . 849 
 
 . . 374 
 
 . 273, 887 , 
 
 325 
 
 1080, 1087 
 
 . . 168 
 
 . 498 
 
 . . 110 
 
 . 790 
 
 __, . . . . 487 
 
 Baxeudale v. Eastern Counties Eailw. 365 
 
 — V. Great Western Eallw. . 365 
 
 Baxter, Exp 852 
 
 — V. Dyer . . . • 823 
 
 — V. Hozier . . . • 3 
 
 — V. Nurse . . . . 10*7 
 
 — V. Taylor .... 1082 
 Baycliffe v. Butterworth . . . 734 
 Bayley v. Aldred .... 868 
 
 — v. Homan . . . . 148 
 
 — V. Loyd . . . .615 
 
 — V. Bimmell .... 1048 
 
 — V, Thompson . . . 196 
 
 — V. WUkina . . . . 734 
 Baylis v. Dineley . . . 155, 511 
 
NAMES OF CASES. 
 
 XXIU 
 
 
 PAGE 
 
 
 PAGE 
 
 Baylis ■». Lawrence , 
 
 987, 1003 
 
 Bell V. Bromfield . 
 
 . 946 
 
 — ». Strickland 
 
 . 861 
 
 — V. Carstairs . 
 
 934, 943, 945 
 
 Bayly v. Merrel 
 
 . . 566 
 
 — V, Gardiner 
 
 '. . 99 
 
 Baynes v. Brewster 
 
 . 865 
 
 — V. Gilson 
 
 . 875 
 
 Baynon v. Batley 
 
 . . 231 
 
 — V. Harrison 
 
 . . 454 
 
 Bazett V. Mayer 
 
 . 930 
 
 — V. Hobson . 
 
 . 878 
 
 Beadsworth v. Torkington . 
 
 . . 381 
 
 — V. Jansou . 
 
 . . 959 
 
 Beale v. Mouls 
 
 . 1098 
 
 — V. Oakley 
 
 . 857 
 
 — V. Sanders 
 
 . . 62 
 
 — ». Eeid . 
 
 . . 931 
 
 — V. Saunders . 
 
 . 762 
 
 — V. Stone 
 
 . 982 
 
 — V. Simpson 
 
 . . 697 
 
 — V. Welch . 
 
 . . 789 
 
 — V. South Devon Railway 
 
 . 357 
 
 Bellamy v. Birch . , 
 
 . 1208 
 
 — V. Thompson 
 
 406, 1185 
 
 — V. Majoribanks 
 
 . . 311 
 
 Bealey v. Greenslade . 
 
 . . 174 
 
 Bellew V. Jackleden 
 
 . 729 
 
 Beamish v. Beamish 
 
 12, 13 
 
 Belshaw v. Bush . 150, 
 
 515, 517, 599 
 
 Bean i). Bloom , 
 
 . . 1156 
 
 Barest V. Pipon 
 
 . 1264 
 
 — V. Stupart . 
 
 . 936 
 
 Bengough v. Bossiter . 
 
 . . 621 
 
 Beard v. Knight 
 
 . . 597 
 
 Benington v. Benington . 
 
 . 1250 
 
 — V. Webb 
 
 . 238 
 
 Benjamin v. Porters . . 
 
 . . 1094 
 
 Beardsley v. Baldwin . 
 
 331, 334 
 
 Benuet i). Thompson 
 
 . 1412 
 
 Bearpark v. Hutchinson 
 
 . 712 
 
 Bennett v. Allcott 
 
 1064, 1066 
 
 Beasley v. Clarke 
 
 . . 1273 
 
 — V. Bennett 
 
 . 1207 
 
 Eeaston v. Weate . 
 
 . 1077 
 
 — V. Burton 
 
 . . 478 
 
 Beatsou v. Haworth . 
 
 . . 947 
 
 — V. dough . 
 
 . 365 
 
 Beauchamp, Exp. . 
 
 . 648 
 
 — V. Davis 
 
 . . 237 
 
 — V. Powley 
 
 . . 348 
 
 — ii. Deacon . 
 
 . 987 
 
 Beaudley v. Brook 
 
 . 1269 
 
 — V. Farnell 
 
 . . 277 
 
 Beaumont v. Brengeri 
 
 . 86, 795 
 
 — V. Hayes . 
 
 . 609 
 
 Beavau v. Delahay . 
 
 . 698 
 
 — V, Johnson . 
 
 . . 1316 
 
 Beaver v. Lane 
 
 . . 247 
 
 — -u. Neale . 
 
 . 639 
 
 Beck V. Kebow 
 
 . 1294 
 
 — ■:;. Peninsular and 
 
 Oriental 
 
 — V. Eobley . 
 
 281, 335 
 
 Steam Boat Co. 
 
 350, 365 
 
 Beckett ■». Button . 
 
 . 317 
 
 — n. Keeve 
 
 371, 372 
 
 — V. Midland Bail. Co., 
 
 the . 1072 
 
 — -ii. Robins 
 
 . 597, 1161 
 
 Beckham v. Brake 
 
 1097, 1104 
 
 — i). Thompson 
 
 . . 39ft 
 
 Beckwith ». Philby . 
 
 . . 864 
 
 — V. Womack 
 
 . 430 
 
 — V, Sydebotham 
 
 . 962 
 
 Bennington v. Goodtitle 
 
 . . 627 
 
 Bedford v. Bagshaw . 
 
 . . 660 
 
 Bennion v. Davidson 
 
 . 146 
 
 — 1). Deakin . 
 
 . 1101 
 
 Bennus v. Gayldley . 
 
 . 65, 400 
 
 — V. Perkins . 
 
 . . 120 
 
 Bensley v. Bignold . 
 
 . 74 
 
 Bedingfield v. Onslow . 
 
 . 1082 
 
 Benson v. Chapman . 
 
 909, 911, 924 
 
 Beecham v. Smith 
 
 . . 335 
 
 — V. Chester . 
 
 . 371 
 
 Beed v. Blanford . 
 
 104, 118 
 
 — V. Duncan 
 
 . . 970 
 
 Beeman v. Duck 
 
 322, 323 
 
 — •<;. Paul 
 
 . 1033 
 
 Beer v. Beer 
 
 2, 3, 5, 415 
 
 Bentall v. Barn . 
 
 , . 798 
 
 Beeston v. Collier . 
 
 . 785 
 
 Bentinck v. Dorrien 
 
 . 283 
 
 — 1). CoUyer 
 
 . . 1048 
 
 Bentley v. Dawes 
 
 . . 135 
 
 Begbie v. Hayne . 
 
 . 693 
 
 — V. Qri&n . 
 
 . 235 
 
 — V. Levi . 
 
 . . 274 
 
 Benwell i>. Black 
 
 . . 539 
 
 Behn v. Burness . 
 
 . 665 
 
 Benyon v. CressweU 
 
 1173, 1176 
 
 Behrens v. Great Northern Ea 
 
 1. . 354 
 
 — V. Evelyn 
 
 . . 178 
 
 Belcher v. M'Intosh 
 
 . 435 
 
 Berens v. Kucker . 
 
 . 898 
 
 — „. MiUs 
 
 . . 98 
 
 Berkeley v. Hardy 
 
 . . 474 
 
 Beldon v. Campbell 
 
 . 1196 
 
 Bermon v. Woodbridge . 
 
 . 965, 966 
 
 Belfast Bail. Co. v. Keys . 
 
 . . 349 
 
 Bermondsey, Vestty of, v. 
 
 3rown . 1266 
 
 Belfour ». Weston . 
 
 . 407 
 
 Bern v. Mattaire 
 
 . 1160, 1152- 
 
 Belk V. Broadbent . 
 
 . . 863 
 
 Bernardi v. Motteux 
 
 . 945 
 
 Belknap's case 
 
 i 238 
 
 Berrey v. Lindley 
 
 632, 761, 762 
 
 Bell V. Ansley . 
 
 926, 959 
 
 Berriman v. Peacock 
 
 . 1244 
 
 — ' V. Backley 
 
 . 162 
 
 Berrington v. Parkhurst 
 
 . . 629 
 
 '-^ V. Bank of London 
 
 1173, 1177 
 
 — V. Phillips . 
 
 . 206 
 
 — V. Barchard . 
 
 . 430 
 
 Berry v. Adamson . 
 
 . . 848 
 
 — D. Bell . 
 
 . . 935 
 
 — V, Alderman, 
 
 4 321 
 
XXIV 
 
 NAMES OF CASES, 
 
 
 
 PAGE 1 
 
 
 PAGE 
 
 Berry v. Herd . 
 
 . . 1277 
 
 Birkbeck v. Paget . 
 
 . 83S 
 
 — V. Nevys 
 
 . 1309 
 
 Birkley v. Presgrave . 
 
 . . 95 
 
 — V. Young 
 
 . . 218 
 
 Birks'W. Trippet . 
 
 . 134 
 
 Berryman v. Wise . 
 
 . 212 
 
 Birt V. Barlow . 
 
 . . 11 
 
 Bertion v, Loughmau 
 
 . . 933 
 
 Bishop V. Bryant . 
 
 . 605 
 
 Bertie v. Beaumont 
 
 . 495 
 
 — V. Curtis 
 
 . . 824 
 
 Berwick v. Andrews . 
 
 . . 710 
 
 — v. Elliott . 
 
 . 1294, 1297 
 
 — , Mayor of, -o. Oswald 
 
 . 468 
 
 — V. Godfrey 
 
 . . 703 
 
 Besant v. Cross 
 
 . . 342 
 
 — V. Montague 
 
 . 581, 1302 
 
 Besford v. Saunders 
 
 . 67 
 
 — V. Pentland . 
 
 881, 884, 885 
 
 Bessel v. Landsberg . 
 
 640, 764 
 
 — V. Kowe 
 
 . 164 
 
 Best V. Osborne 
 
 . 670 
 
 — V. Shillito 
 
 . . 1303 
 
 Betts V. Gribbins 
 
 . . 95 
 
 — V. Trustees of 
 
 Bedford 
 
 — V. Kimpton . 
 
 248, 262 
 
 Charity . 
 
 . . 451 
 
 Betterbee v. Davis 
 
 . . 188 
 
 Bishop of London v. M'Nie 
 
 4, 165 
 
 Bevan ». Gethin . 
 
 . 174 
 
 Bittleston v. Timmis 
 
 . . 519 
 
 — v. M'Mahon . 
 
 . . 17 
 
 Bize V. Dickason . 
 
 . 97, 732 
 
 — V. Waters . 
 
 . 1319 
 
 Blachford v. Dod 
 
 . . 1007 
 
 Bevans v., Kees . 
 
 186, 187 
 
 — V. Preston 
 
 . 71 
 
 Beverley v. The Lincoln Gas C 
 
 0. . 83 
 
 Black V. Smith 
 
 . . 187 
 
 Bewick v. Whitfield . 
 
 . . 1277 
 
 Blackan v. Doren . 
 
 . 288 
 
 Bexwell v. Christie 
 
 . 215 
 
 Blackborn v. Greaves 
 
 . . 250 
 
 Bibb d. Mole v. Thomas . 
 
 . . 818 
 
 Blackborough f. Pavis . 
 
 . 691 
 
 Bicoard v. Shepherd 
 
 . 954 
 
 Blackburn v. Blackburn 
 
 . . 1213 
 
 Bickerdike v. Bollman 
 
 287, 290 
 
 — V. Scholes 
 
 . 736 
 
 Bickerton v. Burrell 
 
 . 739 
 
 — V. Smith . 
 
 . . 104 
 
 Biokett V. Morris 
 
 . . 1076 
 
 Blackett v. Orissop 
 
 . 1145 
 
 Biddolph V. Chamberlain 
 
 . 1002 
 
 — V. Koyal Exch. 
 
 Assurance 
 
 Bidgood V. Way and Wife . 
 
 . . 246 
 
 Co 
 
 . 921 
 
 Bieten v. Burridge 
 
 . 848 
 
 Blackham v. Pugh . 
 
 . . 987 
 
 Biffen v. Bignell 
 
 . . 230 
 
 Blackhurst v. Cockell 
 
 . 939 
 
 Bigg V. Wliskin . 
 
 . 795 
 
 Blackleage v. Harman 
 
 . . 120 
 
 — V. Dwlght 
 
 . . 162 
 
 Blaokmore, Exp. 
 
 . . 1031 
 
 — V. Fellows 
 
 1100, 1109 
 
 Blackpool, Board of Health, The, v. 
 
 Bigge V. Parkinson . 
 
 674, 676 
 
 Bennett 
 
 . 1129 
 
 Biggs V. Lawrence . 
 
 . 73 
 
 Blackstone v. Wilson 
 
 . 148 
 
 Bignell v. Buzzard 
 
 982, 1204 
 
 Blades v. Free . 
 
 . . 236 
 
 — V. Clarke . 
 
 . 603 
 
 — V. Higgs . 49, 
 
 832, 833, 1258 
 
 — V. Harpur 
 
 . . 719 
 
 Blagden v. Bradbear 
 
 . 784 
 
 Biker v. Morley . 
 
 . 25 
 
 Blagg V. Sturt . 
 
 987, 989, 1003 
 
 Bilbie v. Lumley 
 
 . . 99 
 
 Blair v. Bromley . 
 
 . 659 
 
 Bill V. Bament 
 
 797, 799 
 
 Blake v. Beaumont . 
 
 . . 317 
 
 Billingshurst v. Speermau . 
 
 . . 641 
 
 — V. Bowman . 
 
 . 317 
 
 Binokes, In the goods of 
 
 . 698 
 
 — V. Done . 
 
 . . 36 
 
 Bingham v. Gamault 
 
 . . 46 
 
 — V. Foster 
 
 . 473 
 
 — V. Stanley . 1 
 
 46, 279, 321 
 
 — V. Lnnyon 
 
 . . 1063 
 
 Binnington v. Wallis . 
 
 . 81, 498 
 
 — V. Lawrence 
 
 . 327, 328 
 
 Binns V. Hey 
 
 . 204 
 
 — V. Nicholson . 
 
 . . 1313 
 
 Birch V. Liverpool, Earl of 
 
 . . 787 
 
 — t). The Midland Eailway . . 711 
 
 — V. Wright . 
 
 684, 1339 
 
 — D. Pilford . 
 
 . 989 
 
 Eirohfield v. Moore . 
 
 . . 275 
 
 — V. Stevens . 
 
 . 984 
 
 Bird V. Appleton . . 9 
 
 29, 943, 945 
 
 Blaker v. Anscombe . 
 
 . . 1277 
 
 — V. Boulter . 
 
 784, 803 
 
 Blake's case . 
 
 . 469, 496 
 
 — V. Brown 
 
 1222, 1228 
 
 Biakesley v. Smallwood 
 
 . . 183 
 
 — V, Gammon . , 
 
 173, 773 
 
 Blanchard v. Bridges 
 
 . 1073, 1087 
 
 — V. Great North. Eail. 
 
 . 351 
 
 Blanckenhagen v. Blundell 
 
 . .331 
 
 — V, Higginson 
 
 , 
 
 761 
 
 Bland v. Lipscombe 
 
 . 765 
 
 — V. Lake . 
 
 . 
 
 402 
 
 Blandy v. De Burgh . 
 
 . . 203 
 
 — V. Pegg . 
 
 . 
 
 152 
 
 Blaymire v. Haley . 
 
 1064, 1065 
 
 — V. Pegrum 
 
 
 245 
 
 Bleaden v. Hancock . 
 
 . . 1317 
 
 — V. Pigou . 
 
 
 932 
 
 — ■ V. Kupallo 
 
 . 129 
 
 — V. Eandall . 
 
 , 
 
 1063 
 
 Bleasard «. Hirst 
 
 . . 289 
 
 — V. Eelph . 
 
 • 
 
 62 
 
 Blenkinsop v. Clayton , 
 
 . 794, 799 
 
NAMES OP CASES. 
 
 XXV 
 
 
 PAGE 
 
 
 PAGE 
 
 Blew V. Wyatt . 
 
 . . 1101 
 
 Borrinsale v. Qreville 
 
 . . 157 
 
 Bligh V. Brent 
 
 . 784 
 
 Borrough v. Skinner 
 
 . 216 
 
 Bliss V. Hall . 
 
 . . 1069 
 
 Borthwick v. Carruthers 
 
 . . 155 
 
 Blizard v. Barnes . 
 
 . 1217 
 
 Bosanquet ii. Wray 
 
 . 162, 1105 
 
 — V. Kelly 
 
 . . 1212 
 
 Boscawen v. Cook 
 
 . . 467 
 
 Blofeld V. Payne . 
 
 . 382 
 
 Boson V, Sandfoi'd . 
 
 . 364 
 
 Blogg V. Pinkers 
 
 . . 337 
 
 Botheroyd ». Woolley 
 
 . . 542 
 
 Bloodworth v. Gray 
 
 . 982, 1199 
 
 Bothlingk v. Inglis 
 
 1222, 1233 
 
 BIoss V. Cutting 
 
 . . 162 
 
 Bothomby v. Fairfax . 
 
 . . 704 
 
 Bloxham v. Hubbard 1299, 1308, 1324 
 
 Botting V. Martin . 
 
 . 763 
 
 — V. Sanders 
 
 . 1288, 1290 
 
 Bottom, Exp. . 
 
 . . 1031 
 
 Bloxsome v. Williams 
 
 . . 571 
 
 Bottomley v. Fisher 
 
 . 264 
 
 Bluck V. Gompertz 
 
 . 801 
 
 Boucher v. Lawson 
 
 363, 364 
 
 Bluett V. Osborne 
 
 . . 574 
 
 Bouilliou V. Lupton 
 
 . 953 
 
 Blundell v. Catterall . 
 
 . 1264 
 
 Bouloott V. Winmill . 
 
 . . 374 
 
 Blunt V. Haslop 
 
 . . 199 
 
 Boiilter V. Peplow . . 
 
 96, 1104, 1109 
 
 Blytb V. Dennett . 
 
 . 639, 641 
 
 Boulton V. Cann 
 
 . . 409 
 
 — I/. Shepherd 
 
 . . 881 
 
 — V. Prentice 
 
 . 226, 233 
 
 — ^ 0. Toph^m . 
 
 . 1155 
 
 BourdiUon v. Dalton . 
 
 . . 450 
 
 Boardman v. Sill 
 
 . . 1818 
 
 Bourn and Wife v. Mattaire . . 250 
 
 Beddington v. ScUenoker 
 
 . 305, 310 
 
 Bournes. Posbrooke 
 
 . 1287 
 
 Boden v. Wright 
 
 . . 320 
 
 — V. Gatliffe 
 
 346, 347, 1193 
 
 Bodenham v, Purohas . 
 
 . 162 
 
 — V. Mason 
 
 62, 63 
 
 Bodger v. Arch 
 
 . . 694 
 
 — V. Seymour 
 
 . . 194 
 
 Boehm v. Bell 
 
 . 967 
 
 Bousfield V, Wilson 
 
 . 107 
 
 — 41. Stirling 
 
 . . 280 
 
 Boutflower v. Wilmer 
 
 . . 903 
 
 Bogg V. Pearse 
 
 . 1028 
 
 Bouts V. Ellis 
 
 . 1282 
 
 Boggett V. Friar 
 
 . . 242 
 
 BoTey V. Castlemau . 
 
 . 86, 486 
 
 Bois V. Boia . 
 
 . 1203 
 
 BoyUI v. Hammond 
 
 . 1104 
 
 Bolden v, Brogden ■ . 
 
 . . 570 
 
 Bowcher v. Noidstrom 
 
 . . 1062 
 
 Bolton V. Dngdale . 
 
 . 332 
 
 Bowdell V. Parsons 
 
 . 130, 134 
 
 — V. Gladstone . 
 
 . . 944 
 
 Bowden v. Taughan . 
 
 . . 934 
 
 — V. Lancashire and Yorkshire 
 
 Bowdon I). HaU 
 
 . 1144 
 
 Kail. Co. 
 
 . 1285 
 
 Bowell V. Millbank . 
 
 . . 97 
 
 — V. Tomlin 
 
 43,5, 760, 762 
 
 Bowen ». Fox 
 
 . 1175 
 
 Eonafous v. Kybot . 
 
 . 513 
 
 — ■ V. Jenkin 
 
 . . 381 
 
 Bonar v. Mitchell 
 
 308, 340 
 
 — V. Owen 
 
 . 186 
 
 Bond V. Gibson 
 
 . 1099 
 
 Bower v, Swadlin 
 
 . . 515 
 
 — V. Gonsales 
 
 . . 950 
 
 Bowes V, Foster 
 
 . 1279 
 
 
 . 245, 716 
 
 — V. Lucas . 
 
 . . 161 
 
 — V. Nutt 
 
 . 938 
 
 Bowker v. Burdekin 
 
 . 492 
 
 — V. Payne . 
 
 . . 69 
 
 Bowlby V. Bell . 
 
 . 93, 734, 792 
 
 — V .Richardson 
 
 . 512 
 
 Bowler v. Nicholson 
 
 . 1261 
 
 Bondrett v. Hentigg . 
 
 . . 908 
 
 Bowles V. Orr . 
 
 . . 86 
 
 Bone V. Ekless 
 
 . 108 
 
 Bowman v. Nicholl 
 
 . 273 
 
 Boner v. Inner . 
 
 . . 622 
 
 Bowry v. Bennett 
 
 . . 81 
 
 Bonnell v. Fouke 
 
 . . 97 
 
 — V. Pope 
 
 . 1072 
 
 Bonner v. Walker . 
 
 . 1154 
 
 Bowyer v. Bamptou . 
 
 . . 279 
 
 Bonomi v. Backhouse 
 
 . 1086 
 
 — D. Cook 
 
 391, 610, 1083 
 
 Bonzi V. Stewart 
 
 744, 746, 747 
 
 Boyoe v. Green 
 
 785, 792 
 
 Boodle V. Campbell 
 
 . 1340 
 
 — V. Warburton 
 
 . 326 
 
 Boone v. Byre . 
 
 . . 463 
 
 Boyd V. Fitt _ . 
 
 . . 368 
 
 Boorman v. Brown . 
 
 . 298, 733 
 
 — v. Dubois 
 
 . 905 
 
 — V. Nash 
 
 . . 191 
 
 — V. Hind . 
 
 . . 151 
 
 Eoosey v. Wood 
 
 . 993 
 
 — V. Moyle 
 
 . 789 
 
 Booth V. Clive . 
 
 116, 859 
 
 Boydell v. Drummond 
 
 . 783, 787, 802 
 
 — V. Gain 
 
 . 889 
 
 — v. Harkress 
 
 . 318 
 
 — ii. Macfarlane . 
 
 . . - 560 
 
 — V. Jones 
 
 . . 992 
 
 — V. North Eastern Bail 
 
 .356 
 
 Boyes v. Hewetson 
 
 . 453, 541 
 
 Boothbey v. Sowden . 
 
 . . 151 
 
 Boyle V. Tamlyn 
 
 . . 1155 
 
 Bord V. Cudmore . 
 
 . 540 
 
 — V. Wiseman . 
 
 . 998 
 
 Bordenave v. Gregory 
 
 . . 140 
 
 Boyman v. Gatch 
 
 219, 220 
 
 Borradaile v. Hunter 
 
 . 976 
 
 Boyson V. Coles 
 
 . 733 
 
XXVI 
 
 NAMES OF CASES. 
 
 PAGE 
 
 Bojter V. Dodsworth . . . 97 
 
 Bracebridge v. Vaughan . . . 520 
 
 Braoegirdle v. Peacock . . . 1260 
 ■BraceytJ. Carter .... 208 
 
 Erackenburg'W. Pell- . . . .1148 
 
 Bradburne v. Botfield . . .415 
 
 Eraddicfc «;. Thompson . . . 469 
 
 Bradford v. Woodhouse. . . . 195 
 
 Bradley v. Copley • . . . . 1289 
 
 — V. Gill .... 1068 
 
 — V. Gregory . 148, 161, 152 
 
 — V. Holdsworth . . .784 
 
 — V. Methwyn . . . , 982 
 
 — V, ■Waterhouse . . . 345 
 Bradshaw v. Beard . . . . 234 
 
 — V. Bennett . . .221 
 
 — V. Eyre . . . . 373 
 Brady v. Cubitt . . . .820 
 
 — V. Giles 1056 
 
 ■ — V. Todd . . . 572, 573 
 
 BradylU.Ball 1320 
 
 Bragg V. Anderson . . . .947 
 
 ■ — V. Cole .. . . . . 783 
 
 Braitbwaite v. Cooksey . . .598 
 
 — V. Skofield . . . 1094 
 Bramah i), Roberts . . , 259 
 Brammel v. Jones . . . . 1307 
 Brampton v. Beddoea . . . 404 
 Bramston Vi Bobius . . . . 100 
 Brancker v. Molyneux . . . 1322 
 Brand v. Boulcott . . . . 96 
 Brandao v. Barnett 1301, 1310, 1314 
 Brandlin i>. Milbank . , .536 
 Brandon v. Nesbit . . 890, 928 
 
 — V, Newington . . . 191 
 
 — V. Scott . ... 1306 
 Brandram v. Wharton . . . 174 
 Brangwin v, Perrot . . , . 165 
 Branseomb v. Searbrough . .489 
 Brasbford v. Buckingham . . , 245 
 Brassington v. Halt . . . 715 
 
 — V. Llewellyn . 660, 663 
 Brayshaw v. Eaton . . ,157 
 Braythwaite ii. Hitchcock . . . 586 
 Brecegirdle v. Heald . 765, 785, 787 
 Brecknock Canal Co.- v. Pritohard . 434 
 Breokon v. Smith .... 128 
 Bredon v, Harman . . . . 653 
 Breese v. Jerdein .... 864 
 Brenan v. Currint . . . , 1312 
 Brennau v. Howard . , 30, 32, 34 
 
 Brest «. Lever 1256 
 
 Bret V. Cumberland . . 247, 410 
 
 — u, J. S 57 
 
 — V. Sheppard , , , . 626 
 Bretherton v. Wood . , . . 363 
 Brett II. Beales .... 85 
 
 — V. Bead ■ 1330 
 
 Brettell v. Williams . . . 1098 
 Brewer v. Palmer . . . . 1344 
 Brewster «. Kitohell . . . 422 
 Brice v. Carre . . . 183, 405 
 
 — V. Stokes . . . .717 
 
 PAGE 
 Brice «. Wilson . ■. . . . 702 
 Briddon ■«. Great North. Bail. 345,350 
 Bridge v. Grand Junction Kail. . . ' 351 
 
 Bridges v. Einxman 
 
 . 535 
 
 — V. Hunter 
 
 . . 935 
 
 Bridgwater v. Bythway 
 
 , 50 
 
 BrierleyK. Kendall . 
 
 1286, 1289, 1328 
 
 Brigden v. Parks . 
 
 , 719 
 
 Briggs V. Calverly 
 
 . . 18'9 
 
 — Ex parte 
 
 . 1025 
 
 — V. Sowry 
 
 . 433, 687, 692 
 
 — V. Wilkinson ■ 
 
 . 1195 
 
 Bright 1). Hutton 
 
 . . 1089 
 
 — V. Purrier . 
 
 . 293 
 
 — K. Walker 
 
 . 1078, 1080 
 
 Brlgstock V. Stanniou 
 
 . 467 
 
 Brind v. Hampshire . 
 
 . . 120 
 
 Brine v. Bazalgette • 
 
 , 998 
 
 Brisbane v. Daores • 
 
 . . 99 
 
 Briscoe v. Hill 
 
 . 185. 186 
 
 Bristol, Earl of, v. Wilsmore . . 1171 
 
 — Poor, Governors of, v. Wait 600 
 
 Bristow V. Heywood 
 
 . 1014 
 
 — ■■ 1!. Towers 
 
 . , 890 
 
 — V. WaddingtoH 
 
 . 781 
 
 Bristowe'K. Needham 
 
 . . 117 
 
 British Linen Co. v. Dmmmond . 176 
 
 — Empire Shipping Co. v. Somes 1313 
 
 Brittaiu ». Lloyd . 
 
 . 93 
 
 Britton Vi Cole 
 
 . . 862 
 
 — ii. The Eoyal Insurance Co. 977 
 
 Broad v. Ham 
 
 . 1007 
 
 — ■». JoUyfe 
 
 . . 70 
 
 Broadbent v. Ledward 
 
 . . . 684 
 
 — V, Eamsbotham . . 1078 
 
 Brocas v. London, Mayoi 
 
 , &c., of, . 1135 
 
 Brockelbank !)■. Sugrue 
 
 888, 894 
 
 Brockett v. Archer 
 
 . 327 
 
 Brocklehurst v. Lawe 
 
 . . 687 
 
 Brodie v. Howard . 
 
 , 1195 
 
 Broennenburg v. Haycoe; 
 
 c . . . 670 
 
 Brokenshir v. Monger 
 
 . 538 
 
 Bromage D.Lloyd 
 
 . . 299 
 
 — V. Prosser- 
 
 . 981, 1200 
 
 — V. Vaughan 
 
 . . 286 
 
 Bromley v. Coxwell • 
 
 . 1305 
 
 — V. Frazier . 
 
 291, 292 
 
 — V. Hesseltine 
 
 . 931 
 
 — V. Stanley . 
 
 . . . 764 
 
 — V. Wallace, 
 
 9 
 
 Bonnell v. Bonney ' . 
 
 . . 308 
 
 Brook V. Biggs 
 
 . 621 
 
 — V. Brook 
 
 . 19, 24 
 
 — ■ V. Carpenter 
 
 . 1014 
 
 — • V. Middletoa , 
 
 . . 654 
 
 — V. Bawl 
 
 . 1204 
 
 Brooke v. Brooke 
 
 . . 1254 
 
 — V. Kent 
 
 . 830 
 
 — V. Pickwick . 
 
 , . 349 
 
 Brooker v. Scott . 
 
 . 153 
 
 Brookes v. Tichborne 
 
 . . 1001 
 
 Brooks V. Brockett 
 
 . 199 
 
 — v. Mason 
 
 . . 201 
 
NAMES OF CASES, 
 
 XXVU 
 
 
 PAGE 
 
 
 PAGE 
 
 Brooks V. MitoheU . 
 
 . 280 
 
 Bruin v, Eoc 
 
 . 1323 
 
 — ■». Stuart 
 
 . . 516 
 
 BrummeU v. Macpherson . 
 
 . . 433 
 
 Brooksty v. Watts 
 
 . 500, 1341 
 
 Brunskill v. Robertson . 
 
 . 864 
 
 Broom v. Batchelor . 
 
 . . 789 
 
 Brunswick and Canada Kail. 
 
 Co. «. 
 
 Broomfield v. Smith 
 
 . 146 
 
 Coningbean . 
 
 . . 79 
 
 Brotherston v. Barber 
 
 , . 914 
 
 — Duke of, Exp. 
 
 . 1003 
 
 Brough V. Parkins 
 
 . 293 
 
 — — D.HanoTei 
 
 .King 
 
 — V. Whitmore . 
 
 ■ . . 877 
 
 of 
 
 . . 849 
 
 Broughton v. Comway . 
 
 . 403 
 
 — —11. Harmer 994, 1002, 
 
 — V. Manchester 
 
 Water- 
 
 
 1203 
 
 •works Co 
 
 . . 258 
 
 — — -o. Pepper 
 
 . 1002 
 
 Brown v. Aokroyd . 
 
 . 232 
 
 Bryan v. Clay . 
 
 . . 707 
 
 — V. Allen . 
 
 . . 52 
 
 Bryans v. Nix , 
 
 1240, 1282 
 
 — V. Amyot . 
 
 . 544 
 
 Bryant v. Flight 
 
 . . 1050 
 
 — V. Brown 
 
 . . 413 
 
 Brydon v. Stewart 
 
 . 1060 
 
 — V. Byrne 
 
 . ' . 810 
 
 BuolUnan v. Parnshaw 
 
 . . 569 
 
 — V, Carstairs . 
 
 899, 900 
 
 — V. Ruoker 
 
 . 86 
 
 — v. Compton . 
 
 . 850 
 
 Bucher v. Jan-att 
 
 . . 1322 
 
 — V. Davies 
 
 . . 280 
 
 Buckby v. Coles 
 
 . 1270 
 
 — v. Duncan . 
 
 73, 74 
 
 Buckland v. Butterfield 1293, 
 
 1294, 1296 
 
 — V. Edgington . 
 
 . . 676 
 
 Buckley, Exp. . 
 
 . . 335 
 
 — V. Klkington 
 
 . 570 
 
 — V. Barber 
 
 . 700 
 
 — V. Fleetwood . 
 
 . . 478 
 
 — V. Buckley . 
 
 . . 647 
 
 ' — V. Fry 
 
 . 573 
 
 — V. Collier 
 
 . 245 
 
 — 11. Gribbitts 
 
 . . 199 
 
 — V. Kenyon 
 
 467, 468 
 
 — V. Glenn 
 
 . 600 
 
 — V. Millerd 
 
 . 501 
 
 — V. Hare . 
 
 . . 87 
 
 — V. Nightingale 
 
 . . 532 
 
 — V. Hairaden 
 
 . 300 
 
 — i>. Palmer 
 
 . 1041 
 
 — V. Hedges 
 
 490, 1308 
 
 — V. Williams . 
 
 . . 427 
 
 — V. Hodgson . 
 
 . 361 
 
 Buckmaster v. Harrop . 
 
 . 784 
 
 — V. Holyoak 
 
 . ■ 704 
 
 Buckmyr v. Darnell . 
 
 . . 768 
 
 — V. Howard . 
 
 . 168 
 
 Budd V. Fairmaner 
 
 . 569 
 
 — V. Kewley 
 
 . . 89 
 
 Bufe V. Turner 
 
 935, 978 
 
 — V. M'Kinnally . 
 
 . 101 
 
 Bull V. Bobison 
 
 . 574 
 
 — V. Maffey 
 
 289, 291 
 
 — v. Sibbs 
 
 . . 1336 
 
 — V. North 
 
 . 1234 
 
 Bullard v. Harrison 
 
 . 1270 
 
 — V. Notley 
 
 . . 1247 
 
 BuUen v. Sharp 
 
 . . 1091 
 
 — V. Overbury 
 
 . Ill 
 
 Bullerj Exp. . . 
 
 . 1030 
 
 — V. Piggott 
 
 . . 101 
 
 — V. Crips . 257, 291, 328 
 
 — V. Sayoe 
 
 . 1161 
 
 — . ?;. Fisher . 
 
 . 897 
 
 — V. Shevill 
 
 . . 591 
 
 — V. Harrison . 
 
 . . 122 
 
 — V. Shuker . 
 
 534, 535, 537 
 
 Bullock V. Dommitt 
 
 . 434 
 
 — V, Smith 
 
 . . 1203 
 
 Bully V. Palmer 
 
 . . 1137 
 
 — V. Stapyleton 
 
 . 883 
 
 BuUythorpe v. Turner . 
 
 . 1150 
 
 — V. Storey 
 
 596, 644 
 
 Bulmau v. Birkett . 
 
 . . 199 
 
 — V. Tayleur . 
 
 . 880 
 
 Bulmer v. Gilman . 
 
 . 210 
 
 — .». Thompson . 
 
 . . 820 
 
 — V. Home 
 
 . . 188 
 
 — V, Thornton 
 
 . 486 
 
 Bulpit V. Clarke . 
 
 237, 1167 
 
 Browne «. Burton 
 
 . . 454 
 
 Bnlstrode v. GUburne 
 
 . . 65 
 
 — V. Carre 
 
 . 315 
 
 Bult V. Morrell . 
 
 . 259 
 
 — V. Croome 
 
 . . 983 
 
 Bultivant v, Holman 
 
 . . 465 
 
 — 1). De Winton . 
 
 . 330 
 
 Bulwer v. Bulwer . 
 
 . 1246 
 
 — v. Gibbons . 
 
 . . 1206 
 
 Bunch V. Kennington 
 
 . . 592 
 
 — V. Eaban . 
 
 . 430 
 
 Bunn ». Guy 
 
 55, 70, 499 
 
 BrowneU v. Bonney . 
 
 . . 340 
 
 — o. Martham 
 
 . . 1282 
 
 Browning v. Bann . 
 
 . 600 
 
 Bunney v. Poyntz . 
 
 1231, 1233 
 
 — V. Halford . 
 
 . . 503 
 
 Bunton v. Bateman . 
 
 . . 1081 
 
 — V. Morris 
 
 . 112 
 
 Burbridge v. Manners . 
 
 281, 302 
 
 — V. Wright . 
 
 413, 423 
 
 Burch V. Leake 
 
 . . 142 
 
 Brownker v. Atkins 
 
 . 1136 
 
 Burohell v. Salter . 
 
 . 185 
 
 Bruce v. Bruce . 
 
 . . 118 
 
 — V. Slocock . 
 
 . . 333 
 
 — 1). Wait 
 
 . 863 
 
 Burgess v. Freelove 
 
 . 45 
 
 Brudnell i>. Roberts , 
 
 . . 475 
 
 — V. Wiokharn 
 
 . . 953 
 
XXVIU 
 
 NAMES OF CASES. 
 
 
 PAGE 
 
 
 PAGE 
 
 Burgh v. Legge . 
 
 127, 318 
 
 Cabaileeo v. Salter 
 
 . 789 
 
 — V. Preston 
 
 . . 517 
 
 Cadaval, Duke de, v., Collins . . 104 
 
 Bnrghall, Assignees of, v. Howard . 1219 
 
 Cadby v, Martinez . 
 
 . 638 
 
 Bnrghart v. Hall 
 
 . . 152 
 
 Caddick v. Skidmore 
 
 . . 785 
 
 Burke v. Jones 
 
 . 177 
 
 Cadle V. Moody 
 
 . 644 
 
 Burling V. Bead 
 
 1258, 1261 
 
 Cage V. Paxlin . 
 
 . . 403 
 
 Burmester ■». Hogai-th . 
 
 . 343 
 
 Cahill V. Dawson . 
 
 . 1316 
 
 Bum V. Boulton 
 
 . . 175 
 
 Caine v. Coulson 
 
 . . 208 
 
 — V. Miller 
 
 . 459 
 
 Cairns v. Bobins . 
 
 . 347 
 
 — V. Phelps . 
 
 . . 1343 
 
 Calcraft v. Earl of Harborongh . 9 
 
 Bumby v. Bollett . 
 
 . 557 
 
 Calder v. Halkett . 
 
 . . 852 
 
 Bume V. Bichardson . 
 
 . . 598 
 
 Caldicott V. Griffiths 
 
 1092, 1105 
 
 Burnett v. Kensington . 
 
 . 883 
 
 Caldwell v. Beoke 
 
 . . 485 
 
 — V. Lynch . . 4 
 
 01, 450, 666 
 
 CaU V. Dunning . 
 
 . 493 
 
 Burnard (app.) v. Haggis 
 
 . 159 
 
 Calland v. Lloyd 
 
 . 99, 119 
 
 Buron i). Denman 
 
 . . 849 
 
 CallendaSi v. Dittriohs . 
 
 . 85 
 
 Burrongh v. Moss 
 
 262, 281 
 
 Callow V. Lawrence . 
 
 - . 281 
 
 Buny V. Perry . 
 
 . . 1216 
 
 Calton V. Bragg 
 
 . 326 
 
 Burt V. Moor 
 
 . 595 
 
 Calvert v. Baker 
 
 . . 127 
 
 — V. Moult . 
 
 . . 1099 
 
 — „. Bovill . 
 
 . 945 
 
 .— V. Stobart and "Wife 
 
 . 251 
 
 Camden v. Anderson . 
 
 . . 958 
 
 — V. Walker 
 
 . . 493 
 
 — V. Fletcher 
 
 . 700 
 
 Burtenshaw v. Gilbert . 
 
 . 817, 818 
 
 Camfield v. Bird 
 
 998, 1214 
 
 Burton v. Barclay 
 
 . . 450 
 
 — V. Gilbert 
 
 . 217 
 
 — V. Henson . 
 
 . 46 
 
 Camidge v. AUcnby . 
 
 163, 164, 294 
 
 — V. Hughes 
 
 . . 1287 
 
 Cammell v. Sewell 
 
 . 911 
 
 — V. Kevell . 
 
 . 764 
 
 Campbell v. Christie . 
 
 . . 873 
 
 Busby V. Watson 
 
 . . 1012 
 
 — V. Fleming 
 
 . 677 
 
 Bush V. Bearan 
 
 . 1033 
 
 — V. Jones 
 
 135, 137, 462 
 
 — V. Coles . 
 
 . . 406 
 
 — V. Rickards 
 
 . 962 
 
 — V. Green 
 
 . 840 
 
 — V. Spottiswode . 
 
 . . 983 
 
 — V. Martin 
 
 . . 200 
 
 Canham v. Fisk 
 
 . 1079 
 
 Bushby v. Dixon . 
 
 532, 671 
 
 — V, Bust 
 
 440, 448 
 
 Bushell V. Wheeler . 
 
 793, 797 
 
 Cann v. Clippertou 
 
 . 859 
 
 Busk V. Davis 
 
 . 1284 
 
 — V. Gregory 
 
 . . 828 
 
 — V. Royal Excb. Ass. Co. 
 
 881, 905, 
 
 Cannan v. Bryce . 
 
 81, 108, 109 
 
 
 954 
 
 Cannon v. Reynolds . 
 
 . . 32 
 
 — V. Walsh . 
 
 . . Ill 
 
 Canterbury, Archbishop of, 
 
 V. Ro- 
 
 Bussey v. Barnet . 
 
 . 485 
 
 
 bertson 529 
 
 Busst V, Gibbons 
 
 . . 865 
 
 — V. 
 
 Tappen 717 
 
 Butcher v. Butcher 
 
 .■ 1246 
 
 Capel V. Buszard . 
 
 . 688 
 
 — V. London and South- 
 
 West. 
 
 Capenhurst v. Capenhurst . 
 
 . . 421 
 
 Kailway Co. . 
 
 . . 349 
 
 Capp V. Topham 
 
 . 93 
 
 — V. Porter . 
 
 . 1152 
 
 Capper v. Davenant . 
 
 . . 155 
 
 — V. Stewart . 
 
 773, 789 
 
 Cardwell v, Martin 
 
 . 273 
 
 Butler V. Freeman 
 
 . 25 
 
 Carey «. Askew 
 
 . . 812 
 
 — V. Hunter 
 
 . . 1085 
 
 Cariss v. Tattersall 
 
 . 276 
 
 — V. Meredith 
 
 . 647 
 
 Carlisle v. Garland . 
 
 . . 1299 
 
 — V. Wildman . 
 
 . . 906 
 
 — Major of, v. Blamlre 
 
 . 452 
 
 — V. Woolcott 
 
 359, 1228 
 
 Carlon v. Ireland 
 
 . . 298 
 
 Butt V. Conant . 
 
 . . 989 
 
 — V. Eenealy 
 
 . 301, 330 
 
 — V. Great Western Puiil. . 
 
 353, 354 
 
 Carlos V. Fancourt . 
 
 . 331, 334 
 
 — V. Newman 
 
 . . 857 
 
 Carlyon v. Loveiing 
 
 . 1079 
 
 Butt's case .... 
 
 . 1153 
 
 Carnaby v. Welby 
 
 . . 1256 
 
 Bnttemer v. Magnus . 
 
 . . 885 
 
 Came v. NichoU . 
 
 . 665 
 
 Buttemere v, Hayes 
 
 766, 782 
 
 Carpenter v. Buller . 
 
 . . 1259 
 
 Butterfield v. Burronghes . 
 
 . . 567 
 
 — V. Crcsswell . 
 
 . 463 
 
 Buxton V, Cornish . 
 
 . 1343 
 
 — V. Parker . 
 
 . . 425 
 
 — V. Jones 
 
 282, 307 
 
 — V. Tarrant 
 
 . 1202 
 
 Byerley v. Windus . 
 
 . 1081 
 
 — V. Thornton 
 
 . . 484 
 
 Byne v. Moore . 
 
 . . 1006 
 
 — V. Wall . 
 
 . 1065 
 
 Byrom v. Thompson 
 
 . 275 
 
 Carpenters', Six, case 
 
 . . 1261 
 
 Bywater v. Rlcbardsoij 
 
 , . 669 
 
 Carpue v, London and Bright 
 
 onliail. 350 
 
NAMES OF CASES. 
 
 XXti 
 
 Carr v. Burdiss 
 
 . 666 
 
 Chadwick v. Herepath 
 
 . 995 
 
 — V. Foster . 383, 
 
 384, 386, 1080 
 
 Chalmers v. Lanion . 
 
 . . 281 
 
 — u Hood 
 
 . 983 
 
 Chamberlain v. Hazlewood . . 1064 
 
 — V. Jackson 
 
 . . 811 
 
 — V. Porter 
 
 . 271, 272, 337 
 
 — V. Lancashire and Yoi 
 
 k. Rail. . 354 
 
 — V. Stanton 
 
 . 491 
 
 — V. Lanbert 
 
 . 389 
 
 — V. Williamsc 
 
 a . . 713 
 
 — V. Roberts 
 
 . . 480 
 
 Chambers v. Caulfield 
 
 10, 28, 420 
 
 Carratti;. Morley . 
 
 . 863 
 
 — • V. Donaldson 
 
 1154, 1257 
 
 Carrington ii. Roots . 
 
 761, 765, 780 
 
 — V. Irwin 
 
 . 1066 
 
 Carrol v. Bird 
 
 . 1213 
 
 — ■ V. Minchin 
 
 . . 717 
 
 — V. Blenoow 
 
 . . 240 
 
 — V, Robinson 
 
 1006, 1014 
 
 Carruthers v. Gray 
 
 900, 943, 961 
 
 — V. Smith 
 
 . . 854 
 
 — V. Sheddon 
 
 . . 925 
 
 Champion v. Plummer 
 
 . 801 
 
 — • V. Sydebotham 
 
 . 884 
 
 Chancellor v. Poole . 
 
 . . 449 
 
 Carslake v. Mapledoram 
 
 . . 1199 
 
 Chandelor v. Lopus 
 
 . 558 
 
 Carson V. Watts . 
 
 . 1063 
 
 ChanHler v. Doulton . 
 
 . . 612 
 
 Carter v. Eoehm 
 
 . . 935 
 
 ■ — • -v. Grieves 
 
 . 1185 
 
 — V. Carter . 
 
 . 100 
 
 — V. Lindsey . 
 
 . . 1214 
 
 — V. Flower 
 
 302, 318 
 
 — -0. Thompson 
 
 . 1074 
 
 — V. Fossett . 
 
 . 716 
 
 — o. Vilett . 
 
 . . 178 
 
 — -v. James 
 
 . . 279 
 
 Channell v. Ditchburn 
 
 . 174 
 
 — V. Jones 
 
 . 994 
 
 Channon v. 'Patch 
 
 . . 1251 
 
 — V. King . 
 
 . . 489 
 
 Chanter v. Hopkins 
 
 . 575 
 
 — -v. Murcot . 
 
 . 749 
 
 Chantler v. Lindsey . 
 
 . . 244 
 
 — V. Toussaint . 
 
 793, 796 
 
 Chaplin v. Levy 
 
 . 321 
 
 — v. Warae . 
 
 . 450 
 
 — -ii. Rogers i 
 
 . 758, 794, 795 
 
 — v. Whalley . 
 
 . . 1106 
 
 Chapman v. Allen . 
 
 . 1326 
 
 Cartwright v. Cooke ' . 
 
 . 148 
 
 — V. Benson , 
 
 . . 908 
 
 — V. Glover 
 
 451, 587 
 
 — V. Dalton 
 
 438,440, 695 
 
 — V. Smith 
 
 . 601 
 
 — v. Frazer . 
 
 . , 967 
 
 Cartwright i>. Wright 
 
 . 996 
 
 — V. Keane 
 
 . 288 
 
 Carviek v, Viek«ry ■ 
 
 . . 299 
 
 — V. Morton -. 
 
 . . 794 
 
 Gary v, Holt . ■ . 
 
 . 1245 
 
 — V. Pickersgill' 
 
 . 1010 
 
 — V. King . 
 
 . . 960 
 
 — V. Southwieke 
 
 . . 1330 
 
 Case V. Barber 
 
 . 766 
 
 — v. Spellar 
 
 . 576 
 
 — V. Davidson 
 
 . . 918 
 
 — v. Sutton . 
 
 . . 789 
 
 Cashborne v. Button 
 
 . 329 
 
 — V. Turner 
 
 . 724 
 
 Caslon V. Ireland 
 
 . . 311 
 
 — m. Van Toll 
 
 . . 211 
 
 Casseres v. Bell 
 
 . 928 
 
 Chappell V. Hicks . 
 
 . 192 
 
 Castelli ». Boddington 
 
 . . 925 
 
 Chappie V. Cooper 
 
 154, 236 
 
 Castilion v. Smith . 
 
 . 728 
 
 Charier v. Barrett . 
 
 . 996 
 
 Castleman v. Hicks . 
 
 . . 609 
 
 Charles v. Marsden . 
 
 . . 280 
 
 Castling v. Aubert 
 
 768, 775, 777 
 
 Charnlfey v. Winstanley . 
 
 . 194, 482 
 
 Caswell V. Coare 
 
 . . 577 
 
 Charter v. Grame 
 
 . . 853 
 
 Cater v. Wood 
 
 . 32 
 
 Chase v. Westmore 
 
 1313, 1318 
 
 Caterham Railway Co. v. Lc 
 
 ndon and 
 
 Chasemore v. Richards 
 
 . 1075, 1079 
 
 Brighton Railway Co. 
 
 . . 355 
 
 Ghater v. Becket . 
 
 757, 770, 771 
 
 Catherwood v. Caslon 
 
 11, 23 
 
 Chaters v. Bell . 
 
 295, 309 
 
 — V. Chabaud 
 
 . . 727 
 
 Chatfield v. Paxton 
 
 . 97 
 
 Cator V. Gator . . . 
 
 . 778 
 
 Chauvasse, Ex parte 
 
 . 69, 943 
 
 Catt vi Howard 
 
 . . 1109 . 
 
 Cheap V. Barclay . 
 
 . 1094 
 
 Catterall v. Kenyon 
 
 . 1324 
 
 Cheasly v. Barnes 
 
 . . 862 
 
 Catton V, Simpson 
 
 , . 274 
 
 Cheochi v. Powell . ■ 
 
 . 224 
 
 CaudeU v. Shaw . 
 
 . 238 
 
 Cheese v. Scales 
 
 . . 981 
 
 Gauty«;. GyU . 
 
 . . 166 
 
 Cheesman, Exp. 
 
 . 1314 
 
 Cave If. Holford 
 
 . 823 
 
 — V. Exall . 
 
 125, 1302, 1311 
 
 — V. Mountain 
 
 . . 851 
 
 — V. Hardham 
 
 . 388 
 
 Caverley v. Ellison 
 
 . 725 
 
 Cheetham v, Butler . 
 
 . . 338 
 
 Cawkwell v. Russel . 
 
 . . 34 
 
 — V, Stertevant . 
 
 . 274 
 
 Gawthorne v. Gawdrey . 
 
 . 785 
 
 — V. Ward . 
 
 . . 515 
 
 Cazenove v, Clayton . 
 
 . . 1175 
 
 Chelsea Waterworks, C 
 
 overuor of, 
 
 — -v. Prevost 
 
 . 1320 
 
 V. Cowper . 
 
 . 496 
 
 Chadwick v.- Allen . - . 
 
 . . 329 
 
 Cheney's case . * 
 
 . . 684 
 
XXX 
 
 NAMES OP CASES. 
 
 PAGE 
 
 CSierry v. Heming . . 759, 787 
 
 Ciesman «. Nainby . . 498, 499 
 Chesmer v. Noyes .... 325 
 Chester ■«. Hunt .... 5 
 Chestemiaii v. Lamb . . . 578 
 Ohettle 1). Pound . . . • 496 
 Chevely ■»■ Bond . . . . 258 
 Chichester, Bishop of, v. Harward. 1023 
 — v. Lethbridge 1071 
 
 ChUd II. Affleck . . . . 988 
 
 — V. Chamberlain . . . 606 
 
 — 1). GreenhiU . . . . 752 
 
 — V. Hardyman .- . . 228 
 
 — V. Morley . . , 55, 91 
 
 — v. Moning .... 709 
 Chilton V. London and Croydon 
 
 Kail. . .' . . . . 341 
 
 Chinn v. Morris .... 865 
 Chippendale n. Lancashire and Tork- 
 
 shire Bailway . . . . 354 
 
 Chisman v. Count .... 128 
 
 Chorley, village of, case . . . 866 
 
 Christian, Be .... 814 
 
 Christie v. Cowell .... 120,1 
 
 — V. Fonsiok . . . 301 
 
 — v. Griggs , . . . 349 
 1 — V. Lewis .... 1314 
 
 — V, Kiehardson . . . 397 
 ; — Vk Secretan . . .946 
 
 Christopher v. Christopher . . 820 
 
 Christopherson v. Bare . . 41, 46 
 
 Christy v. Row , . . . 459 
 
 — V. Tancred . . . 1335 
 Chubb «. Westley . . . . 998 
 Chuck, Bxp. . . . . 1094 
 Church V. Brown . . . . .430 
 
 — V. Imperial Gas Co. . . 84 
 ChurchiU v. Bank of England . . 714 
 
 — V. Bertrand . . .102 
 — . V. Matthews . . . 865 
 . 1010 
 . . 1330, 
 
 Churchward v. Ford 
 
 — ■ V, Studdy 
 Clancy v. Piggott , 
 Clapham v. Langtqn 
 Clare v. Hedges 
 
 — V. Maynard 
 Claridge v. Dalton 
 
 — v. Mackenzie 
 Clark V. Bulmer . 
 
 — 13. Freeman 
 — ■ 11. Gaskarth 
 
 — V. GUbert 
 
 — 13, Hougham 
 
 — «. Newsam 
 
 — V. Pigot 
 
 — V, Woods . 
 Clarke ,'!>. Clarke 
 
 — V. Cogge 
 
 — 13. Davies 
 
 — D. Dickson 
 
 — V. Dixon 
 
 — /B. Gray 
 
 . . 788 
 
 . 953 
 697, 698 
 
 . 580 
 . . 289 
 621, 1160 
 
 , 91 
 . .990 
 
 . 590 
 
 . . 1314 
 
 168, 711 
 
 . . 52 
 
 . 296 
 . . 857 
 
 .1074 
 . . 1269 
 
 . 1157 
 . . 104 
 
 . 559 
 . , 131 
 
 
 PAGE 
 
 Clarke v. Inhabitants of BUthing . 978 
 
 — 13. Johnson , 
 
 . 122 
 
 — 13. Leicestershire Canal Co. . 1036 
 
 — 13. Nicholson 
 
 . 1328 
 
 — V. Percival 
 
 , . 331 
 
 — V. Shee 
 
 . 102, 107 
 
 — 13. Taylor 
 
 993, 994 
 
 — 13. Tinker . 
 
 . . 371 
 
 — 13. Watson 
 
 . . 138 
 
 — V. Webb . 
 
 . 128 
 
 — 13. Westmore . 
 
 . . 940 
 
 Clarkson v. Lawson 
 
 . 993, 994 
 
 Clay V. Harrison 
 
 958, 1219 
 
 — ; V. Oxford 
 
 . . 37 
 
 — V. Yates . 
 
 . . 792 
 
 Clayton v. Adams . 
 
 . ■ . 243 
 
 — V. Andrews . 
 
 . . 7-91 
 
 — V. Blakey 
 
 . 761, 762 
 
 — 13. Corby . 384, 
 
 385, 386, 1074, 
 
 
 1079 
 
 ' — v. Dilly . 
 
 . 110 
 
 — V. Gosling 
 
 . . 301 
 
 7- 13. Qregsou 
 
 . 194 
 
 Clayton's case . 
 
 . . 162 
 
 Clears 13. Stevens . 
 
 . 686 
 
 Cleave v. Jones 
 
 . . 174 
 
 Clegg e. Cotton 
 
 . 289 
 
 Clement 13. Fisher . 
 
 . . 990 
 
 — -ii. Henley . 
 
 ., 419 
 
 Clements ». Flight 
 
 . . 584 
 
 — V. Lambert 
 
 . 373 
 
 — !). Mavor _. 
 
 . . 1189 
 
 — 13. Maybqrn 
 
 . 1189 
 
 Clementson v. Newcomb 
 
 . . 990 
 
 Clerk 13. Laurie , 
 
 .469 
 
 — V. Martin 
 
 . . 328 
 
 — 13. Smith 
 
 . 633 
 
 — 13. Withers 
 
 . . .696 
 
 Clerk's ease . . 
 
 . 1018 
 
 Cleverly 13. Brett 
 
 . . 709 
 
 Cleworth 11. Pickford 
 
 . 185 
 
 Clifford V. Brandon . 
 
 . . 867 
 
 — 13. Laton . 
 
 . . 250 
 
 — e. Parker 
 
 . . 276 
 
 Clipsham «. Vertue 
 
 . 464 
 
 Close 13. Holmes 
 
 743, m 
 
 — 13. Phipps 
 
 . . 101 
 
 — V. Waterhouse . 
 
 . . . ISM, 
 
 Clough v. Lambert 
 
 . 231 
 
 Clowes V. Brooke 
 
 . . 155 
 
 Clugas V. Penaluna 
 
 . . 73 
 
 Cliilow, Re 
 
 . . 544 
 
 Clun's ease . 
 
 . 642 
 
 Clutterbuck v. Coffin . 
 
 57, 1187 
 
 — V. Hulls . 
 
 . . 198 
 
 Coates w. Coates 
 
 . . 184 
 
 — 11. Hewit 
 
 . 490 
 
 — v. Eailton 
 
 . 1222, 1229 
 
 — 13. Stephens . 
 
 . . 670 
 
 Coats V. Chaplin 
 
 . 360, 1280 
 
 Cobb V. Beeke . 
 
 . 120, 125 
 
 — n. Carpenter . 
 
 . . . 1337 
 
 — V. Selby . , 
 
 . . 1269 
 
NAMES OF CASES. 
 
 XXXI 
 
 
 PAGE 
 
 
 PAGE 
 
 Cobb V. Stokes 
 
 . 547 
 
 Collins V. Eenison 
 
 . 692 
 
 Cobbett V. Grey 
 
 . . 43 
 
 — V. Rose 
 
 . 857 
 
 — V. Hudson . 
 
 . 521 
 
 — V. Thoroughgood 
 
 445, 728 
 
 Cobden v. Kendriek . 
 
 . . 98 
 
 Collinson v. Margesson . 
 
 . 172 
 
 Cochrane v. Fisher 
 
 . 937 
 
 CoUis V. Bothamley . 
 
 783, 788 
 
 — V. Green . 
 
 . . 184 
 
 — V. Emett 
 
 . 277 
 
 Cock V. Coxwell 
 
 . 321 
 
 — V. Malin . 
 
 . 1208 
 
 Cookoroft V. Smith . 
 
 . . 47 
 
 — V. Stack 
 
 . 172 
 
 Cocker v, Cowper . 
 
 761, 1086 
 
 Colmer v. Clark 
 
 . 499 
 
 ' — V, Crompton . 
 
 . . 1254 
 
 Cologan V. London Ass. Co. 
 
 . 908 
 
 Cockey v. Atkinson 
 
 . 880 
 
 Colston V. Woolaaton . 
 
 . 1280 
 
 Cocking V. Fraser 
 
 . . 885 
 
 Colviu V. Buckle . 
 
 . 168 
 
 — V. Ward . 128, 765, 
 
 782, 783 
 
 — V. Newberry . 
 
 . 364 
 
 Cookran v. Irlam . 
 
 . . 1305 
 
 Comas, Estabau de, ii, Prost . 
 
 . 733 
 
 Cooks V. Brewer . 
 
 . 538 
 
 Combe v. Caprou 
 
 , 1008 
 
 — V, Mastermau . 
 
 . . 119 
 
 Conjpagnon ■;;. Martin 
 
 . 1214 
 
 — V, Nash 
 
 . 616 
 
 Comyn v. Eyneto 
 
 . 627 
 
 Cockshot V. Bennett . 6f 
 
 3, 76, 155 
 
 Congham v. King . 
 
 . 448 
 
 Cockson V. Cock . 
 
 . 445 
 
 Congleton, Mayor of, v. Pattison 
 
 . 447 
 
 Codrington v. Loyd , 
 
 . . 849 
 
 Connor v. West . . 616, 
 
 627, 682 
 
 Coe V. Westemham 
 
 . 726 
 
 Cooch V. Goodman . 
 
 473, 759 
 
 — V. Wise . . . ■ 
 
 . 1085 
 
 Cook V. Batchelor 
 
 . 1206 
 
 Coggs V. Bernard . 
 
 . 348 
 
 — u. Cox . . . 1208, 1211 
 
 Coghlan v. Williamson 
 
 . 493 
 
 — V. Field 
 
 . 998 
 
 Cohen v. Hannam . 
 
 924, 959 
 
 — V. Gillard 
 
 . 204 
 
 — V, Hinckley 
 
 895, 942 
 
 — V. Jennings . . . 
 
 . 458 
 
 — ■». Huskisson 
 
 . 867 
 
 — 'fj. Nethercote . . 
 
 . 865 
 
 — V. Wilkinson . 
 
 . 1022 
 
 — 0. Ward . . . 993. 1001 
 
 Coke V. Bullock . 
 
 . 819 
 
 — x(. Wright 
 
 58, 59 
 
 Colborne v. Wright . 
 
 . 540 
 
 Cooke V. Holgate . 
 
 . 1327 
 
 Colchester, Mayor of, v. Brooke 
 
 753, 755 
 
 — V. Hughes 
 
 . 1000 
 
 Coldham v. Showier . 
 
 . 801 
 
 — V. Loxley . . . 506, 1341 
 
 Cole V. Dyer .... 
 
 . 789 
 
 • — ■ V. Munstone . . 87, 
 
 118, 130 
 
 — V. Hawkins . 
 
 . 130 
 
 — V. Oxley 
 
 . 55 
 
 — V. Hindson . 
 
 847, 864 
 
 — V, Tombs 
 
 770, 790 
 
 — V. Parkin . 
 
 . 275 
 
 — V. Whorwood 
 
 . 489 
 
 Colegrave v. Dias Santos 
 
 . 1298 
 
 — V. Wildes . . 987, 1200 
 
 Coleham v. Cooke 
 
 330, 334 
 
 Coombe v. Green . 
 
 137. 138 
 
 Coleman and Wife v. Haroourt 
 
 . 245 
 
 Coombs V. Bristol and Exeter Kail. 359, 
 
 — V. Foster . 
 
 . 1087 
 
 
 360, 797 
 
 — V. Gibson . 
 
 . 794 
 
 — V. Dibble 
 
 . 110 
 
 — V. Eiohes . 
 
 . 1058 
 
 Coomer v. Latham 
 
 . 861 
 
 — V. Sherwyn . 
 
 . 412 
 
 Coope V. Eyre .... 
 
 . 1089 
 
 — V. Winch . 
 
 . 534 
 
 Cooper V. Blandy . . 620, 1160, 1340 
 
 Coles V. Bell . . . . 
 
 . 191 
 
 — V. Bliok 
 
 . 166 
 
 — V. Bristowe . 
 
 . 734 
 
 — V. Beckett . 
 
 . 828 
 
 CoUedge v. Harty 
 
 . 938 
 
 — V. Booth 
 
 . 1263 
 
 CoUen V. Wright . 
 
 . 577 
 
 — V. Harding . 
 
 . 849 
 
 CoUett V. Foster 
 
 . 849 
 
 — V. Hunchin 
 
 . 253 
 
 — V. Lord Keith 
 
 . 863 
 
 — V. Lindo 
 
 . 322 
 
 Collier v. GaUlard 
 
 . 1216 
 
 — V. Marshall . 
 
 . 381 
 
 Colling V. Treweek 
 
 . 212 
 
 — V. Martin . 
 
 . 237 
 
 ColUnge V, Heywood . 
 
 . 168 
 
 — v. Meyer 
 
 . 323 
 
 Collin's V. Bayntum 
 
 . 666 
 
 — 1], Parker . 
 
 149, 150 
 
 — V. Blanter . 
 
 , 501 
 
 — V, Sherbrooke 
 
 . 1164 
 
 — V. Bristol and Exeter Eail 
 
 . 847 
 
 — V. Slade 
 
 . 655 
 
 — V. Butler . 
 
 . 306 
 
 — 1!. Smith 
 
 . 801 
 
 — V. Carnegie . . 5 
 
 12, 1215 
 
 — V. South . 
 
 . 363 
 
 — V. Collin.<i . 
 
 518, 528 
 
 — -o. South Western Eail. Co 
 
 . 355 
 
 — V. Crouch 
 
 705, 722 
 
 — v. Wakley . 
 
 . 993 
 
 — V. Evans . 
 
 . 79 
 
 — V. Willamatt . 
 
 . 1290 
 
 — V. Godefroy . 
 
 . 208 
 
 Cooth V. Jackson . 
 
 . 766 
 
 — V. Martin . . 
 
 . 1301 
 
 Cope V, Eowlands , . . 
 
 73, 74 
 
xxxii 
 
 NAMES OP CASES. 
 
 
 PAGE 
 
 
 PAOE 
 
 Copeland -y. Stevens 
 Copland v. Laporte . 
 
 Coppin V. 
 
 — v. Braithwaite 
 
 . 450 
 
 . 402 
 . 248 
 . 1206 
 
 Cowling V. Higginson . 
 Cowperv. Godmond . 
 
 — V. Green . 
 Cox V. AUingham 
 
 . 1080 
 
 102, 169 
 
 . 78 
 
 . . 727 
 
 Coppock v. Bower . 
 Corbet v. Cook 
 
 . 71 
 . 626 
 
 — ». Bent . . . ■ 
 — V. Brain 
 
 . 586 
 188, 637 
 
 Corbett v, Barnes . 
 
 . 45 
 
 — V. Burbidge 
 
 . 1249 
 
 — V. Brown . 
 
 . 561 
 
 — V. Hickman 
 
 1090, 1091 
 
 in Poelnitz 
 
 238, 239 
 
 — V. Leach . . 206, 207, 208 
 
 Corcoran v. Gurney . 
 
 . 885 
 
 — i;. Midland Counties Rail. 
 
 Do. . 1054 
 
 Corder v. Drakeford 
 
 . 770 
 
 — V. Prentice 
 
 . 122 
 
 Cordery v. ColTin . . ' . 
 
 . 308 
 
 — v. Reid 
 
 . . 1195 
 
 Cordron v. Lord Masserene 
 
 . 69 
 
 — V, Thomason . 
 
 1214, 1215 
 
 Cork V. Baker 
 
 . 778 
 
 — V. Troy 
 
 . . 283 
 
 Cormel v. Lisset 
 
 . 541 
 
 Coxe V. Harden . 
 
 1234, 1239 
 
 Corner v. Shew 
 
 . 719 
 
 — V. Wirrall 
 
 . . 1012 
 
 Comes V. Taylor 
 
 . 285 
 
 Coxherd v. Richards 
 
 . 987 
 
 Cornell v. Hudson . 
 
 . 180 
 
 Cozens v. Graham 
 
 . . 204 
 
 Corufoot V. Fowke 
 
 79, 80 
 
 Craib v. D'Aeth . 
 
 . 514 
 
 Cornish v, Hockin 
 
 31, 33 
 
 Cranch v. White 
 
 . . 1300 
 
 — V. Eowley 
 
 . 219 
 
 Crane v. Hummerstone . 
 
 . 62 
 
 — V. Searell . . .6 
 
 21, 1160 
 
 Crank v. Frith . 
 
 . . 493 
 
 Cornwall v. Richardson 
 
 . 1215 
 
 Cranwell v. Sanders 
 
 815, 816 
 
 Cornwell v. Saunders 
 
 . 838 
 
 Craufurd v. Cox 
 
 1098, 1106 
 
 Corpe V. Overton 
 
 . 611 
 
 — V. Hunter 
 
 . 955 
 
 Cort V. Ambergate Railway Co. 
 
 . 192 
 
 Craven v. Ryder 
 
 . . 1228 
 
 Cory i>. Scott . . 289, 
 
 290, 308 
 
 Crawford, Re . . . 
 
 . 986 
 
 Coryton v. Lithebye . 
 
 . 761 
 
 Crawley v. Hilary 
 
 . . 151 
 
 Cotes V. Davis 
 
 . 262 
 
 Crawshay v. Eades 
 
 . 1229 
 
 • — V. Harris 
 
 . 176 
 
 — V. Homfray 
 
 . . 1318 
 
 — V. Michill 
 
 . 862 
 
 — V. Thompson . 
 
 . 562 
 
 Cothay v. Fennell 
 
 . 1102 
 
 Creaeh v. Wilmott 
 
 . . 376 
 
 Cottam V. Partridge 
 
 2, 4, 175 
 
 Creagh v. Blood 
 
 . 764 
 
 Cottee V. Kichardson 
 
 . 763 
 
 Crease v. Barrett 
 
 665, 678 
 
 Cotterel v. Hooke . 
 
 ' . 478 
 
 Cremer v. Wickett . 
 
 . 527 
 
 Cottcrell V. Griffiths . 
 
 . 1074 
 
 CressweU v. Hedges . 
 
 . . 1257 
 
 Cotteiill V. Cuff . 
 
 . 132 
 
 Cripps V. Blank 
 
 . 1341 
 
 Cottingham v. King . 
 
 . 616 
 
 — -u, Davis 
 
 174, 280 
 
 Cottle V. Aldrich . 
 
 699, 701 
 
 — V. HartuoU 
 
 . 768 
 
 Cotton V. Godwin 
 
 . 191 
 
 — V. Reade 
 
 ■ . 97, 103 
 
 — 1) Thurland 
 
 . 110 
 
 Crisp V. Churchill . 
 
 . 80 
 
 Cottons V. James . . 1 C 
 
 06, 1007 
 
 — V. Gamel 
 
 . . 132 
 
 Cottrell 4). Hughes 
 
 617, 619 
 
 Critchlow v. Parry 
 
 . 324 
 
 Couch V. Steel . . .11 
 
 85, 1186 
 
 Crocker v. Fothergill 
 
 629, 647 
 
 Coulter's case 
 
 . 725 
 
 Croft V. Alison 
 
 . 1061 
 
 Coupey V. Henley 
 
 . 864 
 
 — u. Lumley 404, 431, 4[ 
 
 3, 640, 647 
 
 Court V. Martineau 
 
 . 935 
 
 — V. Smallwood . 
 
 . . 771 
 
 Courtauld v. Saunders 
 
 . 263 
 
 — i). Stevens . 
 
 . 989 
 
 Courteney's case . 
 
 . 1286 
 
 Crofts V. Beale . 
 
 . . 820 
 
 Cousins V. Paddon 146, 487, 
 
 488, 578 
 
 — V. Stockley . 
 
 . 623 
 
 Couturier ii. Hastie . 732, 
 
 774, 776 
 
 — V. Waterhouse 
 
 . . 349 
 
 Coventry v. Apsley 
 
 . 868 
 
 Crompton v. Ward 
 
 . 1170 
 
 Coverly v, Barrell 
 
 . 220 
 
 Cromwell v. Hynson . 
 
 . . 291 
 
 Covington v. Willan 
 
 . 348 
 
 Crookewit v. Fletcher . 
 
 . 464 
 
 Coward v. Baddeley . 
 
 . 46 
 
 Cropwel V. Peachy 
 
 . . 477 
 
 Cowas-jee w. Thompson . I 
 
 229, 1234 
 
 Crosby v. Leng 
 
 . 44 
 
 Cowell V. Edwards . 
 
 . 92 
 
 — V. Percy 
 
 . . 493 
 
 Cowing V, Cowing and Urllen . 
 
 . 27 
 
 — V. Wadswortb 761, 76 
 
 5, 780, 1244 
 
 Cowie V. Halsall 
 
 . 275 
 
 Cross, Exp. 
 
 . . 1282 
 
 — V. Renfrey . 
 
 . 805 
 
 — ■». Cheshire . 
 
 . 1105 
 
 Cowlam V, Slack 
 
 . 372 
 
 — 11. Elgin . 
 
 . . 193 
 
 Cowles V. Dunbar . 
 
 . 865 
 
 — V. Jordan . 
 
 . 651 
 
 Cowley V, Dunlop 
 
 . 273 
 
 Crosse -v. Gardner 
 
 . . 566 
 
NAMES OF CASES. 
 
 XXXIU 
 
 
 PAGE 
 
 
 
 PAGE 
 
 Crosse v. Smith 
 
 . 304, 717 
 
 D'Aquha v. Lambert 
 
 
 . . 1218 
 
 Crosseing v. Honor . 
 
 . . 61 
 
 D'Aguilar v. Tobin 
 
 
 . 950 
 
 Crossfield v. Such . 
 
 . 694 
 
 D'Eguino V. Bewicke . 
 
 
 . . 941 
 
 Crossley t>. Ham 
 
 . . 281 
 
 Da Costa v. Newnham . 
 
 
 . 882 
 
 Crosthwaite v. (jardner . 
 
 . 712 
 
 Dagglish V. Weatherby 
 
 
 . . .302 
 
 Crouch V. Great Western Kail. 345, 358 
 
 Daiues v. Hartley . 
 
 
 . 1203 
 
 — V. London and North West- 
 
 Daintree v. Hutchinson 
 
 
 . . 146 
 
 em Railway 
 
 . 344, 345 
 
 Daintry v. Brocklehurst . 
 
 
 . 619 
 
 Croughton v. Blake . 
 
 . . 496 
 
 Dalby v. Cooke 
 
 
 . . 126 
 
 Crow V. Rogers 
 
 . 62 
 
 — V. Dorthall . 
 
 
 . 254 
 
 Crowder v. Shee 
 
 199, 201 
 
 — V. India and London Life 
 
 As- 
 
 Cvowe V. Clay 
 
 . 293 
 
 surance Co. 
 
 872 
 
 971, 972 
 
 Crowfoot V. Grumey . 
 
 . . 164 
 
 Dale v.. Hall 
 
 . 
 
 346, 363 
 
 Crowhurst v. Laverack . 
 
 56, 81, 786 
 
 Dale's case 
 
 . 
 
 . 558 
 
 Crowley v. Cohen 
 
 . . 926 
 
 Dalgleish v. Hodgson . 
 Dal^mple v. Dalrymple 
 
 . 
 
 . . 945 
 
 — V. Vitty . 
 
 760, 764, 809 
 
 
 . 24 
 
 Crowther v. Farrer . 
 
 . . 60 
 
 Dalston v. Reeve 
 
 
 . . 470 
 
 Croxon v. Worthem 
 
 . 290 
 
 Dalton V. Gib 
 
 . 
 
 . 157 
 
 Crozier v. Cundey 
 
 858, 1249 
 
 — V. Midland Counties Rail 
 
 Co. 244 
 
 Cruiokshanks v. Rose 
 
 . 162 
 
 — V. Whitten . 
 
 1254, 1297 
 
 Crumwell's, Lord, case 
 
 . . 587 
 
 Dalyell v. Tyrer 
 
 
 . . 1058 
 
 Crusoe v. Blenoowe 
 
 . 430 
 
 Dalzell V. Mair 
 
 , 
 
 . 968 
 
 Cubitt V. Porter 
 
 . . 1244 
 
 Danby v. Lamb 
 
 , 
 
 390, 581 
 
 Cuckson V. Stones . 
 
 1049, 1050 
 
 Dancer v. Hastings 
 
 , 
 
 •. 1161 
 
 Cuffv. Penn . 
 
 . . 809 
 
 Dand v. Kingscote . 
 
 
 . . 1267 
 
 CuUeu V. Butler . 
 
 . 896 
 
 Daniel v. Gracie 
 
 , 
 
 586, 629 
 
 Culley V. Taylerson . 
 
 . . 660 
 
 — i;. Wilkin 
 
 , 
 
 388, 667 
 
 Culling V. Tuffnall . 
 
 . 1294 
 
 Daniels v. Fielding 
 
 
 . 1009 
 
 CuUingworth v. Loyd 
 
 . . 77 
 
 Darbishire v. Parker 285 
 
 , 286 
 
 , 306, 338 
 
 Cully V. Spearman 
 
 . 1155 
 
 Darby ». Baines 
 
 . 
 
 . . 1174 
 
 Cumber v. Wane 
 
 148, 149, 150 
 
 — V. Boucher . 
 
 , 
 
 . 158 
 
 Cuming v. Brown . 
 
 1239, 1281 
 
 — V. Harris 
 
 , 
 
 . . 590 
 
 — V. Hill 
 
 . . 472 
 
 — V. Ouseley 982 
 
 987, 
 
 996, 998, 
 
 — ■„. Sibley . 
 
 . 554 
 
 
 
 looa 
 
 Gumming v. French . 
 
 . . 340 
 
 Darcy v. Mason 
 
 . 
 
 . . 352 
 
 — V. Roebuck 
 
 . 804, 805 
 
 Darley ■». Martin . 
 
 . 
 
 . 816 
 
 Cunard v. Hyde 
 
 . . 953 
 
 — V. Rex . 
 
 . 
 
 . . 1116 
 
 Oundell v. Dawson 
 
 . 73 
 
 Darlington and Stockton Rail Co. 
 
 ,Exp. 
 
 Cundy v. Marriott 
 
 . . 271 
 
 the, Se Riches . 
 
 . 
 
 . 1109 
 
 CunliEfe v. Harrison 
 
 . 794 
 
 Darnell v. Tratt 
 
 
 . . 771 
 
 — V. Seton 
 
 . . 494 
 
 Darrel v. Wilson . 
 
 , 
 
 695, 1168 
 
 — V. Whitehead . 
 
 . 297 
 
 Dartnal v. Morgan . 
 
 
 . . 1330 
 
 Cunningham v. Bennet 
 
 . . 552 
 
 Daubigny v. Duval 
 
 . 
 
 . 733 
 
 Curlewis v. Corfield 
 
 . 306 
 
 Davenport v. Nelson . 
 
 
 . . 238 
 
 — V. Lord Momingto 
 
 n . . 176 
 
 Davey v. Wame 
 
 . 
 
 . 147 
 
 Curling v. Robertson 
 
 . 1195 
 
 David V. EUice . 
 
 
 . . 1106 
 
 — V. Shuttleworth 
 
 217, 219 
 
 Davidson v. Cooper 
 
 . 
 
 146, 276 
 
 Currie v. Blxham . 
 
 . 689 
 
 — V. Gent 
 
 , 
 
 . . 672 
 
 Curry v. Stephenson . 
 
 . . 723 
 
 — V. Gwynne 
 
 
 . 464 
 
 — V. Walter . 
 
 . 983 
 
 — u. M'Gregor 
 
 
 . . 616 
 
 Curtis V. Curtis 
 
 . . 1212 
 
 — -i). Stanley 
 
 . 
 
 . 264 
 
 — V. Hanay 
 
 . 577, 578 
 
 — V. Willasey . 
 
 
 . . 911 
 
 — V. Pngh . 
 
 . . 794 
 
 Davie v. Sacheverell 
 
 . 
 
 . 426 
 
 — V. Riokards 
 
 . 126 
 
 Davies v. Edwards . 
 
 
 . . 646 
 
 — V. Spitty 
 
 544, 1339 
 
 — • V, Hawkins 
 
 , 
 
 . 1266 
 
 — V. Wheeler . 
 
 . 697 
 
 — 11. Humphreys 
 
 . 
 
 169, 677 
 
 Cussons V, Skinner . 
 
 . . 1049 
 
 — V. Lowndes 
 
 . 
 
 . 675 
 
 Cusack V. Robinson 
 
 . 792 
 
 — V. Powell 
 
 
 . . 590 
 
 Cuthbert v. Gumming 
 
 . . 810 
 
 — V. Underwoods . 
 
 , 
 
 . 434 
 
 — V. Haley 
 
 . 501 
 
 — V. Vernon . 1300, 1304, 1325 
 
 Cutter V. Powell 
 
 1185, 1186 
 
 — V. Williams 369, 
 
 372, 
 
 381, 385, 
 
 Cutting V. Derby . 
 
 . 547, 648 
 
 
 
 1064 
 
 * 
 
 
 Davis V. Bovsher 
 
 • 
 
 . 1315 
 
 VOL. I. 
 
 
 
 
 
 
XXXIV 
 
 NAMES OF CASES. 
 
 
 
 PAGE 
 
 
 PAGE 
 
 Davis V. Bryan , 
 
 . 
 
 102 
 
 De Medina v. Poison . 
 
 762, 1334 
 
 — ». Clarke 
 
 . 
 
 268 
 
 De Potb™ier v. De Mattos 
 
 . 184, 1177 
 
 — V. Cole . , . 
 
 . 
 
 390 
 
 De Silvale v. Kendall 
 
 . . 468 
 
 — V. Dinwoody 
 
 , 
 
 254 
 
 De Tastot v. Shaw 
 
 . . 724 
 
 — V. Edwards 
 
 ■ . . 
 
 174 
 
 De Vignier v. Swanson 
 
 . . 875 
 
 — V. Gyde 
 
 . 699 
 
 , 704 
 
 De Wabl v. Braune 
 
 . 242 
 
 — V. James 
 
 • « ■ 
 
 361 
 
 Deale v. Leave . 
 
 . . 157 
 
 — V. Jones 
 
 274, 811, 
 
 1294 
 
 Dean of Windsor's case . 
 
 . 445 
 
 — V. Lewis . 
 
 . 
 
 1207 
 
 — V. Allaley 
 
 . . 1296 
 
 — V. Mason 
 
 . 
 
 499 
 
 — ■;;. Dicker 
 
 . 898 
 
 — V. Mare . 
 
 
 458 
 
 — V. Hornby. 
 
 908, 915 
 
 — V. Reynolds 
 
 iko, 
 
 1324 
 
 — v. James 
 
 . 187 
 
 — V. Smyth 
 
 
 326 
 
 — •». M'Ghie . 
 
 . . 1177 
 
 — V. Wilkinson 
 
 , 
 
 ■332 
 
 — V. Newhall . 
 
 . 617 
 
 — V. Williams 
 
 . 
 
 727 
 
 — V. Peel . 
 
 . . 1064 
 
 Davison v. Duncan 
 
 , , 
 
 985 
 
 — V. Taylor 
 
 61, 52 
 
 — V. Gent 
 
 541 
 
 , 764 
 
 Deane ». Clayton 
 
 . . 832 
 
 Davy, Exp. . 
 
 
 1025 
 
 — V. Thomas . 
 
 . 22 
 
 — V. Baker 
 
 - 
 
 556 
 
 Decker v. Pope 
 
 . . 91 
 
 — V. Pepys 
 
 . 536 
 
 , 537 
 
 Decosta v. Atkins . 
 
 . 688 
 
 — V. Milford 
 
 • 
 
 909 
 
 Decks a. Street 
 
 . . 716 
 
 Daw V. Hole . 
 
 , 
 
 391 
 
 Deere v. Ivey 
 
 . 129 
 
 Dawes v. Papworth . 
 
 
 625 
 
 Deering v. Winohelsea, Earl of . . 92 
 
 — V. Peck 
 
 '359, 360, 
 
 12S0 
 
 Defries ». Davies . 
 
 . 1215 
 
 Dawkes v. Loraine, Lord 
 
 De . . 
 
 269 
 
 Delany v. Jones 
 
 . . 988 
 
 Daws V. Pinner 
 
 . 
 
 326 
 
 — V. Stoddart . 
 
 . 950 
 
 Dawson v. Clerk 
 
 
 857 
 
 Delauney v. Stirickland 
 
 . . 1099 
 
 — 0. Oollis 
 
 
 677 
 
 Delavel v. Clare 
 
 . 511 
 
 — V. Cropp . 
 
 » 
 
 611 
 
 Delegal 0. Highley . 
 
 984, 1013 
 
 — V. Dyer 
 
 
 429 
 
 Dell V. Pereby 
 
 . 60 
 
 — V. Gregory 
 
 
 708 
 
 Delmada v. Motteux . 
 
 . . 932 
 
 — V. Lamb 
 
 
 1336 
 
 Denby v. Moore 
 
 . 98 
 
 — V. Macdonald . 
 
 ■ ■ 
 
 321 
 
 Dendy v. Nicholi 
 
 . . 641 
 
 -- V. Myer 
 
 , 
 
 461 
 
 — v. Simpson . 
 
 . 671 
 
 — ». Remnant 
 
 . 
 
 76 
 
 Denew v. Daverell 
 
 . . 207 
 
 Day V. Bower 
 
 , 
 
 319 
 
 Dengate v. Gardiner 
 
 . 244 
 
 — V. King 
 
 
 1252 
 
 Denham v. Stephenson 
 
 . . 632 
 
 — V. Padrone . 
 
 . '244 
 
 , 248 
 
 Denn v. Cartwright 
 
 . 632 
 
 — V. Picton . 
 
 
 8S 
 
 — w. Purvis . 
 
 . . 630 
 
 — V. Robinson . 
 
 . 1210, 
 
 1216 
 
 — V. Rawlins . 
 
 . 633 
 
 — V. Williams 
 
 
 618 
 
 — 1). Spray . 
 
 . . 678 
 
 Dayrell v. Hoare . 
 
 
 835 
 
 — V. Waine 
 
 . 035 
 
 Deacon v. Gridley 
 
 • 
 
 59 
 
 — V, White . 
 
 . . 686 
 
 De Begnis v. Armistead . 
 
 
 74 
 
 Dennett u. Grover . 
 
 . 1260 
 
 De Berdt v. Atkinson 
 
 . 290, 291 
 
 , 343 
 
 Dennis v. Monice 
 
 . . 302 
 
 De Bernales v. Fuller 
 
 , 
 
 120 
 
 Dennistoun v. LilUe 
 
 . 933 
 
 — V. Wood . 
 
 
 713 
 
 Dent V. Oliver . 
 
 . . 1243 
 
 De Biel v. Thompson 
 
 
 790 
 
 Denton v. Great Northern 
 
 Railway . 350 
 
 De Costa V. Soandret . 
 
 . ' 932 
 
 , 934 
 
 — V. Richmond- 
 
 . . 400 
 
 De Crespigny v. Wellesle 
 
 r . 993, 
 
 1207 
 
 — ■». Rodie 
 
 . 1101 
 
 De Gaillon v. Victt 
 
 )iTe Harel 
 
 
 Depaba v. Ludlow 
 
 . . 897 
 
 L'Aigle 
 
 
 240 
 
 Deptford, Chrchwdns. of, t 
 
 . Sketchey 622 
 
 De Garay v. Claggett 
 
 
 941 
 
 Derby,- Earl of, «. Taylor 
 
 . 452 
 
 De Garrou v. Galbraith 
 
 
 922 
 
 Derisley v. Custance . 
 
 . . 444 
 
 De Graves v. Smith 
 
 . 
 
 564 
 
 Desborough ». Homes 
 
 . 42 
 
 De Hahn v. Hartley . 
 
 936 
 
 , 937 
 
 Desoharmes, Exp. . 
 
 . . 587 
 
 De Haviland v. Bowerbai 
 
 k . 
 
 326 
 
 Dethik v. Saunders 
 
 . 630 
 
 De la Choumette v. Bank 
 
 of England 
 
 329 
 
 Devaux v. J' Anson . 
 
 892, 894, 906 
 
 De la Courtier v. Bellamy 
 
 . 
 
 274 
 
 — V. Salvador 
 
 . 918, 919 
 
 De Mattos v. Gibson . 
 
 ■ 
 
 1177 
 
 — V. Steele 
 
 . . 892 
 
 — V. North 
 
 . 
 
 957 
 
 — ». Steinkeller . 
 
 . 662 
 
 De Medina v. Grove . 
 
 
 1008 
 
 Devaynes v. Noble . 
 
 .12 
 
 — »■. Norman . 
 
 • 
 
 140 
 
 Devereux v. Barclay . 
 
 . 364, 1301 
 
NAMES OF CASES. 
 
 XXXV 
 
 Canal Co. 
 
 PAGE 
 Devon v. Collier ■ . • . . , 409 
 Devonshire, Duke of, v. Lodge . 834 
 Dewellv. Marshall . . . . 1165 
 
 — V. Moxon .... 1325 
 Dews V. Riley . . . ' . . 852 
 Dias V. Freeman .... 1148 
 Dibble v. Bowater . . . . 601 
 Dibden v. Swan . . . .982 
 Dicas V. Stockley . . . . 1312 
 Dickenson v. Teagne . . . 328 
 
 — V. Naul . . . . 214 
 Dicker v. Jackson .... 135 
 Dickinson v. Follett . . . . 670 
 
 — -e. Grand Juncfc. Canal Co. 1077 
 
 — V. Marrow . . . 120 
 
 — V. Valpy . 259, 264, 1093 
 Dickson v. Thomson . . . 170 
 
 — V. Zizinia . . . 568, 576 
 Digby V. Atkinson . . . . 436 
 
 — V. Thompson 
 Dilk e. Keighley 
 Dimes v. Grand Junction 
 Dingwall v. Dunster 
 Ditcham v. Bond 
 Dixon V. Baldwin 1222, 
 
 — V. Broomfield 
 
 — V. Chambers . 
 
 — ». Clark 
 
 — V. Hamond 
 
 — V. Holdroyd . 
 
 — V. Nuttall 
 
 — V. Parkes 
 
 — V. Keid . 
 
 — V. Sadler 
 
 — V. Yates . 1228, 
 Dobell V. Hutchinson . 
 Dobson V. CoUis 
 
 — ii. Wilson 
 Dodd V. Acklom 
 
 — •». Norris . 
 Dodsley o. Varley . 
 Dodson V. Espie 
 
 — V. Wentworth 
 Doe V. Benson . • 
 
 — d. Biddulph v. Poole . . . 
 
 — d. Clarke v.- Lndkm 
 
 — d. Cook ». Danvers . . . 
 
 — d. Oounaell v. Caperton . 
 
 — d. Curtail v. Thomas . . . 
 
 — d. Dand «.■ Thompson 
 
 — d. Davenish v. Moffat . . . 
 
 — d. Davies ®. Da vies . 
 
 — d. Dilnot V. Dilnot . . . 
 
 — d. Bvers v. Ward . 
 
 — d. Hndlestone v. Johnstone 
 
 — d. Lord Egremont v. Courtenay. 
 
 — d. Lushington • -o. Bishop of 
 
 Llandaff , . . . 822 
 
 — d. Murrell v. Milward . . 764 
 
 — d. Nethercote v. Bartle . . 813 
 
 — d Gldam-». WoUey. . . 815 
 
 — d. Eeed v. Harris . . 812, 818 
 
 — d. Keggi V. Bell . . .762 
 
 981 
 
 156 
 
 624 
 
 285 
 
 . . 1064 
 
 1224, 1227, 1237 
 
 . 804 
 
 . 338 
 
 187, 191 
 
 . 125 
 
 . 404 
 
 169, 301 
 
 488, 514 
 
 . 916 
 
 952, 954 
 
 1232, 1241, 1283 
 
 . . 801 
 
 . 787 
 
 95 
 
 764, 1333 
 
 . . 1065 
 
 793, 797 
 
 . . 167 
 
 1222, 1236, 1237 
 
 194 
 
 764 
 
 813 
 
 812 
 
 814 
 
 763 
 
 813 
 
 764 
 
 814 
 
 822 
 
 816 
 
 764 
 
 764 
 
 Doe d. Sbotlcroas v. Palmer 
 
 — d. Spilsbury v. Burdett . 
 
 — d. Strickland v. Strickland 
 
 — d. Templeman v. Martin . 
 
 — d. Tilt V. Stratton 
 
 — d. White 11. Barford 
 
 — V. Alderson 
 
 — V. Alexander 
 
 — V. Allen 
 
 — 1). Amey . 
 
 — ». Ang«ll . 
 
 — V. Archer 
 
 — ». Austin . 
 
 — V. Barford 
 
 — ti. Barnard . 
 8L 11. Barnes 
 
 — V, Barton . 
 
 — V. Batten 
 
 — V. Bayley . 
 
 — V. Bayliss 
 
 — V. Baytup . 
 
 — ». Beck . 
 — - V. Beckett . 
 
 — 1). Bell . 
 
 — V. Benallack 
 
 — V, Benham 
 
 — V. Benson . 
 
 — V. Beviss 
 
 Bingham 
 
 Bircb 
 
 Birchmore 
 
 Bird 
 
 Blackburn 
 
 Bliss 
 
 Bold . 
 
 Bottriell 
 
 Bowditoh 
 
 Brindley 
 
 Browne 
 
 Budden . 
 
 Burdett 
 
 Burton . 
 
 Butler 
 
 Cadwallader 
 
 Calvert 
 
 Carter . 
 
 Chambers 
 
 Chatlis . 
 
 Church 
 
 Clark . 
 
 Clift . 
 
 Clifton . 
 
 Cook . 
 
 Cooke . 
 
 Coombes 
 
 Cooper . 
 
 Coulthred 
 
 Cox 
 
 Creed . 
 
 Crick . 
 
 OuUiford 
 
 Danvers . 
 
 432, 
 
 PAGE 
 . 828 
 . 814 
 . 817 
 . 812 
 . 762 
 . 821 
 . 628 
 652 
 . 641 
 . 630 
 . 658 
 . 635 
 . 620 
 . 820 
 
 672, 679 
 . 622 
 
 621, 676 
 
 433, 639 
 . 634 
 . 646 
 
 620, 671 
 . 625 
 . 659 
 . 633 
 . 645 
 . e22 
 . 637 
 . e77 
 . "35 
 . 656 
 
 640, 641 
 . 620 
 
 404, 813 
 . 664 
 
 433, 640 
 . 624 
 . 624 
 . 651 
 . 642 
 . 763 
 . 620 
 . 495 
 . 620 
 . 635 
 . 674 
 
 640, 679 
 . 431 
 . 679 
 . 684 
 . 635 
 . 671 
 . 623 
 . 626 
 . 646 
 
 618, 672 
 . 660 
 
 643, 647 
 . 605 
 . 635 
 . 648 
 
 635, 637 
 
 65S 
 
 c 2 
 
XXXVl 
 
 NAMES OF CASES. 
 
 Doe V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V, 
 
 — V. 
 
 — V. 
 
 V. 
 
 V, 
 
 V. 
 
 Davies 
 Bavison . 
 Dawson 
 Day 
 Deabin 
 Dixon 
 Dobell 
 DonoTan . 
 Durnford . 
 Dyebali . 
 Dyson . 
 
 Edmonds 
 Edwaids 
 Ellis . 
 Elsam 
 , Errington 
 Evans 
 Eyie 
 Fenn . 
 Filliter . 
 Fleming 
 Foster . 
 Franks 
 Fuchau . 
 Giles .. 
 Gladwin , 
 Glenn .. 
 Goldwin . 
 Gpodier 
 Gonndiy : 
 Gower 
 Grafton . 
 Grant 
 Gtray 
 
 Green , 
 , Greenhill 
 , Qriffin 
 . Guy 
 . Hales . 
 . Hall 
 
 . Hamilton . 
 Hampson 
 Harlow . 
 Harris . 
 Harvey , 
 Hazell . 
 Hellier 
 Hiley . 
 Horn , 
 Howard , 
 Huddart . 
 Humphreys 
 Hughes 
 Jackson . 
 Jenney 
 Johnson , 
 , Jones 
 Jordan . 
 Keeling 
 , Kemp . 
 , Kennard 
 , Knight . 
 , Knightley . 
 
 PAGE 
 . 676 
 . . 877 
 . 682 
 625, 656, 657 
 . 676 
 . 402 
 631, 632 
 . 631 
 . 635 
 628, 671 
 . 651 
 661, 662 
 , 670 
 . 681 
 . 431 
 615,627 
 493, 624 
 654, 657 
 . 625 
 . 687 
 . 675 
 620, 636 
 . 651 
 . 651 
 644, 674 
 . 436 
 . 701 
 625, 635, 638, 674 
 . 644 
 . 684 
 . 658 
 631, 634 
 627, 638 
 . 688 
 630, 632 
 . . 668 
 . 676 
 . 625, 716 
 . 674 
 . . 623 
 595, 627 
 . . 1245 
 . 687 
 .616,625 
 670, 676, 686, 1086 
 . . 634 
 . 623 
 . . 622 
 . 648 
 . . 634 
 . 684, 686, 1256 
 . . 639 
 . 634, 638 
 . 633, 635 
 . 624 
 . 651, 671 
 178, 618, 640, 645 
 . . 651 
 . 404 
 . ' . 671, 1245 
 .429 
 . . 492 
 , 635 
 
 PAGE 
 
 Doe V. LamWy . 
 
 — V. Laming 
 
 — V. Lancashire 
 
 — V. Langdon 
 
 — V, Lawes . 
 
 — V. Lewis . 
 
 — ®. Lightfopt 
 
 — «. Lines . 
 
 — V. Litherland 
 
 — V. Liversedge , 
 
 — 1). Lonoh 
 
 — V. Lucas • 
 
 — 0. Mabberley 
 
 — V. M'Kaeg 
 
 , — V. Maisey . 
 
 — V. Marchetti 
 
 — V. Massey . 
 
 — V. Masters 
 
 — V. Matthews 
 
 — V. Meux . 
 
 — V. Mew 
 
 — V. Mills . 
 
 — V. Milward . 
 
 — V. Mizen 
 
 — V. Moore . 
 
 — V. Morphett 
 
 — V. Morris . 
 ■ — V. Morse . 
 
 — V. Moulsdale 
 
 — V. Murless 
 
 — V. Musgrave 
 
 — V. Oliver . 
 
 — V. Ongley . 
 
 — V. Ormerod 
 
 — V. Owen 
 
 — V. Oxenham 
 
 — V. Palmer . 
 
 
 430, 
 
 486 
 
 ^ , 
 
 820, 
 
 821 
 
 
 
 617 
 
 
 623, 
 
 624 
 
 642 
 
 
 , 
 
 657 
 
 
 • 
 
 632 
 648 
 662 
 626 
 
 
 ; 
 
 637 
 625 
 645 
 645 
 641 
 
 
 657, 674 
 
 
 
 652 
 
 
 
 681 
 
 . ' 641, 
 
 642 
 
 727 
 667 
 620 
 
 631, 636 
 * 
 
 637 
 
 640 
 638 
 660 
 636 
 
 
 . 664, 670 
 
 
 , 
 
 633 
 
 619 
 
 656 
 
 , 680' 
 
 ■■ 
 
 ■ • 
 
 446 
 628 
 763 
 441 
 727 
 
 — V. Pearson 
 
 — V. Peck . 
 
 — V. Pett . 
 
 — V. Phillips . 
 
 — V. Plowman . 
 
 — V. Porter . 
 
 — V. Pott . 
 
 — V. Price 
 
 — V. Pritchard . 
 
 — V. Quigley . 
 
 — V. KafTan 
 
 — V. Bamsbottom 
 
 — V. liead . 
 
 — V. Keid 
 
 — V. Beynolds . 
 
 — V. Ehys 
 
 — V. Eidgway 
 
 — V. Eobinson 
 
 — V. Robson 
 
 — V. Kook 
 
 — V. Koe . 
 
 — V, Rogers . 
 
 — V. Boilings . 
 
 — V. Rowlands 
 
 . 640, 666 
 . 643 
 1244, 1245 
 . 625 
 . 436, 640, 641 , 
 . 622, 629 
 . 619, 657 
 617, 618, 628 
 . . 631 
 . 819 
 . 619, 638 
 . 640 
 . 633, 644 
 . 634 
 . . 621 
 . 638 
 . . 449 
 . 684 
 . . . 648 
 . 676 
 . . 639 
 . 641, 677 
 . 644, 659 
 645—648, 688 
 . . 439 
 . 643 
 . . 434 
 
NAMES OF CASES. 
 
 xxxvu 
 
 PAGE 
 
 Doe V. St. Helen's Railway Co. . 626 
 
 — V. Salter 616 
 
 — V. Samples .... 496 
 
 — V. Samuel .... 632, 637 
 
 — V. Saunder .... 377 
 
 — ■». Sayer .... 639, 644 
 
 — V. Soott .... 634, 635 
 
 — V. Seaton . . . 474, 6B9, 6S6 
 
 — V. Shawoross . . . 651, 652 
 
 — V. Si99on . . ... 678 
 
 — V. Smaridge .... 631 
 
 — V. Smith . 432, 635, 636, 643, 669 
 
 — V. Smythe .... 620, 648 
 
 — V. Spenoe .... 634 
 
 — V. Stanion .... 643, 644 
 
 — V. Steel 640 
 
 — V. Stevens ..... 641 
 
 — V. Stratton . . . .643 
 
 — V. Summersett . . . . 638 
 
 — V, Sumner .... 658 
 
 — w. Taniere . . . . . 84 
 
 — V, Tarver . . . .676 
 
 — V. Terry 622 
 
 — D. Tliomas .... 623 
 
 — V, Thompson . . . . 623 
 
 — V. Timins .... 533 
 -^ v. Tressider . . . . 623 
 
 — V, Trueman .... 624 
 
 — V. Turner 659 
 
 — V. Ulph 436 
 
 — V. Vardill . : . . . 674 
 
 — II. Vernon .... 624 
 
 — V. Yinoe . . ... 635 
 
 — V. Wainwright . . . 221 
 
 — V. Walters . . . . . 638 
 
 — V. Wandlaas .... 652 
 
 — V. Ward . . ... 633 
 
 — V. Watkins . . . 634, 637 
 
 — V. Watson 620 
 
 — V. Watts . . . .633 
 
 — V. Webber 665 
 
 — V. Webster .... 622 
 
 — V. Wells 643 
 
 — V. Wharton . . . 617, 674 
 
 — V. Wheeler 715 
 
 — V. Whitehead . . . .641 
 
 — V, Wilkinson . . . 635, 670 
 
 — V. Williams . 446, 698, 643, 657 
 
 — ■». Willis 378 
 
 — V. Wilson .... 652 
 
 — V. Wolley .... 495, 676 
 
 — V. Wood 629 
 
 — V. Worsley 430 
 
 — V. Wright . . . 685, 686 
 
 — V. Wrightman . . 630, 636, 637 
 
 — V. Wroot 618 
 
 Boghead's case . . ... 552 
 
 Dolby. I).- lies 1340 
 
 Dommett v. Beokford . . . 361 
 Donald v. Suckling . . . 1291 
 Donaldson v. Thompson . . 320, 946 
 Donatty v. Barclay. . . .625 
 Donellan v. Bead . 760, 779, 786, 787 
 
 Donnelly «., Dunn . 
 Dorchester v. Webb 
 Dormer v. Portescue 
 
 — V. Williams 
 Dorrell v. Andrews 
 Dorrett v. Meux 
 Dorrington v. Carter 
 Dortoii V. Pickup 
 Doswell V. Impey . 
 Doughty V. Bowman 
 Douglas V. Oorbett 
 
 — V. Forrest 
 
 — V. Patrick . 
 Doulson V. Matthews 
 Dovaston v. Payne . 
 Do^^all 1). Eallett 
 Dowdenay v. Oland 
 Dowding v. Mortimer 
 Dowgalli). Bowman 
 Down V. Hatcher 
 
 — II. Pinto 
 Downes, fie 
 
 — V, Kichavdson 
 
 Downs V. Cooper 
 Doyle V. O'Doherty 
 — V. Stewart , 
 Doyley v. Koberts 
 
 — V. White , 
 Drake v. Beare . 
 
 — V. Mitchell , 
 
 — V. Shorter 
 Draper v. Crofta . 
 
 — V. Fulkes 
 Drew V. Bird 
 Drinkwater v, Goodwin 
 
 — V. London Ass. Co. 
 Driscol V. BovU 
 
 — V. Fassmore 
 Driver v. Burton 
 
 — V. Lawrence . 
 Drue V. Thome 
 Drummond v. Parish 
 Drummonds v. Pigou . 
 Drury v. Defontaine , 
 
 — V. Kent 
 
 — V. Macauly 
 
 — V. Vaughan 
 Drury's case 
 Dry V. Boswell 
 Duberley v. Grunning 
 Dublin, Dean of, v. The King 
 Duokett V. Williams . . . . 
 Dudden v. Glutton Union, Guardians 
 
 of 
 
 Dudley v. FoUiott . . . , 
 
 — Lord, y. Warde, Lord 
 Duel V. Harding .... 
 Dufaur V. Oxenden . . . . 
 Duffv. Mackenzie 
 Duffield, Exp. 
 
 — v. Duffield 
 Dumpor's case 
 
 PAGE 
 
 . 627 
 
 515, 516 
 
 3 
 
 . 17 
 
 . 471 
 
 667, 727 
 
 . 1309 
 
 . 604 
 
 . 852 
 
 . 411 
 
 . 1007 
 
 . 169 
 
 187, 188 
 
 . 1245 
 
 . 1155 
 
 . 926 
 
 . 59 
 
 . 558 
 
 . 186 
 
 149, 150 
 
 . 1047 
 
 . 204 
 
 . 276 
 
 . 51 
 
 . 620 
 
 . 927 
 . 1208 
 . 253 
 . 130 
 . 497 
 . 1301 
 . 647 
 . 252 
 . 361 
 
 735, 740 
 . 978 
 . 949 
 . 949 
 . 1103 
 . 619 
 . 261 
 . 827 
 . 1013 
 . 571 
 . 372 
 . 332 
 . 331 
 . 521 
 . 1095 
 
 . 9, 27 
 
 . 1043 
 
 972 
 
 1076 
 
 . . 426 
 
 . . 1292 
 
 . 1063 
 
 . . 282 
 
 908, 921 
 
 . 1018 
 
 . . 818 
 
 431, 432, iSi 
 
xxxvm 
 
 NAMES OF CASES. 
 
 PAGE 
 
 Duncan. ». Blnndell . . . . 207 
 
 — V. Cafe . . . .216 
 
 — . V. Surrey Canal Co. . . 1308 
 
 — V. Thwaites . . 984, 985 
 
 — .V. Tindall , . . . . 1176 
 
 — V. Topham . . .800 
 Duncufl V. Albreoht . . 784, 792 
 Dundaa.'i;. Dutens . . . 778 
 Sundass v. Weymouth, Lord . . 455 
 Dunk V. Hunter . . . 586, 1158 
 Dnnlop V. Higgins . . . . Si'O 
 
 — V. Lambert . . . 1280 
 Dunn V. Hales . . . .205 
 
 — ■». Loftua . . . .167 
 
 — «. Norwood . . . . 735 
 
 — V. O'Keefe . . . 286, 290 
 Dunne v. Anderson . . . . 986 
 
 — «. Ferguson . . . 781 
 Dunston v. Faterson . , . . 847 
 Duppar. Gerrard . . . .84 
 
 — V. Mayo . . . . 697 
 Durant v. Titley . . . .420 
 Durham and Sunderland Kailway Co. 
 
 V. Walker 1269 
 
 Durrant v. Boys .... 1252 
 
 Durrell.D. Evans . . . . 804 
 
 Durston v. Sandys . . . 509 
 
 Dutch West India Co. v. Moses . 490 
 
 Duttonw. Poole . . . . 63 
 
 — ,«. Solomonson 88, 359, 360, 1280 
 Dwyer v. Edie .... 972 
 Dyer v. Pearson . . . . 734 
 Dyke «. Sweeting .... 444 
 Dynen v. Leach . . . , 1061 
 Dyson v. CoUick .... 1246 
 
 — V. Kowcroft . . . . 917 
 
 Eades v. Vandeput . . . 1063 
 Eager v. Grimwood . . . . 1065 
 Eagleton v. Gutteridge . . .1255 
 Eamer v. Merle . . . . 999 
 Earl V. Baxter .... 669 
 Earle v. Peale 158 
 
 — V. Rowcroft . . 901, 902, 903 
 Early v. Bowman . . . 129, 325 
 East V. Chapman . . 998, 1000 
 Eastern Counties Kailway Co. v. 
 
 Broom . 43, 1057, 1247, 1308 
 
 Easton v. Patchett . . . 320 
 
 Eastwick v. Barman . . . . 161 
 Eastwoods.. Bain . . . . 261 
 
 — ti. Holmes . . 992, 1204 
 
 — V. Kenyon . 68, 766, 777 
 Eaton V. Southby . . . . 689 
 
 — V. Swansea Waterworks Co. . 385 
 Eatons v. Johns . . . , 994 
 Eccleston v. Clipsham . . 415, 419 
 
 — . V, Speke. . . . . 816 
 Edan v. D.adfield .... 79S 
 Eden v. Blake . . . 214, 812 
 
 — V, Parkinson . . . 942 
 Edgall V- Francis . . . . 23 
 Edgar v. Fowler .... 110 
 
 PAGJ! 
 
 Edge V. Pemberton . . . . 480 
 
 — V. Strafford . . 759, 779, 1335 
 
 Edie V. East India Company . . 297 
 
 Edis V. Bury 335 
 
 Edmonds «. Challis 1144, 1146, 1148 
 
 Edmondson v. Maohell 
 
 — 0. Stephenson 
 
 — ■</. Wattall- . 
 Edmund's case . 
 Edmund v. Groves 
 Edsall V. Russell 
 Edward v. Trevellick 
 Edwards «. Bates 
 
 — -ii. Baugh 
 
 — V. Bell 
 
 — V. Bethel 
 
 — V. Brewer . 
 
 1066, 1067 
 
 . . 1213 
 
 . 1328 
 
 . . 611 
 
 . 279 
 
 . . 1208 
 
 . 1189 
 
 . . 145 
 
 59, 61, 149 
 
 . . 993 
 
 . 729 
 
 1219, 1221 
 
 V, Cameron Coal Company 
 
 269, 260 
 
 — V. Crock 
 
 — V. Dick 
 
 — V, Edwards 
 
 — V. Grace 
 
 — V. Griffith . 
 
 — V. Harben 
 
 — V. Havill . 
 
 — V. Hodding 
 
 — V. Hodges . 
 
 — V. Hooper 
 
 — V, Jevons . 
 
 — V. Kelly . 
 
 — V. Lawless . 
 
 — V. Morgan, 
 
 — V. Southgate 
 Egertou v. Matthews 
 Eggington v. Cumberledge 
 Kgler V. Marsden . 
 Eicholz V. Bannister . . 
 Eicke V. Nokes . 127. 
 Elden v. Keddell 
 Eldrige.v. Stacey . 
 Elford V. Teed . 
 Elkinv. Janson 
 Elklngton v. Holland 
 Elkins V. Smith 
 Ellershaw v. Magniac 
 Elliott V. Allen . 
 
 — V. Blake 
 
 — V. Kemp . 
 
 — v. Rogers 
 
 — V. Thomas 
 
 — V. Turner . 
 
 — v. Wilson 
 Elliotson V. Feetham 
 Ellis V. Abrahams 
 
 — V. Hamlyn . 
 
 — V. Hunt . 
 
 — V. Levi . 
 
 — V, Rowles 
 
 .128, 
 
 307 
 
 702 
 
 715 
 
 645 
 
 700 
 
 1196 
 
 124, 215 
 
 32, 33, 34 
 
 . 1299 
 
 . 789 
 
 . 775 
 
 . 201 
 
 . 409 
 
 . 1312 
 
 799, 801 
 
 . 201 
 
 . 546 
 
 . 676 
 
 147, 199 
 
 . 667 
 
 . 600 
 
 . 306' 
 
 932, 935 
 
 . 210 
 
 . 1284 
 
 1234, 1239 
 
 . 62 
 
 . 455 
 
 . 727 
 
 . 1332 
 
 794, 795 
 
 . 434 
 
 . 947 
 
 . 1069 
 
 1014, 1015 
 
 . 193 
 
 1222, 1227 
 
 . 789 
 
 375 
 
 — V. Sheffield Gas Consumers' Co. 1056 
 
 „ . , 1084 
 
 — II. Smith . . . 814^ 816 
 
 — V. Taylor . . (joy 1162 
 
NAMES OF CASES; 
 
 XXXIX 
 
 ElMson V. Dezell 
 
 Elliss V. Ellias 
 Klliston V. Robinson 
 EUston V . Deacon 
 EUwood ». Bullock 
 Elmore v. Kingscote 
 
 — V. Stone 
 Elsam V. Fawcett . 
 Elsee V. Satward 
 Elswoi'lli V. Woolmore 
 Elton V. Brogden 
 
 — V. Lai'kins . 
 Elves V. Crofts . 
 Elwesii. Maw 1291, 1292, 
 Elwise V. Lombe 
 Elworthy «. Sandford 
 Euiblin V. Dartnell 
 Embrey i). Owen 
 Emerson v. Incbbird 
 Emery v. Malmesbury, Corporation of 10d5 
 
 — «. Webster . 32, 35, 166 
 Emly V. Lye . . . 335, llOO 
 Kmmeraon v. Heelis 781, 784, 803, 804 
 
 PAGE 
 
 . 314 
 . . -1270 
 . 622, 627 
 . . 487 
 
 35, 265 
 . . 1266 
 
 . 800 
 . . 795 
 
 . 27 
 . . .15 
 
 . 1187 
 570, 949 
 
 . 935 
 
 . . 499 
 
 1293, 1296 
 
 . 51 
 . . 725 
 
 . 341 
 . . 1076 
 
 . 633 
 
 Einmerton v. Matthews 
 Einmett v. Tottenham 
 Empson v. GrifEa 
 
 — V. Sodon . 
 England ». Bourke . 
 
 — V. Davidson 
 
 — V. Slade 
 
 — V. Watson 
 Engleheart v. Moore 
 English and Irish Church Ass. Com. 
 
 1091 
 
 — V. Darley 312, 313, 314, 315 
 
 — v. Purser . 
 Entick V. Carrington 
 Entwistle v. Ellis . 
 Enys B. Donnithorne 
 Erasmus v. Bank . 
 Erish V. Eives . 
 Errington v. Gardiner 
 Erving v. Peters 
 Esdaile V. Oxenham 
 
 — V. Sowerby . 
 
 — v., Trustwell 
 Essex,, Earl.of, u. Capel 
 Este V. Smyth 
 Etherington v. Parrot 
 Ethertoni). Popplewell . 
 European and Australian Royal Mail 
 
 Co. v.-_ The Peninsular and Ori- 
 ental Steam Navigation Co. . . 1176 
 Evans i;. Brander . . . . 1149 
 
 — V. Cramlington . . . 299 
 
 — V. Davies . . . .1154 
 
 — V. Elliott 596, 610, 1156, 1162 
 
 — D. Harries . . 1205, 1209 
 
 — V. Heart of Oak Benefit So- 
 
 ciety, The ... 1030 
 
 — V. Hutton . . . . '406 
 
 — V. Jones .... 484 
 
 657, 574 
 
 257 
 
 1216 
 
 1293 
 
 998 
 
 57 
 
 617, 621 
 
 489, 614 
 
 , . 199 
 
 45 
 . . 856 
 
 . 908 
 . . 416 
 
 . 918 
 . . 623 
 
 . 254 
 . . 708 
 
 . 1304 
 . . 289 
 
 . 143 
 835, 1250 
 
 . 25 
 226, 232 
 
 . 611 
 
 PAGE 
 Evans v. Judkins . . . . 186 
 
 — V. Kymer .... 1288 
 
 — V. Moseley . . 621, 522 
 
 — V. Munkley . . . 863 
 
 — V. Nichol . . . . 1282 
 
 — V. Powis . . 148, 151, 152 
 
 — V. Eees . . . 667, 1404 
 
 — V. Roberts . . . . 781 
 
 — V. Truman .... 744 
 
 — V. Tnson . ... 987 
 
 — V. Underwood . . . 334 
 
 — V. Varity . . . . 127 
 
 — V. Wright . . . 606, 1324 
 Evelyn, Exp 698 
 
 — V. Chichester . . . 154 
 
 — V. Lewis .... 630 
 verard v. Lathbury . . 1327 
 
 — . V. Watson . .307 
 
 Everett v. Collins . . . . 89 
 
 — V. Desborough . . 973 
 Everth v. Smith . . . . 915 
 Every v. Smith . . . 1245 
 
 Ewin'scase 1023 
 
 Ewart V. Jones . . . . 1012 
 
 Exall V.' Partridge . . 91,94 
 
 Exeter u Trimlet . . . . 85 
 Eyre v, Dunsford .... 561 
 
 — V. Glover , . . . . 891 
 
 — 0. Palsgrave .... 961 
 
 — V. Waller . . . . 341 
 Eyton V. Littledale . . . 186 
 
 Fabiah v. Plant . . . . 62 
 Fagg V. Dobie . . . 449 
 
 Faikney v. Keynona . . . . 108 
 Fairclaim V. Shackleton . . 654 
 
 Fairclough ». Paria . . 281,295 
 
 Fairhurst v. Liverpool Adelphi Loan 
 
 Association .... 253 
 Fairlie v. Clu-istie . . . . 873 
 
 — V. Denton .... 68 
 Fairman v.. Ives . . . . 989 
 Fairmaner v. Budd . . 672, 680 
 Faith V. Pearson . . . . 1262 
 Falcon v. Benn . . . .487 
 Falcon, Viscount, a. Phipps . . 1198 
 Falkner v. Johnson . . .1144 
 
 — V. Ritchie . . . . 916 
 Falmouth, Earl of, v. Penrose . 85 
 
 — Lord, V. Thomas 128, 770, 
 782, 783 
 Fannin v. Anderson . . . 181 
 Fanshaw v. Peet . . 276, 284 
 
 Farebrother v. Simmons . . 803 
 
 Farina v. Home . . 793, 798 
 
 Farley v. Briant . . . 536, 730 
 
 — 0. Danks .... 1010 
 Farmer v. Arundel . . . 101 
 
 — V. Darling .... 1006 
 
 — V. Rogers .... 679 
 
 — V. Russell . . 107, 108 
 Farnsworth v. Garrard . . . 206 
 
 — V. Hyde . . 916, 1027 
 
NAMES OF CASES. 
 
 PAG-E 
 
 Parquhar v. Farley . . . 217 
 
 — V. Morris . . . 488 
 
 Fan V. Newman .... 693 
 
 — V. Price 272 
 
 — V. Ward . . . .326 
 Farrance v. ElkingtQn . . . 549 
 Farrant v. Thompson . . . 1290 
 Farrar ■!). Beawick , . 1250,1311 
 
 — -V. Hutchinson . . . 103 
 Farrell v. Boston Railroad Corpora- 
 tion, The ... . . 
 Farrer v. Billing 
 
 1060 
 
 377 
 
 V. Granard, Countess of 240, 241 
 
 ~ ■"■ 468 
 
 689 
 
 467 
 
 — V. Snelling 
 Farringdon v. Clerk . . . . 
 Farrow v. Chevalier 
 Fatherby v. Metropolitan Railway 
 
 Co 
 
 Faveuc v. Bennett 
 Fawcett v. Cash 
 
 — V. Charter 
 
 — V. Fowlis 
 
 — V. Strickland 
 Fawcus V. Sarsfield . 
 Fayle v. Bird 
 Feaine v. Wilson 
 Featherstoue v. Hutchins 
 Featherstonehaugh v. Atkinson 
 Feiae v. Parkinson 
 
 — V. Wray . 
 Fell V. Knight 
 Feltham v. England 
 
 — i>, Terry 
 Felthouse v. Brindley 
 Fenn v. Bittleston 
 
 — V. Fenn . 
 
 — V. Griffith . 
 
 — V. Harrison 
 Fennell v. Kidley . 
 Fenner v. Duplock 
 
 — V. Hepburn 
 Fennings v, Grenville, Lord 
 Fenny v. Durant .... 
 Fenton v. Boyle . . . . 
 
 — V. City of Dublin Steam 
 
 Packet Company 364, 1058 
 
 — V. Emblers 
 
 — V. Logan 
 Fentum v. Pocock 
 Fenwick v. Qravenor 
 
 — V. Layeock . 
 Feret v. Hill 
 Ferguson v. Mackreth 
 Ferry v. Williams . 
 Fesenmayer v. Adcook 
 Fettiplace v. Georges 
 Fewings v. Tindal 
 Ffytche v. London, Bishop of 
 Field V. Adames 
 
 — V. Carr 
 
 — V. Bobins 
 
 — V. Woods 
 
 — V. Workhouse . 
 
 899 
 
 739 
 
 1047, 1049 
 
 . 716 
 
 . . 851 
 
 . 376 
 
 ... 954 
 
 . 318 
 
 . . 200 
 
 . 68 
 
 1169 
 
 969 
 
 1219, 1220 
 
 139, 1^0 
 
 . . 1060 
 
 116, 856 
 
 . . 799 
 
 . 1290 
 
 . . 646 
 
 . 670 
 
 572, 1053 
 
 . 671 
 
 621, 1160 
 
 762, 783 
 
 . . 1307 
 
 . 668 
 
 1143 
 
 786 
 
 693 
 
 313 
 
 647 
 
 146 
 
 471 
 
 491 
 
 139, 140 
 
 128 
 
 237 
 
 1049, 1051 
 
 . 609 
 
 . . 692 
 
 . 162 
 
 . . 150 
 
 270, 272, 321 
 
 . . 621 
 
 W. 
 
 Fielder v. Marshall 
 
 — V. Reay 
 
 — V. Starkin 
 Fife V. Bousfield 
 Piggius V. Cogswell 
 Filmer v. Burnby 
 Finch V. Brook 
 
 — V. Cocfcen 
 Finchett v. How . 
 Finlay v. Bristol and Exeter 
 
 Company 
 Finnerty v. Tipper 
 Finnie v. Glasgow an 
 
 Company 
 Firth V. Thrush . 
 Fish V. Hutchinson 
 
 — V, Richardson 
 Fisher v. Algar 
 
 — V. Ameers . 
 
 — V. Bridges^ 
 
 — V. Briatow . 
 
 — V. Clement 
 
 — V. Dixon , 
 
 — V. Fellows 
 
 — V. M'Namara 
 
 — V. Magnay 
 
 — V. Mowbray 
 
 — V. Ogle 
 
 — V. Pomfret 
 
 — V. Prince 
 
 — V. Samuda 
 
 — V. Young 
 Fishmongers' Company 
 
 son 
 Fisk V. Masterman 
 Fitch V. Jones 
 
 — V. Sutton 
 Fitchet V. Adams 
 Fitt V. Cassanet 
 Fitzgerald v. Elsee 
 Fitzherbert v. Mather 
 Fitzjohn v. Makinder 
 Fitzmaurice v. Bayley 
 Flad Oyen, The . 
 Flanders v. Clarke . 
 Fleetwood v. Cnrly 
 Fleming v. flaynes . 
 
 — V. Pitman 
 
 — V. Smith 
 Flemings v. Jarrat 
 Flemyng v. Hector . 
 Fletcher v. Alexander 
 
 — V. Braddick 
 
 — V. Dyche 
 
 — V. Fletcher . 
 
 — V. Heath . 
 
 — V. Hennington 
 
 — V. Inglis . 
 ~ V. Ingram 
 
 — V. Lord Sondes 
 — ■ V. Keid 
 
 — V. Rylands 
 
 — 0. Tayleur . • 
 
 PAGE 
 
 . 329 
 
 . 670 
 
 . 678 
 
 . 550 
 
 . 1214 
 
 145, 400 
 
 . 187 
 
 . 847 
 
 . 201 
 
 Railw. 
 
 . . 83 
 
 993, 997 
 
 Railw. 
 
 104, 345 
 
 . 808 
 
 768, 773 
 
 59 
 
 604, 612 
 
 . 409 
 
 133, 502 
 
 . 1008 
 
 . . 981 
 
 . 1291 
 
 . . 94 
 
 . . 254 
 
 847, 864 
 
 . 511 
 
 . 945 
 
 . . 298 
 
 . 1327 
 
 . . 207 
 
 . 1247 
 
 Robert- 
 
 84, 463, 466 
 
 , 963 
 
 , 279 
 
 , 149 
 
 629 
 
 90 
 
 495 
 
 932, 934 
 
 . •. 1011' 
 
 790, 806 
 
 . 946 
 
 692 
 
 1202 
 
 , 472 
 
 , 907 
 
 701 
 
 , 1100 
 
 882 
 
 364 
 
 619 
 
 867 
 
 746 
 
 613 
 
 896 
 
 686 
 
 609 
 
 1195 
 
 1249 
 
NAMES OF CASES. 
 
 xli 
 
 Fletcher v. Wilkina 
 Flewellin v. Kave 
 Flight V. Thomas 
 Flindt V. Atkins . 
 
 — V. Crokatt 
 
 — ■». Waters 
 Flinn v. Tobin 
 Flint V. Brandon 
 
 — V. Flemyog 
 Flory V, Denny 
 Flower v. Newton . 
 Fiureau v. Thomhill 
 Foley i). Addenbrooke 
 
 — V. Hill . 
 Folkardv. Hemmett 
 Folke's case 
 Fontleroy v. Aylmer 
 Foord V. Noll . 
 
 — V. Wilson 
 Foot's case 
 Foqnet v. Moor 
 Forbes v. Marshall 
 
 — V. Smith 
 Force v, Warren 
 Ford V. Beech 
 
 — V. Fothergill 
 
 — V, Yates 
 Fordham v. Ackers 
 Fores v. Wilson 
 Forgan v. Burke 
 Forsboon v. Kruger 
 Forsdick v. Collins 
 Forsdike «. Stone . 
 Forse v. Hemblinge 
 Forshaw v. Chabert 
 Forster ». Clements 
 Forth V. Simpson . 
 
 — V. Stanton 
 Forty V. Imber 
 Forward v. Pittard 
 Foster v. Allanson 
 
 — V. Bates 
 
 — V, Charles 
 
 — V. Foster and 
 
 — V. Framptoa 
 
 — v. Jolly . 
 
 — V. Lawson . 
 
 — V. Mackreth 
 
 — V. Mentor . 
 
 — y. Pearson 
 
 — ■ V. Pierson 
 
 — V. Pointer 
 
 — V, Smith 
 
 — • ■;;. Stewart . 
 
 — V. Taylor. 
 
 — 11. Wilmer . 
 Fouldes V, Willonghby 
 Foulger v. Newcomb. 
 Fountain D. Boodle . 
 Fowk V. Pinsaoke 
 Fowle V. Welsh • . 
 Fowler V. M'Taggart 
 Fox, Be . 
 
 385 
 
 PAGE 
 
 . 866 
 
 . . 1291 
 
 1069, 1074 
 
 . 960 
 
 . . 930 
 
 . 890, 928 
 
 . 933 
 
 . . 402 
 
 892, 894 
 
 . . 1247 
 
 . 203 
 
 . . 216 
 
 . 415 
 
 . . 169 
 
 . 374 
 
 . . 1022 
 
 . 762 
 
 . . 186 
 
 . 423 
 
 . . 1162 
 
 764, 766, 1158 
 
 266, 1097 
 
 . 179 
 
 . . 1200 
 
 . 617 
 
 . 153, 157 
 
 . 810 
 
 . . 1144 
 
 . 1064 
 
 . . 1048 
 
 . 1186 
 
 . . 1323 
 
 . 1216 
 
 . . 820 
 
 . . 324 
 . 1320 
 
 . . 774 
 
 1158, 1160 
 
 . 346 
 
 . . 401 
 
 100, 
 
 Berridge 
 
 79, 561, 662 
 
 . . 27 
 
 1225, 1236 
 
 . . 342 
 
 . 990 
 
 . . 311 
 
 . 973 
 
 737, 1238 
 
 . 426, 427 
 
 391, 1002 
 
 . 82, 678 
 
 . 1063 
 
 . 73, 74 
 
 950 
 
 1300 
 
 1209 
 
 988 
 
 83 
 
 428 
 
 1233 
 
 1117 
 
 Fox V. Chester, Bishop of 
 
 PAGE 
 . 508 
 
 — V. Pox . . . . 
 
 . . 615 
 
 — V. Frith . 
 
 259, 1088 
 
 — V. Gaunt 
 
 8«6, 866 
 
 — V. Hanbury 
 
 . . 1098 
 
 Foxall V. Banks . 
 
 . 390 
 
 Foxoroft V. Devonshire 
 
 . . 740 
 
 Foxwist V. Tremaine 
 
 . 714 
 
 Fradley v. Fradley . 
 
 . . 992 
 
 Frampton v. Coulson 
 
 . 134 
 
 — V. Frampton 
 
 . . 231 
 
 Franoam v. Foster 
 
 . 786 
 
 France v. White 
 
 . . 182 
 
 Francis v. Harry . 
 
 . 619 
 
 — V. Hose 
 
 . . 1212 
 
 m — V. Wyatt . 
 
 Franck v. De Pienne, Duchess 
 
 . 691 
 
 of . 240 
 
 Franco v. Natusch . 
 
 . 953 
 
 Frankland v. Cole 
 
 . . 209 
 
 — V. Lucas 
 
 . 211 
 
 Franklin v. Bank of England 
 
 . . 714 
 
 — V. Hosier 
 
 . 1312 
 
 — V.Miller . 
 
 . . 463 
 
 Franklyn v. Samonde 
 
 . 215 
 
 Franks v. Morris 
 
 . . 61 
 
 Frankum v. Falmouth, Earl of 
 
 . 1085 
 
 Eraser v. Berkeley 
 
 . 52, 983 
 
 — V. Hopkins 
 
 . 1323 
 
 — V. Moses 
 
 . . 539 
 
 — V. Swansea Canal Cn. 
 
 . 1289 
 
 Frazeri). Hatton 1181, 1182, 
 
 1186, 1187 
 
 Freake v. Cranefeldt 
 
 . 169 
 
 Freakleyu. Fox 
 
 . . 615 
 
 Frederick v. Lookup 
 
 . 650 
 
 Free i: Hawkins 
 
 . . 342 
 
 Freegard v. Barnes 
 
 . 868 
 
 Freelandw. Glover 
 
 . . 935 
 
 Freeman v. Archer 
 
 . 1165 
 
 — V. Baker 
 
 . 80, 662 
 
 — V. Barnes 
 
 . 657 
 
 — V. Birch 
 
 360, 1280 
 
 — V. Blewett 
 
 . 862 
 
 — 1). Cooke 
 
 . . 847 
 
 — V. E. I. Co. . 
 
 . 1305 
 
 — V. Jury 
 
 . . 1342 
 
 — V. Norris 
 
 . 990 
 
 — 1). Phillips 
 
 . 678 
 
 — V. Kosher . 
 
 . . 1248 
 
 — V. Stacy . 
 
 . 545 
 
 — V. Taylor . 4f 
 
 5, 940, 960 
 
 Freke v. Thomas . 
 
 . 696 
 
 Fremlin v. Hamilton . 
 
 . . 131 
 
 French v. Andrade 
 
 . 182 
 
 — V. Coxon 
 
 . . 661 
 
 — V. French . 7f 
 
 i5, 773, 777 
 
 — V. Patten 
 
 . . 887 
 
 — V. Phillips 
 
 . 612 
 
 — V. Styring- . 
 
 . 1095 
 
 — V. Watson 
 
 . . 190 
 
 Frenshy v. Wells- . 
 
 . 1327 
 
 Frescobaldi v. Kinaston 
 
 . . 720 
 
 Friar ii;. Grey 
 
 . 457 
 
 Fricker v. Thomlinson 
 
 . . 766 
 
xlii 
 
 NAMES OF CASES. 
 
 PAGE 
 
 Friend v. Eastabrook . . .476 
 Fromont». Coupland , . . . 1105 
 Frontin v. Small '. . . 422, 474 
 
 Frosdike v. Sterling . . . . 246 
 
 Frosel v. Welsh 623 
 
 Frost «. Chester, Mayor of . 1021, 1116 
 
 — V. Oliver . . . . 1195 
 Frushling v. Shrader . . .120 
 Fry V. Hill 301 
 
 — V. Wood . . . .495 
 
 Fryer v- Brown . . . . 321 
 
 Fulcher v. Scales . . . .389 
 Fuller V. Abbott . . . .422 
 
 — V. Lane 1081 
 
 — V. Prest ... . .523 
 
 — 1). Smith 323 
 
 Fulmerston v. Steward . . . 764 
 Furber v. Stunney . . . . 1025 
 Furonson v. Mabon • . . .86 
 Furgusson v. Norman . . . 1303 
 
 Fiirsdon v. Clogg .... 6hl 
 Furtado v. Bcdgers . . . . 901 
 Further «. Further . . 722 
 
 Furze V. Sharwood . . . . 807 
 Fyson v. Chambers . . . 1311 
 
 Gabat v. Lloyd . . 896, 923 
 
 Gabriel v. Evill .... 1088 
 Gage V. Acton . . . 699, 704 
 
 Gainsford v. Carroll . . .191 
 
 — V. Griffith . . . . 530 
 Gairdner v, Senhouse . . .947 
 Gale V. Capern . .... 174 
 
 — V. Luttrell . . . .182 
 
 — V. Eeed . . . 403, 600 
 
 — V. Walsh . . .325 
 Gallant V. Bouteflower . . . 711 
 Galloway v. Bleaden . . . 1096 
 Gallway v. Matbew . . . . 1097 
 Gallwey e. Marshall . .1209,1211 
 Galton V. Hancock . . . . 535 
 Galvanised Iron Co. v. Westoby . 1093 
 Gandy «. Jnbber . . . . 1083 
 Ganer v , Lady Lanesborough . . 22 
 Gann v. Free Fishers of Whitstable . 750 
 Gantts. Mackenzie . . . . 326 
 Garbutt v. Watson . . . 791 
 Gardiner v. Belliogham . . , 83 
 
 — -i). Coleman . . . 740 
 
 — V. Croasdale . . . 960 
 
 — V. Gray . . 667, 674 
 
 — V, Jadis . . . . 27 
 Gardner v. Cazenove . . .1178 
 
 — V. Grout . . . . 795 
 
 — V. London, Chatham and 
 
 Dover Kailway . . 626 
 
 — V. M'Mahon . . . . 173 
 
 — II. Slade . . . .988 
 _ V. Walsh . . 274, 275 
 
 Garford v. Clerk .... 1208 
 Garforth v. Fearon . . .70, 504 
 Gargrftve v. Smith . . . 610 
 
 GarSind v. Bnrton . . . . 661 
 
 
 
 
 
 PAGE 
 
 Garriett v. 
 
 Ferrand 
 
 , 
 
 . 
 
 li.'62 
 
 V 
 
 Woodcock . 
 
 
 . . 
 
 306 
 
 Garnwell 
 
 D. Baker 
 
 
 
 539 
 
 Garrard v 
 
 Guililei ' 
 
 
 36 
 
 261 
 
 V 
 
 Tuck . 
 
 617 
 
 657 
 
 , 669 
 
 V 
 
 Woolner 
 
 . 
 
 , 
 
 151 
 
 Garratt V. 
 
 Cullum 
 
 
 . 
 
 741 
 
 Garrels v. 
 
 Kensington 
 
 
 942 
 
 ,945 
 
 Garrett v. 
 
 Handley . 
 
 
 . . 
 
 1102 
 
 V. 
 
 JuU . 
 
 . 
 
 
 336 
 
 Garrish v. 
 
 Camden . 
 
 , 
 
 . 
 
 237 
 
 Garside v. 
 
 Trent and Mersey Naviga- 
 
 
 tion 
 
 
 
 . 
 
 347 
 
 Garton v. 
 
 Bristol and Exeter Kail- 
 
 
 way . 
 
 
 . 
 
 344 
 
 356 
 
 Gaskell v. 
 
 King ' . 
 
 
 
 422 
 
 — V 
 
 Marshall 
 
 . 
 
 
 693 
 
 Gaslight and Coke Co. v 
 
 Turner, 
 
 108, 
 
 471, 
 
 
 
 
 
 602 
 
 Gaters v. Madeley 
 
 243, 248, 262 
 
 Gateward's case 
 
 . 1166 
 
 Gathercole v. Miall 
 
 . 983, 988, 989, 998 
 
 Gaunt V. Hill 
 
 . 773 
 
 Gaussen v. Morton 
 
 . . 1087 
 
 Gaved r. Martyu . 
 
 . 1077 
 
 Gay V. Lander - 
 
 . . 330 
 
 — V. Matthews . 
 
 . 1143 
 
 Gayford v. NichoUa 
 
 . . 1056 
 
 Geach V. Ingall 
 
 . 974 
 
 Geare v. liritton 
 
 . . 1204 
 
 Geary v. Physio 
 
 . 337 
 
 Gee V. Lancashire 
 
 and Yorkshire 
 
 Eailw. 
 
 . 368 
 
 — V. Ward 
 
 . . 677 
 
 General Steam Na 
 
 vigation Company 
 
 V. British and C( 
 
 Jonial Steam Na- 
 
 vigation Company 
 
 . 1193 
 
 Genner v. Sparks 
 
 41, 848, 1168 
 
 Gent V. Cutts 
 
 . . 1147 
 
 George v. Chambers 
 
 . 1143 
 
 — V. Olagett 
 
 . . 735 
 
 — V. Wyborn 
 
 . 1326< 
 
 Geralopulo v. Wiele 
 
 (• . . . . 309 
 
 Gerhard v. Bates 
 
 . 56, 67, 659 
 
 Gerrard v. Cooke 
 
 . . 1268 
 
 Gethin v., Wilks . 
 
 . 587 
 
 Geyer.». Aguilar 
 
 . . 945 
 
 Gibb V. Mather . 
 
 . 318 
 
 Gibbon v. Coggan 
 
 308, 325 
 
 — V. Mendez . 
 
 . 459 
 
 Gibbons v. Alison 
 
 . . 1009 
 
 — 0. M'Caslai 
 
 id . . . 771 
 
 — V. Pepper 
 
 . 42, 50 
 
 — V. Vouilloa 
 
 . 517 
 
 Gibbs V. Knightly 
 
 . . 82 
 
 — V. Liverpool 
 
 Docks, Trustees 
 
 of. 
 
 . 1084 
 
 — -v. Mather 
 
 . . 283 
 
 — V. Merrill . 
 
 . 155 
 
 — V. Pike . . 
 
 . . 703 
 
 — ■». Potter . . 
 
 . 493 
 
 — V. Southam 
 
 . . 489 
 
 Gibson v..Carruther 
 
 a . . . 1241 
 
NAMES OF CASES. 
 
 xliii 
 
 
 PAGE 
 
 
 PAGE 
 
 Gilison V. Ohaters 
 
 . 1009 
 
 Goddall V. Enaell 
 
 . . 1216 
 
 — V. Dickie . 
 
 . 420 
 
 Goddard v. Hodges 
 
 . 162 
 
 — V. Doey . 
 
 . 433 
 
 — V, Ingram . 
 
 174, 1109 
 
 — V. East India Co. 
 
 . 258 
 
 — V. Smith . 
 
 . 1015 
 
 — 1). Ingo . . .1175, 1 
 
 185, 1191 
 
 Goddard's case . 
 
 . . 274 
 
 — », Ireson 
 
 . 591 
 
 Godefroy v. Dalton . 
 
 . 209, 210 
 
 — V. Kirk . 
 
 . 546 
 
 — . V. Jay 
 
 . . 211 
 
 — V. Lupton . 
 
 . 1092 
 
 Godfrey v. Saunders 
 
 . 5, 6, 734 
 
 — V. Minet 
 
 . 277 
 
 — V. Turnbull . 
 
 . . 1107 
 
 — V. Small 
 
 . 954 
 
 Godin V. London Ass. Co. 
 
 . 891, 1316 
 
 — V. Varley 
 
 . 31 
 
 God ley v. Frith . 
 
 . . 1268 
 
 — V. Winter . 
 
 184, 923 
 
 Godmanchester v. Phillips 
 
 . 1245 
 
 Gilbart v. Dale . 
 
 . 366 
 
 Godolpbin v. Tudor . 
 
 . . 504 
 
 Gilbert ». Bath . 
 
 . 496 
 
 Godsall V. Boldero . 
 
 . 972 
 
 — 1/. Martitt 
 
 . 477 
 
 Godts V. Rose . 
 
 37, 1238, 1283 
 
 — V. Sykes . 
 
 . 786 
 
 (|oepel V. Swindon 
 
 . 94 
 
 Gilbertson v. Richardson . 
 
 . 43 
 
 (ioSv. Harris . 
 
 166, 1298 
 
 Gilder v. Gildoe 
 
 . 550 
 
 Goggins V. Trench . 
 
 . 1154 
 
 Giles's case 
 
 . 1029 
 
 Goldshede v. Swan . 
 
 . . 788 
 
 Giles V. Edwards . 
 
 . 118 
 
 Goldsmith v. Bromer 
 
 . 22 
 
 — v. Grover . 
 
 . . 586 
 
 — V. Martin 
 
 . . Ill 
 
 — -11. Hartis 
 
 . 190 
 
 Goldstein v. Foss . 
 
 . 1210 
 
 — V. Hooper 
 
 . . 405 
 
 Goldstone v. Tovey . 
 
 . . 727 
 
 — v. Spencer . 586, 599, 
 
 764, 8u9 
 
 Goldsworthy v. Strutt . 
 
 . 193 
 
 — V. Taff Vale Railway 
 
 . 347 
 
 Gomery v. Bond 
 
 . . 99 
 
 Gill V. Gkase . 
 
 . . 544 
 
 Gompertz v. Bartlett 
 
 . 118 
 
 — V. Scrivens 
 
 . 653 
 
 — V. Denton 
 
 . . 578 
 
 Gillard v. Biittan 
 
 . 1274 
 
 ■ — ■ V. Levy . 
 
 . 1210 
 
 Gilliatt V. Roberts . 
 
 . 795 
 
 Gonzales v. Sladen . 
 
 . . 736 
 
 Gillow V. Lillie . 
 
 . 419 
 
 Gooch's case 
 
 . 534 
 
 Gilman v. Elton . 
 
 . 591 
 
 Good V. Cheesman 
 
 . . 148 
 
 — V. Hoare 
 
 . 475 
 
 Goodall V. DoUey . 
 
 . 290 
 
 GUpin V. Fowler . 
 
 . 987 
 
 Goodchild v. Leadham 
 
 . . 143 
 
 — V. Kendle 
 
 . 75 
 
 Goode V, Burton 
 
 . 582, 1303 
 
 Gimbart v. Pelah . 
 
 . 602 
 
 — V. Harrison 
 
 . . 1090 
 
 Gipp'ing V. Banning . 
 
 . 624 
 
 — V. Job 
 
 . 661 
 
 Girarday v. Richardson . 
 
 80, 1343 
 
 Goodere v. Lamb 
 
 . . 426 
 
 Giraud v. Richmond . 
 
 785, 809 
 
 Goodison v. Nunn . 
 
 . 138 
 
 Gisbourn v. Hurst . 
 
 . 691 
 
 Goodland v. Blewitt . 
 
 . . 188 
 
 Gladstone v. Clay 
 
 . 879 
 
 Goodman v. Aylin 
 
 . 1153 
 
 — V. Hadwen .. 
 
 . 1171 
 
 — V. Boycott . 
 
 . . 583 
 
 — V. King 
 
 . 934 
 
 — ■». Chase 
 
 . 773 
 
 Gladwell v. Blake . 
 
 857, 866 
 
 — V. Griffiths . 
 
 800, 811 
 
 Glaholm V. Barker . 
 
 . 1194 
 
 — V. Harvey 
 
 . 292, 309 
 
 — V. Hays . 
 
 . 464 
 
 — V. Pooock . 
 
 99, 1051 
 
 — V. Rowntree. 
 
 . 721 
 
 Goodright «, Cator 
 
 . 629 
 
 Glasse's case .... 
 
 . 1339 
 
 — V. Cqrdwent 
 
 . . 639 
 
 Glazebrook v. Woodrow, 137, 141 
 
 , 462, 463 
 
 V. Davids 
 
 . 433, 640 
 
 Gleadow ». Atkins . 
 
 . 677 
 
 — V. Fawson 
 
 . . 628 
 
 Gledstane v. Hewitt 
 
 . 683 
 
 — V. Flood 
 
 . 628 
 
 Gleedon v. Atkins 
 
 . 717 
 
 — V. Glazier 
 
 . . 816 
 
 Glen V. Lewis 
 
 , 980 
 
 — ii. Moss 
 
 . 673 
 
 Glennie v. London Ass. Co. 
 
 . 883 
 
 Goodtitle v. Alker . 
 
 . . 627 
 
 Glossop V. Colman 
 
 . 1108 
 
 — V. Badtitle . 
 
 . 616 
 
 Glover, Ke . . 
 
 . 814 
 
 — V. Jones 
 
 . . 618 
 
 — V. Black . 
 
 . 877 
 
 — V. Milburn 
 
 . 378 
 
 — V. Cope 
 
 . 442 
 
 — V. North . 
 
 . . 686 
 
 — V. Dixon . 
 
 61, 62 
 
 — ». Otway 
 
 . 628, 822 
 
 — V. Lane . 
 
 . 375 
 
 — . V. Pope 
 
 . . 625 
 
 Glynn V. Houston . 
 
 . 43 
 
 — V. .Tombs 
 
 . 684 
 
 — V. Thomas 
 
 101, 612 
 
 — V. Walton . 
 
 . . 628 
 
 Gobar Chunder Sein v. The Admi 
 
 nis- 
 
 Goodwin v. JJoble 
 
 . 432, 461 
 
 trator-General of Bengal . 
 
 . 747 
 
 — V. BiQhardson 
 
 . . 1286 
 
xliv 
 
 -NAMES OF CASES. 
 
 
 PAdSB 
 
 
 PAGE 
 
 Goostry v. Mead . 
 
 . 291 
 
 Gratland v. Sreeman 
 
 . 1062 
 
 Groram v. Sweeting . 
 
 . . 934 
 
 Gravenor v. Woodhouse 
 
 621, 1160 
 
 Gordon, Exp. 
 
 . 1051 
 
 Graves v. Blanchet 
 
 . 1199 
 
 — V. Ellis 182, 73e 
 
 , 1100, 1103 
 
 — V. Key 
 
 103, 324 
 
 — V. Harper 
 
 1251, 1289 
 
 — V. Legg . 
 
 . 137 
 
 — V. Martin 
 
 . 83 
 
 Gray v. Cooper 
 
 . . 261 
 
 — V. Morley 
 
 . . 941 
 
 — V. Cuthbertson 
 
 . . 448 
 
 — V. Kimmingtou . 
 
 . 905 
 
 — V. Gutteridge 
 
 . 124, 216 
 
 — V. Rolt 
 
 . . 1061 
 
 — V. Hill . 
 
 . . 783 
 
 — V. Swan . 
 
 . 326 
 
 — 1). Mendez . 
 
 . 176 
 
 Gore V. Wright 
 
 237, 1333 
 
 Gissme v. Wroughton 
 
 . . 605 
 
 Goreley v. Goreley 
 
 4 
 
 Greasly v. .Codling 
 
 . 1072 
 
 Gorges v. Gore 
 
 . . 1170 
 
 Great Northern Rail. Co. v. 
 
 Earrison 351, 
 
 Gorham v. Thompson 
 
 . 1107 
 
 
 413 
 
 Goring v. Goring 
 
 . 58, 707 
 
 V. 
 
 Shepherd 349 
 
 Gorman v. Boddy . 
 
 . 794 
 
 — Indian Peninsular Rai 
 
 . Oo. 0. 
 
 Gorrissen «. Perrin . 
 
 194, 574 
 
 Saunders 
 
 . 883 
 
 Gorton v. Dyson . 
 
 . 727 
 
 — Western Rail. Co. v. 
 
 Good- 
 
 — ■». Falkner . . 588, 692, 593 
 
 man .... 
 
 . 1129 
 
 — V. Gregory 
 
 . 445 
 
 — — V. Efidmayne 368 
 
 GoBbell V. Archer . . 217, 803, 806 
 
 — — V. Rex 1022. 
 
 Goslin V. Wileook . 
 
 . 1008 
 
 
 lO.'iO 
 
 Gosling V. Birnie 
 
 125, 1277 
 
 — — 0. Kimell 853. 
 
 — V. Veley . 
 
 . 1121 
 
 
 366 
 
 Goss V. Lord Nugent . 218, 808, 810 
 
 Greathead v. Morley 
 
 . 835 
 
 — V. Nelson 
 
 . 333 
 
 Greatrex v. Hayward 
 
 . . 1077 
 
 — 1). Withers 897, 899, 912, 916 
 
 Greaves v. Humfries 
 
 . 38 
 
 Gott 0. Atkinson . 
 
 . 636 
 
 — . ■». Humphreys 
 
 . . 167 
 
 Gough V. Cecil . 
 
 . . 494 
 
 — V. Legg . 
 
 . 734 
 
 — V. Pindon , 
 
 . 127 
 
 Green v. Bartram 
 
 . . 867 
 
 Gould V. Johnson 
 
 . . 168 
 
 — e. Batton . 
 
 . 1206 
 
 — V. Oliver 
 
 . 96 
 
 — ■0. Baverstook 
 
 . . 214 
 
 — V. Kobson 
 
 . . 313 
 
 — V. Braddyl . 
 
 . 33 
 
 Gouldsworth v. Knights 
 
 . 621 
 
 — V. Bridges 
 
 . . 436 
 
 Goupy V. Harden 
 
 . . 301 
 
 — V. Briggs . 
 
 . 1174 
 
 Governors of Bristol Poor v. 1 
 
 7ait . 100 
 
 — V. Brown 
 
 . . '895 
 
 Govett V. Kadnige 
 
 . . 363 
 
 — ». Chapman 
 
 . 983 
 
 Govier v. Hancock 
 
 . 228 
 
 — 1). Cresswell . 
 
 . . 768 
 
 Gower v. Popkin 
 
 . . 100 
 
 — V. Davies . 
 
 . 329 
 
 Gowlett V. Hansforth 
 
 . 489 
 
 — V, Dunn 
 
 . . 1325 
 
 Grace v. Morgan 
 
 . . 612 
 
 — V. Eales 
 
 . 434 
 
 Graham v. Barras . 
 
 . 937 
 
 — V. Elgie ' . 
 
 . . 852 ' 
 
 — V. Crawshaw 
 
 . . 522 
 
 — V. Parmer . 
 
 . 1312 
 
 — V. Dyster . 
 
 . 733 
 
 — V. Goddard . 
 
 . . 48 
 
 — V, Ewart 
 
 . , 835 
 
 — V. Greenbank 
 
 . 168 
 
 — ». Fretwell 
 
 . 804 
 
 — V. Hall 
 
 . 553 
 
 — V. Hope 
 
 . . 1107 
 
 — V. Harrington 
 
 . . 1330 
 
 — V. Musson 
 
 . 803 
 
 — V. Home 
 
 . 399 
 
 — V. Partridge 
 
 . . 185 
 
 — V. Jones 
 
 . . 49 
 
 — V. Peat . 
 
 . 1246. 
 
 — V. Kopke . 
 
 . 736 
 
 — V. Tate 
 
 . . 100 
 
 — V. Pope . 
 
 1041, 1042 
 
 — V. Whichelo 
 
 . 764 
 
 — v. Royal Exch. Ass. 
 
 ). 909, 910, 
 
 Grainger v. Hill 
 
 . . 1305 
 
 
 918 
 
 Granger v. George 
 
 168, 1320 
 
 — V. Saddington 
 
 . . 783 
 
 — V. Worms . 
 
 . . 218 
 
 — V. Salmon . 
 
 . 702 
 
 Grant v. Ellis . . Bi 
 
 5, 599, 655 
 
 — v. Smythies . 
 
 . . 161 
 
 — V. Fletcher 
 
 . . 805 
 
 — V. Young . 
 
 901, 946 
 
 — V. Grant . 
 
 . 489 
 
 Greenawayt). Hart . 
 
 . . 442 
 
 — v. Gunner 
 
 . . 376 
 
 Greene D. .Leclero . 
 
 . 682 
 
 — v. Moser . 
 
 . 867 
 
 Greenfield v. Edgcomb© 
 
 . . 1086 
 
 — V. Parkinson . 
 
 . . 891 
 
 Greenhow v. Ilsley , . 
 
 . 381 
 
 — V. Paxton . 
 
 . 936 
 
 Greening ». Wilkinson 
 
 . . 1328 
 
 — V. Vaughan . 
 
 257, 294 
 
 Greenland ». Chaplin . 
 
 . .351 
 
NAMES OF CASES. 
 
 xlv 
 
 Greenleaf ». Barker . 
 Greenshields v. Crawford 
 Greensmith v. Brockbole 
 Greenway v. Hard 
 
 PAGE 
 
 65 
 
 495 
 
 637 
 
 116, 121 
 
 Greenwood v. London, Bishop of . 607 
 ■ — -li. Seymour . 43, 1061 
 
 Gregg V. Coates . . . . 407 
 
 — v. Wells . . . .1310 
 Gregory v. Christie . . 877, 891 
 
 — V. Doidge .... 1160 
 
 — 0. Elvidge . . . . 653 
 
 — ■!;. HiU . . . .48 
 
 — V. Hnrrill . . . . 179 
 West Midland Railway 
 
 356 
 . . 990 
 
 . 640 
 . . 626 
 
 . 805 
 
 . 69 
 
 . 73 
 . . 1216 
 
 . 449 
 . . 117 
 
 . 202 
 . . 865 
 
 . 42 
 . . 604 
 
 . 91 
 988, 1210 
 
 . 1081 
 
 . . 216 
 
 . 205, 703 
 
 . . 1320 
 
 1201, 1208 
 
 . . 150 
 
 . 598 
 . . 322 
 
 Co. 
 
 — V. Wflliams 
 Gregson v. Harrison 
 
 — V. Heather . 
 
 — V. Ruck . 
 Grell V. Levy . 
 Gremaire v. Valnn 
 Grenfell v. Piersou . 
 Grescott v. Green . 
 Grerille v. Da Costa 
 Gridley V. Austin . 
 Griffin v. Colman 
 
 — & Pai'SODS . 
 
 — V. Scott 
 Griffinhoofe v. Dunbury 
 Grifith V. Lewis 
 
 — V. Matthews 
 Griffiths, Exp. 
 
 — V. Hughes 
 
 — V. Hyde 
 
 — V. Lewis . 
 
 — V. Owen 
 
 — V. Paleston 
 Griffits V. Payne . . . . 
 Grill V. The General Iron Screw Col- 
 lier Co. . . . . 903, 1196 
 
 Grimman v. Legge . 764, 783, 1334 
 Grimstead v. Shirley . . . 729 
 
 Grimwood v. Barrit . . .184 
 Grrindall v. Davies . . . . 69 
 Grindell v. Godmond . . .232 
 Grinnell v. Wells . . . . 1064 
 Grissell v. Bristowe . . •575, 734 
 
 — V, Kobinson . . .95, 712 
 Grouing v. Crockett . . . 939 
 Groom v. Aflalo . . . . 805 
 
 — v. Mealey .... 519 
 Ctroome v. Forrester . . . 851 
 Grose v. West . . 671, 1245 
 Grove, Exp 687 
 
 — V. Aldridge . . . . 686 
 
 — a. Dubois .... 732 
 
 — v. Hart' . . . . . 244 
 Groves v. Buck . . . .791 
 Grymes v. Boweren . . .1294 
 Gudgen v. Besset . 492, 811, 1332 
 Guernsey, Lord, v. Eodbridges . . 783 
 Guerreiro v. Peile .... 733 
 Guidon . Bobson . . . . 1103 
 
 
 PAGE 
 
 Guiness v. Carroll . 
 
 . 83 
 
 Gull V. Lindsay 
 
 768, 775 
 
 GuUett V. Lopes . 
 
 . 371 
 
 Gulliver v. Cozens . 
 
 101, 115 
 
 — V. Gulliver 
 
 . 177, 184 
 
 — V. Wagstaff . 
 
 . . 647 
 
 Gundry v. Felthara 
 
 . 1250 
 
 Gunmakers, Master, &c 
 
 V. Fell . 70 
 
 Gunnisw. Erhart . 
 
 . 214 
 
 Gunter v. Smith 
 
 . . 491 
 
 Gurney v. Behrend 
 
 1234, 1239 
 
 — v. Corbet . 
 
 . . 814 
 
 Gutsole V. Mathers 
 
 , 1208 
 
 Gutteridge v. Mungard 
 
 . . 435 
 
 — V. Smith 
 
 . 324 
 
 Gfty V. Eand . 
 
 . . 680 
 
 — u West 
 
 . 1244 
 
 Gwillim v. Daniel 
 
 . . 413 
 
 Gwinnell v. Herbert 
 
 . 343 
 
 Gwinnett v. Phillips . 
 
 . . 604 
 
 Gwynne v. Davy . 
 
 . 400 
 
 — V. Sharpe 
 
 . . 992 
 
 Gye V. FeltOQ 
 
 . 1063 
 
 Gyles V. Dyson . 
 
 . . 708 
 
 Gyse V. Ellis 
 
 . 468 
 
 Haokwood v. Lyall . 
 
 . . 1195 
 
 Haddan v. Lolt 
 
 . 1204 
 
 Haddock «. Bury 
 
 . . 66 
 
 Haddock's case 
 
 . 1126 
 
 Hadesden v. Gryssel . 
 
 . . 1248 
 
 Hadley v. Baxendale 
 
 . 368 
 
 Hadrick ». Heslop 
 
 1006, 1007, 1013 
 
 Hagedom v. Bell . 
 
 . 931 
 
 — V. Keid . 
 
 . . 930 
 
 Hague V. French . 
 
 . 274 
 
 Hahn v. Corbett 
 
 . . 896 
 
 Haigh V. Brooks . 
 
 65, 66, 789 
 
 — V. De la Cour 
 
 . . 874 
 
 — V. North Brierly Union . 83 
 
 — V. Ousey 
 
 . . 204 
 
 Hailes v. Marks . 
 
 . 866 
 
 Haine v. Davey 
 
 . . 1255 
 
 Haire v. Wilson . 
 
 . 981 
 
 Haldane v. Johnson 
 
 . 190, 477, 545 
 
 Hale V. Johnson . 
 
 . 1060 
 
 Halford v. Cameron Coal Company . 260 
 
 — V. Kymer 
 
 . . 972 
 
 — V. Smith . 
 
 . 1217 
 
 Halhead v. Toung . 
 
 891, 957 
 
 Hall V. Bainbridge 
 
 . . 476 
 
 — «. Ball . 
 
 . 1298, 1304 
 
 — V. Betty 
 
 . 220 
 
 — It. Butler 
 
 . . 1160 
 
 — V. Carter 
 
 . 622 
 
 — V. Cazenove 
 
 . . 465 
 
 — V. Coates 
 
 . 316 
 
 — V. Dench . 
 
 . . - 823 
 
 — V. Elliott' . ■ . 
 
 . 699, 701 
 
 — v. Pearnley ' . 
 
 42, 46, 50, 1249 
 
 — V. Peathefstone' 
 
 . 278 
 
 — v. Franklin " 
 
 . 7S, 266 
 
xlvi 
 
 NAMES OF CASES. 
 
 Hall ». Fuller 
 
 — 1). Harding 
 
 — V. Hemminge 
 
 — V. JanBon 
 
 — V. MoUnenx . 
 
 — V. Palmer 
 
 — v: Swift 
 
 — v. Tapper 
 
 — V. Wlloox 
 
 — V. Winckfield 
 V. Wybonrn . 
 
 PAGE 
 
 . 310 
 
 375, 596 
 
 . 133 
 
 877, 888, 958 
 
 . 876 
 
 . . 498 
 
 . 885, 1076 
 
 . . 703 
 
 . 3U 
 
 . . 538 
 
 179, 180 
 
 Hallaok v. Cambridge, University of 1081 
 Hallen v. Eunder 782, 783, 792, 1254 
 Hallett D. Byrt .... 1262 
 
 Halley v. Stanton . . . 1202 
 
 Halliday v. Holgate . : . . 1291 
 
 — V. Ward . . . .174 
 Halse V. Halse ' .... 1050 
 Halstead ■«. Skelton . . 305,318 
 Haly V. Lane . ; . 261, 262 
 Ham V. Toovey . . . 228, 233 
 Hambly v. Trott . . . . 717 
 Hameilion «. Stead . . . 1158 
 Hamilton v. Mendes . . 913, 916 
 
 — V. Spotliswoode . 120, 164 
 
 — V. Wilson . . 524, 526 
 Hamlet v. Richardson ... 98 
 Hamlin v. Great Northern Rail. 360, 368 
 Hammark v. White . . . . 1249 
 Hammersley v. De Biel . . 765, 778 
 Hammon v. Roll . , . . 60 
 Hammond v. Anderson . . . 1232 
 
 — ; V. Dufrene . . . 288 
 
 — V. Smith . . . 173 
 
 Hancock v. Austin . . . . 600 
 
 — -0. Caffyn . . .450 
 
 — V. Field . . . . 467 
 
 — V. Podmore' . . . 702 
 
 — V. Winter . . . . 1214 
 Handcook v. Baker . . . 867 
 Hands v. Burton . . . . 573 
 
 — V. Slaney . . . . 153 
 Haukin v. Bioomhead . . . 530 
 Hankinson v. Eilby . . . 1203 
 Hannam v. Mockett . . . . 834 
 Hannine v. Goldner . . . 139 
 Hannington v. Du Chasten . . 605 
 Hansard v. Robinson . . . 293 
 Hanslip V. Padwiok . . . . 219 
 Hanson v. Armitage . 793, 797, 798 
 
 — D. Meyer ; . 1233, 1284 
 Hanson v. Roberdean . 213, 215 
 
 — I). Stevenson . . . 461 
 Harbridge v. Warwick - . . . 1073 
 Hardcastle v. South Yorkshire Rail. 
 
 Co., the ■ . • . ■ . . . 1072 
 
 Harding if. Crethome . . . 1335 
 
 — V. Greening ■ . . . 1001 
 Hard's case '. . . 82, 86, 485 
 Hardman v. Booth . . , 1279 
 
 — V. Wilcock . , . , 125 
 Hardwick v. Chandler . . . 1203 
 Hardy v. Bems' . . . . 629 
 
 
 PAGE 
 
 Hardyi). Ryle 
 
 . 858 
 
 Hare v. Groves 
 
 . . 434 
 
 r- V. Richards . 
 
 . 326 
 
 — ■». Travis . 
 
 . . 879 
 
 Harebottle v. Placock 
 
 . 627 
 
 Hargrave v. Le Breton . 
 
 1204, 1213 
 
 — v. Shewin . 
 
 . . 1161 
 
 Hargreaves v. Parsons . 
 
 . 777 
 
 Harkness v. Bayley . 
 
 . . 819 
 
 Harland t». Bromley 
 
 . 1333 
 
 Harley v. Zing 
 
 399, 449 
 
 Harman v. Anderson 
 
 . 1238 
 
 — V. Johnson . 
 
 . . 1097 
 
 — v. Kingston 
 
 . 919, 962 
 
 — V. Reeve . 770, 791, 792, 798 
 Harmerti. Cornelius . . . 1049 
 
 — V. Killing . . . . 156 
 
 — V. Steele . . . .259 
 Harms v. Parsons . . ,70, 49'' 
 Harnor v. Groves . . . 794, 811 
 Harper v. Carr 867 
 
 — r. Charlesworth . . . 1246 
 
 — V. Luffkin .... 1065 
 Harrell v. Wink . . . .100 
 Harrington v. Beane . ... 4 
 
 — V. Fry . . . 1195 
 
 — V. Hoggart . . . 217 
 
 — V. Price . . . 1304 
 Harris v. Ashley . . . . 625 
 
 — V. Benson . . . .292 
 
 — V. Booker . . . . 1339 
 
 — V. Butler .... 1064 
 
 — V. Carter . ... 1187 
 
 — V. Cockermouth and Working- 
 
 ton Railway Go. . .855 
 
 — V. Drewe . ... 1080 
 
 — -v. Goodwin . . 468, 470 
 
 — V. Huntback . . . . 773 
 
 — D. Lee . . . . 251 
 
 — V. Mantle . . . . 479 
 
 — V. Morris .... 225 
 
 — V. Osboum . . . . 208 
 
 — -v. Saunders ... 83 
 
 — 0. Thompson . . . . 987 
 -,- V. Wall . . 155, 166, 261 
 
 — V. Watson . . 56, 1187 
 Harrison v. Barnby . . . 595 
 
 — ■». Beecles . . . . 729 
 
 — ■o. Bevington . . .990 
 
 — V. Blades .... 493 
 
 — V. Bush . . 986, 987, 989 
 
 — V. Cage . . . . 778 
 
 — V. Courtauld . . .314 
 
 — V. Davies . . . . 624 
 
 — V. Dickson ... 326 
 
 — 7). -Dixon . . . . 1256 
 
 — V. Ellis . . . .906 
 — • ■». -Elwin . . . . 814 
 
 — D. Fane . . . .153 
 
 — V. Great Northern Railway 
 
 Co 466 
 
 — 0. Harrison . . , 814 
 
 — V, Hodgson . . . 60 
 
NAMKS OF CASES. 
 
 xlvii 
 
 PAGE 
 Harrison v. Jackson . . . 1097 
 
 — V. King . . 1201, 12U 
 
 — «. London & Brigliton Kail. 357 
 
 — V. Mattliews 
 
 . . 485 
 
 , — V. Parker 
 
 . 1247 
 
 — ■». Richardson 
 
 . . 343 
 
 — V. Eosooe 
 
 . 28S 
 
 — V. Stratton . 
 
 . . 1199 
 
 — V. Turner 
 
 . 199 
 
 — V. Ward . 
 
 . . 200 
 
 — V. Wardle 
 
 . 1147 
 
 — 1). Williams 
 
 . . 1133 
 
 Harrod v. Harrod . 
 
 . 13 
 
 Hart V. Alexander . 
 
 . . 1106 
 
 — V. Bassett 
 
 . 1071 
 
 — V. Baxendale 
 
 353,354 
 
 — V. Bash 
 
 . 797 
 
 — V. East Union Railway Co. . 626 
 
 — V. Leach 
 
 . 607 
 
 — V. Miles - . 
 
 . . 56 
 
 — V. Minors 
 
 . 716 
 
 — V. Sattley 
 
 . . 797 
 
 — ». Stevens 
 
 . 262 
 
 — V. Windsor 
 
 574, 1341 
 
 Hartford v. Jones . 
 
 . 1309 
 
 Hartfort v. Jones 
 
 . . 1313 
 
 Hartley v. Boggin . 
 
 . 879, 949 
 
 — V. Cummings 
 
 . . 70 
 
 — V. Harraan - 
 
 . 1050 
 
 — V. Herring 
 
 . 1205, 1209 
 
 — V. Hitchcock 
 
 . . 1313 
 
 — II. Moxham 
 
 . 610, 1251 
 
 — v. PoDsonby . 
 
 . . 1187 
 
 — Ti. Kice 
 
 . 72 
 
 — I), Wharton . 
 
 . . 155 
 
 — V. Wilkinson 
 
 . 332 
 
 Hartop V. Hoare 
 
 . . 1302 
 
 — V. Juckes 
 
 . 208 
 
 Hartshorne v. Watson 
 
 399, 449 
 
 Harvey v. Brydges 
 
 1253, 1256, 1258 
 
 — V. Crickett . 
 
 . . i099 
 
 — V. French . 
 
 . 991 
 
 — V. Gibbons . 
 
 . . 63 
 
 — V. Graham 
 
 . 808 
 
 — V. Harvey 
 
 . . 1293 
 
 — V. Pocoofc . 
 
 . 610, 1274 
 
 Harwood v. Astley 
 
 . 1204, 1207 
 
 Harwood «. Goodright 
 
 . . 816 
 
 Hasleham «. Young 
 
 .• . . 1098 
 
 Hasletts. Burt. 
 
 . . 1297 
 
 Hassard v. Cantrell 
 
 . 381 
 
 ij astelow V. Jackson . 
 
 .111,112 
 
 Hastie v. Couturier 
 
 . 881, 924 
 
 Hastings v.- Whitley . 
 
 . . 500 
 
 — V. Wilson 
 
 . 451 
 
 Hatch ». Trages 
 
 . . 278 
 
 — V. Trayes . ■ 
 
 . 129, 485 
 
 Hatohwell v. Cooke . ■ 
 
 . . 362 
 
 Hatfield v. Phillips ■ 
 
 . 743, 748, 1241 
 
 Hatheway v. Newman 
 
 . . 1204 
 
 Hatton V. Koyle . 
 
 . 1098 
 
 Haughtou V. The Emp. 
 
 Marine Ass. 
 
 Co 
 
 . 879 
 
 PAGE 
 Haussoullier v. Hartsiuck . .334 
 Haveloek v. Rookwood . 86, 907, 946 
 Hawes v. Armstrong . . . 789 
 
 — V. Foster . . . . 804 
 
 — V. Watson, 125, 1240, 1277, 1286, 
 
 Hawken v. Bourne . 
 Hawkes v, Cottrell . 
 
 — V. Hawkey 
 
 — V. Ortou 
 Hawkins v. Carbines 
 
 — ■». Day 
 
 — v. Eokles 
 
 — V. Edwards 
 ^ — V. Twizzell 
 Hay V. Ayling' . , 
 
 — V. Fairbairn . 
 
 — V. Weakley 
 Haycroft v. Creasy 
 Haydock v. Lynch 
 Haydon v.- Williams 
 Hayes v. Bickerstaff , 
 
 — V. Warren . 
 
 — V. -Wood . 
 Hayliug v. Mullhall 
 Haylock v. Spark 
 Hayman v. Moulton 
 Haynes v. Birks 
 
 — ». Foster . 
 Haynsworth v. Pretty 
 Hays V. Manning . 
 Hayseldeu v. Staff 
 Haythorn v. Lawson 
 Hayton v, Wolfe 
 Hayward v. Creasy 
 
 — V. Young . 
 Haywood v. Rodgers 
 Hazard v, Treadwell . 
 Hazeldine v. Grove 
 Head ». Baldrey 
 Heald v. Carey 
 
 — V, Kenworthy . 
 Heam v. Lond. and S. 
 Heap V. Barton , . 
 
 — V. Dobson 
 Heard v. Baskerville . 
 
 — V. Stamford . 
 
 — V. Wadham 
 Heime v. Edmunds 
 
 — V. Stowell 
 Heath, Exp. 
 
 — V. Brewer 
 
 — B. Chilton . 
 
 — ■ V, Hubbard . 
 
 — V. Milward . 
 
 — 11. Sansom 
 
 — ».- Vermeden. 
 Heathcote v. Crookshanks 
 Heatley v. Thomas - 
 Heaven v. Devonport 
 Hedburg v. Pearson - 
 Hedger v. Stcavenson 
 Hedley v. Baiubridge 
 
 194, 
 
 West. Rail, 
 
 985. 
 
 1337 
 1093, 1097 
 209 
 1210 
 479 
 . 1267 
 . 705 
 . 1154 
 . 196 
 . 1185 
 . 280 
 . 1177 
 . 1010 
 . 560 
 . 270 
 171, 174 
 . 426 
 . 65 
 . 1280 
 . 314 
 . 989 
 . 1304 
 . 306 
 . 737 
 . 633 
 . 525 
 . 146 
 . 990 
 . 694 
 . 80 
 499 
 936, 936 
 . 1052 
 859, 860 
 482, 1275 
 . 1301 
 738 
 353 
 1295 
 1089 
 632 
 224 
 460 
 . 884 
 990, 1210 
 . 288 
 . 860 
 . 715 
 . 1307 
 . 1256 
 320, 337 
 . 644 
 . 148 
 . 237 
 . 130 
 . 921 
 . 307 
 264, 1097 
 
xlviii 
 
 NAMES OF CASES. 
 
 Hefford v. Alger 
 Hegan v. Johnson 
 
 HegiubotIiam». Eastern Steam Packet 
 
 Company 
 
 . . 1069 
 
 Heinekey «. Earl . 
 
 .1228, 1230 
 
 Helen, The 
 
 . 69, 943 
 
 Hellawell v. Eastwood . 
 
 1293, 1295 
 
 Hellier v. Casbard 
 
 405, 541 
 
 ■— V. Franklin 
 
 . 488 
 
 Hellyer v. Silcox 
 
 . . 1339 
 
 Helps. 1). Winterbottom . 
 
 89, 169 
 
 Helsby v. Mears 
 
 . . io;)4 
 
 Helsham W.Blackwood . 
 
 . 993, 998 
 
 Helyear v. Hawke 
 
 . . 572 
 
 Heming v. Power . 
 
 . 992 
 
 Hemming, Ex parte , . 
 
 . . 205 
 
 — V. Parry 
 
 . 573 
 
 — o. Trenery 
 
 .145,147 
 
 — -0. Wilton 
 
 . 200 
 
 Hemmings v. Gasson, 987, 
 
 991, 997, 1211 
 
 Hemp V. Garland 
 
 .169,257 
 
 Henderson v. Australian S 
 
 N. Co. . 84 
 
 — V. Eason 
 
 . . 2,3 
 
 — V. Hay 
 
 . . 429 
 
 — V. Henderson . 
 
 . 86, 484 
 
 Hendy v. Stephenson . 
 
 . . 454 
 
 Henkle v, Eoyal Exch. Ass 
 
 Co. . 872 
 
 Henley v. Soper 
 
 . 484 
 
 Henman v. Dickinson . 
 
 . . 276 
 
 Henn v. Hanson . 
 
 . 478 
 
 Hennell v. Lyon 
 
 ... 494 
 
 Henning v. Burnet 
 
 . 1080, 1267 
 
 Henry v. Adey . 
 
 . . 486 
 
 — V. Earl 
 
 4 
 
 Hensloe's case . 
 
 . . 714 
 
 Henson v. Coope . 
 
 . 811 
 
 Hentig v. Staniforth . 
 
 . 114, 968 
 
 Henwood ». Oliver . 
 
 . 186 
 
 Herbert v. Champion . 
 
 . . 922 
 
 — V. Herbert 
 
 . 25 
 
 — V. Tuokal . 
 
 . . 677 
 
 — V. Turner . 
 
 . 801 
 
 — V. Walters . 
 
 . . 1165 
 
 — V. Waters . 
 
 . S84 
 
 Herlakenden's case . 
 
 . . 1294 
 
 Hermann v. Seneschal . 
 
 . 860 
 
 Hem V. Nichols 
 
 742, 1068 
 
 Heseltine v. Murray 
 
 . 24 
 
 — V. Siggers . 
 
 . . 792 
 
 Heselton v. AUuutt 
 
 . 961 
 
 Hesketh 2>.'£lanchard 
 
 . . 1092 
 
 — V. Fawcett 
 
 - 186, 191 
 
 — V. .Gtray 
 
 . . 608 
 
 Heskett ». flowing . 
 
 . 237 
 
 Heslop V. Chapman . 
 
 . . 1007 
 
 Hewison v. Guthrie 
 
 .1316, 1318 
 
 Hewitt V. Bellott 
 
 . . 203 
 
 — u. Isham . 
 
 . 1251 
 
 Hewlins v. Shippam . 
 
 . . 761 
 
 Hey V. Moorhouse . 
 
 . 1246 
 
 Eeyhoe v. Burge 
 
 . . 1091 
 
 Heylin v. Adamson 
 
 290, 306, 343 
 
 Heyrick v. JFoster 
 
 , . 653 
 
 PAGE 
 
 1148, 1164 
 644, 1158 
 
 PAGE 
 V. Heseltine .... 318 
 Heywood v. Collinge . . . . 1009 
 Hibbert v. Courthorpe ... 83 
 
 — V. Halliday . . . . 880 
 
 — V. Martin . . . 875, 904 
 
 — V. Pigou .... '940 
 Hibblewhite v. M'Morine . . 72 
 
 Hibbs V. Ross 1194 
 
 Hickey v. Hayter . . . .793 
 Hickinbotham v. Leach . . . 993 
 Hickman v. Walker . . 176, 723 
 Hick's case . . . 551, 1000 
 Hicks V. Beaufort, Duke of . . 308 
 Higgin V. Burton . . . . 1279 
 Higgins V. Bretherton . . . 359 
 
 — V. Hopkins . ... 1089 
 
 — V. Pitt ... 77, 106 
 
 — V. Sargent . . . . 326 
 
 — V. Scott . . . 169, 663 
 
 — «. Senior . . 738, 811 
 
 — «. Thomas . . . 1310 
 
 Higgs V. Scott 101 
 
 Higham v. Eabett .... 1274 
 
 — u. Eidgway . . . . 677 
 Highmore v. Harrington, Lord . 1216 
 
 — V. Primrose . . 126, 129 
 Hilberry v. Hatton . . . . 1300 
 Hilditchv. Eyles . . . .1015 
 Hill V. Barclay 434 
 
 — V. Eateman .... 850 
 
 — V. Curtis .... 701, 726 
 , — V. Dobie . . . .451 
 
 — V. Featherstonhaugh . . . 207 
 
 — «. Fox 109 
 
 — V. Giles 627 
 
 — V. Gomme .... 707 
 
 — V. Gcodohild . . . . 52 
 
 — V. Gray ..... 557 
 
 — V. Halford . . 331, 334 
 
 — V. Kempshall .... 660 
 
 — V. Lewis . . . 278, 294 
 
 — V. Patten . . . .887 
 
 — ». Eex , . . 1021, 1117 
 
 — V. Saunders .... 475 
 
 — V. Smith 85 
 
 — ». Street ■ . . . .101 
 
 — V. Sydney 200 
 
 — V. Walker .... 1250 
 
 — V. Wright 1161 
 
 Hillary v. Gay .... 1261 
 Hilliard v. Hambridgo . . . 247 
 
 — V. Stapleton . . .509 
 Hills V. Hills 1282 
 
 — ». London Ass. Comp. . . 921 
 Hiltoij V. Eokersley . . . . 500 
 
 — v., Fairolough . . . 303 
 
 — V. Geraud . , . . . 784 
 Hinde v. Gray ... . 421, 499 
 
 — V. Lyon 637 
 
 — V. Whitehouse, 795, 803, 804, 1283 
 Hindle v. Blades .... 1149 
 Hindley v. Westmeath, Marquis of . 228, 
 
 231, 232, 420 
 
NAMES OF CASES. 
 
 xlix 
 
 
 PAGE 
 
 
 PAGE 
 
 Hine v. Allely . _ . 
 
 282, 302 
 
 Holder v. Coates 
 
 . . 1244 
 
 Hinton v. Dibbin '. 
 
 . 354 
 
 — V. Taylor . 
 
 . 412 
 
 ~ V. Duff . " . 
 
 . . Sir 
 
 Holderness v. CoUinson 
 
 358, 1317 
 
 Hirst V. Horn 
 
 . 547, 635 
 
 — V. Shackels . 
 
 . 1099 
 
 — V. Smith . 
 
 . . 696 
 
 Holdfast V. Clapham 
 
 622, 623 
 
 Hiscox V. Greenwood 
 
 . 1053 
 
 Holdsworth v. Hunter . 
 
 272, 286 
 
 Hitchcock I). Coker 
 
 498, 499 
 
 — V. Wise . 
 
 907, 908 
 
 — °v. Tyson 
 
 . 152 
 
 Hole V. Barlow 
 
 . 1069 
 
 Hitohen v. Teale 
 
 . . 1272 
 
 — V. Sittingbourne Kail. Co. 
 
 1055, 1085 
 
 Hitchins v. Basset . 
 
 . 816 
 
 Holford V. Bailey 
 
 751, 752 
 
 Hiteliman v.' Walton 
 
 . 1295, 1298 
 
 — V. Hankinson . 
 
 . 386. 
 
 Hoadley v. M'taine 
 
 . 791, 800 
 
 — V. Hatch 
 
 430, 452 
 
 Hoare v. Allen . 
 
 . . 26 
 
 — V. Pritchard 
 
 . 1332 
 
 — V. Cazenove 
 
 . 285, 318 
 
 Holiday v. Morgan 
 
 569, 570 
 
 — V. Graliam 
 
 342, 872 
 
 Holland v. Bird . 
 
 . 611 
 
 — V. Parker . 
 
 . 1302 
 
 • — V. Eussell 
 
 121, 122 
 
 — V. Silverlock 983, 
 
 991, 992, 1213 
 
 Holliday v. Camsell 
 
 . 1306 
 
 Hobart v. Wilkins . 
 
 . . 990 
 
 HoUier v. Eyre 
 
 . . 313 
 
 Hobbs V. Branspomb 
 
 . 884 
 
 Hollingshead v. Walton . 
 
 . 370 
 
 — V, Hannan 
 
 903, 957 
 
 Hollingsworth v. Brodrick . 
 
 . . 927 
 
 — V. Hemming 
 
 69, 943 
 
 — V. Collinsou 
 
 . 927 
 
 — V. Kniglit 
 
 . . 828 
 
 — V. Palmer . 
 
 . . 1191 
 
 Hobson V. Cowley . 
 
 . 1049 
 
 Hollis V. Claridge 
 
 . 1315 
 
 — V. Todd 
 
 . . 382 
 
 — V. Freer . 
 
 . . 1152 
 
 Hoby V. Built 
 
 . 210 
 
 — 1). Palmer . 
 
 . 174 
 
 — «. Roebuck 
 
 760, 779, 787 
 
 Holman v. Johnson . 
 
 . . 73 
 
 Hocken v. Browne 
 
 . 478 
 
 Holmes v. Bury 
 
 . 34 
 
 Hooking v. Matthews 
 
 . . 1010 
 
 — V. Catesby . 
 
 . . 993 
 
 Hockster v. De la Tour . 
 
 . 192 
 
 — 0. Goring . 
 
 . 1270 
 
 Hodges V. Croydon Canal Company . 472 
 
 — V. Higgins 
 
 1104, 1105 
 
 — v. Hodges . 
 
 . 225, 233 
 
 — V. Hoskins 
 
 793, 796 
 
 — V. Marks 
 
 . . 1169 
 
 — u. Kerrison . 
 
 169, 301 
 
 — -0. Windham 
 
 9 
 
 — „. Kidd . 
 
 . 281 
 
 Hodgkinson v. Fletcher 
 
 . 229, 230, 655 
 
 — ^'. Mackrell . 
 
 . . 800 
 
 — V. Mayer 
 
 . 198 
 
 — 0. Preston . 
 
 1195 
 
 — V. Wyatt 
 
 513, 779 
 
 — V. Savill 
 
 . . S3 
 
 Hodgson V. Anderson 
 
 120, 164, 773 
 
 — V. Six smith 
 
 . 71 
 
 V. Blackiston 
 
 . . 907 
 
 — 1). Twist 
 
 . . 133 
 
 — •«. East India Company 426, 427, 
 
 V. Wilson . 
 
 . 610, 1083 
 
 
 476 
 
 — V. Worthington 
 
 . . 1061 
 
 — V. Fullarton . 
 
 . 362 
 
 Holms V. Brocket . 
 
 . 512 
 
 — V. Gamble . 
 
 . . 206 
 
 — y. Seller 
 
 . . 1266 
 
 — V. Glover. 
 
 . 891, 960 
 
 Hoist 1). Pownal 
 
 . 1225 
 
 — V. Johnson . 
 
 . . 783 
 
 Holt V. Brien . 
 
 . . 227 
 
 — V. Uy . 1219, 1220, 1227 
 
 — D. Sarabaoh . 
 
 . 1158 
 
 ■0. Eichardson 
 
 878, 932 
 
 — V. Scholefield 
 
 1200, 1209 
 
 — V, Scarlett 
 
 . 1213 
 
 Homer v. Batty 
 
 . 848 
 
 — V. Temple . 
 
 . . 74 
 
 Hook, Ke . 
 
 . . 204 
 
 HoJnett V. Forman 
 
 . 493 
 
 Hool V. Bell . 
 
 510, 594 
 
 Hodsen v. Hanidge . 
 
 . . 484 
 
 Hooper v. Lane . 
 
 . . 32 
 
 Hodsoll V. Stallebrass 
 
 . 1063 
 
 — V. llamsbottom . 
 
 . 1303 
 
 Hodson V. Observer Life Ass. Soc. . 971 
 
 — V. Stephens . 
 
 . 174 
 
 — V. Sharpe 
 
 . 473 
 
 — ii. Summerset . 
 
 . 699 
 
 — , V. Terrill 
 
 . . Ill 
 
 — V. Till . 
 
 . . 184 
 
 Hoe's case 
 
 . 862 
 
 — V. Truscott 
 
 . 1215 
 
 Hoffinan v. Marshall , 
 
 885, 897 
 
 Hopcraft D. Keys 
 
 620, 1160 
 
 Hog V. Gouldney . 
 
 .921 
 
 Hopes, i;. Alder 
 
 66, 289 
 
 Hogg V. Horner 
 
 . . 947 
 
 Hopkins B. Crowe 
 
 859, 868 
 
 ' — 0. Ward 
 
 . 865 
 
 — V. Grazebropk . 
 
 . 216 
 
 Hoil V. Clerk . 
 
 . . 816 
 
 — V. Logan 
 
 . . 65 
 
 Holcrpft V. Higgips 
 
 ^ 1002 
 
 — y. Prescott 
 
 70, 504 
 
 Holden -v. Ballantyne 
 
 . . 32 
 
 — V. ,Tanqueray 
 
 . . 580 
 
 — t). Raphae.i. , . 
 
 . 523 
 
 Hopkinsqn v. Smith 
 
 . 197 
 
 vol,. I. 
 
NAMES OF CASES. 
 
 Hopley V. Dufresne . 
 Hopper V. Eeeve . 
 Hopwood V. Thorn 
 Horford v. Wilson . 
 Horn V. Chandler 
 
 — V. Cutlers' Company 
 
 — V. Noel . 
 
 — V. Thorntorough . 
 Homblower v. Proud . 
 Hombuokle v. Hornbury 
 Hornby v. Close 
 
 — V. Lacy . 
 Horncastle v. Suart . 
 Home V. Adderley. 
 
 — V. Widlake 
 Homer v. Battyn . 
 
 ■ — V. Graves 
 
 — V. Moor 
 
 — V. Taunton . 
 Homeyer v. Lushington 
 Hornidge v. Wilson . 
 Horrard v. Shepherd 
 Horsefall v, Mather . 
 Horsfall v. Handley 
 
 — V. Key . 
 Horsford v, Webster 
 Horsham's case 
 Horton i>. Byles 
 
 — V. Eiley 
 Hoi-wood V, Heffer . 
 
 — i>. Smith 
 Hosier v. Lord Arundell . 
 Hoskins v, Bobins 
 Hotham v. East India Company 
 
 Houghton V. Koenig 
 
 — V. Matthews 
 Houlden v. Smith . 
 Houlditch ». Milne . 
 Houliston «. Smyth 
 Hounsfield v. Drury . 
 Houriet v. Morris . 
 Housego v. Cowne 
 Houston V. Eoberfcson 
 How V. Gough . 
 
 — V. Hall . 
 
 — V. Norton . 
 
 — u. Prinn 
 Howard v. Burfconwood 
 
 — i>. Castle . 
 
 — ' V, Crowther . 
 
 — ■!>. Hodges . 
 
 — V. Oakes 
 
 — V, Shaw . 
 
 — V. Shephard . 
 — . V. Wood . 
 
 Howarth v. ToUemaohe 
 Howden v. Haigh . 
 Howe V. Palmer . . 221 
 Howell v. Batt 
 
 — V. Jackson 
 
 — V. King 
 
 — V. Maine 
 
 PAGE 
 
 . . 290 
 . 1249 
 989, 1208 
 . 308 
 . 472 
 . 1113 
 22 
 
 116, 859 
 . 1302 
 . 232 
 . 500 
 
 732, 735 
 . 893 
 . 633 
 . 1270 
 . 1168 
 . 500 
 . 496 
 . 1211 
 
 878, 968 
 . 445 
 . 361 
 . 62 
 . 122 
 792 
 
 589, 590 
 . 1118 
 . 244 
 . 106 
 . 235 
 . 1278 
 . 711 
 
 369, 374 
 
 456, 460, 
 
 466 
 
 . 669 
 
 736, 742 
 45, 852 
 
 768, 775 
 
 232, 235 
 . 1012 
 . 490 
 . 304 
 . 183 
 . 450 
 . 1322 
 . 1330 
 . 1203 
 9 
 . 214 
 . 1055 
 . 80 
 . 262 
 . 1338 
 . 573 
 . 97 
 . 1310 
 . 77 
 
 793, 796 
 . 120 
 . 867 
 . 1267 
 . 248 
 
 Howell V. Eiohards 
 
 — ■(). Young . 
 Howlet V. Strickland . 
 Hewlett 1!. Haswell 
 Howse v. Webster 
 Howson V. Hancock 
 Howton V. Frearson . 
 Hoye V. Buck 
 
 — ;- V. Bush . 
 Hubbard v. Glover. 
 
 — V. Jackson . 
 Huber v. Steiner . 
 Hubert v. Treheme . 
 Huoker v. Gordon . 
 Hucks V. Thornton . 
 Hudson V. Bazeudale 
 
 — «. Granger . 
 
 — V. Harrison 
 
 — V. Hudson 
 
 — V. Nicholson 
 Huffell V. Armistead 
 Huggins V. Bainbridge 
 
 — V. Coates . 
 
 — V. Durham 
 
 — V. Wiseman 
 Hughes V. Buckland 
 
 — V. Burgess . 
 
 — V. Done 
 
 — V. Humphreys 
 
 — V. Parker 
 
 — V. Bobins . 
 
 — V. Thorpe 
 
 — ' V. Wynne . 
 Hnguenin v. Eayley 
 Hull Vi Cooper 
 
 — V. Pickersgill 
 Hulle V. Heightman 
 Hullman v, Whitmore 
 Hulls V. Lea . 
 Hulme V. Tennant 
 Humble v. Hunter 
 
 — V. Mitchell 
 Hume V. Peploe 
 Humfrey v. Dale 
 Humphrey v. Lucas 
 Humphreys v. Boyce 
 
 — V. Gery 
 
 — V. Harvey 
 
 — V. Humphreys 
 
 — i>. Misdale 
 Humphries v. Taylor 
 Hunlooke v. Blacklawe 
 Hunt ?;. Bate 
 
 — V. Bishop 
 
 — i>. Braines . 
 
 — V. Cope . 
 
 — V, De Blaquiere 
 
 — V. Hecht 
 
 — V. Eoyal Exoh. A 
 
 — H. Silk . 
 
 — V. Swain . 
 
 — V. Ward 
 
 PAGE 
 
 425, 476 
 
 168, 211 
 
 182, 478, 519 
 
 . 153 
 
 , 541 
 
 111, 112 
 
 . 1270 
 
 . 847 
 
 . 864 
 
 . 934 
 
 281, 888 
 
 . 175 
 
 . 801 
 
 . 1145 
 
 . 954 
 
 . 345 
 
 . 740 
 
 . 909 
 
 692,' 1291 
 
 . 611 
 
 . 634 
 
 . . 503 
 
 . 169 
 
 . . 249 
 
 . 155 
 
 . . 45 
 
 5 
 
 . . 75 
 
 . 472 
 
 . . 131 
 
 . 1080 
 
 . 127, 128 
 
 . 489 
 
 . . 974 
 
 . 940 
 
 . . 1252 
 
 . 117 
 
 . . 930 
 
 198 
 
 . . 237 
 
 . . 738, 811 
 
 . 786, 792 
 
 . 190 
 
 738, 810, 811 
 
 . 735 
 
 . . 254 
 
 . 472 
 
 . 196, 198 
 
 . 691 
 
 . . 1165 
 
 . 819 
 
 . . 500 
 
 . 64 
 
 . . 137 
 
 . 1153, il58 
 
 470, 542, 1159 
 
 . . 231 
 
 793, 794, 797 
 
 Co. 906, 911, 
 
 916, 916 
 
 . 118 
 
 . . 61 
 
 . 1224, 1235 
 
NAMES OF CASES. 
 
 H 
 
 
 PAGE 
 
 
 PAGE 
 
 Hunter v. Seal . 
 
 . 1224 
 
 Ingledew v. Cripps 
 
 . 485 
 
 — V, Britts . 
 
 . 686 
 
 — v, Douglas . 
 
 . . 159 
 
 — V. Caldwell . 
 
 . 210 
 
 Inglis V. Haigh 
 
 . 175 
 
 — V. Fry 
 
 . 465 
 
 — V. Vaux . 
 
 . . 948 
 
 — V. Leatliley . 
 
 889, 951 
 
 Inman v. Stamp 
 
 . 759, 779 
 
 — V. Nockolds 
 
 472, 545 
 
 Innisfallen, The 
 
 . . 1177 
 
 — V. Potts 
 
 . 896 
 
 Ireland v. Burcham 
 
 . 429 
 
 — V. Kice 
 
 . 1280 
 
 — V. Johnson . 
 
 . . 610 
 
 Hunting v. Sheldrake 
 
 453, 536 
 
 — V. Thompson 
 
 . 161, 1304 
 
 Huntley v. Bulwer . 
 
 . 207 
 
 Ireson v. Pearman 
 
 . . 209 
 
 — V. Simson 
 
 . 1008 
 
 Irons V. Smallpiece 
 
 . 1247, 1282 
 
 Hurd V. Fletcher . 
 
 . 429 
 
 Irving V. Manning 
 
 872, 874, 908, 
 
 Hurry v. Mangles 
 
 . 1237 
 
 
 919, 920 
 
 — V. Eoyal Bxch. Ass. Go. 
 
 897, 919 
 
 — V. Motly 
 
 . 1279 
 
 Hurst V. Gwennap . 
 
 . 1299 
 
 — V. BJchardson . 
 
 . . 1177 
 
 — v. Great Western Kail. 
 
 . 360 
 
 * — 11. Veitch . 
 
 . 173 
 
 — V. Orbele 
 
 . 117 
 
 ■ — V. Wilson 
 
 . 116, 123 
 
 — o: Watkis 
 
 . 319 
 
 Irwin 1). Braudwood 
 
 . 1203 
 
 Hurt's case .... 
 
 989 
 
 — V. Dearman 
 
 . 1064, 1067 
 
 Husband v. Davis 
 
 . 514 
 
 Isaac V. Belcher 
 
 . 1310 
 
 Huscomhe v. Standing . 
 
 . 498 
 
 — a. Impey . 
 
 . . 852 
 
 HuBsey v. Christie . ^ 
 
 . 1317 
 
 Isherwood v. Oldknow 
 
 . 442 
 
 — ■». Grills . 
 
 . 812 
 
 — V. Whitmore 
 
 . 140, 189 
 
 Hutchins v. Chambers 
 
 593, 611 
 
 Israel v. Benjamin . 
 
 . . . 274 
 
 Hutchinson v. Bell . 
 
 . 564 
 
 Ivatt V. Mann . 
 
 . . 1274 
 
 — V. Bowker 
 
 170, 194 
 
 Ivens V. Butler 
 
 . 254 
 
 — V. Copestake 
 
 . 1073 
 
 Iveson V. Moore 
 
 . . 1070 
 
 — V. Greenwood . 
 
 . . 683 
 
 Ivimey v. Marks . 
 
 . 204 
 
 — V. Hey worth. 
 
 . 120 
 
 Izon V. Gorton . 
 
 . 1336, 1342 
 
 — v. Newcastle, York, 
 
 and 
 
 
 
 Berwick Kailwa; 
 
 r . 1060 
 
 J'Ansoh v. Stuart . 
 
 . 982 
 
 — D. Puller 
 
 . 628 
 
 Jackson v. Adams 
 
 . 1203 
 
 — -It. Stand ly 
 
 . 251 
 
 — V. Allaway 
 
 . 139 
 
 — V. Sturges . 
 
 184, .518 
 
 — V. Attrill 
 
 . . 75 
 
 — ■ V. Sydney 
 
 . 93 
 
 — V. Bell . 
 
 . 1155 
 
 Huttman v. Boulnois 
 
 . 1048 
 
 — V. CobMn 
 
 66, 62, 65 
 
 Hutton V. Bragg . 1 
 
 314, 1318 
 
 — v. Cummins 
 
 . 1319, 1320 
 
 — V. Eyre 
 
 . 517 
 
 — V. Duchaire . 
 
 . . 78 
 
 — V. Osborne 
 
 . . 348 
 
 — 1/. Foster . 
 
 . 976 
 
 — u. Rossiter . 
 
 . 559 
 
 — V. Gisling 
 
 . . 553 
 
 — V. Warren 
 
 . . 632 
 
 — ■!/. Hanson . 
 
 1147 
 
 Hybart v. Parker . 
 
 . 1104 
 
 — V. Hudson . 
 
 . 318 
 
 Hyde v. Hyde . 
 
 . . 25 
 
 — V. Hurlook . 
 
 . 820 
 
 — V. Johnson . 
 
 . 155 
 
 ■ — ■ V. Jacob 
 
 . . 140 
 
 — ^•. Moakes 
 
 . . 1334 
 
 — V. Lowe . 
 
 . 800 
 
 — -17. Scissor 
 
 . 244 
 
 ■ — V. Nichol 
 
 . . 1231 
 
 — u. Trent and Mersey Na\ 
 
 iga- 
 
 — v. Rogers . 
 
 . 344 
 
 tion 
 
 . 345, 346 
 
 — v. Warwick . 
 
 . . 336 
 
 — V. Willis 
 
 . 465 
 
 — 0. Woolley. 
 
 . 175 
 
 — V. Windsor, Dean of . 
 
 . 440, 444 
 
 Jacob V. Allen . 
 
 . . 693 
 
 Hyleing v. Hastings 
 
 . 66 
 
 — V. King 
 
 . . 605, 606 
 
 
 
 — V. Kirk . 
 
 . 800, 801 
 
 Ibbs v. Richardson . 
 
 . . 1335 
 
 Jacobs V. Latonr . 
 
 . 1314, 1316 
 
 Ibbotson V. Peat . 
 
 . 835 
 
 Jaoomb v, Harwood . 
 
 . . 692 
 
 Idle V. Soyal Exch. Ass. Comp, 
 
 909, 910 
 
 Jaffray v. Fairbaiu . 
 
 . 157 
 
 Iggulden v. May . . . 
 
 402, 403 
 
 Jaggers v. Binnings . 
 
 . . 1191 
 
 Ilchester, Earl of, Exp. 816 
 
 820, 821 
 
 James v. Biddington 
 
 . 26 
 
 He's case .... 
 
 . . 1023 
 
 — V. Boston. 
 
 . . 989 
 
 Impe V. Pitt .... 
 Imperial Gas Co. v. London Gas 
 
 . 698 
 
 — i>. Brook 
 
 . 1208 
 
 Co. 302 
 
 — V. Cochrane 
 
 . . 414 
 
 Incledon v. Berry 
 
 . . 1006 
 
 — v. Cotton 
 
 . 90 
 
 — V. Crips . 
 
 . 467 
 
 — V. David . 
 
 . . 125S 
 
 Ingle V, Wordsworth . • 
 
 . . 1167 
 
 — V, Emery" . 
 
 . 415 
 
 d 2 
 
Hi 
 
 NAMES OF CASES. 
 
 
 PAGE 
 
 
 I'AGB 
 
 James v. Griffin . 1222, 
 
 1230, 1231 
 
 Johnson v. Kennion 
 
 . 312 
 
 — V. Holditch . 
 
 . 306 
 
 — V. Lancaster 
 
 . . 186 
 
 - V. Phelps 
 
 1007, 1013 
 
 — -0, Lansley 
 
 . 280 
 
 — V. Plant 
 
 1267, 1269 
 
 — *. Lawson . 
 
 . . 676 
 
 — V. Swift . . , . 
 
 . 855 
 
 — v. Leigh . 
 
 . 1262 
 
 — V. Thomas . 
 
 . 629 
 
 — V. Lucas 
 
 244, 247 
 
 Jameson v, Swinton 
 
 288, 304 
 
 — V. Maehielsne . 
 
 . 1191 
 
 Jaques V. Golightly 
 
 102, 107 
 
 — V. Marlborough, 
 
 Duke of . 276 
 
 — V. Withy . 10 
 
 2, 107, 538 
 
 — V. May, 
 
 . , 1330 
 
 Jardine v. Payne . 
 
 .272 
 
 — V. Midland Bail 
 
 ffay . . 344 
 
 Jan-att v. Ward 
 
 . . 948 
 
 — v.. Mills 
 
 . . 683 
 
 Jarris v. Dean 
 
 . 1264 
 
 — V. Nichols 
 
 . 789 
 
 — V. Wilkins 
 
 331, 789 
 
 — v^ Sheddon . 
 
 . . 919 
 
 Jeakes v. White . 
 
 220, 779 
 
 — V. Sumner . 
 
 . . 229 
 
 Jee V, Thurlow . " . 
 
 231, 420 
 
 — V. tTpham 
 
 . 609, 1162 
 
 Jeffery v. Bastard . 
 
 . 1149 
 
 — V, Warner . 
 
 . . 863 
 
 — V. Legendra . 
 
 940, 942 
 
 — V. Warwick 
 
 . 625 
 
 Jefferys v. Gurr . . 
 
 . 91 
 
 — t>, Whitchcott 
 
 . . 69 
 
 Jeffrey v. Walton 
 
 . . 807 
 
 — V. Woolyer 
 
 . 1151 
 
 Jefireys v. Evans . 
 
 . 199 
 
 Johnston v. Sutton . 
 
 932, 1007 
 
 Jeffries v. Great Western Bail. 
 
 Co. 1286, 
 
 — 1). Usborne 
 
 . 735 
 
 
 1311 
 
 Johnstone v. Hudlestqne 
 
 549, 688, 640, 
 
 Jenk's case . 
 
 . . 532 
 
 
 764 
 
 Jenkins v. Haycock 
 
 . 954 
 
 JoU V. Lord Curzon . 
 
 142, 419 
 
 — V. Power 
 
 . . 968 
 
 Jolly V. Arbuthnot 
 
 . 1161 
 
 Jenkyns v. Brown . 
 
 . 1234 
 
 — V. Eees , 
 
 . . 227 
 
 — V. Keynolds 
 
 . . 788 
 
 JoUey V. Taylor 
 
 . 1322 
 
 — V. Usborne 743, 
 
 1222, 1239, 
 
 Jones V. Arthur 
 
 . . 189 
 
 
 1240 
 
 — 1!. Ashbui-nham 
 
 . 59 
 
 Jenner v. Clegg 
 
 . 587 
 
 — V. Barkley 
 
 140, 141, 456 
 
 — V. Yolland 
 
 . . 593 
 
 — V, Bond 
 
 . 390 
 
 Jenney v. Herle . 
 
 269, 270 
 
 — V. Bonner 
 
 . . 614 
 
 Jennings v. Brown . 
 
 . . 68 
 
 — i). Bowden . 
 
 . 575 
 
 — V. Griffith 
 
 . 1195 
 
 — V. Bright 
 
 . . 675 
 
 — V. Harley . 
 
 . . 60 
 
 — V. Brinley . 
 
 . 120 
 
 — V, Throgmorton 
 
 80, 1343 
 
 — V. Broadhurst . 
 
 147, 312 
 
 Jenys v. Fawler 
 
 . . 322 
 
 — V. Cannock . 
 
 . 462 
 
 Jesse V, Koy 
 
 . 90, 1186 
 
 — V, Carter 
 
 . 119, 433, 641 
 
 Jessop V. Lutwyohe . 
 
 . . 109 
 
 — V. Chapman . 
 
 . 50, 1256 
 
 Jessore v. Collins 
 
 . 13 
 
 — V. Clay . 
 
 . . 42 
 
 Jewell V. Harding 
 
 . . 1063 
 
 — V. Cliff 
 
 . 1320 
 
 Jewsbury v. Newbold 
 
 . 227 
 
 — V. Cooper . 
 
 768, 769 
 
 Job V. Bannister 
 
 . . 434 
 
 — V. Cowley . 
 
 . 573 
 
 — V. Langton 
 
 . 95 
 
 — V. Doyle . 
 
 . . 683 
 
 Jobson V. Forster 
 
 . . 729 
 
 — V. Edney 
 
 . 214 
 
 Jodderell v. Cowell 
 
 . 409 
 
 — It. Flint . 
 
 . . 781 
 
 Joel V. Morison 
 
 . . 1062 
 
 — u. Fort 
 
 . 1320 
 
 John V. Jenkins 
 
 . 601, 1162 
 
 — V. Gooday , 
 
 . . 1274 
 
 Johns V. Gittinga 
 
 . . 993 
 
 — V. Green 
 
 . 193 
 
 — V. Simons . 
 
 . 1196 
 
 — V. Gurdon 
 
 851, 853 
 
 Johnson v. Aylmer . 
 
 1208, 1209 
 
 — V. Gwynn 
 
 1004, 1005, 1006 
 
 — V. Baynes , 
 
 . 1158 
 
 — V. Hart . 
 
 . . 1327 
 
 — V. Broderiok 
 
 . . 1185 
 
 — V. Jones 198, 495, 
 
 729, 1228, 1233, 
 
 — V. Ceilings 
 
 . 282 
 
 
 1258 
 
 — ■ V. Dodgson . . 1' 
 
 17, 794, 801 
 
 — V. Just 
 
 . 574 
 
 — ' V. Faulkner 
 
 . 589, 590 
 
 — V. Keene . 
 
 . ' . . 557 
 
 — V. Goslett . 
 
 . . 38 
 
 — V, Lander 
 
 . 524, 526 
 
 — V. Gallagher 
 
 . 237 
 
 — V. Littledale . 
 
 . . 738 
 
 — V. Bilberry '. 
 
 . . 1191 
 
 — V. Littler 
 
 1203, 1208 
 
 — V. Hill . 
 
 . 1312 
 
 — V. Mackie 
 
 . . 995 
 
 — V. Hudson . 
 
 . 74 
 
 — V. IJarsh 
 
 . 637 
 
 — V. Johnson . 
 
 . 104 
 
 — V, MU|s '. . ■ 
 
 . . 634 
 
 — *. Jones 
 
 . . 1163 
 
 — v.. JJorgao ". . 
 
 , 290 
 
NAMES OF CASES. 
 
 liii 
 
 
 
 PAGE 
 
 
 fAOB 
 
 Jones V. Morris . 
 
 1161, 
 
 1163 
 
 Kelby v. Vernon . ... 
 
 . 96 
 
 — V. Nicholson . 
 
 
 904 
 
 Kell V. Naiuby . 
 
 . . 1103 
 
 — V. Powell 
 
 , 
 
 1068 
 
 Kelley v. Tinley . 
 
 . 982 
 
 — V. Price 
 
 
 384 
 
 Kelner v. Le Mesurier 
 
 . . 901 
 
 — V. Pritchard . 
 
 
 1002 
 
 Kellovf V. Rowdea 
 
 . 532 
 
 — 0. Provincial Insurance 
 
 Co. 
 
 973, 
 
 Kelly 1). Clubbe 
 
 . . 539 
 
 
 
 974 
 
 — V. Lawrence 
 
 . 847 
 
 — 1'. Eadford . 
 
 
 299 
 
 — V. Partington 1206, 
 
 1213, 1216 
 
 — V. Reynolds 
 
 , 
 
 629 
 
 — V. Solari 
 
 98, 99 
 
 — V. Robins . 
 
 
 371 
 
 — ■». Webster 
 
 782, 783 
 
 — V. Robinson 
 
 
 63 
 
 Kemble v. Farren . 
 
 . 193 
 
 — V. Ryde 
 
 , 
 
 118 
 
 — ,>. Mills 
 
 134, 139 
 
 — V. Ryder . 
 
 
 173 
 
 Kemeys v. Proctor 
 
 . 213 
 
 — V. Salter 
 
 
 656 
 
 Kemp V. Cory . 
 
 . . 1159 
 
 — V. Simpson 
 
 
 854 
 
 — ■■!/. Derrett . 
 
 63], 634 
 
 — V. Smith 
 
 
 142 < 
 
 • — 1/. Finden 
 
 . . 93 
 
 — -c Stordy 
 
 
 523 
 
 — V. Halliday 
 
 . 882 
 
 — u. Tanner 
 
 
 716 
 
 Kempsore v. Saunders 
 
 . . 115 
 
 — V. Tapling 
 
 
 1073 
 
 Kempster v. Nelson 
 
 . 1152 
 
 — V. Tarleton . 
 
 
 1319 
 
 Kendillon v. Maltby . 
 
 . . 1206 
 
 — V. Vaughan 
 
 
 857 
 
 Kendrick v. Lomax 
 
 . 313 
 
 — V, Walte 
 
 5£ 
 
 , 132 
 
 Kenebel v. Scrafton . 
 
 820, 821 
 
 — V. Williams 391, 75( 
 
 ,790, 
 
 1082 
 
 Keniston v. Goodhall . 
 
 . 235 
 
 — * V. Winkworth . 
 
 
 1308 
 
 Kennaway v. Treleavan 
 
 . . 789 
 
 — V. Wylie 
 
 
 42 
 
 Kennett v. Milbank 
 
 . 173 
 
 — V. Yates 
 
 , 
 
 1100 
 
 Kennej v. May 
 
 . . 605 
 
 Jordan v. Twells . 
 
 
 471 
 
 Kenrick v. Homer 
 
 . 11 
 
 Jorden v. Money 
 
 , 
 
 778 
 
 — V. Taylor 
 
 . . 1081 
 
 Jordin v. Crump . 
 
 , 
 
 832 
 
 Kensington v. Inglis . 8S6, 890, 961 
 
 Jory «. Orchard 
 
 
 857 
 
 Kent V. Burgess 
 
 . . 25 
 
 Josling V. Kingsford 
 
 . 
 
 574 
 
 — V. Huskinson 
 
 . 794 
 
 Josselyn v. Lacier 
 
 
 270 
 
 Kenworthy 4). Schofield 21 C 
 
 , 784, 800, 
 
 Joule «. Jackson . 
 
 
 591 
 
 
 802, 803 
 
 Jourdain v. Wilson . 
 
 
 446 
 
 Kenyon v. Hart 
 
 . . 838 
 
 Judd V. Evans 
 
 , 
 
 490 
 
 Kepp V. Wiggett . 
 
 . 491 
 
 Judsou V. Etherbridge 
 
 , 
 
 1319 
 
 Kerby v. Harding . 
 
 592, 604 
 
 Julian V. Shobrooke 
 
 
 284 
 
 Kerrison v. Cole . 
 
 . 422 
 
 Juxoro V. Thornhill . 
 
 
 133 
 
 ■ii. Dorrien . 
 Kerry, Earl of, v. Thorley . 
 
 . . 1304 
 . 690 
 
 Kaines v. Knightley 
 
 
 872 
 
 Kershaw v. Bailey . 
 
 . . 989 
 
 Karver v. James 
 
 
 176 
 
 — ii. Ogden . 
 
 . 797 
 
 Kay V. Brookman . 
 
 
 494 
 
 Kerswell v. Bishop . 
 
 . . 1177 
 
 — V. De Pienne, Duchess of 
 
 
 240 
 
 Kettle V. Bromsall 
 
 . 581 
 
 — V. Grover 
 
 
 857 
 
 Kewley v. Ryan 
 
 879, 950 
 
 Kaye v. Bolton 
 
 ^ , 
 
 421 
 
 Key V. Cotesworth 
 
 . 1234 
 
 — V. Denew 
 
 . 
 
 197 
 
 — V. Hill . 
 
 . . 527 
 
 — 1/. Button 
 
 56, 65, 66 1 
 
 Keyse v. Powell . 
 
 . 654 
 
 ICeable v. Payne . 
 
 . 
 
 71 
 
 Keyser v. Scott 
 
 . . 94S 
 
 Keane v. Boycott 
 
 , , 
 
 162 
 
 Keyworth v. Hill . 
 
 . 1309 
 
 ICearsey v. Carstairs 
 
 . 
 
 432 
 
 Kidd V. Walker 
 
 . . 327 
 
 Kearslake v. IVIorgan 
 
 150 
 
 151 
 
 Kiddell v. Burnard 
 
 . 570 
 
 Kearsley v. Cole . 
 
 312 
 
 315 
 
 Kidgill V. Moor 
 
 . . lOS'i 
 
 Keate v. Temple 
 
 , 
 
 771 
 
 Kidston v. The Bmp. Marine 
 
 Ass. 
 
 Keates v. Cadogan, Earl of . 
 
 
 557 
 
 Co 
 
 . 883 
 
 — -ij, Whieldon . 
 
 , 
 
 338 
 
 Kilby V. Wilson 
 
 . . 1095 
 
 Keeble v. Hiokeringill . 
 
 
 835 
 
 Kildare, Lord, v. Fisher 
 
 . 627 
 
 Keech v. Hall . 
 
 614 
 
 674 
 
 Kilner i;. Bailey 
 
 . . 488 
 
 Keene v. Deardon . 
 
 
 684 
 
 Kilnitz V. Surrey . 
 
 . 795 
 
 — 11, Bee . 
 
 621 
 
 694 
 
 Kilshaw v. Jukes 
 
 1091, 1107 
 
 — •;;. Keene . 
 
 
 327 
 
 Kilvington v. Stevenson . 
 
 . 183 
 
 Keighley v. Goodman 
 
 
 198 
 
 Kine v. Beaumont . 
 
 . . 325 
 
 Keightley v. Watson 
 
 '415 
 
 417 
 
 — V. Evershed . 
 
 . 859 
 
 Keir v. Leeman 
 
 
 71 
 
 — V. Sewell 
 
 . . 1200 
 
liv 
 
 NAMES OF CASES. 
 
 
 PAGE 
 
 King V. Bickley. . 
 
 . 307 
 
 — V. Boston 
 
 . . 571 
 
 — V. Bulcock . 
 
 . 1137 
 
 — V. England 
 
 . . 604 
 
 — V. Fraser 
 
 . 5.46 
 
 — V. Gillett . 
 
 . . 167 
 
 — V. GloTer 
 
 . 891 
 
 — V. Griffin 
 
 . . 982 
 
 — V. Hoare 
 
 . 181 
 
 — V. Jones . , 
 
 438, 439, 713 
 
 — V. Lake 
 
 . 982 
 
 — V. Meredith 
 
 360, 361 
 
 — V. Milson 
 
 . 1301 
 
 — V. Phippard 
 
 . . 51 
 
 — V. Taylor 
 
 . 128 
 
 — The, V. Bishop of Chester . 97 | 
 
 — V. Thorn . 
 
 . . 299 
 
 — V. Walker . 
 
 . 907, 960 
 
 — V. Wilson 
 
 . 69, 773 
 
 Kingdon v, Nottle . 
 
 . 439, 713 
 
 Kingsdale v. Mann . 
 
 . . 683 
 
 Eingsford v. Marshall 
 
 883, 884, 885 
 
 — V. Merry . 
 
 . 1238, 1279 
 
 Kingston v. Knibbs 
 
 . 936 
 
 — V. Long 
 
 . . 334 
 
 — V. Preston 
 
 . 466 
 
 Kinlook v. Craig 
 
 . : 740 
 
 — V. Neville . 
 
 . 1079 
 
 Kinnersley v. Mussen 
 
 . . 529 
 
 Kinnitz v. Siirry . 
 
 . 806 
 
 Kirbridge v. Dyke 
 
 . . 523 
 
 Kirby v. Sadgrove . 
 
 . 381 
 
 — -o.- Smith . 
 
 . . 935 
 
 Kirchner v, Venus . 
 
 . 734 
 
 Kirk V. Blurton 
 
 265, 1097 
 
 Kirkham v. Hargreaves . 
 
 . 364 
 
 — V. Marter . 
 
 . . 768 
 
 — V. ShaiTcross . 
 
 . 72 
 
 Kirkman v. Shawoross 
 
 . . 1316 
 
 Kirleyt). Lee 
 
 . 134 
 
 Kirtland v. Ponnsett . 
 
 . . 1338 
 
 Klrton V. Braithwaite . 
 
 . 188, 191 
 
 Kirwan v. Kirwan . 
 
 . 1101, 1106 
 
 Kist V. Atkinson . 
 
 . 99 
 
 Kitchen v. Buckley . 
 
 . . 443 
 
 Kitson V. Fagg 
 
 . 524, 525 
 
 Kleinworfc v. Shepard 
 
 . . 899 
 
 Knatohbull v. Fearnhead 
 
 . 707 
 
 Knibbs v. Hall . 
 
 . . 100 
 
 Knight V. Benett . 
 
 . 586, 1158 
 
 — V. Boughton . 
 
 . . 543 
 
 — V. Bourne . 
 
 . 584, 1329 
 
 — V. Cambers . 
 
 . . 109 
 
 — V. Cambridge . 
 
 901, 902, 904 
 
 — V. Clements . 
 
 . . 276 
 
 — V. Crockford 
 
 . 800 
 
 — V. Egerton . 
 
 . . 605 
 
 — V. Faith . 
 
 . 907 
 
 — V. Gibbs 
 
 . . 1206 
 
 — V. Gravesend Water Co. . 413 
 
 — V. Pocoek 
 
 . 31, 33 
 
 — V. Quarles . 
 
 . 713 
 
 — V. Woore 
 
 . . 1274 
 
 Knill V. Williams . 
 Knobel v. Fuller 
 Knowles V. Michel. 
 
 — V. Kichardson 
 Koebel i). Saunders 
 Kooystra v. Lucas 
 Koster v. Eason 
 
 [ — V. Innes 
 
 — V. Keed 
 Kruger v. Wilcox 
 
 PAGE 
 
 . 274 
 . 999 
 126, 783 
 . 1070 
 . 954 
 . 1267 
 . 732 
 . 895 
 . 895 
 740 
 
 Kynaston v. Shrewsbury, Mayor of . 1043 
 
 La Banoa Naziokale Sede w To 
 
 RING V. Hamburger 
 Lacaussade v. White . 
 Lacey v. Forrester . 
 laohlan v. Keynolds . 
 Lackington v. Atherton 
 Laoon v. Higgina 
 
 — V. Hooper . 
 Ladd V. Lynn . 
 
 — V. Thomas . . 604, 
 Lade v. Holford 
 
 — V. Shepherd . 
 Laiitte v. Slatter 
 Lafone v. Smith 
 Laidler v. Burlinson 
 Laird v. Pim . . 139, 
 Lake v. King 
 
 — V. Eaw . 
 
 — V. Smith 
 Lamb v. Attenborough 
 
 — V. Bunce 
 Lambe v. Micklethwaite 
 Lambert v. Hepworth 
 
 — V. Cakes 
 Lamburn v. Cruden 
 Laming v. Cooke 
 Lament v. Southall 
 Lampleigh v. Brathwait 
 Lampon v, Corke . 
 Lamprell v. Bilierioay Union 
 Lanauze v. Palmer 
 Lancashire v. Killingworth 
 Lancaster v. Eve 
 Lancefield v. Allen 
 Landman v. Entwistle 
 Lane, Exp. 
 
 — V. Bennett . 
 
 — V. Burgfiart 
 
 — V. Chapman . 
 
 — V. Cotton . 
 
 — V. Degberg . 
 
 — V. Drinkwater 
 
 — V. Goodwin . 
 
 — V. MuUins 
 
 — D. Nixon 
 
 — ■». Tewson 
 Lang V. Anderdon . 
 
 — V. Nevill . 
 Langdale v. Mason . 
 
 — V. Trimmer 
 
 112 
 
 320 
 
 220 
 
 1229, 1238 
 
 25 
 
 630 
 
 234 
 
 610, 1162 
 
 617 
 
 1245, 1264 
 
 . 290 
 
 . 995 
 
 . 1283 
 
 140, 460 
 
 . 721 
 . 647 
 
 743, 747 
 . 67 
 . 160 
 . 1154 
 . 294 
 
 90, 1048 
 . 811 
 
 600 
 
 611 
 . 64 
 . 103 
 . 161 
 . 325 
 . 461 
 . 1294 
 . 715 
 . 1089 
 . 773 
 . 178 
 . 773 
 . 279 
 . 505 
 . 60 
 . 416 
 . 18 
 . 321 
 . 953 
 . 584 
 . 939 
 . 789 
 . 978 
 303, 306 
 
NAMES OF CASES. 
 
 Iv 
 
 PAOE 
 
 Langden v. Stokes . . . .167 
 Langford v. Pitt . . . . 218 
 
 — V. Tiler, Administratrix of 1283 
 
 — V. Woods . . . . 47 
 Langham v. Bewett . . . 238 
 Langhorn «. Allnutt . . 948,969 
 
 — V. Cologau . . . 873 
 
 — V. Hardy . . . . 878 
 Langridge v. Levy . . . 559, 560 
 Langston v, Corney . . . . 318 
 Langton v. Horton .... 1178 
 
 — V. Hughes . . . . 62 
 Lanyon v. Blanchard . . 1316 
 Larohin v. WUlan . . . . 520 
 Larlcins v. Larkins . . .819 
 Larocke v. Oswin . ... 952 
 Lasseuce v. Tierney . . .778 
 
 Last V. Dinn 1342 
 
 Latcli V. Kumer Railway Co. . . 351 
 
 Laughter v. Pointer . . 1054, 1056 
 
 Laughwell v. Palmer . . . 477 
 
 Launock v. Brown . . . . 1262 
 
 Lautour v. Teesdale ... 23 
 
 LaTahre v. Wilson . . . . 950 
 
 Laveroni v. Drury . . . .896 
 
 Law V, Hodson . . . . . 73 
 
 — i>. Hollingsworth . . . 953 
 — ■ V. Law . . . . . 505 
 
 Lawler v. Kershaw . . .1092 
 
 Lawrence v. Aberdein . . . 896 
 
 — V. Hedger . . .856 
 
 — -I). Potts . . . . 208 
 
 — V. Sydehotham . 880, 952 
 
 — V. Walker . . . . 478 
 Lawrenson v. Hill . . . .854 
 Lawry v. Ackenhead . . . .1213 
 Laws V. B.ands .... 305 
 Lawson v. Langley . . 385, 1273 
 
 — -v. Story .... 609 
 Lawton v. Lawton . 1292, 1294, 1296 
 
 — V. Salmon .... 1292 
 Layng v. Payne . . . 603, 504 
 Laythoarpt). Briant . 765, 791, 802 
 
 — V. Bryant . . . . 666 
 
 Layton v. Hughes . . . . 73 
 
 — V. Hurry . . . . 603 
 Lazarus v. Cowie . . . 270, 281 
 Le Bret v. Papillon . . . . 194 
 Le Caux i>. Eden .... 849 
 Le Cheminant v. Pearson . . . 921 
 Le Oouteur o, London and South- 
 western Kailyay . . 349, 354 
 
 Le Cren, Exp 1029 
 
 Le Fanu v. Malcolmson 990, 992, 1209 
 Le Feuve v. Lankester . 1126, 1129 
 Le Mason v. Dixon . . .710 
 
 Le Mesurier v. Vaughan . . . 876 
 Le Vaux v. Berkeley . . 180, 181 
 Lea V. Barber . . , . . 770 
 
 — V. Minne .... 246 
 Leach v. Buchanan . . . . 323 
 
 — . V. Thomas .... 1294 
 Leadbitter «. Farrow. . . . 264 
 
 Leader v. Homewood 
 
 PAGE 
 . 1295 
 
 Leafu. Tuton . 
 
 146, 766 
 
 Leafe v. Box . 
 
 . 526 
 
 Leake v. Loyeday 
 
 . . 1311 
 
 Lean v. Sohutz 
 
 . 239 
 
 Learoyd v. Robinson . 
 
 . . 746 
 
 Leary v. Patrick . 
 
 . 853 
 
 Leatham v. Terry 
 
 . . 918 
 
 Leather Cloth| Co., The, 
 
 V. The 
 
 American Leather Cloth Co. . . 564 
 
 Leathley v. Hunter 
 
 . 893, 947 
 
 Leohmere v. Fletcher 
 
 . . 173 
 
 Lee V. Arnold 
 
 . 440 
 
 — V. Bayes . 125, 221, 1277, 1324 
 
 — V. Cooke 
 
 . 613 
 
 — !;. Griffin . 
 
 . . 792 
 
 — V. Huson 
 
 . 996 
 
 — V. Lester . 
 
 . . 519 
 
 — V. Libb . 
 
 . 814 
 
 — V. Muggridge 
 
 . . 65 
 
 ■ — V. Munn . 
 
 . 217 
 
 — V. Riley 
 
 . . 1249 
 
 — V. Rogers 
 
 . 168 
 
 — V. Smith 
 
 . 762 
 
 Leech v. Davys , 
 
 . . 522 
 
 Leeds v. Burrows . 
 
 . 87 
 
 — V. Cheetham . 
 
 . . 407 
 
 — V. Cromptoa. 
 
 432 
 
 — 0. Lancashire . 
 
 . . 332 
 
 — „. Wright . 
 
 . 1222, 1236 
 
 Leftley v. Mills . 
 
 291, 292 
 
 Legatt V. ToUervey 
 
 . 1014 
 
 Legg V. Evans . 
 
 . . 1320 
 
 Legge V. Boyd 
 
 47, 861 
 
 — f. Edmunds 
 
 . . 673 
 
 — V. Harlook . 
 
 . 479 
 
 — V. Thorpe 
 
 . . 325 
 
 Legh 1). Legh . 
 
 . . 614 
 
 — V. Lewis 
 
 . 509 
 
 Leicester, Earl of, ».^Waltei 
 
 . . 999 
 
 — V. Rose . 
 
 . 77 
 
 Leigh V. Baker . . 31 
 
 , 33, 316, 317 
 
 — V. Hind 
 
 . 500 
 
 — -0. Kent . 
 
 . . 552 
 
 — V. Paterson . 
 
 . 192 
 
 — 0. Thornton 
 
 170, 645 
 
 Lekeux v, Nash 
 
 . 449 
 
 Lemayne v. Stanley . 
 
 . . 814 
 
 Lemere v. Elliot 
 
 . 126 
 
 Lempriere v. Humphrey . 
 
 . . 1254 
 
 — V. Paaley 
 
 . 1320 
 
 Lemun v. Fooke 
 
 . . 705 
 
 Leneret v. Eivett . 
 
 . 132 
 
 Lenton v. Cook . 
 
 : . 1320 
 
 Leroux v. Brown . 
 
 '176, 765, 790 
 
 Leslie v. Pounds 
 
 . . 1084 
 
 Lester v, Lazarus . 
 
 . 198 
 
 Lettbridge v. Mytton 
 
 . . 480 
 
 — ■». Winter 
 
 . 1265 
 
 Lethulier's Case 
 
 . . 941 
 
 Leuckhart v. Cooper 
 
 . 1317 
 
 Levi V. Levi 
 
 . . 215 
 
 — V. Milne 
 
 . 1003 
 
Ivi 
 
 NAMES OF CASES. 
 
 
 PASE 
 
 
 PASE 
 
 L evieson v. Lane ^ 
 
 . 265, 1109 
 
 Littledale v, Dixon 
 
 . 935 
 
 Levy V. Barnard 
 
 . . 1316 
 
 Littlefield s;. Shee . 
 
 . . 65 
 
 — V, Green 
 
 . 794 
 
 Littlejohn, Exp. . 
 
 . 789 
 
 — V. Herbert, Lord 
 
 . . 139 
 
 Littler v. Holland . 
 
 . 479 
 
 — V. Yates 
 
 . 74 
 
 Littleton v. Hibbins 
 
 . 703 
 
 Leward v. Basely 
 
 . . 47 
 
 livie V. Janson . 
 
 . . 920 
 
 Lewes p. Eidge 
 
 . 440 
 
 Llewellyn v. Llewllyn . 
 
 . 59 
 
 Lewin v. Edwards . 
 
 . . 486 
 
 Llewelyn v. Winohworth . 
 
 . . 263 
 
 — v. Suasso 
 
 . 904 
 
 Lloyd V. Crispe . 
 
 431, 433 
 
 Lewis V. Clement 
 
 . . 984 
 
 — V. Howard 
 
 . . 296 
 
 — V. Cosgrave,. 
 
 . 572 
 
 — ■ V. Johnson . . . 
 
 . 81 
 
 — V. Farrell 
 
 . . 1012 
 
 — V. Lee 
 
 . . 62 
 
 — ■ V. Foy . 
 
 . 1063 
 
 — V. Lloyd . . 
 
 . 72 
 
 — V. Horde . 
 
 . . 334 
 
 — V, Oliver. 
 
 . . 269 
 
 — V. Lee . 
 
 . 238 
 
 — V. Peell 
 
 . 688 
 
 — V. Levy . 
 
 984, 985 
 
 — V. Petitjeau . 
 
 . . 24 
 
 — V. Morris 
 
 . 1009 
 
 — .». Keg. 
 
 . 1139 
 
 — V. Parkes 
 
 . . 626 
 
 — V. Epsbee 
 
 . . 647 
 
 — V. Eeilly . 
 
 . 1098 
 
 — ■». Tomkies . 
 
 . 427 
 
 — V. Roberts 
 
 . . 1199 
 
 Load V. Green . 
 
 . . 1278 
 
 — V. Ruoker . 
 
 . 919, 920 
 
 Loader ii. Kemp . 
 
 . 434 
 
 — V. Sapio . 
 
 . . 325 
 
 Lobb V. Stanley 
 
 . . 800 
 
 — D. Wallis . 
 
 . 1339 
 
 Lock V. Ashton . 
 
 . 45 
 
 — V. Walter 
 
 . . 1207 
 
 — V. De Burgh . 
 
 . 643 
 
 — V. ■Willis . 
 
 . 544 
 
 — V. Norborne 
 
 . 1136 
 
 Lexington v. Clarke . 
 
 . . 770 
 
 — V. Shermer . 
 
 . 489 
 
 Ley, Exp. 
 
 . 199 
 
 — V. Wright 
 
 . 466 
 
 — V. Anderton 
 
 . . 695 
 
 Lockett V, Nioklin . 
 
 . 811 
 
 Leykariff?). Ashford 
 
 . 274 
 
 Lookley v. Pye . 
 
 . 590 
 
 Liokbairaw v. Mason 278 
 
 , 740, 1239, 1316 
 
 Lockwood V. Salter 
 
 223, 251 
 
 Liddard v. Holmes 
 
 . 128 
 
 — V. Wood . 
 
 . . 11.56 
 
 — V. Kain 
 
 . . 670 
 
 Lookyer v. Offley . 
 
 901, 904 
 
 — V. Lopes . 
 
 . 458 
 
 Loder e. Kekule 
 
 . 580 
 
 Liddlow V. Wihnot . 
 
 . . 229 
 
 Lodge, Ee . . . . 
 
 . 1025 
 
 Liford's Case. 
 
 . 1251 
 
 Loeschman v. Williams^ . 1 
 
 228, 1235 
 
 Liggins V. Inge . 
 
 . 1076, 1086 
 
 Loudon Gas Light Co. v. Vestr 
 
 yof 
 
 Lightfpot V. Creed 
 
 . 92 
 
 Chelsea 
 
 . 137 
 
 Lightly V. Clou^ton . 
 
 . . 1063 
 
 — Bishop of, 0. Ffytche 
 
 509, 510 
 
 Lilleyj). Elwin 
 
 . 1049 
 
 — City of, V. -Clerke . 
 
 . 1136 
 
 Lillie V. Price . 
 
 992, 1213 
 
 — — V. Gony 
 
 . 85 
 
 Lilly V. Ewer 
 
 . 940 
 
 — Com. of, V. Bunt . 
 
 . 85 
 
 — w. Hays . 
 
 63, 120 
 
 — Dock Co. V. Sinnott 
 
 . 460 
 
 Lillywhite v. Devereux . 
 
 . 793 
 
 — Mayor of, v. Cole 
 
 . 454 
 
 Limland v. Stephens . 
 
 . . 1189 
 
 — Mayor of, &c., v. Pewtei 
 
 ers' 
 
 Limpers v. London General Omnibus 
 
 Co., the . 
 
 . 1073 
 
 Co., the . 
 
 . 1062 
 
 Long V. Allen 
 
 963, 966 
 
 Linbury v. Weightman 
 
 . . 66 
 
 — V. Hebb . 
 
 . 694 
 
 Lincoln's, Earl of, case . 
 
 . 822 
 
 — V. Moore 
 
 . 275 
 
 Lindenau v. Desborough 
 
 933, 973 
 
 — V. Orsi . 
 
 . 210 
 
 Lindo V Belisario . 
 — 0. Undsworth . 
 
 . 22 
 
 Longman, I). Pole . 
 
 . 1102 
 
 . . 304 
 
 Longmeid v. HoUiday . 244, 
 
 246, 559 
 
 Lindon v. Hooper . 
 
 . 100, 115 
 
 Longmore v. Eogers 
 
 . 197 
 
 Lindsay v. Gibbs 
 
 . . 1178 
 
 Longridge v. Dorville . 
 
 . CO, 149 
 
 — V. Limbert, 
 
 . 450 
 
 Longstaffi;. Meagoe 
 
 '. 1298 
 
 Lindus v. Melrose ' . 
 
 . . 261 
 
 Lonsdale, Earl of, v. Eigg . 
 
 . 833 
 
 Line v. Stephenson 
 
 . 412 
 
 Loosemore v. Eadford . 
 
 . 480 
 
 Linford v. Lake . 
 Linnegar v. Hodd . 
 
 . . 866 
 
 Loraine v. Thomlinson 
 
 964, 967 
 
 . ' 83 
 
 Lord 1). Midland Eail. Co. 
 
 . 367 
 
 Linsell v. Bonsor 
 
 . . 173 
 
 — V. Sydney, Commissioners t 
 
 f . 1075 
 
 Lmster v. Borrow . 
 
 . 840 
 
 — V. Wardle. . . i 
 
 )82, 1303 
 
 Lister?;, Turner 
 
 . . 1304 
 
 Lorymer.«. Smith . 
 
 . 221 
 
 Litt V. Cowley 
 
 . 1228 
 
 Lotan V. Cross . . . . 
 
 . .1287 
 
 Littlechild v. Banks . 
 
 . . 485 
 
 Lothean v. Henderson . 
 
 '.' 945 
 
NAMES OF CASES. 
 
 Lvii 
 
 
 PAGE 
 
 
 PAGE 
 
 Lougher v. Williams , 
 
 . . 438 
 
 Lyons-©. Martin 
 
 . . 1061 
 
 Lovelace v. Curry . 
 
 . 854 
 
 Lysat V. Bryant ., 
 
 . 288 
 
 Lovelesse's case . . 
 
 . . 537 
 
 Lysney v, Selby . 
 
 . . 579 
 
 Lovelli;. Martin . 
 
 . 1301 
 
 
 
 — V. Plumer 
 
 . . 522 
 
 Maahss v. Henderson 
 
 . 1316 
 
 — V. Smith 
 
 . 1075, 1081 
 
 Mabe v. Mabe . 
 
 . . 173 
 
 — .». Walker. 
 
 . . . . 142- 
 
 Maberley v. Robins 
 
 . 219 
 
 Lovelock V. Dancaster 
 
 647, 648 
 
 — V. Shepherd 
 
 793, 797 
 
 Loveridge v. Botham . 
 
 . . 205 
 
 M'Andrewi;. Bassett . 
 
 . 664 
 
 liovet V. Hawthorn . 
 
 . 1210 
 
 — V. Bell . 
 
 934, 958 
 
 Low V. Burrowes 
 
 . . 323 
 
 . — V. Electric • Telegraph 
 
 — V, Chifney 
 
 . 320 
 
 Company . 
 
 . . 357 
 
 Lowe V. Carpenter . 
 
 385, 1080, 1273 
 
 M 'Arthur v. Seaforth, -Lord . 
 
 . 192 
 
 — V. Harewood . 
 
 . . 1216 
 
 M'Call S.Taylor 
 
 . . 268 
 
 — 11. London and 
 
 North-Western 
 
 -M'Oallan v. Mortimer . 
 
 . 75 
 
 Kailway 
 
 . 1332 
 
 M'Carthyv. Abel . 
 
 . . 917 
 
 — V. Peers . 
 
 . . 420 
 
 — V. Colvin 
 
 . 122 
 
 — V. Peskett . 
 
 . 728 
 
 — V. Smith . 
 
 . . 83 
 
 — V. Eoss . 
 
 . . 1335 
 
 M'CIoney v. Wright 
 
 . 555 
 
 Lowfield V. Bancroft 
 
 52, 990 
 
 M'Oloughan v. Clayton 
 
 . . 868 
 
 Lewis v. Komney 
 
 . . 723 
 
 M 'Clure V. Dunkin 
 
 . 489 
 
 Lowry v. Bourdieu 
 
 107, 111, 113, 968 
 
 M'Combie v. Davies . 
 
 . . 1300 
 
 Lubbock V. Potts . 
 
 . 113 
 
 M'Connell v. Hector 
 
 . 890 
 
 — V. Tribe 
 
 . . 127 
 
 M'CuUock V. Royal Exchange Assur- 
 
 Lucan V. Smith 
 
 992 
 
 ance Company 
 
 . . 963 
 
 — Lord, r. Smith 
 
 . . 1213 
 
 M 'Donald v. Jopling 
 
 . 1188 
 
 Lucas V. Beach 
 
 . 1105 
 
 — V. Rooke . 
 
 . . 1007 
 
 — V. De la Cour 
 
 . . 1102 
 
 M'Donnell v. Pope . . 
 
 . 764 
 
 — V. Dorrien . 
 
 1240, 1315 
 
 M 'Dougall V. Claridge 
 
 . . 988 
 
 — V. Godwin 
 
 .479 
 
 M 'Ewan ©.Smith . - 
 
 1240, 1241 
 
 — V, Haynes .- 
 
 . 295 
 
 M'Parlane ©. M'Farlane 
 
 . 185 
 
 — V. Tarleton* 
 
 33, 612 
 
 M 'Geary, Exp . 
 
 . . 324* 
 
 — V. Worswick 
 
 . 98 
 
 M'Gregor v. Gregoi^ . 991, 992, 993 
 
 Lucend v. Craufurd 
 
 955, 966 
 
 — -v. Keily . 
 
 . . 200 
 
 Luckie i: Bushby . 
 
 . 923 
 
 — V. Lowe . 
 
 107, 114 
 
 Lucy V. Levington 
 
 . . 439 
 
 M 'Ileham v. Smith . 
 
 . . 1170 
 
 — V. Walrond . 
 
 . 694, 701, 702 
 
 M 'Iven V. Henderson 
 
 . 908 
 
 Ludford v. Barber 
 
 . . . . 474 
 
 M'Kane©. Johnson . 
 
 . . 1183 
 
 Ludlow, Mayor of, -u. 
 
 Charlton . 83 
 
 M'Kayu. Rutherford . 
 
 . 785 
 
 Ludwell V. Newman 
 
 . 429 
 
 M'Kewen v. Cotching 
 
 . . 3325 
 
 Lugg V. Lugg . 
 
 . . . . 820 
 
 M'Kinnell i). Robinson . 
 
 81, 108 
 
 Lnmley v. Gye 
 
 . 1063 
 
 M'Lachlan v. Evans . 
 
 . . 121 
 
 — . <!). Hodgson 
 
 . . 1344 
 
 M 'Laughlin v. Pryor 
 
 43, 1057 
 
 — V. Musgrave 
 
 . 488 
 
 M'Leod V. M'Ghie . 
 
 . . 1328 
 
 — V. Palmer 
 
 282, 293 
 
 — V. Wakley . 
 
 . 983 
 
 Lundie v. Robertson 
 
 . 66, 290 
 
 M 'Manus ©. Crickett . 
 
 . . 1061 
 
 Lxingwortby v. Hockmore . . . 232 
 
 — ©. North Staffordshire 
 
 Lutwich V. JUitton . 
 
 . 1250 
 
 Railway Co. . 
 
 . 356 
 
 Lyde v. Barnard 
 
 . . 663 
 
 M'Masters v. Schoolbred . 
 
 . . 912 
 
 — v. Russell . 
 
 . 1293, 1295 
 
 M'Neilage v. HoUoway . 
 
 243, 262 
 
 Lygo *. Newbold . 
 
 351, 1053 
 
 M 'Pberson v. Daniels 
 
 , . 1207 
 
 Lylly's case 
 
 . . 472 
 
 M'Quillin©. Cox . 
 
 . 487 
 
 Lynch ■«. Dalzell . 
 
 . 977 
 
 M'Swinneyii. Royal Exch. Ass 
 
 Co. 891 
 
 — V. Hamilton . 
 
 . . 935 
 
 Macdongle v. Royal Exch. Ass. 
 
 Co. . 884 
 
 — V. Knight . 
 
 . 1206 
 
 Macdowall v. Eraser . 
 
 932, 933 
 
 — V. Lynch 
 
 . . 764 
 
 Macgregor v. Horsfall 
 
 . . 927 
 
 Lynn v. Bruce 
 
 58, 147 
 
 — V. Rhodes 
 
 294, 324 
 
 — ■(!. Moody 
 
 . . 611, 1252 
 
 Mackaller v. Todderiok 
 
 . . 68 
 
 Lyon V. Reed 
 
 . 763, 764 
 
 Mackenzie v. Pooley 
 
 . 1194 
 
 — {'. Tomkies 
 
 . . 606 
 
 — V. Scott . 
 
 . . 732 
 
 — -0. Weldon 
 
 . 1286 
 
 — 11. Sligo Railway Co. 
 
 . 1041 
 
 Lyons v. De Pass 
 
 1278 
 
 Mackintosh v. Marshall . 
 
 933, 9^5 
 
 — „ V. Hyman . 
 
 . 390 
 
 — -D. Mitcheson . 
 
 . . 1196 
 
Iviii 
 
 NAMES OF CASES. 
 
 PAGE 
 
 Mackintosh v. Trotter . . . 1293 
 
 Maclae v. Sutherland . 265, 335, 1097 
 
 — ■». Dunn . . . .806 
 Maelellan v. Howard . ... 186 
 Macleod «. Snee . . . .270 
 Macrae v. Sutherland . . . 259 
 Madden v. Kempster . . .1320 
 Maddon v. White . . . . 631 
 Maddox v. Miller . . . .157 
 Magee v. Mark ..... 555 
 Maggsi;. Ellis . . . .552 
 Magnay v. Burt . . . . 1012 
 
 — V. Knight . . . .670 
 Magor V. Chadwick . . . . 1077 
 Mahoney v. Ashliu . . .282 
 Mahony ■u.Kekule . . . . 736 
 Maile v. Maun . . . .208 
 Mainprioe v. Westley . . . . 215 
 Mainwairing v. Leslie . . . 226 
 
 — -!). Sands . . . 227 
 Mainwaring v. Giles . . .1081 
 
 — V. Newman . . . 340 
 Maitland v. Goldney . . 1207, 1214 
 
 Major V. Major 477 
 
 Malachy v. Soper .... 1204 
 Malcombe v. Soott . . . . 120 
 Malcomson v. O'Dea . . 753, 756 
 Maldon, Mayor of, v. Wolvet . . 750 
 Mallalieu v. Hodgson ... 77 
 Mallan v. May . . 498, 499, 500 
 
 — v. Eadloff . . . .575 
 Mallet 1!. Batemau . . . . 770 
 Mallett V. Thompson . . .315 
 Mallocke v. Eastly . . . . 1254 
 Maltbyi). Murrels . . . .341 
 Manby v. Scott . . 158, 225, 234 
 
 — V. Witt . . . .988 
 Manhood v. Crick . . 150, 496 
 Mann v. Barrett .... 1064 
 
 — V. Davers . ... 851 
 
 — V. Forrester .... 1316 
 
 — V. Lang . . . 708, 727 
 
 — V. Lent . . . 207, 336 
 
 — i;. LoTejoy . . . 586 
 Manners v. Postan . , . . .493 
 Manning v. Flight . . . . 433 
 
 — ■!>. Gist . . . .941 
 ■ — V. Newnham . . . 886 
 Mansfield, Earl of, v. Blackbame . 1292 
 Mantz V. Goring .... 435 
 Manvell^. Thomson . . . . 1064 
 Maples V. Sidney .... 59 
 March v. Culpepper . . . . 55 
 
 — V. Ward . . . .336 
 Mardale T. Thelluson . ; . . 183 
 Mare v, Charles .... 263 
 Margetson v. "Wright . . 666, 571 
 
 Markby, Be 643 
 
 Market v. Johnson .... 4 
 Marks i>. Hamilton . . . 977 
 
 — V. Lahee 1162 
 
 •— V. Upton . . . .478 
 
 Marlow i>. Bitfield . . . . 158 
 
 Marriage v. Lawrence 
 
 . 1135 
 
 — V. Marriage 
 
 . . 513 
 
 Marriott v. Hampton 
 
 . 98 
 
 Marrow v. Turpin . 
 
 . . 541 
 
 Marryatts v. White 
 
 . 163 
 
 Marsden v. Eeid 
 
 879, 934, 961 
 
 Marsh v. Brace 
 
 . 541 
 
 — V. Bulteel 
 
 . . 482 
 
 — V. Hutchinson 
 
 239, 240, 241 
 
 — V. Keating 
 
 . . 1102 
 
 — V. Loader . 
 
 . 852 
 
 — V. Eobinson . 
 
 . . 968 
 
 — V. Vaughan . 
 
 . 1004 
 
 Marshall, In the goods of 
 
 . . 698 
 
 — V. Birkenshaw 
 
 . 59 
 
 — V. Broadhurst 
 
 . . 711 
 
 — V. Lynn . 
 
 . 810 
 
 — V. Newcastle and Berwick 
 
 Kailway 
 
 . . 350 
 
 — V. Pitman 
 
 . 1142 
 
 — V. Poole . 
 
 . . 326 
 
 V. Button . . 238, 242 
 V. The tnieswater Steam 
 
 Navigation Co. . 751 
 
 V. Newcastle and Berwick 
 
 Railway . . .350 
 V. York and Newcastle 
 
 Eailway 362, 366, 610 
 
 Marshalsea case 
 
 . . 850 
 
 Marsham v. Gibbs . 
 
 . 143 
 
 Marston v. Allen 
 
 . . 295 
 
 — V. Phillips 
 
 *. . . 1329 
 
 — V. Koe d. Fox 
 
 821, 822 
 
 Martin v. Andrews 
 
 . 102 
 
 — V. Blithmau . 
 
 . . 68 
 
 — V. Chauntry 
 
 . 333 
 
 — V. Davis 
 
 . . 648 
 
 — V. Gilham . 
 
 . 480 
 
 — V. Great Northern Eailway . 351 
 
 — V. Kesterton . 
 
 . . 1253 
 
 — ij. Lincoln . 
 
 . 1011 
 
 — V. Nutkin 
 
 . . 1070 
 
 — V. Porter . 
 
 . 1328 
 
 — V. Eoe . 
 
 . . 1298 
 
 — V. Smith 139, 
 
 145, 146, 626, 668 
 
 — V. Strachan 
 
 . 619 
 
 — V. Strong 
 
 . . 1200 
 
 — V. Temperley 
 
 . 1055 
 
 — V. Winder 
 
 . . 199 
 
 Martindale 1). Falkner 
 
 . 204 
 
 — v. Smith . 
 
 . . 1288 
 
 Martinez v. Gerber 
 
 . 1063 
 
 Martins v. tjpcher 
 
 . . 864 
 
 Martyn v. Gray 
 
 . 1108 
 
 — 11. Hind 
 
 . . 63 
 
 — V. Williams 
 
 35, 442, 629 
 
 Martyr v Bradley 
 
 . , 1297 
 
 Marvin v. Wallis . 
 
 . 795 
 
 Marzetti v. WUliams . 
 
 298, 382 
 
 Mash V. Densham . 
 
 . 573 
 
 Mason v. Farnell 
 
 584, 625 
 
 — -v. Hill 
 
 1075, 1076, 1077 
 
 — D. Hunt . 
 
 ... 283 
 
NAMES OF CASES. 
 
 lix 
 
 Mason v. Keeling , . 
 
 — V. Morgan 
 
 — ■!>. NichoUs . 
 
 — V. Paynter 
 
 — V. Enmsey , 
 
 — V. Sainsbury . 
 
 — V. Skurray . 
 
 — V. Welland 
 Massen v. Touehet . 
 Massey «. Johnson 
 Master v. Miller 
 Masters v. Barretts . 
 Mathews v. Jones . 
 Matlock V. Kinglake . 
 Matson v. Wharam 
 Matthew v. Blaokmore 
 
 — V. Port . 
 Matthews v. Biddulph 
 
 — V. Gary . 
 
 — -o. Hollings 
 
 — V. Osborne 
 
 — V. Sawell . 
 Mattock V. Kinglake . 
 Matta V. Hawkins . 
 Matures v. Westwood 
 Maugham v. Walker 
 
 V. Monmouthshire 
 
 Maund 
 
 Co. 
 Maun den v. Conyers 
 Having v. Todd 
 Mavor v. Pyne . 
 Mawbrey v. Cunningh; 
 Mawby, Exp. 
 Mawman v. Grillett . 
 Mawson v. Blane 
 May V. Brown 
 
 — V. Burdett 
 
 — V. Footner 
 
 — V. Harvey . 
 
 — V. Proby 
 
 — V. Taylor . 
 Mayburie v. Mudie 
 Maydhew v. Scott 
 Mayfield v. Wadsley 
 Mayhew v. Eames . 
 
 — (J. Herrick 
 
 — i>. Locke . 
 — ■ -v. Nelson 
 
 — V. Wardley 
 Maybo v, Buckhurst 
 Mayne v. Walter . 
 Mayor v. Steward 
 Mead v. Basbford . 
 
 PAGE 
 
 . 1250 
 
 . . 262 
 
 . 527 
 
 . . 682 
 
 . 265 
 
 . . 978 
 
 . 881, 885 
 
 . . 1330 
 
 . 489 
 
 469, 779, 863 
 
 . 58, 275 
 
 . . 342 
 
 . 534 
 
 . . 456 
 
 . 769 
 
 . . 401 
 
 . 675 
 
 . . 865 
 
 50, 862 
 
 . 103 
 
 . 624 
 
 763, 764, 1335 
 
 . . 460 
 
 . 1244 
 
 . . 439 
 
 . 551 
 
 Caual 
 
 . 1250 
 
 . . 1U53 
 
 . 344 
 
 . . 783 
 
 am . . 768 
 
 1018, 1023, 1111 
 
 . 1103 
 
 . . 155 
 
 997, 998, 1000 
 
 . . 1249 
 
 . 30, 32, 35 
 
 . . 1306 
 
 . 1170 
 
 . . 468 
 
 . 142 
 
 . . 946 
 
 583, 584, 781 
 
 . 742 
 
 1307, 1310 
 
 852, 855 
 
 . 352 
 
 . 446 
 
 . 943 
 
 . 409 
 
 . 185 
 
 . 997 
 
 881, 888 
 
 . 298 
 
 — V. Davison 
 
 — V. Toung . 
 
 Hearing v. Hellings 
 
 Heath, Bishop of, v. Hayor of Win- 
 chester 
 
 Mechelen v. Wallace . 137, 586, 770 
 
 Megit V. Johnson .... 689 
 Meigh V. Meredith 
 Heller v. Palfreyman 
 
 111 
 815 
 
 795 
 524 
 
 Mellin v. Taylor 
 Helling v. Leak 
 Hellish V. Andrews 
 HeUor v. Baddeley 
 
 — V. Spaterman 
 Mellors v. Shaw 
 Melville v. Be Wolf 
 Memot V. Bates 
 Mennett v. Bonham 
 fflennie v. Blake . 
 Mercer v. Jones 
 Meredith v. Heigh . 
 
 — V. Eand 
 Heriton v. Coombes 
 ^ — V. Gilbee 
 Jfferrill v. Josselyn . 
 Merrit v. Lane . 
 Merry v. Kingsford 
 Herryweather v. Nixen. 
 Heryweather v. Turner . 
 Mersey Docks Board, The, v. 
 
 PAGE 
 
 . 28 
 
 . 658 
 
 907, 911, 948, 951 
 
 . 1013 
 
 371, 374, 388 
 
 . 1060 
 
 . . 1185 
 
 . 491 
 
 . . 930 
 
 . 1142 
 
 1327, 1328 
 
 . 797 
 
 . 680 
 . 1257 
 . 594 
 . 512 
 . 140 
 . 88 
 . 95 
 . 992 
 Gibbs 1084, 
 
 1085 
 
 Mersey Docks v. Jones . . . 36 
 Mersey and Irwell Navigation v. 
 
 Douglas 1086 
 
 Mesnard v. Aldridge . . . . 569 
 Messenger i;. Armstrong . . 548,640 
 
 — -0. Eobson . . . . 551 
 Messent v. Reynolds . . . 411 
 Messing v. Kemble . . 610, 1252 
 Mestaer v. Atkins .... 1317 
 Metoalf s case 5, 6 
 
 — V. Brighton Railway . 353, 365 
 
 — V. Fowler . . . . 217 
 
 — V. Lnmsden . . . 1054 
 
 — V. Markham . . . . 990 
 
 — V. Richardson . . . 286 
 
 — v. Roe 627 
 
 — V. Rycroft . . . 419, 1102 
 Methold V. Noright . . . . 647 
 Metropolitan Saloon Omnibus Co. i>. 
 
 Hawkins . . . 981, 1003 
 Metznerw. Bolton . . .34, 1048 
 Hews V. Carr . . . 213, 803 
 Meyer v. Everth . . 557, 667, 872 
 
 — V. Gregson . . . . 962 
 Heyerstein v. Barber , . . 1241 
 Michael v. Alestree . . . . 1062 
 
 — V. Scorkwith . . . 491 
 
 — 0. Tredwin . . . . 954 
 Micheleu v. Wallace . . .784 
 Michell V. Neale . . . . 45 
 
 — V. Williams . . . 1007 
 Middleditch v. Ellis . . 126, 401 
 Hiddlemore v. Goodall 247, 408, 478 
 Hiddleton's case . . . .701 
 
 — V. Brewer . . . 766 
 
 — V. Bryan . . .528 
 -r- V. Onslow, Lord . . 78 
 
 — V. Price . . 862 
 
 — ■!>. Sandford . . . 495 
 Middlewood v. Blakes . . .880 
 Midgley v. Lovelace . . 442 
 
k 
 
 NAMES OF CASES. 
 
 Midgeley (falsely called Wood) v. 
 
 Wood .... 
 
 . 16 
 
 Midland Railway v. Bromley 
 
 . . 366 
 
 Mier v. Brown 
 
 . 307 
 
 Milbourne v. Ewart . . 
 
 . . 516 
 
 Miles V. Gorton 1237, 1241, 
 
 1290, 1318 
 
 — V. Steward . 
 
 . 132 
 
 — "v. Williams 
 
 . 2i8, 252 
 
 Milgate v. Kebble . 
 
 1289, 1290 
 
 Milford, The . 
 
 . . 1191 
 
 Mill u. New Forest, Commissioners 
 
 of ... . 
 
 . 383 
 
 Miller v. -Aris . 
 
 . . 123 
 
 — •</ . Attree 
 
 . 1315 
 
 — u. Biddle 
 
 . 330, 335 
 
 — o. Green 
 
 . 590 
 
 — 0. Tetherington 
 
 . . 882 
 
 — .0. Thompson 
 
 330, 335 
 
 — V. Woodfall . 
 
 . . 911 
 
 Milles V. Fletcher . 
 
 . 912 
 
 — ti. Milles 
 
 . . 489 
 
 Milligan v. Wedge . 
 
 . 1055 
 
 Mills V. Alderbury Union . 
 
 . . 97 
 
 — V. Ball . . 1225 
 
 1227, 1235 
 
 — V. Barber . 
 
 . 278, 320 
 
 — V. Barker . . 
 
 . . 337 
 
 — ■!!. Blackall . 
 
 . 1186 
 
 — V. Bottomly 
 
 . . 1333 
 
 — V. Colchester, Mayor of 
 
 755, 756 
 
 — V. Fowkes . 
 
 . 162 
 
 — V. Goff . 
 
 . . 636 
 
 — -I). Graham . 
 
 . 159, 581 
 
 
 . . 417 
 
 — V. Mills. 
 
 . 1004, 1005 
 
 — i>. Spencer 
 
 1000, 1215 
 
 Milne V. Graham . 
 
 . 329 
 
 — V. Prest . 
 
 . . 284 
 
 Milner, Exp. 
 
 . 1025 
 
 — V. Duncan 
 
 . . 97 
 
 — V. Field . 
 
 . 457 
 
 — v. M'Lean 
 
 . . 48 
 
 — v. Milnes . 
 
 . 243 
 
 Milnes, In the goods of 
 
 . . 698 
 
 — V. Branch . 
 
 . 443 
 
 — V. Duncan 
 
 . . 98 
 
 Milton V. Green 
 
 . 857 
 
 Milward v. Caffin 
 
 . . 1142 
 
 — V. Hibbert 
 
 96, 924 
 
 — V. Temple . 
 
 . . 493 
 
 Miner v. Gilmour . 
 
 . 1075 
 
 Mines v. Sculthorpe . 
 
 . 91, 778 
 
 Minshall v. Lloyd . 
 
 .1291, 1294 
 
 — V. OaUes 
 
 435, 446 
 
 Mitchel V. Ede 
 
 . 1289 
 
 — V. Reynolds . 
 
 . 70, 498 
 
 Mitchell V. J3aring . 
 
 285, 301 
 
 — V. Craswellcr 
 
 34, 1062 
 
 — . V. Darthez 
 
 . 90 
 
 — V. Edie 
 
 . . 909 
 
 1. Foster . 
 
 . 854 
 
 — V. Jenlcins . 
 
 . . 1009 
 
 — V. Johnson 
 
 . 494 
 
 — 1!. Milbank . 
 
 . . 63 
 
 Mitchell V. ,01dfield 
 Mitcheson v. Oliver . 
 Mitchinson v. Hewson . . 
 Mizen v. Pick . 
 Mobile, The . 
 Moens v. Heyworth . 
 Moffat V. Davenish 
 
 — V. Parsons 
 Moffatt V. Dickson . 
 
 — V. Van Millingen 
 Moggridge v. Jones 
 Moir V. Royal Exchange Assurance 
 
 Company 
 Moises i>. Thornton - 
 Moles V. Devlin . 
 Molineux v. Fulgam 
 Mollett V. Brayne 
 
 — V. Wackerbarth . 
 MoUoy V. Delves 
 Molony v. Gibbons 
 
 — V. Kennedy . 
 Mondel v. Steel 90, 99, 
 
 Money v, Jordan. . 
 
 — V. Leach 
 Monk V. Butler 
 
 — V. Cooper 
 
 — t. Whittenbury 
 Monprivatt v. Smith . 
 Montague v. Benedict . 
 Montgomery ■;;. Egginton . 
 Montoya v. London Assurance 
 
 pany 
 Montrion v. Jefferys 
 Moody V. Pheasant . . 
 
 — o. Surridge . 
 Moon V. Raphael 
 Moor V. Vanlute . 
 Moore v. Bush ell 
 
 — V. Campbell . 
 
 — V. Darton 
 
 — V. Drinkwater 
 
 — V. Dublin and Meath 
 Company 
 
 — V. Jones 
 
 — ■I). Meagher 
 
 — V. Pain 
 
 — V. Plymouth, Lord 
 
 — V. Pyrke 
 
 — V. Rawson 
 
 — V. Shutter . 
 
 — - V. Taylor 
 
 — , V. Wilson 
 
 — V. Wolsey 
 Morant v. Chamberlain . 
 Moravia v. Sloper 
 Morok V. Abel 
 Mordy v. Jones . 
 More V. Manning . 
 Moiewood V. Poleak . 
 Morgan v. Bridges . 
 
 — V. Griffith . 
 
 — V. Leach . , 
 
 PAGE 
 
 . 1314 
 
 1194, 1195 
 
 66, 251 
 
 229 
 
 679 
 
 1187 
 
 79 
 
 762 
 
 188 
 
 1028 
 341 
 207 
 
 938 
 
 1136 
 
 314 
 
 682 
 
 764, 1333 
 
 805 
 317 
 
 237 
 
 192, 206, 207, 
 
 679 
 
 . 477 
 
 . . 857 
 
 . 676 
 
 . 407, 434 
 
 . 745 
 
 . . 1263 
 
 . 235 
 
 . 891, 892 
 
 Com- 
 
 . 207 
 . 528 
 . 881 
 . 1328 
 . 333 
 . 120 
 806, 810 
 . 1282 
 . 590 
 Railway 
 
 . . 584 
 . 454 
 
 . . 1205 
 . 329 
 
 . . 833 
 
 . 94 
 
 1074, 1076 
 
 . 1004 
 
 . . 948 
 . 361 
 
 . . 976 
 . 1266 
 
 . . 863 
 . 113 
 
 . . 894 
 . 297 
 
 . . 1193 
 . 864 
 
 . . 1147 
 . 865 
 
NAMES OF CASES. 
 
 Ixi 
 
 
 PAGE 
 
 
 PASB 
 
 Morgan v. lute . 
 
 . . 652 
 
 Mount V. Larkins 
 
 . 940, 949, 950 
 
 — .0. Pebrer . 
 
 . 145 
 
 Mountacue v. Maxwell . . 
 
 . 78 
 
 — V. Pike . 
 
 32, 33, 35, 418 
 
 Mountague v. Perkins 
 
 . . 286 
 
 — V. Powell . 
 
 1274, 1328 
 
 Mountford v. Gibson 
 
 . 700, 701 
 
 — V. Price 
 
 . 872 
 
 Mountney v. Watton . 
 
 . . 994 
 
 ■ — v, Richardson 
 
 . 207 
 
 Mountnoy v. Collier 
 
 . 620, 1340 
 
 — -ii. Slaughter . 
 
 . . 430 
 
 Moxon V. Atkins 
 
 936, 962 
 
 — ■ V. Thomas- 
 
 . 694, 701 
 
 Mucklow V. Mangles 
 
 . 1283 
 
 — V. Thome 
 
 . . 152 
 
 Muilman v. D'Eugino 
 
 . . 287 
 
 — V. Vale of Neath E ail. 'Co., 
 
 Mullett V. Hulton . 
 
 . 1000 
 
 The . . 
 
 . . 1060 
 
 Munday v. JoUiffe. . 
 
 . . 783 
 
 Moriarty v. Brookes . 
 
 . 47 
 
 — Vi Stubbs 
 
 . 856, 858 
 
 Morice «. Lea . 
 
 . . 329 
 
 Munro <w. De Chemant 
 
 . . 236 
 
 Morley v. Attenhorough . 
 
 . 576 
 
 Munroe «..Pilkington 
 
 . 486 
 
 — V. Boothby. 
 
 788, 789 
 
 Mure V. Kaye . 
 
 . . 866 
 
 — V. Culverwell 
 
 . 281 
 
 •Murlyv. M'Dermott 
 
 1253, 1275 
 
 — ■«. Gaisford 
 
 . . 1054 
 
 Murphy v. Carralli . 
 
 . . 1057 
 
 — IV. Hay 
 
 1217, 1230 
 
 Murray t).. Barber . 
 
 . 237 
 
 — V. Inglis 
 
 . . 182 
 
 — V. East India Co. 
 
 169, 257, 
 
 — V. Pragnell . 
 
 . 1068 
 
 
 258, 264, 723 
 
 Morning v. Knopp 
 
 . . 611 
 
 — V. Somerville. 
 
 . . 1109 
 
 Morrell v. Frith 
 
 . 170 
 
 — V. Stair, Earl of 
 
 492, 513, 811 
 
 — . V. -Martin 
 
 . 850, 862, 863 
 
 — 11. Wilson . 
 
 . 538 
 
 Morres v.^ Barry 
 
 . 682 
 
 Musohamp v. Lancaster and Preston 
 
 Morrice v. Bank of England . . 722 
 
 Railway 
 
 347, 366 
 
 — V. Dillon . 
 
 . 942 
 
 Musoot V. Ballett . 
 
 . 467 
 
 Morris and wife v. Norfolk . . 252 
 
 Musgrave v. Cave 
 
 371, 373 
 
 — V. Chapman 
 
 . 68 
 
 — -ii. Emmerson . 
 
 . 588 
 
 — 0. Cleasby 
 
 . . 732 
 
 Muskett V. Hill 
 
 . . 629 
 
 — u. Dimes . 
 
 . . . 834 
 
 Muspratt v. Gregory 
 
 . 691 
 
 — c. Hayward . 
 
 . . 621 
 
 Mus.seu V. Trice 
 
 . . 88 
 
 — V. Jones 
 
 83, 160 
 
 Myers v. Willis . 1178, 1194, 1323 
 
 — ■;;. Martin 
 
 . . 227 
 
 Myler v. Fitzpatrick . 
 
 . . 125 
 
 — V. Matthews 
 
 . 1147 
 
 
 
 — - V. Miller 
 
 . . 11 
 
 Naish v. Tatlock . 
 
 1332, 1338 
 
 — V. Norfolk . 
 
 . 246 
 
 Nantes v. Thompson . 
 
 . , 955 
 
 — V. Kees . 
 
 . . 525 
 
 Nanton v. Eowe 
 
 . 998 
 
 Morrison v. Chadwick 
 
 . 764 
 
 Napier, Exp. 
 
 . 1016, 1027 
 
 — V. Parsons . 
 
 . . 1177 
 
 Narget v. Nias 
 
 . 593, 611 
 
 Morse v. James 
 
 . 863 
 
 Nash, Exp. 
 
 . 1028, 1032 
 
 — V. Slue . 
 
 . . 344 
 
 — 1/. Breeze 
 
 . 145 
 
 Mortimer ». Bell . 
 
 . 214 
 
 — V. Palmer 
 
 . . 428 
 
 — V. M'Callen 
 
 . 72, 737 
 
 — V. Turner 
 
 . 669 
 
 Mortimore v. Wright 
 
 . 68 
 
 National Ass. Co. v. Best 
 
 . . 976 
 
 Morton v. Burn 
 
 . . 59 
 
 National Discount Co. v. 
 
 Mid Wales 
 
 — V. Lamb . 
 
 137, 138, 139 
 
 Railway Co. . 
 
 . . 258 
 
 — V. Tibbett . 
 
 793, 794, 797 
 
 National Exch. Co. v. Drew . 80, 560 
 
 Moses V. Levy 
 
 . 166 
 
 Nasone v. Haddon 
 
 . . 915 
 
 ■ — V. Maofarlane . 
 
 . . 96 
 
 Navulshaw v. Brownrigg 
 
 . 1241 
 
 Mosley i;. Handford 
 
 . 342 
 
 Nay lorn. CoUinge 
 
 . . 1297 
 
 Moss V. Byrom . 
 
 . . 902 
 
 — V. Mangles . 
 
 . 358, 1316 
 
 — V. Gallimore . 
 
 . 596, 604 
 
 Neal V. Hollands 
 
 . . 251 
 
 — V. Smith . 
 
 22, 894 
 
 — V. Swind 
 
 . 1337 
 
 Mostyn v, Fabrigas 
 
 . 849 
 
 — V, Viney . 
 
 . . 770 
 
 Motteux V. Gov. and Co. 
 
 of London 
 
 Neale v. Mackenzie 
 
 542, 1159, 1341 
 
 Association . 
 
 873, 960 
 
 — ■!/. Shefleld 
 
 496, 497 
 
 Mouldsdale v. Burchall . 
 
 . 68 
 
 Neave v, Avery 
 
 . 616 
 
 Moule 31. Brown 
 
 305, 310 
 
 Nedriffw. Hogan 
 
 . . 519 
 
 Moulton V: Clapham 
 
 ,986 
 
 Needier v. Guest . 
 
 . 467 
 
 Mounseyi). Ismay. . 
 
 . . 1156 
 
 Neilson v. Harford . 
 
 . . 170 
 
 • — . i;. Penott. 
 
 . 364 
 
 Nelson v. Dixie 
 
 . 1214 
 
 Mounson v. Eedshaw . 
 
 . . 1166 
 
 — V. Salvador . 
 
 . . 937 
 
 Mount V. Harrison . ■ . 
 
 . 909 
 
 — ■». Whittal . 
 
 . 494 
 
Ixii 
 
 NAMES OF CASKS. 
 
 Nelthorpe v. Farfington 
 Nepean v. Doe 
 Nerot I). Wallace 
 ITesbett V, Lushington 
 Newberry v. Armstrong 
 Newbould v. Coltman 
 Newby v. Bead 
 Newcastle and B. Ball. 
 Newcastle Banking Go. v. 
 Newoomb v. Harvey - 
 Newlands v. Holmes 
 Newman v. Andertou 
 
 — v. Fawoltt 
 
 — V. Holdmyfast 
 
 — V. Newman 
 Newnham v. Bever 
 
 — *. Stevenson 
 Newport ». Godfrey 
 
 — V. Hardy . 
 Newsom v. Thornton 
 Newsome v. Gtraham 
 Newton v. Beck . 
 
 — u. Forater . 
 
 — 0, Halford 
 
 — I). Harland. 
 
 — ■!>. Hatter 
 
 — V. Scott 
 Nias V. Adams 
 Niass V. Davis . 
 Niblet V. Smitb . 
 Niohol's case 
 NichoU V. Qlennie . 
 NichoUs V. Bastard 
 
 — V. Bowes . 
 
 — V. Dowding 
 
 — V. Hart . 
 
 — i>. ]Je Feuvre 
 
 — i;.fStretton 
 Nicbols V. Norris 
 
 — V. Walker . 
 Nicholson v. Bower . 
 
 — V. Chapman 
 
 — V. Coghill . 
 
 — e. Gonthit 
 
 — -ii. Great Western 
 
 — *. Hardwick 
 
 — 1). Mounsey 
 
 — V. Kevin . 
 Nickells v, Atherstone 
 Nickson v. Pepson 
 NicoU V. Greaves . 
 Nightingale v. Bridges 
 
 — V. Devisme 
 
 — V. Stockdale 
 Nind V. Marshall 
 Nixon V. Freeman 
 
 — 41. Jenkins 
 Noble V. Adams 
 
 — v. Ward 
 Nockela v. Crosby 
 Noden v. Johnson 
 Noel V. Cooper . 
 
 — : V. Hart 
 
 PAGE 
 . . 1308 
 . 654, 675 
 55, 63, 71, 107 
 882, 883, 899 
 . 789 
 . 45 
 895, 925 
 Crisp. . 354 
 Hymers . 707 
 484, 540, 597 
 . 1245 
 . . 1159 
 . 525 
 . . 627 
 . 509 
 . . 1167 
 . 1312 
 . . 704 
 . 1340 
 . . 733 
 . 115 
 582, 1304 
 . 146 
 . . 165 
 1258, 1261 
 . . 244 
 . . 587 
 . 1253 
 . . 1170 
 . 1142 
 . . 512 
 . 1326 
 1287, 1310 
 . 341 
 . . 1108 
 . 1219 
 1222, 1229 
 . 600 
 
 . 313 
 
 . 850 
 
 . 795 
 
 . 1313 
 
 . 1009 
 
 . 342 
 
 Eailway 355 
 
 . . 864 
 
 1059, 1062 
 
 515 
 
 . ' 640, 764 
 
 . 1049 
 . . 1309 
 
 . 120 
 
 . . 983 
 
 424, 425 
 
 . . 699 
 
 . 1324 
 1238, 1278 
 
 . 810 
 . . 114 
 
 . 48 
 . . 622 
 
 . 197 
 
 Noell V. Nelson . 
 Nokes V. Awder . 
 Noke's case 
 
 Norfolk, Duke of, v. Alderton 
 — B. Worthy 
 
 Norfolke v. Elliot . 
 Norman v. Climenson 
 
 — 1). Cole 
 
 — i). Phillips . 
 Norris v. Irish Land Co. 
 
 ' — V. Norris . 
 
 — v, Tyler . 
 Norrish v. Richards 
 North British Insur. Co. 
 
 -r- V. Ingamells 
 
 — V. Wakefield . 
 Northampton, Mayor of, 
 Northoote v. Underhill 
 Northey v. Field 
 Northumberland, Duke 
 
 Errington 
 Norton ». EUam . 
 
 — V. Pickering . 
 
 — ■(!. Scholefield 
 
 — '!>. Seymour . 
 
 — V. Symes . 
 
 — V. Wood 
 
 Norwich, Mayor of, v. Swann 
 Norwood V. Read 
 
 — V. Stevenson . 
 Nose V. Bacon . 
 Notley V. Buck 
 
 PAGE 
 
 . 728 
 
 . 474 
 
 . 412 
 
 . 1198 
 
 121, 739 
 
 . 520 
 
 . . 1275 
 
 . 112 
 
 360, 797, 798 
 
 1017, 1033 
 
 . 10 
 
 1015, 1028 
 
 . 1008 
 
 V. Lloyd . 79 
 
 . 1253 
 
 315, 515 
 
 V. Ward . 1248 
 
 . 421 
 
 . . 1225 
 
 V. Ward 
 
 . . 402 
 
 . 169, 301 
 
 . . 308 
 
 1085 
 1098 
 502 
 617 
 1248 
 716 
 251 
 488 
 119 
 
 Notman v. Anchor Ass. Co. 36, 972, 1400 
 Novelli V. Eossi • . . .85, 277 
 Novello V. Toogood . . . • ' 592 
 NoweU V. Roake . . . 684, 687 
 Nowlan v. Ablett .... 1049 
 Nurse and Ux. v. Wills . . .248 
 -r; V. Craig . . . 230, 401 
 
 Nn^ V. Bourdieu .... 903 
 Nuttall V. BraceweU .... 1078 
 NuttaU V. Staunton . . . 598 
 Nutting V. Jackson . . . . 857 
 Nye V. Moseley . . . .498 
 
 O'Bkieh v. Bryant . . . . 993 
 — V. Clement . 47, 992, 995 
 O'Hanlan v. Great Western Eailway 368 
 O'Toole V. Browne . . . . 828 
 Oakapple v, Copous . . . 635 
 Oakley v. Portsmouth St. Packet Co. 346 
 
 Gates V. Hudson 
 Gbbard v. Betham 
 Obrian v. Ramm 
 Ockenden, Exp. 
 
 — V. Henley . 
 Oddy V. Bovill 
 Odell V. Wake . 
 Offley V. Gffley 
 
 Ogle v. Atkinson 
 Oldershawr. Holt 
 
 — 0, King 
 
 116, 123 
 
 207, 336 
 
 253 
 
 1312 
 
 222 
 
 946 
 
 449 
 
 702 
 
 1234 
 
 543 
 
 788 
 
NAMES OF CASES. 
 
 Ixiii 
 
 Oldham v. Peake . 
 Oldman v. Bewioke 
 Olitant V. Perineau 
 Oliver v. Fielden 
 
 — V. Oliver 
 
 — V. Thomas 
 Ollive V. Booker 
 Onions v. Tyrer 
 Onley v. Gardiner 
 Onslow V. Eames 
 
 — V. Home 
 Oom V. Bruce . 
 
 — V. Taylor 
 Oppenheim v. Russell 
 Opperman v. Smith 
 Ord V. Portal ' . 
 Organ v. Brodie 
 Oridge v. Sherhorne 301, 320, 
 Orme v, Broughton . 
 
 — u. Galloway 
 Ormerod v. Huth 
 
 Orraond, Duke of, v. Bierly . 
 OiT V. Maginnis . 
 
 Osbom V. Gongh . 
 
 ' — V, Meadows . 
 Osborne v, Sogers . 
 
 — V. Walleeden 
 Oswell V. Vigne 
 Oughton V. Seppings 
 
 Ougier w. Jennings . " . 
 Outhwaite v. Luntley 
 Outram v. Morewood 
 
 — t. Solston . . 
 Overhury v. Overbury 
 
 PAGE 
 . 1202 
 . . 977 
 . 1327 
 . . 464 
 . 682 
 170, 196 
 . 465 
 816, 817 
 . 1079 
 . . 570 
 1199, 1200, 1204 
 114, 968 
 . 946 
 369, 1226 
 . 601 
 , 342 
 , 1196 
 
 Overend, Gumey, and Co. v. Mid, 
 
 Wales Eail. Co 258 
 
 Overton i).jFreeman . 1050, 1084 
 
 Owen V. Burnett .... 353 
 
 — V. De Beauvolr . . . 655 
 
 — V. Herman .... 315 
 
 — V. Knight .... 1310 
 
 — V. Legh . . . 690, 606 
 
 — ■». Eouth 192 
 
 — ■». Scales . . . .199 
 
 — V. Thomas . . . . 790 
 
 — V. Van Uster . . . 1092 
 Owenson v. Morse 
 Oxendale v. Wetherell ... 90 
 Oxenham v. Clapp . . . . 726 
 Oxlade v. N. Eastern Railway Co. 344, 
 
 365 
 Oxiey V. Flower . . . . 847 
 
 — V. Watts .... 1261 
 Ozard v. Dainford . . . . 229 
 
 Paoifio Steam Navigation Co^ 
 
 Lewis 574 
 
 Packer v. Qibbins . . . . 1336 
 
 — ■;;. Gillies .... 1302 
 
 Padget V. Priest . . . . 699 
 
 Padmore ». Lawrence . 1200, 1215 
 
 Padwick v. Turner . . . . 317 
 
 330, 338 
 . 713 
 . 57 
 79, 562 
 . 1147 
 .. 288 
 . 856 
 . 838 
 . 64 
 . 249 
 . 846 
 116, 726 
 936, 950: 
 . 276 
 . 1269 
 . 470 
 . 820 
 
 PAGE 
 
 V. Fry 959 
 
 ■" — V. Mann 494 
 
 Page V. Newman .... 326 
 
 — V. Wiple .... 1009 
 Paget, Lord, v. Milles . . . 762 
 
 — V. Foley . . . .472 
 Pain V. Coombs . . . . 783 
 
 — V. Whittaker . . . 1289 
 Paine v. Emery . . . . 408 
 Palgrave v. Windham . . . 710 
 Palmer v. Cohen .... 1002 
 
 — V. Edwards . . 430, 452 
 
 — V. Ekins . . . , 473 
 ■ — V. Penning ■ . . 960 
 
 — ■». Grand Junction Railway . 344 
 • — V. Jarmaiu . . . . 1302 
 
 — V. Lawson . . 716, 721 
 
 — -u. Marshall . . . . 950 
 
 — V. Pratt . . . .958 
 
 — V. Sparshott . . . . 416 
 
 — V. Temple . . . .216 
 Palyart v. Leekie . . . . 968 
 Pannell v. Fenn . . . .692 
 Fanton v, Jones . . . . 1340 
 
 — n. Marshall . . . 1012 
 
 — V. Williams . 866, 1007, 1012 
 Paradine v. Jane . . . 406, 407 
 Paramore v. Johnson . . . 147 
 Pardee v. Price . . . .717 
 Parke v. Hears . . . . 493 
 Parker i;. AtBeld . . 721,723 
 
 — V. Biscoe . . . . 822 
 
 — "B. Bristol and Exeter Railw. 
 
 Co. . . . 101, 105' 
 
 — V. Constable . . . . 631 
 
 — V. Gill . . . 199, 203 
 
 — V. Hoskins . . . . 493 
 
 — V. Ibbetson . . . 1048 
 
 — -i^. Langley . . 1009, 1012 
 ■r— V. Manning . . . 473 
 
 — V. Mellor .... 1162 
 
 — V. Mitchell 1080, 1273 
 
 — V. Moor .... 1169 
 
 — V. Norton .... 1321 
 
 — V. Staniland . . . . 781 
 
 — V. Taswell . 759, 762, 783 
 
 — V. Wallis . . 793, 794 
 Parkin v. Dick . . . .932 
 Parkins v. Hawkshaw . . . 496 
 
 — V. Scott .... 1207 
 Parkinson v. Lee . . 5C8, 574 
 Parmeter v- Cousins . . . 963 
 
 — V, Todhunter . . . 907 
 Parmenter v. Webber . . 697, 1161 
 Parmiter v. Coupland 987, 988, 1003 
 Parr v. Anderson . . . . 880 
 
 — V. Sewell . . . .281 
 Parratt v. Carpenter . . . 1199 
 Parrott v. Mumford . . .860 
 Parry v. Duncan . . . . 601 
 
 — V, House .... 1163 
 
 — V. Nicholson . . . . 145 
 
 — V. Thomas .... 374- 
 
Ixiv 
 
 NAMES OF CASES. 
 
 Parsons v. Alexander 
 
 — . li.. Coward .. 
 
 — V. Hancock 
 
 — 0. Scott 
 
 — V. Thompson 
 Parton v. Crofts 
 
 — V. Williams 
 Partridge v. Conrt 
 
 — V. Whiston 
 Fascoe v, Fascoe 
 Pasley v. Freeman 
 Pater v. Paker . . 
 Faterson v. Gtandasequi 
 Pateshall v. Tranter 
 Patou V. Winter . 
 Patrick v. Colerick . 
 
 — V. Greenway 
 
 — V. Johnson . 
 
 — .». Stubbs . 
 Patten v. Patten 
 
 — V. Thompson 
 Patterson v. Scott 
 
 — V. Wallace 
 Pattison v.. Jones 
 
 — V. Eobinson 
 Paul V. Dodd . 
 
 — V. Goodluck , 
 
 — V. Joel 
 
 — ^..Meek 
 
 — V. Nurse . 
 Paull V. Simpson , 
 Pawle V. Gunn 
 Pawly V. Holly 
 Pawson V. Watson 
 Paxton V. Popham 
 Payn i). Porter . 
 Payne v. Cave . . 
 
 — V. Haine 
 
 — V. Little 
 
 — V. Scriven 
 
 — V. Whale 
 Paynter v. Eex . 
 
 — V. Walker 
 Peaceable v. Watson . 
 Peaehey i). Kowland 
 Peacock v. Parvis 
 
 — V. Peacock 
 Peake v. Tucker 
 Pearco v. Brookes . 
 
 — V. Hains 
 
 — V. Rogers . 
 
 — V. Watts 
 
 — V. Whale . 
 Peardon v. Underbill 
 Pearson v. Garrett 
 
 — , V. Graham _ 
 
 — o, Henry 
 
 — V. Lemaitre . 
 _ V. Nell . 
 
 — . V. .Spencer . 
 Pease v. Hirst , 
 
 — V, Taylor 
 Pechell.i;. Jepkinson 
 
 PAGE 
 
 . 32 
 
 . 515 
 
 . 729 
 
 906, 914 
 
 . 70 
 
 . 806 
 
 . 858 
 
 . 715 
 
 . 508 
 
 597 
 
 559,' 560, 563 
 
 1204, 1214 
 
 •. 737 
 
 . . 578 
 . 276 
 
 . . 1262 
 , 382 
 
 . . 883 
 . 375 
 
 . . 621 
 . 1219 
 
 . . 540 
 1059, 1060 
 
 988, 1213 
 . 1324 
 
 . . 88 
 . 1149 
 
 . . 307 
 
 . 669 
 
 430, 453 
 
 . 792 
 . 583 
 . 934 
 
 501, 502 
 . 1005 
 . 214 
 . 435 
 . 709 
 . 825 
 . 572 
 . 1044 
 . 518 
 . 665 
 . 1056 
 . 592 
 
 50, 1090 
 . 754 
 81, 108 
 . 477 
 . 1053 
 . 977 
 . 211 
 . 385 
 . 331 
 .1311 
 
 709, 718 
 i, 999, 1000 
 1194 
 1270 
 
 998, 
 
 162 
 723 
 823 
 
 
 
 PASE 
 
 Peck V, North Staffordshii?e Railway 
 
 354, 
 
 
 356, 357 
 
 Peckham v. Faria 
 
 , 
 
 770 
 
 Pedder v. Mayor and Corporation of 
 
 
 Preston 
 
 
 182 
 
 — V. Watt . 
 
 
 164 
 
 Pedgrift v. Chevalier . . 
 
 , 
 
 147 
 
 Pedler v. Paige 
 
 
 493 
 
 Peel V. Thomas 
 
 
 1093 
 
 Peele v. Capel . , . 
 
 . 
 
 508 
 
 — V. Com. Carlisle 
 
 , , 
 
 508 
 
 Peer v. Humphrey . . . 
 
 
 1278 
 
 Peers v. Henriques . 
 
 . 
 
 4 
 
 Pelham v. Pickersgill 
 
 
 85 
 
 Pellecatt v. AngelL . 
 
 
 280 
 
 Pellyr. Hose . . . 
 
 ' ', 
 
 553 
 
 Pembertou v. Chapman 
 
 
 700 
 
 — V. Colls 
 
 1*208, 
 
 1216 
 
 Penfoldf. Westcote . 
 
 , 
 
 1212 
 
 Penn v. Ward 
 
 
 62 
 
 Pennell v. Alexander 
 
 ' 1221, 
 
 1239 
 
 — V. Meyer . 
 
 
 678 
 
 Penniall v.- Harborne . 
 
 
 436 
 
 Penny v. Brice 
 
 
 723 
 
 — V. Inneg. 
 
 
 296 
 
 — V. Porter . 
 
 
 131 
 
 Penrose v. Martin 
 
 
 261 
 
 Penruddock's case . 
 
 1068, 
 
 1082 
 
 Penson v. Lee . 
 
 
 969 
 
 Penton b. Kobart . 
 
 
 1294 
 
 Percival v. Nansnn . 
 
 
 677 
 
 Perdam v. Raynal .. 
 
 
 174 
 
 Perkin «. Cutler's Co. 
 
 , 
 
 1133 
 
 — V. Proctor . 
 
 
 850 
 
 Perreau v. Bevan 
 
 ' 1146, 
 
 1148 
 
 Perrin v. Lyon 
 
 
 72 
 
 Perry v. Edwards 
 
 
 428 
 
 — V. Fitzhowe . 
 
 . '761, 
 
 1258 
 
 — V. Jackson 
 
 180 
 
 ,181 
 
 Ferryman v. Lister 
 
 
 866 
 
 Fetch V. Lyon . 
 
 
 127 
 
 Peter v. Compton . 
 
 . "783 
 
 ,786 
 
 Peters v. Anderson . 
 
 
 161 
 
 — V. Fleming . 
 
 
 153 
 
 — V. Heyward . 
 
 
 584 
 
 — V. MiUs 
 
 
 067 
 
 — V. Stanway 
 
 , 
 
 848 
 
 Peto V. Eeynolds . 235, 
 
 268, 329 
 
 , 356 
 
 Petrie v. Bury . 
 
 , , 
 
 418 
 
 — V. White . 
 
 , 
 
 555 
 
 Pettit V. Mitchell 
 
 189 
 
 , 221 
 
 Peyton's case . 
 
 
 147 
 
 Pfiel V. Vanbatenberg 
 
 
 163 
 
 Phelps V. Auldjo . . . 
 
 
 952 
 
 — V. London and N. W 
 
 liail. '. 
 
 349 
 
 — V. Frothero . 
 
 . 13S 
 
 , 139 
 
 Fhen6 v. Popplewell . 
 
 , 
 
 764 
 
 Philby V. Hazle . 
 
 , , 
 
 204 
 
 Philips V. Robinson . 
 
 , , 
 
 582 
 
 Phillimore v. Bany 
 
 . 803, 
 
 1289 
 
 Phillipps V. Briard , 
 
 
 810 
 
 — V. Irving.. 
 
 . 
 
 950 
 
 Phillips, I» the^ood^ of . 
 
 . 
 
 698 
 
NAMES OP CASES. 
 
 Ixv 
 
 Phillips 
 
 V. Astling 
 1). Barber 
 V. Berryman 
 V. Biggs 
 V. Biron . 
 V. Bistolli . 
 V. Broadley 
 V. Clagett . 
 «. Cole . 
 V. Echard . 
 o. Gould . 
 ■V. Harrison . 
 ■u. Huth . 743, 
 V. Im Tharm 
 V. JaDsen. 
 
 PAGE 
 
 . 304 
 
 . . 906 
 
 . 612 
 
 . . 95 
 
 . 862 
 
 792 
 
 170,' 205, 209 
 
 . . 514 
 
 . 324, 343 
 
 . . 722 
 
 . 286 
 
 . . 1203 
 
 745, 746, 1241 
 
 . . 277 
 
 . 1000 
 . . 584 
 
 — V. Lewis .... 143 
 
 — V. Naylor . . . . 1012 
 
 — V. PhUlips . . .523 
 
 — V. Price' .... 1148 
 
 — V. Warren . . . . 324 
 Philiskirk and Wife v. Plaokwell . 248 
 PMlpot V. Briant . . . .313 
 
 — v. Kelly . . . . 168 
 Philpott V. Dobbinson . . .1161 
 
 — V. Jones . . . 76, 162 
 
 — V. Kelley . . 1299, 1321 
 
 — V. Swann . . . . 894 
 
 — V. Wallett . . .778 
 Philpotts V. Evans . . . . 192 
 Phipps V. Daubney . . 200, 202 
 
 — V. Sculthorpe . - . 1334 
 Phyn V. Koyal Exoh.^Assuranoe Com- 
 pany 903 
 
 Phythian v. White . ... 1274 
 Pianciani v. South Western Bail. . 352 
 Picard v. Brown . . . 721, 725 
 Pickard v. Bankes . . . . 121 
 
 — V. Bonner .... Ill 
 
 — V. Sear 847 
 
 — V. Smith .... 1085 
 Pickering v. Bush . . . . 733 
 
 — V. DowBon . . . 668 
 
 — V. Truste .... 1327 
 Pickersgill v. Palmer . . . 858 
 Piokford v. Grand Junction Railway 
 
 Company 
 Pidgeon v. Legge 
 Pidock V. Bishop . 
 Pierce v. Fothergill . 
 
 — V. Street 
 Pierson v. Dunlop 
 Fieschell v. AUnutt 
 Piggott V. Birtles 
 
 — v. Cadman 
 
 — V. Bush 
 Pigott's case . 
 Pike v. Eyre . 
 Pilchard v. Kingston 
 Pilkington v. Cooke . 
 Pillans V. Miorop . 
 Pillott V. Wilkinson 
 Pilmore v. Hood . 
 
 139, 
 
 363 
 43 
 79 
 327 
 1008 
 284 
 932 
 593, 612 
 204, 205 
 181 
 697 
 636 
 132 
 553 
 64 
 
 1299, 1325 
 . 560 
 
 Pim V. Read 
 Pincbon v. Ohilcott 
 Pinchon's case . 
 Pincombe v. Rudge 
 Pindar v. Ainsley 
 
 — i>. Wadsworth 
 Pinel's case 
 Pinero v. Judson . 
 Pinhorne ». Tuckington 
 Pinkney v. Collins . 
 
 — V. Hall 
 Pinnel's case . 
 Pinney v. Pinney 
 Pinnbgton v. Galland 
 Pinnock v. Harrison . 
 Eiper v. Dennis 
 F^ipett V. Hearn 
 Pirie v. Anderson . 
 Pisani v. Lawson 
 Pistor V. Cator 
 Pitcher v. Bailey 
 
 — ■». Tovey . 
 Pitohford o. Davis . 
 Pitt V. Chappelow 
 
 — V. Donovan 
 
 — V. Purssord . 
 
 — ■». Russell 
 
 — V. Shew ' . 
 
 — V. Suowden 
 
 — V. Yalden . 
 Pittegrew v. Pringle 
 Pitts V. Beckett 
 Place V. Potts 
 Plaistow V. Van Uxem 
 Planche v. Fletcher 
 Plasterers' Co. v. Parish 
 Player v. Bandy 
 Playters v. Shering 
 Flaxton v. Dare 
 Pleasant v. Benson 
 Plenty v. West . 
 Plevin V. Marshall . 
 Plimley v. Westley 
 Plumer v. Briscoe . 
 
 — V. Marchant . 
 Plunkett V. Cobbett 
 Podmore v. Schmidt . 
 Poirier v. Morris . 
 Pole V. Fitzgerald 
 
 — V. Harrobin . 
 Polglass V. Oliver 
 PolhUl V. Walter . 
 Polkinhorn v. Wright 
 Pollard V. Bell 
 
 — i>. Evans 
 
 — V. Gerard . 
 PoUitt V. Forrest 
 Pollock V. 
 
 Pomfret v. Ricroft 
 Pond V. King 
 
 — w. Underwood 
 Pouget V. Tomkins 
 
 Clerks' 
 
 79, 
 
 597 
 
 PAGE 
 
 980 
 
 783 
 
 716 
 
 411 
 
 408 
 
 382 
 
 149 
 
 1335 
 
 327 
 
 990 
 
 264 
 
 497 
 
 726 
 
 1269, 1270 
 
 . . 1318 
 
 . 1127 
 
 . . 1006 
 
 . 958 
 
 . . 990 
 
 . 435 
 
 . 69, 93 
 
 . 449 
 
 . 1093 
 
 . . 261 
 
 . 1204 
 
 . . 91 
 
 . 453 
 
 604, 1254 
 
 . 1161 
 
 . . 209 
 
 937, 938 
 
 . . 804 
 
 82, 83 
 
 83 
 
 880, 931 
 
 ' Co. 1073 
 
 . . 514 
 
 . 1164 
 
 . 667 
 
 . 637 
 
 . . 816 
 
 . 1328 
 
 . 164, 308 
 
 1144, 1149 
 
 . . 727 
 
 . 997 
 
 . . 36 
 
 . 294 
 
 . . 916 
 
 501, 502 
 
 189, 1319 
 
 ', 357, 561 
 
 . 48, 1253 
 
 86, 943 
 
 . . 1005 
 
 . 97 
 
 . . 1166 
 
 . 93 
 
 , 763, 1331 
 
 . . 403 
 
 . 898 
 
 . 691, 693 
 
 . 17 
 
Ixvi 
 
 NAMES OF CASES. 
 
 
 PAGE 
 
 
 PAGE 
 
 Pool V. Bousfield 
 
 . . 71 
 
 Poxonu Smart 
 
 . 537 
 
 Poole V. Hill 
 
 . 139 
 
 Pozzi V. Shipton 
 
 . . 363 
 
 -^ 1). Huskinson 
 
 1265, 1266 
 
 Prat V. Stem 
 
 . 586 
 
 — V. Longuevill . 
 
 . 589 
 
 — V. Taylor . 
 
 . . 247 
 
 — V. Poole . 
 
 . . 14 
 
 Pratt V. Swaino 
 
 . 72S 
 
 — V. Tnnbridge . 
 
 190, 191, 469 
 
 Pray v. Edie . 
 
 . .874 
 
 — V. Warren . 
 
 . 546, 635, 666 
 
 Precious v. Abel . 
 
 . 1052 
 
 Pooley V. Harradine 
 
 . 313, 314 
 
 Preece v. Corrie 
 
 . . 597 
 
 Pope V. Biggs . 
 
 . 91, 100 
 
 Preedie v. London and North Western 
 
 •^— V. Davis 
 
 . 602 
 
 Railway . 
 
 . 1084 
 
 — -iJ, Tillman 
 
 . . 1152 
 
 Prescott V. Boucher . 
 
 . . 594 
 
 Popham V. Gawdy . 
 
 . 820 
 
 — V. Flinn . 
 
 . 322 
 
 — V. Pickburn . 
 
 . 986 
 
 Presgrave v. Saunders 
 
 . . 1152 
 
 Poplett V. Stoekdale 
 
 . 1343 
 
 Prestidge v. Woodman . 
 
 . 865 
 
 Popplewell V. Wilson . 
 
 . . 329 
 
 Preston v. Christmas . 
 
 58, 469, 497 
 
 Pordage v. Cole 
 
 405, 456, 460 
 
 — V. Samplin . 
 
 . 1195 
 
 Porter v. Cooper 
 
 . . 128 
 
 Prestwioh v. Foley . 
 
 . . 211 
 
 — V. Harris 
 
 . 481 
 
 Prestwick v. Marshall 
 
 . . 262 
 
 • — V. Palsgrave . 
 
 . 826 
 
 Price V. Barker 
 
 . 516 
 
 — V. Shepherd. 
 
 . 467 
 
 — V. Bell . 
 
 . . 943 
 
 — V. Sweetman . 
 
 . . 405 
 
 — V. Crofts 
 
 . 1005 
 
 — V. Taylor . 
 
 . 1101 
 
 — V. Easton. 
 
 . . 62 
 
 Porthouse v. Parker . 
 
 . . libs 
 
 — V. Edmunds . 
 
 . 336 
 
 Portman v. Morgan 
 
 . 616, 1151 
 
 — V. Fletcher 
 
 . . 455 
 
 Postlethwaite v. Gibson ' 
 
 . . 868 
 
 — V. Green 
 
 . 499, 500 
 
 — V. Mounsey 
 
 . 709 
 
 — V. Harwood 
 
 . .847 
 
 — V. Parkes 
 
 . . 1064 
 
 — V. Jenkings . 
 
 . 1208 
 
 Postman v. Harrell 
 
 . 601 
 
 — V. Leybum 
 
 . . 784 
 
 Pothonier v. Dawson . 
 
 . . 1327 
 
 — V. Littlewood 
 
 . 1081 
 
 Pott V. Clegg . 
 
 . 169 
 
 — V. Messenger . 
 
 . . 858 
 
 — ■». Eyton . 
 
 . 1090, 1094 
 
 — V. Mitchell . 
 
 . 342 
 
 Potten V. Bradley . 
 
 . 1151 
 
 — 11. Moulton 
 
 . . 401 
 
 Potter V. Faulkner . 
 
 . . 1061 
 
 — V. Neal 
 
 . 118, 323 
 
 — V. Kayworth 
 
 . 290 
 
 — ■!;. Noble . 
 
 . . 96 
 
 Potts V. BeU . 
 
 . . 929 
 
 — V. Powell 
 
 . 828 
 
 — V. Sparrow . 
 
 . 146 
 
 — V. Price . 
 
 . . 161 
 
 Ponlter v. Killingbeok 
 
 782, 783 
 
 — V. Kees 
 
 . 161 
 
 Poulton V. Lattlmore 
 
 . 678, 679 
 
 — V. Richardson . 
 
 . . 789 
 
 Powell V. Ansell 
 
 130, 486 
 
 — V. Williams . 
 
 . 139 
 
 — V. Divett 
 
 . 805 
 
 — V. Woodhouse . 
 
 . . 1261 
 
 — V. Edmunds . 
 
 . . 214 
 
 Priehard v, Powell . 
 
 . 371 
 
 — V. Graham . 
 
 . 719,720 
 
 Prickett v. Gratrex . 
 
 . . 854 
 
 — V. Gudgeon . 
 
 . . 895 
 
 Priddyv. Henbrey. 
 
 . 129, 485 
 
 — v. Horton . 
 
 . 194 
 
 Prideaux v. Bunnett . 
 
 . . 675 
 
 — V. Hoyland . 
 
 . 1300, 1306 
 
 Priestley v. Fowler 
 
 . 1059 
 
 — V. Hyde 
 
 . 897 
 
 — V, Watson 
 
 . . nfi 
 
 — V. Jessop 
 
 . . 785 
 
 Prince v. Blackburn 
 
 . 493, 494 
 
 — V. Jones 
 
 . 282 
 
 — ■». Nicholson 
 
 . • . 722 
 
 — V. Mason 
 
 . 248 
 
 — V. Prince 
 
 . . 261 
 
 — V. Monnier . 
 
 . 282 
 
 — V. Kowson 
 
 . . 725 
 
 — V. Powls 
 
 . . 381 
 
 Prince of Wales Assurance 
 
 Co. V. 
 
 — V. Kees 
 
 121, 711, 718 
 
 Harding . 
 
 . 84, 976 
 
 — V. Wood . 
 
 . . 705 
 
 Prince's case 
 
 . . 696 
 
 Power V. Barham . 
 
 . 558, 567 
 
 Pring V. Clarkson . 
 
 . 313 
 
 — v. Izod . 
 
 . . 638 
 
 Prior V. Hembrow 
 
 . . 92 
 
 — ». Wells 
 
 . 117 
 
 — V. Wilson 
 
 . 992 
 
 Powers V. Fowler 
 
 . . 789 
 
 Pritchard v. Long 
 
 . . 1264 
 
 Powle V. Hagger . 
 
 . 133 
 
 — 1). Merchants' and Trades- 
 
 Powles V. Hllder 
 
 . . 348 
 
 men's Ass. Co. 
 
 . 976, 979 
 
 — V. Innes 
 
 . 926 
 
 Probert v. Knouth 
 
 . . 158 
 
 — v. Page . 
 
 . . 1108 
 
 Proctor V. Burdet . 
 
 . 467 
 
 Powley V. Walker . 
 
 . 62 
 
 — V. Hodgson . 
 
 . . 1270 
 
 Pownal V. FeiTand . 
 
 . . 91 
 
 — V. Jones 
 
 . 798 
 
NAMES OP CASES. 
 
 Ixvii 
 
 Proctor V. Nicholson . 
 
 — V. Sargent . 
 Prole V. Wiggins 
 Prosser v. Nixon . 
 Prothero v. Thomas . 
 Prndhomme v. Fraser 
 Prnessing v. Ing 
 Pryor v. Pettingall . 
 Puckle V. Moore 
 Pugh V. Griffith . 
 PuUen V. Palmer 
 Puroell V. Maonamara 
 Purchell v. Salter . 
 Purdon v. Purdon 
 Pure ?;. Sturdy 
 Purnell v. Young 
 Pursell V. Horn 
 Purset V. Hutchings . 
 Purssord v. Peek . 
 Purton V, Honnor 
 Pye V. Mumford 
 Pym V. Campbell 
 
 — V. The Gt. Northern 
 Pyne v. Dor . 
 
 — D. WooUand 
 
 QulKiBS V. Searle . 
 Quarman v. Burnett . 
 Quarrier v. Colston 
 Queen v. Murrey 
 Quested v. Callis . 
 Quick V. Staines 
 
 PAGE 
 
 . . 75 
 
 . 499 
 
 . . 603 
 
 . 1015 
 
 . . 200 
 
 . 1214 
 
 . . 271 
 
 5 
 
 . . 168 
 
 . 1262 
 
 . 1158, 1309 
 
 1006, 1014, 1015 
 
 . 735 
 
 . 171 
 
 . 652 
 
 . 1256 
 
 . 42 
 
 . 50 
 
 . 312 
 
 . 1011 
 
 385, 386 
 
 . 811 
 
 711 
 
 1277 
 
 724 
 
 Eailway 
 
 350, 
 
 1151 
 
 1057 
 
 108 
 
 672 
 
 209 
 
 £. V. Abingdon, Lord . . . 985 
 
 — V. — Marquis of . . 1037 
 
 — V. — Mayor of . 1034, 1041 
 
 Abrahams 
 Almon 
 , Alresford 
 
 1024, 1030 
 996, 1054 
 
 V, 
 
 Ambergate Ry. . 
 
 1017, 
 
 1030 
 
 1044 
 
 — V. 
 
 Amery . 
 
 
 
 1126 
 
 — v 
 
 Anderson . 
 
 
 , 
 
 1119 
 
 — ^ V. 
 
 Arnaud 
 
 . 
 
 
 1174 
 
 V. 
 
 Arnold . 
 
 
 
 1133 
 
 V. 
 
 AshtoE 
 
 
 , 
 
 1023 
 
 — V. 
 
 Attwood . 
 
 1113, 
 
 1130 
 
 1132 
 
 V. 
 
 Autridge 
 
 , 
 
 
 1134 
 
 V. 
 
 Backhouse 
 
 , 
 
 
 1022 
 
 V. 
 
 Balby and Worksop Trustees . 
 
 1016 
 
 — V. 
 
 Baldwin 
 
 , 
 
 , 
 
 1042 
 
 V. 
 
 Banghurst 
 
 
 . 
 
 849 
 
 V 
 
 Bankes . 
 
 
 . 
 
 1021 
 
 V. 
 
 Barker . 
 
 , 
 
 1024 
 
 1032 
 
 V. 
 
 Barnard's Inn 
 
 , 
 
 , 
 
 1029 
 
 — V. 
 
 Barnstaple 
 
 . 
 
 
 1024 
 
 V. 
 
 Barr . 
 
 
 1080 
 
 1266 
 
 V. 
 
 Bedall . 
 
 
 , 
 
 672 
 
 — V. 
 
 Bedford Level, Corporation of . 
 
 1117 
 
 — V. 
 
 Beedle . 
 
 
 
 1117 
 
 — V. 
 
 Bellringer . 
 
 
 ■ 1126 
 
 1130 
 
 V. 
 
 Benett . 
 
 , 
 
 
 1032 
 
 V. 
 
 Benn 
 
 
 , 
 
 1024 
 
 — V. 
 
 Bennet . 
 
 
 
 1114 
 
 K. V. 
 
 — V. 
 
 Benney . 
 
 Bettesworth . 
 
 Betts 
 
 Biddle . 
 
 Billinghurst 
 
 Bingham 
 
 Bird 
 
 Birkenhead Railway 
 
 — V. Birmingham 
 
 PAGE 
 . . 1120 
 1023, 1035 
 . . 1071 
 . 1139 
 . . 17 
 . 97, 1118 
 . 1130, 1133 
 . 1057 
 15, 1021, 1023 
 &c., KaQway . 1024 
 Blagdeu . . . 1134 
 
 Bland . . . 1023, 1036 
 Blakemore . . . 71 
 
 Blanshard . . . 1025 
 
 Blizard .... 1113 
 
 Bolton 851 
 
 Bonsall, Lord of the Manor of 1026 
 
 Booth 1118 
 
 Bootie 865 
 
 Bossiney, Mayor of . . 1021 
 Boucher . ... 1127 
 
 Bowen .... 19 
 
 Bower 1039 
 
 Boyles .... 1117 
 
 Brame 1120 
 
 Brampton . . . . 23 
 Brecknock and Abergavenny 
 
 Canal Co 1017 
 
 Brewers' Co. ... 1026 
 
 Bridge 1121 
 
 Bridgman .... 1025 
 Bridgnorth, Mayor of . .1128 
 Bridgwater, Corporat. of 1021, 1221 
 Brighton .... 1028 
 Bristol and Exeter Railway . 1017 
 — Bock Co. 1029, 1030, 1031, 
 1040 
 Bristow . . . . 1031 
 
 Brooke 
 
 Brooks . 
 
 Browne 
 
 Buchanan 
 
 Bnckingham 
 
 Bucks, Justices of 
 
 Buller . 
 
 Bumstead 
 
 Burdett 
 
 Burton-on-Trent 
 
 Caledonian Railway 
 
 Cambridge, Corporation of 
 
 Mayor of 1039, 
 
 — V, — 
 
 ■ V. Canterbury 
 
 University of 
 Archbishop of 
 
 . 1111 
 
 . 1123 
 
 . 1025 
 
 . 196 
 
 . 1266 
 
 . 1025 
 
 . 1022 
 
 . 1132 
 
 995, 998 
 
 . 18 
 
 . 1035 
 
 . 1021 
 
 1122, 
 
 1132 
 
 1023 
 
 1024 
 
 1017 
 
 1030 
 
 1113 
 
 1028 
 
 19 
 
 — V. Carmarthen, Corporation of 
 
 — V. — Mayor of 
 
 — 1). Chadwick 
 
 — ■;;. Chalice . . . 1039, 1042 
 
 — V. Chalke .... 1038 
 
 — V. Champion . . . . 1018 
 
 — V. Charretie .... 605 
 
 e 2 
 
Ixviii 
 
 NAMES OP CASES. 
 
 E. V. 
 
 — V. 
 V. 
 
 — V, 
 
 — V. 
 
 V. 
 
 V, 
 
 — V. 
 
 PAGE 
 
 Chawton .... 630, 632 
 Cheadle .... 1030 
 Cheek . . . 1024, 1044 
 Cheshunt, Tnrnpike of . . 1024 
 Chester, Bishop of . . . 1029 
 
 — City of . . . 1035 
 
 — Dean of . . . 1030 
 ChiUesford . . . .154 
 
 Chitty 1128 
 
 Christohuroh, Overseers of . 1130 
 
 Clark 1031 
 
 Clarke .... 1139 
 
 Clear 1025 
 
 Coaks 1121 
 
 Coggan 1026 
 
 Colchester, Mayor of . . 1021 
 
 Coleridge 
 
 Conyers 
 
 Cooper 
 
 Cotton . 
 
 Courtenay 
 
 Creerey 
 
 Cudlipp , 
 
 Cutbush 
 
 Daniel 
 
 Dartmouth, Lord . 
 
 Dawbeny 
 
 Day . 
 
 Dayman 
 
 . 1031 
 
 1029, 1031, 1036 
 
 . . 1001 
 
 . 586 
 
 . . 1139 
 . 985, 996 
 
 . . 1119 
 
 . 1132 
 
 . 1063 
 
 . 1046 
 
 . 1111 
 
 . 1121 
 
 . 1025 
 
 Dean Enclosure, Commiss. of . 1017 
 Denbighshire Justices . . 1024 
 
 Dendy 1043 
 
 Derby . . . 1037, 1038 
 
 — Councillors of . . . 1021 
 Derbyshire Kailway . . 1028 
 Dolgelly Union, Guardians of 1024 
 Donoaster . . . . 1038 
 
 — Mayor of . . 1037 
 
 Douglas 1027 
 
 Dover, Mayor of . . .1036 
 Dixon . . . 1054, 1125 
 Dullingham . . . .624 
 East Mark .... 1265 
 Eastern Counties Eailway 1022, 
 
 1040 
 Edlaston .... 1024 
 Edmonton . . . . 1245 
 
 Ellis 1024 
 
 Ely, Bishop of 1024, 1030, 1036 
 England, Bank of 1029, 1031 
 
 Eriswell 676 
 
 Evans 1026 
 
 Excise Commissioners 1016, 1028 
 
 Exeter, Chapter of . . . 1029 
 
 — Mayor of . . . 1039 
 
 Fall 1045 
 
 Faversham .... 1038 
 
 — Fishermen of . . 1133 
 Fielding . . . .13 
 
 Filewood 1111 
 
 Fisher 1024 
 
 Ford 1017 
 
 Fox 1024 
 
 E. V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 V. 
 
 V. 
 
 V. 
 
 — V. 
 
 V. 
 
 — V. 
 
 V. 
 
 V. 
 
 — V. 
 
 V. 
 
 V. 
 
 V, 
 
 — V. 
 
 V. 
 
 V. 
 
 — V. 
 V. 
 
 — V. 
 V. 
 
 — V. 
 
 — V. 
 V. 
 
 — V. 
 
 — ». 
 
 — V. 
 
 Francis . . 1124, 1129, 1139 
 Gaborian .... 1022 
 
 Gadsby 1024 
 
 Galle 651 
 
 Gamble 1017 
 
 Gibbs 552 
 
 Gloucester, Bishop of . . 1031 
 Godolphin, Lord . . . 1024 
 Qrampond .... 1130 
 — Mayor of . .1127 
 Gray's Inn . ... 1029 
 Greame .... 1025 
 Great Western Eailway . . 1017 
 Greene . 
 Greet . 
 Griffiths . 
 Grimes 
 Grimshaw 
 Gutch . 
 Hale . 
 Halifax . 
 Hall . 
 Hampton . 
 Harris . 
 Hartley . 
 Harvey . 
 Harwick . 
 
 1120, 1137 
 . 1130 
 
 . . 1040 
 . 1137 
 
 . . 1118 
 
 . . 1054 
 . 1027 
 
 . . 1030 
 1024, 1114, 1140 
 
 . . 1117 
 . 1124 
 
 . . 1113 
 . 1124 
 
 . . 1019 
 Hastings, Mayor and Jurats of. 1022 
 Hatfield .... 1245 
 Havering Atte-Bower, Steward, 
 
 &c., of 1022 
 
 Hawkins .... 1121 
 Head . . . 1130, 1133 
 Hebden .... 1136 
 
 Hedges 1119 
 
 Hendon, Lord of the Manor 
 
 of 1026 
 
 Henley 1117 
 
 Hereford, Mayor of . . . 1034 
 Hertford, Mayor of . 1111, 1113 
 Highmorc . . . . 1113 
 
 Hodge 1120 
 
 Hodnett 19 
 
 Hodson .... 1125 
 
 Holt 1000 
 
 Honiton, Fortreve of . . 1135 
 
 Hopkins 1035 
 
 Hornbrook .... 1000 
 
 Horndon 761 
 
 Home 1210 
 
 Horsham , .... lllS 
 Hostmen .... 1133 
 
 Howell 1111 
 
 Hudson .... 1040 
 Hull & Selby Railway 1017, 1031 
 
 Hulston 1118 
 
 Humphery . . . 1122, 1316 
 
 Ingham 1025 
 
 Ipswich, Bailiffs of . .1084 
 Jeyes . . . 1017, 1031 
 
 Joliffe 1135 
 
 Jones 1121 
 
 Jotbam .... 1030 
 
NAMES OP CASES. 
 
 Ixix 
 
 E. ■». 
 
 — », 
 
 — V. 
 
 — V, 
 
 V. 
 
 V, 
 
 V. 
 
 V. 
 
 — V, 
 
 — V. 
 V. 
 
 PAGE 
 
 Eea 673 
 
 Kelk ..... 1045 
 
 Kendall 1023 
 
 King's Clere, Churoliwardens 
 
 of 1023 
 
 Kirke 1045 
 
 Kynaston . . 1131, 1165 
 
 Kyningham Level . . . 1117 
 
 and 
 
 Lambert 
 Lancashire 
 
 Kailway 
 Lane . 
 Langham . 
 Leake . 
 Ledgard . 
 Leeds, Mayor of , 
 Leicester . 
 
 — Justices of 
 Lewis 
 
 . 1000 
 Yorkshire 
 
 . . 1022 
 
 . 1119 
 . . 1131 
 
 . 1265 
 . . 1040 
 
 . 1021 
 . . 1025 
 
 . 1025 
 . . 1145 
 
 Lichfield, Mayor of . 1019, 1128 
 Lincoln's Inn, Benchers of . . 1029 
 
 — V. Liverpool 
 
 — V. London and North "Western 
 
 1037 
 1017 
 
 Kailway 
 - V. London and South Western 
 
 Railway .... 1035 
 
 ■ V. London Assurance Co. . . 1031 
 
 ■ V. — Mayor of 1020, 1037, 1040 
 ■V. — Sheriff of . . .623 
 
 • V. Luffe 672 
 
 ■ V. Luton Koads . . . 1040 
 
 • V. Lyme Regis . 1037, 1039, 1040 
 V. M'Kay . 1027, 1113, 1114, 1123, 
 
 1140 
 . . 1019 
 . 1025 
 
 Mainwaring 
 
 — V. 
 
 — ■"' 
 
 — V. Manchester and Leeds Bail- 
 
 — V. 
 
 way . 
 Mansfield 
 
 ■ V. Margate Pier Co. 
 
 - V. Marsden 
 
 • V. Mary Carlisle . 
 
 - V. Hears . 
 
 - V. Mein 
 
 ■ V. Merchant Taylors' Co. 
 
 1043 
 
 . 672 
 
 1035, 1036 
 
 990, 1114 
 
 . . 984 
 
 . 1027 
 
 . . 1118 
 
 1026, 1133 
 
 Middlesex, Archdeacon of . 1018 
 — Justices of 1024, 1025, 
 1032 
 
 Mldhurst 
 Miller . 
 Millis . 
 Milner 
 Milverton 
 Mirehouse 
 Monkhouse . 
 Montague, Lord 
 Morgan 
 Morpeth, Eailifis of 
 Morris . 
 Morton . 
 Mothersell . 
 Mousley . 
 Myers . 
 
 . 1027 
 
 1126, 1130 
 
 . 13, 22, 23 
 
 . . 1125 
 
 . 1023 
 1024, 1025 
 
 . 1142 
 . . 1027 
 
 . 1025 
 . . 1023 
 
 . 1130 
 . . 1113 
 
 . 1135 
 . . 1117 
 
 . 1169 
 
 E. V. 
 
 — V. 
 
 — V, 
 
 — V, 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V. 
 
 — V, 
 
 — ■». 
 
 V. 
 
 — V. 
 
 Neil . . . 1068, 1069 
 
 Neville 1069 
 
 New Windsor, Mayor of 1035, 1037, 
 1039 
 Newbury, Corporation of . . 1045 
 Newman . . . 1000, 1003 
 Newsham .... 1021 
 Norfolk Sewers . ... 1028 
 North Midland Railway . . 1040 
 — Petherton . . . 675 
 Northampton . . . 1266 
 Northfield . . . . 18 
 Norwich and Brandon Rail- 
 way . . . 1017 
 
 — Dean of . . . 1023 
 
 — Mayor of 1020, 1028, 1034 
 .Nottingham .... 1029 
 
 — Mayor of . 1036, 1041 
 
 — Old Waterworks 
 1017 
 
 Co. . 
 Ogdeu . 
 Oliver 
 Orton . 
 Osbourne . 
 
 Oundle 
 Owen 
 
 1113, 1117 
 
 . . 1142 
 
 1024, 1029 
 
 . . 1127 
 
 . 1031 
 
 . . 1040 
 
 1118 
 
 Oxford and Witney Roads, 
 Trustees of . . . 1030 
 
 Oxford, Bishop of . 508, 1035 
 — Burgesses of . .1020 
 Mayor of 1021, 1116, 1117 
 
 Padslow 
 
 Parkyu 
 
 Parry 
 
 Pasmore 
 
 • Payn 
 
 Pedley . 
 
 Peltier . 
 
 Pendleton 
 
 Pepper . 
 
 Petrie . 
 
 Phillips . 
 
 Phippen 
 
 Physicians, College of 
 
 Pindar 
 
 Pole . 
 
 Ponsford . 
 
 Ponsonby 
 
 Powell . 
 
 670 
 
 . 1120 
 
 1119, 1121, 1128 
 
 1127, 1128 
 
 . 1017, 1040 
 
 . 1083 
 
 . . 996 
 
 . 1343 
 
 . . 1118 
 
 . 1265 
 
 . . 1132 
 
 . 1021 
 
 . . 1030 
 
 1138, 1139 
 
 1019, 1020 
 
 . 1017, 1031 
 
 . 1114 
 
 1026, 1028, 1113, 
 
 1130, 1133 
 
 Preece . . . 1124, 1125 
 
 Pros, of M. Scales, London 
 
 Mayor and Aldermen of . 1046 
 
 Pulsford 1131 
 
 Quayle . . . 1118, 1119 
 Radnor, Justices of 1024, 1032 
 
 Ramsden j . . . . 1117 
 
 Reading 672 
 
 Richards .... 1025 
 Richardson . 1037, 1038, 1123 
 Ripon, Mayor of . . . 1034 
 Roberts 1111 
 
Ixx 
 
 NAMES OF CASES. 
 
 PAGE 
 K. n Robinson .... 44 
 
 — V. Rochester, Dean of . . . 1030 
 
 — V. — Mayor of 1019, 1020 
 
 — V. Rook 672 
 
 — V. St. Andrew's, Holborn . . 1036 
 
 — V. St. Chads, Salop, Overseers of 1040 
 
 — r. St. Devereux . . .12 
 
 — V. St. George . . . . 41 
 
 — V. St. James, The Inhabitants of 1264 
 
 — V. St. John . . . 1120 
 
 — V. — Delpike . . . 14 
 
 — V. St. John's and St. Margaret, 
 
 Westminster, Churchwardens 
 
 and Overseers of . . . 1029 
 
 — V. St. Martin's in the Fields . 1021, 
 
 1032, 1117 
 
 — V. St. Nicholas .... 1063 
 
 — ?). St. Pancras . . . .' 1035 
 
 — V. St. Paul's, Inhabitants of . 1343 
 
 — V. St. Peter's, Thetford, Church- 
 
 wardens of . . . .1029 
 
 — ■». Sankey 1315 
 
 — V. Saville . . . 1111 
 
 — V. Scale 1113 
 
 — t>. Severn and Wye Railway . 1017 
 
 — V. Sewell 654 
 
 — V. Shepherd .... 1111 
 
 — V. Shropshire, Justices of . . 854 
 
 — V. Simpson .... 1018 
 
 — V. Slatter 1118 
 
 — V. Slythe . . . 1120, 1121 
 
 — ■». Smith . . . 1044, 1135 
 
 — V. South-Eastern Railway 1031, 1035, 
 
 1037 
 
 — V. Sparrow 1024 
 
 — ■B.Spencer . . 1126,1132 
 
 — V. Stafford, Marquis of . . . 1016 
 
 — V. — Mayor of 1029, 1036, 1043 
 
 — V. Standon 761 
 
 — V. Stanford .... 1032 
 
 — V. Stanton 1193 
 
 — V. Stewart .... 1032 
 
 — r. Stoke Damerel . . 1031,1117 
 
 — V. Stourton .... 673 
 
 — V. Surrey, Justices of . . . 1045 
 
 — V. — Treasurer of . ' . 1031 
 
 — V. Swansea . . . . 1028 
 
 — V. Swyer 630 
 
 — V. Sydney . . . . I113 
 
 — V. Symmons .... 1120 
 
 — V. Tate 1118 
 
 — v. Taunton, St. James . . 1039 
 
 — V. Taylor . . . . . 1120 
 
 — V. Theodorick .... 1131 
 
 — V. Thetford, Mayor and Burgesses 
 
 of 1020 
 
 — V. Thwaites 654 
 
 — V. Tibshelf . . . .17 
 
 — V. Tidderley . . . . 1038 
 
 — V. Tithe Commissioners . . 1035 
 
 — V. TraiU 654 
 
 — V, Treasury, Commissioners of 1027, 
 
 1028 
 
 
 PAGE 
 
 R. V. Tregony . 
 
 . . 1019 
 
 ^ ». Trelawny 
 
 1112, 1113 
 
 — V. Trevenen . 
 
 . . 1120 
 
 — V. Tucker . 
 
 1132, 1133 
 
 — V. Tugwell . 
 
 . . 1119 
 
 — ». Varlo . 
 
 . 1126 
 
 — V. Victoria Park Company 
 
 . . 1031 
 
 — V. Wakelyn 
 
 . 1120 
 
 — V. Wallis 
 
 . . 1114 
 
 — ■». Walsh . 
 
 . 1175 
 
 — V. Walters . 
 
 . . 1001 
 
 — V. Ward . . 1023, 
 
 1035, 1069 
 
 — V. Warlow . 
 
 1113, 1114 
 
 — V. Warren 
 
 . 1028 
 
 — V. Watts 
 
 . . 1069 
 
 — V. Weir 866 
 
 — V. Wellesley, Lord . . . 1026 
 
 — 1). Weobly 1029 
 
 — V. West Riding of Yorkshire, 
 
 Justices of . . 1025, 1032 
 
 — V. Westwood . . 1127, 1129 
 
 — V. Weymouth, Mayor of . . 1019 
 
 — V. Whaley 1029 
 
 — V. White . . 1018, 1068, 1128 
 
 — V. Whitwell 1118 
 
 — ■». Wigan 1034 
 
 — V. Williams 1018, 1037, 1112, 1114 
 
 — v. Wilson , . 867, 1026, 1184 
 
 — V. Wilts and Berks Canal Navi- 
 
 gation Co 1017 
 
 — B. Winchester, Mayor of . . 1021 
 
 — w. Wix 1045 
 
 — V. Wood Ditton .... 1031 
 
 — V. Woods and Forests, Commis- 
 
 sioners of . 
 
 . . 102r 
 
 — V. Woolmer . 
 
 . . 1002 
 
 — V. Worcestershire, Justices of . 1025 
 
 — «. Wortley . 
 
 . . 1095 
 
 — V. Wright 
 
 . 984 
 
 — V. Wroxton . 
 
 . . 16 
 
 — V. Wynne . 
 
 . 1112 
 
 — V, Tarborough, Earl of . 
 
 . . 1024 
 
 — V. York . 
 
 . 1129 
 
 — V. — Archbishop of . 
 
 . . 1039 
 
 — V. — Mayor of 
 
 1036, 1038, 
 
 
 1039 
 
 Raba v. Ryland 
 
 . 1101 
 
 Race V. Ward . 
 
 . . 754 
 
 Rackbam v. Marriott 
 
 . 172 
 
 RadclifFe v. Rushworth 
 
 . . 1108 
 
 Ragg V. Wells 
 
 . 729 
 
 Raikes v. Todd . 
 
 132, 789 
 
 Raine 0. Bell . 
 
 . 962 
 
 Rains V. Stony . 
 
 . . 771 
 
 Balli V. Dennistoun 
 
 . 283 
 
 — V. Johnson 
 
 . 908, 921 
 
 Ralph V. Harvey , 
 
 . 1092 
 
 Ramsay v. Atkinson . 
 
 . . 130 
 
 Ramsbottom v. Buckhurst 
 
 . 668 
 
 — V. Lewis 
 
 . . 266 
 
 — V. Mortley . 
 
 . 221 
 
 — V. Tunbridge '. 
 
 . . 221 
 
 Ramsdale v, Greenacre . 
 
 34, 991 
 
NAMES OF CASES. 
 
 Ixxi 
 
 
 PAGE 
 
 
 PAOE 
 
 Bamsden v. Jackson 
 
 . . 708 
 
 Eedman v. Wilson . 
 
 . 881, 960 
 
 iRamshay, Exp. 
 
 . 1118 
 
 Bedmond v. Smith . 
 
 . . 1182 
 
 JlamBtrom v. Bell 
 
 . . 888 
 
 Bedpath v. Boberts 
 
 . 1333 
 
 Kamnz v. Crowe . 
 Band V. Vaughan 
 
 . 293 
 
 Bee ». Watts . 
 
 . . 183 
 
 . . 601 
 
 ,Beed v. Allen 
 
 . 624 
 
 iKandal v. Cockran 
 
 . 917 
 
 — V. Deere . 
 
 . . 887 
 
 Bandall v. Lyncb 
 
 . . 475 
 
 , — V. Gordon 
 
 . 390 
 
 — V. Morgan . 
 
 . 778 
 
 Bees V. Abbott . 
 
 . . 335 
 
 — V. Payue 
 
 . . 72 
 
 — V. Berringtou . 
 
 . 313 
 
 — ■;;. Eigby . 
 
 485, 539 
 
 — V. Morgan . 
 
 . . 1165 
 
 — V. Eoper 
 
 168, 580 
 
 — V. Perrot 
 
 . 631 
 
 — V. Stevens . 659 
 
 660, 671 
 
 — V. Warwick 
 
 . . 282 
 
 Handle v. Gould 
 
 . . 231 
 
 Beeve v. Davis 
 
 . 1195 
 
 Kandleson v. Murray 
 
 . 1057 
 
 — V. Palmer 
 
 . . 583 
 
 Bann v. Hughes . . 55 
 
 766, 718 
 
 Beeves v, Gibson . 
 megnart v. Porter 
 
 5 
 
 Bannie v. Irvine 
 
 . 500 
 
 . . 586 
 
 Bansome v. Eastern Counties Bailway 355 
 
 BeigDolds v. Edwards 
 
 . 1270 
 
 lEaper v. Birbeok . 
 
 . 277 
 
 Beimar v. Bingrose , 
 
 . . 915 
 
 (Baphael v. Bank of England 
 
 . . 298 
 
 Bemington v. Stevens 
 
 . 184 
 
 Eapson v. Cubitt . 
 
 . 1056 
 
 Kenalds v. Smith 
 
 . . 523 
 
 B^shleigb V. South Eastern Bailway 414 
 
 Benaux v. Teakle . 
 
 . 227 
 
 Jtatcliff V. Chapman . 
 
 . . 678 
 
 Benew v. Axton 
 
 169, 257 
 
 :. — V. Shoolbred 
 
 . 932 
 
 Bennie v. Kobinson 
 
 . 1340 
 
 Batclifie v. Burton 
 
 . . 1262 
 
 Eenno v. Bennett 
 
 . . 1186 
 
 Baven v. Stookdale 
 
 . 622 
 
 Eenshaw v. Bean . 
 
 . 1073 
 
 Bawlings v. Bell 
 
 . . 566 
 
 Eenvin v. Watkin 
 
 . . 594 
 
 — V. Norbury 
 
 991, 1211 
 
 Bevis V. Smith 
 
 . 986 
 
 ' — V. Till 
 
 . . 42 
 
 Bex V. Dover, Mayor of 
 
 . . 704 
 
 — '■ V. Turner 
 
 . 759 
 
 — V. Mildmay, Lady St 
 
 . John . 624 
 
 — ^ V. Vincent . 
 
 . . 467 
 
 Eeynell v. Lewis 
 
 . . 1089 
 
 Eawlins v. Vandyke 
 
 228, 237 
 
 Beyner v. Hall 
 
 . 922 
 
 Eawlinson v. Clarke . 
 
 . . 1092 
 
 — V. Pearson 
 
 . . 946 
 
 ; — V. Shaw 
 
 . 516 
 
 Beynold v. Fenton 
 
 . 86 
 
 Bawson V. Johnson . 
 
 . 139 
 
 Beynolds v. Bridge . 
 
 . . 193 
 
 Bay V. Clerk .... 
 
 . 667 
 
 — V. Buckle 
 
 . 471, 542 
 
 Raymond v. Fitch 
 
 439, 713 
 
 • — V. Caswell . 
 
 201, 205 
 
 Egynay v. Alexander . 134, 
 
 137, 138 
 
 — V. Chettle 
 
 305 
 
 Bayner v. Qodmond . 
 
 . "884 
 
 — V. Doyle . 
 
 . . 168 
 
 — 11. Grote . 
 
 . 739 
 
 — V. Ivemy 
 
 . 320 
 
 Bayson v. Adcock 
 
 . 623 
 
 — V. Kennedy 
 
 . . 1011 
 
 ilea V. Sheward 
 
 . 1262 
 
 — V. Webb 
 
 . 98 
 
 Bead's case 
 
 . 699 
 
 Bhemes v. Humphreys 
 
 . . 1309 
 
 JElead v. Ambridge . 
 
 . 1203 
 
 Ehind v. Wilkinson 
 
 . 925 
 
 -— V. Bonham 
 
 . 909 
 
 Ehode V. Thwaites . 
 
 . . 86 
 
 — V. Coker . . 41, 
 
 116, 859 
 
 Ehodes v. BuUard . 
 
 . 404 
 
 — V. Edwards 
 
 . 835 
 
 — V. Smethurst 
 
 169, 178 
 
 — V. Gamble 
 
 . 321 
 
 Eice V. Shepherd . 
 
 . 234 
 
 — ■II. Great Eastern Bailway 
 
 . 711 
 
 Eich V. Basterfield . 
 
 . 1083, 1084 
 
 — V. Legard 
 
 . 235 
 
 — V. Kneeland . 
 
 . 344 
 
 — ». Nash . 
 
 . 772 
 
 — V. Parker 
 
 . 943 
 
 , — V. Pope .... 
 
 487, 538 
 
 — V. WooUey . 
 
 . 601, 609 
 
 — V. Bann . 
 
 . 87 
 
 Eichard v. Great Northei 
 
 n Bail way . 349 
 
 — V. Boyal Exchange Ass. Co. 
 
 . 971 
 
 Eichards v. Barton . 
 
 . 217 
 
 Beade v. Lamb 
 
 765, 766 
 
 — V. Basset 
 
 . 388 
 
 Beader v. Kingham . 
 
 .' 769 
 
 — V. Coruforth 
 
 . . 1158 
 
 Eeadiiig, Mayor of, v. Clarke . 
 
 . 85 
 
 • — V, Frankum 
 
 . 584 
 
 Beay i>. Bichardson . 
 
 . 161 
 
 — V. Fry 
 
 . . 384 
 
 — V. White 
 
 . 152 
 
 — V. Harvey 
 
 . 1092 
 
 Eeidell v. Dobree 
 
 . 1282 
 
 — V. Holditoh 
 
 . . 1339 
 
 Bidding, Be .... 
 Bede v. Earr . 
 
 . 814 
 
 — V. London and S 
 
 Jonth Coast 
 
 . 134 
 
 Bailway 
 
 . 349, 366 
 
 Bedhead v. Midland Bailway . 
 
 . 349 
 
 — V. Peake 
 
 . . 1254 
 
 EeSman v. London 
 
 . 948 
 
 — V, Porter 
 
 . 800 
 
Ixxii 
 
 NAMES OF CASES. 
 
 PAGE 
 
 Richards v. Eicharas 178, 224, 243, 248, 
 
 999 
 
 — V. Suffield . . .196 
 Eichardson v. Atkinson . . . 1299 
 
 — V. Brown . . . 669 
 
 — V. Chason . . . 217 
 
 — V, Dunn ... 90 
 V. Gifford . 435, 762 
 
 — V. Hall . . 251, 1343 
 
 — V. Horton . . . 635 
 
 — V. Jackson . . .187 
 
 — V. Langridge . . . 630 
 
 — V. MelUsh ... 71 
 
 — V. Oxford, Mayor of . . 750 
 Riclmond, Duke of, v. Costelow . 1198 
 
 — V. Nicholson . . 1325 
 Eickards v. Murdock . . 933, 935 
 Eicket V. Metropolitan Eail., The . 1071 
 Eickett V. Tallick . . . 635 
 Eicketts v. Bennett . . 85, 1098 
 
 — V. Loftus . . . 4 
 
 — V. Weaver . . 439, 713 
 
 Eickford v. Eidge 
 Eickman v. Carstairs 
 Eidd V. Moggridge . . , 
 
 Siddell V. Sutton . . . , 
 Eider v. Edwards . . . . 
 Eidgwayi). Hungerford Market Com. 
 pany . . . . 
 
 — V. Stafford, Lord 
 
 — V. Wharton 
 Eidleyi). Taylor . 
 
 — V. Tindall . . . . 
 Eidout V. Bristow . . . . 
 Eigby V. Great Western Railway Co. 
 
 310 
 
 878 
 
 174 
 
 709 
 
 1148 
 
 — V. Hewitt 
 Eigg V. Curgenven 
 Eigge V. Burbidge 
 Bight V. Banks 
 
 — V. Bowden 
 — • V. Beard 
 
 — V. Cuthell 
 
 — V. Darby 
 
 — V. Price . 
 Ringham v. Clements 
 Ringstead v. Lady Lanesborongh 
 Eipley v. M'Clure 
 
 — V. Scaife . 
 Eippon V. Norton 
 Eiseley v. Rile 
 
 — V. Ryle . . . . 
 Rist V. Faux 
 
 Ritchie v, Atkinson . 
 
 — V. Van Gelder . 
 Rivers v. Griffiths 
 Eivis V. Watson 
 Roach V. Wadman 
 Robarts v. Tucker 
 Robbins v. Fennell . 
 Roberts v. Bate 
 
 — V. Berry 
 
 — V. Camden 
 
 1049 
 . 605 
 800, 802 
 . 265 
 . 166 
 . 329 
 405, 
 413 
 . . 351 
 . 11 
 . . 679 
 . 813 
 . . 633 
 . 644 
 . . 638 
 630, 631, 642 
 . . 814 
 
 . 1309 
 . 238 
 . 479 
 . 465 
 . 60 
 . 644 
 . 586 
 . 1064 
 459, 463 
 
 . . 191 
 
 . 540 
 
 . . 448 
 
 . 119 
 
 . . 124 
 
 . 143 
 
 218 
 
 1201, 1202, 1211 
 
 Roberts v. Elsworth 
 
 — V. Fonnereau 
 
 — V. Havelock 
 
 — V. Hayward . 
 
 — V. Jackson 
 
 — V. Karr 
 
 — V. Malston 
 
 — «. Ogilby 
 
 — V. Orchard 
 
 — V. Peaks 
 
 — V. Phillips 
 
 — V. Price 
 
 — V. Read . 
 
 — V. Roberts . 
 
 — V. Snell . 
 
 — V. Tucker 
 
 — V. Withered 
 
 — V. Wyatt 
 Robertson v. French 878, 
 
 — V. Gauntlett . 
 
 — V. Hamilton 
 
 — V. Kensington 
 
 — V. Powell . 
 Robins v. Bridge . 
 
 — V. Gibson 
 — ■ V. Heath . 
 
 — V. May . 
 
 — V. Power . 
 Eobinson, Ee 
 
 — V. Bland . 
 V. Brown 
 
 — V. Cheesewright 
 
 — V. Cook . 
 
 — 11. Cotterell 
 
 — V. Dunmore . 
 
 — V. Harman 
 
 — V. Hlndham . 
 
 — V. Great Western 
 
 — I). Learoyd. 
 
 — V. Marchant . 
 
 — V. May 
 
 — f. Nahon 
 
 — V. Powell . 
 
 — (/. Eeynolds 
 
 — II. Eoland . 
 
 — V. Rutter 
 
 — V. Taylor . 
 
 — V. Touray , 
 
 — V. Waddington 
 
 — V. Wall . 
 
 — V, Yarrow 
 Eobson V. Bennett 
 
 — V. Doyle 
 
 — V, Drummond 
 
 — V. Eaton . 
 
 — V. Godfrey 
 
 — V, Oliver . 
 V. EoUs 
 
 PAGE 
 
 . 819 
 932, 933 
 
 . 90 
 . . 635 
 
 . 593 
 . . 1264 
 
 . 27 
 . . 125 
 
 . 860 
 
 . . 331 
 
 814, 825 
 
 . . 1131 
 
 . 1086 
 . . 1206 
 
 . 1167 
 . . 786 
 
 . 582 
 
 . . 1288 
 
 889, 968, 1323 
 
 . 1271 
 
 . . 957 
 
 284, 745 
 
 . . 1205 
 
 . 208 
 . . 308 
 
 . 123 
 . . 330 
 
 . 1190 
 
 . 204 
 . . 326 
 
 . 514 
 . . 930 
 
 . 188 
 . . 316 
 
 . 348 
 . 139, 217 
 
 . 1049 
 
 Railway 357 
 
 . . 648 
 
 . 990 
 
 . 236 
 
 . . 848 
 
 . 278 
 
 129, 147, 203 
 
 . 740 
 
 . . 526 
 
 877, 887, 980 
 
 . 604 
 
 . . 214 
 
 . 822 
 
 . 303, 305 
 
 36, 38, 157 
 
 1102, 1103 
 
 . 97 
 
 . . 198 
 
 . 294 
 
 1288, 1299, 1302 
 
 Rochester, Mayor, &c., of, v. Rex . 1028 
 Rochdale Canal Co. v. Radcliff . . 1076 
 Rochtschilt V. Leibman . . . 178 
 Rock V. Leighton . . . , 708 
 Roden v. Eyton . . , 605, 612 
 
NAMES OF CASES. 
 
 Ixxiii 
 
 Hoderick v, Hovil 
 EodgerB v. Maylor . 
 
 — 0. Parker 
 Kodney v. Chambers 
 
 — V. Strode 
 JElodwell V. Phillips 
 
 " — — " — "• r" " • "-J ■ — 
 
 Boe d. Berkeley v. Archbishop of 
 
 York 
 
 — d. Gilman v. Heyhoe 
 
 — d. Leake v. Doe 
 
 — V. Charnock 
 
 — V. Davis . 
 
 — V. Harrison . 
 
 — V. Hicks . 
 
 — V. Loveless . 
 
 — V. Lonsdale 
 
 — V. Moore 
 
 — V. Paine . 
 
 — V. Parker . 
 
 — V. Pierce . 
 
 — V. Power 
 
 — V. Prideaux 
 
 — V. Eawlings. 
 
 — V. Beade . 
 
 — V. Street 
 
 — V. Wiggs . 
 
 — V. Wilkinson 
 Boffey V. Greenwell 
 
 — V. Henderson 
 3 V. Allen . 
 
 V. Benstead 
 
 — V. Birkmire 
 
 — V. Clifton . 
 
 — V. Grazebrook 
 
 — V. Langford 
 
 — V. Mayhoe 
 
 — V. I'ayne 
 
 — V. Pitcher 
 
 — u. Beeves 
 
 — V. Stevens 
 Eohl V. Parr . 
 Boles V. Eosewell 
 Bolin V. Steward 
 Bolls V. Bock . 
 
 — V. Yate 
 Eolle V. White . 
 Bolph V. Crouch 
 Biondean v. Wyatt 
 Eoper V. Lloyd 
 Boret V, Lewis . 
 Boscorla v. Thomas 
 Boscow V. Hardy 
 Bosef. Blakemore 
 
 — V. Bowler . 
 
 — V. Groves 
 
 — v. Hart 
 
 — v. Miles. 
 
 — V. Poulton . 
 Eosewarne v. Billing 
 Eosewell v. Prior 
 Eosher v. Kieran 
 Boss 1). Bradshaw 
 
 — V. Clifton 
 
 PAGE 
 
 . . 886 
 . 92X 
 
 . 610, 611 
 . 420 
 
 . . 53 
 779, 780, 781 
 
 763, 764 
 . 812 
 . 647 
 . 630 
 . 669 
 
 430, 431 
 . 623 
 . 623 
 . 622 
 . 684 
 . 642 
 . 678 
 635, 638 
 . 682 
 . 633 
 677, 815 
 . 618 
 
 . . 637 
 . 637 
 . 630 
 . 328, 330 
 761, 1086, 1295 
 
 . . 752 
 372, 388, 389 
 
 . . 600 
 . 1213 
 
 . . 657 
 . 163 
 
 . . 538 
 . 470 
 
 . . 1160 
 . 521, 522 
 
 . 66, 287 
 , 896 
 
 . . 629 
 . 298, 1203 
 
 . . 1244 
 . 418 
 
 . . 755 
 . 481 
 
 . . 791 
 . 470 
 
 . . 1008 
 65, 66, 789 
 
 . 286, 290 
 . 14 
 
 . . 719 
 1070, 1071 
 
 . . 1316 
 . 1071 
 
 . 248, 341 
 . 109 
 
 . . 1083 
 . 288 
 
 . . 974 
 . 861, 1265 
 
 Boss V. Hill 
 
 — V. Hunter 
 
 — V. Johnson 
 — • 1}. Noel . 
 
 — 1). Norman 
 Bossetto V. Gurney 
 Botch V. Edie . 
 Bothery v. Curry . 
 Bothschild v. Currie . 
 Bothwell V. Cook . 
 Bough's case 
 
 Bouse V. Bardin 
 
 — V. Patterson . 
 Eoutledge v. Abbott 
 
 — V. Barrel! . 
 * — V. Bamsay . 
 Eoux V. Salvador 
 
 — V. Wiseman . 
 Bowcliffe V. Edmunds 
 Eowcroft V. Lomas . 
 
 Bowe V. Hawkins . . 
 
 — V. Piokford . 
 Bowe V. Tatte . 
 
 — • V. Young 
 Bowland v. Blacksley 
 
 — V. Samuel 
 
 — V. Veale 
 Bowley v. Adams . 
 
 Boyal Exchange Assurance 
 M'Swinney . 
 
 — Mail Steam Packet 
 
 Acraman . 
 Eoyden v. Batty 
 Eoyston v. Eccleston 
 Buck V. Hatfield 
 Bucker v. Ansley . 
 
 — V. Cammeyer. 
 
 — V. London Assurance 
 
 — D. Miller 
 
 — V. Palsgrave 
 Euckmaboye v. Mottichund 
 Budder v. Price . 
 Bugby Charity, Trustees of, 
 
 ryweather 
 Eugg V. Minett 
 Bumball v. Norton . 
 Eumsey v. Webb . 
 Eumwey v. Webb 
 Eush V. Peacock . 
 Eushforth v. Hadfield. 
 Bushton V. Aspinall 
 Eushworth v. Taylor . 
 Bussel V. Boheme . 
 
 PAGE 
 
 348, 366 
 
 902, 903 
 
 364, 1325 
 
 . 262 
 
 . 1009 
 
 915, 916 
 . 900 
 . 768 
 . 301 
 . 966 
 . 1254 
 . 1270 
 . 1149 
 . 1274 
 . 937, 977 
 . 174 
 . 909 
 . 583 
 . 1212 
 . 172 
 35, 48 
 . 1237 
 . 862 
 . 544 
 . 161 
 1007, 1015 
 
 862, 863 
 . 449 
 
 Co. 
 Co! 
 
 Co. 
 
 957 
 
 134 
 1327 
 
 627 
 1229 
 
 930 
 
 804 
 
 — '"■ 
 Bussell V. Bangley . 
 
 — V. Devon, Men of 
 — ' V. Lee . 
 
 — d. Moseley . 
 
 — V. Palmer 
 
 — V. Phillips . 
 
 — V. Powell 
 
 — V. Shenton . 
 
 — V. Smyth 
 
 . 289 
 
 . 919 
 
 . 178 
 
 . 486, 489 
 
 V, Mer- 
 
 , 1264 
 
 . 1285 
 
 , 1137 
 
 . 1212 
 
 . 698 
 368, 1317 
 . 306 
 . 1299 
 . 959 
 . 317 
 . 922 
 . 1071 
 159, 511 
 . 789 
 . 209 
 . 285 
 . 270 
 . 1084 
 85, 484 
 
 152. 
 
Ixxiv 
 
 NAMES OF CASES. 
 
 Russen v. Coleby . 
 
 PAGE 
 . 461 
 
 Rust V. Nottidge 
 
 . . 414 
 
 Eustel V. Macqoister . 
 
 . 996, 1215 
 
 Rutherford v. jEvans . 
 
 . . 991 
 
 Rutland, Countess of, case 
 
 . 1299 
 
 — V. Rutland . 
 
 . . 710 
 
 Eutter V. Chapman 
 
 . 1127 
 
 Ryal 1). Rich . 
 
 . . 549 
 
 Ryalls V. Bramall . 
 
 . 720 
 
 Ryan v. Clark . 
 
 . . 1245 
 
 — V. Sams 
 
 . 226, 236 
 
 Ryley V. Hicks . 
 
 . . 759 
 
 SABonKin V. Marshall . 
 
 . 1143 
 
 SacheTerill v. Porter . 
 
 . . 372 
 
 Saddlers' Co. v. Badcock 
 
 . 955, 977 
 
 Sadler, Exp. . 
 
 . . 77 
 
 — V. fiixon . 
 
 . 953 
 
 — V. Evans 
 
 121, 123, 693 
 
 Henlock . 1050, 1057, 1084 
 , — V. Nixon . . . . 96 
 
 Sainsbury v. Matthews . . . 781 
 St. Helen's Smelting Co. v. Tipping. 1069 
 St. Luke's «. Middlesex, Justices of. 1024 
 St. Saviour's, Churchwardens of, ■:>. 
 
 Smith . 
 
 
 449 
 
 Salmon v. Bensley . 
 
 . 
 
 1086 
 
 — o. Bradshaw . 
 
 • ■ 
 
 466 
 
 ■7- V. Matthews 
 
 . 
 
 1332 
 
 — i!. Smith 
 
 . 
 
 157 
 
 — V. Watson . 
 
 
 783 
 
 Salomons v. Nissen . 
 
 
 1239 
 
 Salouccl V. Johnson 
 
 
 942 
 
 — V. Woodmass 
 
 
 944 
 
 Saltar v. Woollams 
 
 . 
 
 1087 
 
 Saltoun V. Houston . 
 
 . 
 
 411 
 
 Salvin v. James 
 
 . 
 
 979 
 
 Samford 0. Cutcliffe . 
 
 . 
 
 470 
 
 Sammell v. Wright 
 
 . 
 
 350 
 
 Sampson v. Basterby 
 
 . ' 411, 446 
 
 ' — V. Hoddinott 
 
 1076, 
 
 1077 
 
 Samuel ■». Buller 
 
 
 850 
 
 — V. Duke . 
 
 
 1311 
 
 — V. Evans 
 
 519, 522. 524 
 
 — V. Morris . 
 
 
 700 
 
 — 0. Payne 
 
 
 864 
 
 Sandback v. Thomas 
 
 . 
 
 1015 
 
 Sanderson v. Bell 
 
 . 'l313, 
 
 1319 
 
 — V. Coleman 
 
 . lis 
 
 , 322 
 
 — V. Symonds 
 
 
 873 
 
 Sandford v. Rogers 
 
 • ■ ■ 
 
 627 
 
 Sandilands v. Marsh . 
 
 
 1101 
 
 Sandon v, Jervis . 
 
 
 1168 
 
 Sands v. Child . 
 
 
 1062 
 
 — V. Clarke . 
 
 • ■ 
 
 291 
 
 -^ V. Trevilian 
 
 . 
 
 195 
 
 Sandwich, Mayor of, v. 
 
 The Queen . 
 
 84 
 
 Sansom v. Rhodes . 
 
 ■ • 
 
 219 
 
 Sapsford v. Fletcher . 
 
 • ■ • 
 
 1163 
 
 Sard V. Rhodes 
 
 
 161 
 
 Sargent v. Morris 
 
 ■ • • 
 
 361 
 
 Sari V. Bourdillon . 
 
 . 800 
 
 , 801 
 
 PAGE 
 
 Sarquyy. Hobson . . . . 895 
 
 Sarsfield v. Witherby . . . 258 
 
 Saterthwaite v. Dewhurst . 67, 1064 
 
 Saunders v. Bate . 34, 991, 1214 
 
 — 0. Darling . . . II49 
 
 — 0. Drew . . . . 466 
 
 — v. Mills . . .984, 1000 
 
 — 0, Newman . . . 1076 
 
 — V. Topp . . . .794 
 
 — V. Wakefield . 767, 788 
 Saunderson 11. Brignall . . .84 
 
 — V. Jackson . 800, 801 
 
 — V. Marr . . .160 
 
 — V. NichoUe . . . 728 
 
 — V. Piper . . .269 
 Savage v. Dent 652 
 
 — V. Robery . . . .1208 
 Savile v. Roberts . . . . 1005 
 Savill V. Barchard . . . . 1316 
 
 ~ 1). Jardine . 982, 1200, 1216 
 Saville and Wife v. Sweeney . . 245 
 
 — V. Robertson . 1103, 1107 
 Sawtell V. London . . . . 88 7 
 Sawyer v. Mercer .... 722 
 Saxon V. Browne . . . . 1009 
 
 — V. Castle .... 1012 
 Saxty V. Wilkins . . . . 573 
 Saye and Sele, Lord, v. Stephens . 1198 
 Sayer v. Glean . . . .490 
 
 — V. Grlossop . . . . U 
 Sayers v. London and Birmingham 
 
 Flint Glass Company . . . 674 
 
 Sayles v. Blance . . . . 93 
 Scadding v. Eyles .... 199 
 
 Scambler v. Johnson . . . . 373 
 
 Scarfe v. Morgan . . 1318, 1319 
 
 Scarpellini v. Atcheson . . . 262 
 
 Scarth v. Gardener . . .844 
 
 Scattergood v. Sylvester . . . 1278 
 
 Scheibel v. Fairbairn . . . 1009 
 
 Schleneker v. Moxsy . . . . 55 
 
 Schmaltz v. Avery . . . 739, 811 
 
 Schneider v. Poster . . . . 88 
 
 — V. Norria . . .801 
 
 Scholefield v. Robb . . . . 570 
 
 Scholes V. Hargreaves . .372, 373 
 
 Scholey v. Mearns . . . . 627 
 
 — V. Walsby . . . 103, 324 
 
 — V. Walton . . . . ■ 175 
 Schotsman v. Lancashire and York- 
 shire Railway Company . .1234 
 
 Sohroeder 1). Vaux . 929,939 
 
 Schultz V. Astley . . .277 
 
 Schuster II. M'Kellar . . . . 1239 
 Scilly V. Dalby . . . .1157 
 Scorell V. Boxall . . . , 780 
 Scotland Sea Insurance Company v. 
 
 Sa»in 880 
 
 Scotsow V. Pegg . . .56, 57 
 Scott V. Beaven . . . .85 
 
 — V. Bourdillon . . . . 881 
 
 — V. Crawford .... 125 
 
 — ■y. Dixon . . . . .' 560 
 
NAMES OF CASES. 
 
 Ixxv 
 
 PAGE 
 
 Scott ». Eastern Counties Railway 
 
 Company . . 791, 795 
 
 — -I). Gillmore . . . . 75 
 
 — V. Godwin . . 417, 418, 419 
 
 — V. Irving . . . 923, 962 
 
 — V. Lifford . . . .303 
 , — V. London Docks . . . 350 
 
 — V. M'Intosh .... 3 
 
 — V. Newington . . . . 1314 
 
 — V. Parker .... S3 
 
 — V. Pettit 1236 
 
 — 1). Shearman . . 1251, 1284 
 
 — V. Staley . . . . 529 
 
 — V. Stansfield .... 1207 
 
 — V. Stephenson . . . . 59 
 
 — V. Surman .... 742 
 
 — V. Tliompson . ... 949 
 Scotthome v. South Staffordshire 
 
 Eailway 347 
 
 Scottish Marine Insurance Co. 6. 
 
 Tnmer 911 
 
 Sorimshire v. Alderton . . . 734 
 — V. Scrimshire . . . 25 
 Scudamore v. Stratton . . .477 
 Scurfield v. Gowland . . 102, 107 
 
 Seago V. Deane .... 127 
 Seagood i>. Meale . . . . 790 
 
 Seals). Kex 1118 
 
 Seaman v. Ponnereau . 933, 935 
 
 Searle v. Lane . . . 70^ 
 
 — V, Lindsay . , . . 1060 
 Seaton v. Benedict .... 235 
 Secar v. Atkinson . . . . 719 
 Seddon v. Seddon and Doyle . . 10 
 
 — V. Stratford . . . . 337 
 Sedgworth v. Overend . . . 1308 
 
 — V. Spicer . . . . 623 
 Seers v. Hind . . . .430 
 Sefton, Earl of, v. Court . . . 1156 
 Senhouse v. Christian . 1266, 1267 
 
 Selby V. Browne .... 1340 
 
 — V. Crystal Palace District Gas 
 
 Company . . . 402 
 
 — V. Eden ... .318 
 Sellers «. Blckford . . . .469 
 
 Sells V. Hoare 612 
 
 Selway v. Fogg . . . . 88 
 Serle v. Darford . . . . 51 
 
 — ■». Norton .... 311 
 
 — V. Waterworth . . . . 700 
 Serres «. Dodd . . . .250 
 Servante v. James . . . . 415 
 Severin v. Keppell . 1323, 1326 
 Seward v. Baker . . . . 85 
 Sewell V. Boyal Exchange Assurance 
 
 Company 932 
 
 Sexton V. Miles . . . . 132 
 
 Seymour v. Lord Courtenay . . 761 
 Shack V. Anthony . . 400, 459 
 
 Shackell v. Hosier .... 69 
 Shadgett v. Clipson . . 847, 864 
 
 Shadwell v. Hutchinson . . . 1082 
 
 — V. Shadwell . . . 57 
 
 PAGE 
 Shaftesbuiy, Lord, v. Lord Digby . 1198 
 Shakespeare v. Peppin . . . 376 
 
 Shand v. Grant 122 
 
 Shannon v. Shannon . 1141, 1142 
 
 Sharp V. Gladstone . . . . 918 
 
 — 1). Grey . . . .349 
 
 — V. Key 686 
 
 Sharpe v. Abbey .... 526 
 Sharrod v. London and North West- 
 
 em Railway Co. 
 
 43, 1055 
 
 Shatwell V. Hall . 
 
 . 858 
 
 Shaw V. Arden . 
 
 206, 207 
 
 — V. Croft 
 
 . 288 
 
 — V. Holland . 
 
 . 191 
 
 — V. Jakeman 
 
 . 778 
 
 Ht — V. Picton 
 
 161, 326 
 
 — V. Pritchard 
 
 . .421 
 
 — V. Robberda . 
 
 . 980 
 
 — V. Stenton 
 
 . 429 
 
 — V. Worcester, Marquis of 
 
 . 528 
 
 Shawe V. Pelton . 
 
 874, 918 
 
 Sheape v. Culpeper . 
 
 . . H6i5 
 
 Sheath v. York . 
 
 . 820 
 
 Shoe V. Clarkson 
 
 . . 968 
 
 Sheen v. Kickie 
 
 . 1291 
 
 Shelley's case . . 702, 
 
 707, 728 
 
 Shelton v. Livius . 214, 
 
 804, 812 
 
 Shepherd, Gent, &e., v. Mackoiil . 232 
 
 — V. Chewter 
 
 . . 922 
 
 — V. Hodsman . 
 
 . 759 
 
 — V. Johnson 
 
 . . 192 
 
 — u. Kain 
 
 566, 567 
 
 — 0. Lewis . 
 
 . . 147 
 
 — V. Pybus 
 
 568, 576 
 
 — V. Shepherd 
 
 . . 820 
 
 — V. Shorthose 
 
 667, 727 
 
 SSepley v. Daris 
 
 . . 1284 
 
 Sherard's case 
 
 . 675 
 
 Sheridan v. New Quay Company 
 
 . 362 
 
 — V, Phcenix Life Assurance 
 
 Company 
 
 . . 979 
 
 Sheriff v. Wilks . 
 
 . 1098 
 
 Sherley v. Packer 
 
 . 68 
 
 Sherman v. Bennett 
 
 . 1189 
 
 Sherrington v. Yates 
 
 . . 224 
 
 Sherwin v. Swindall 
 
 391, 1002 
 
 Sherwood v. Adderley 
 
 . . 533 
 
 — V. Clark 
 
 . 668 
 
 Shetelworth v. Neville 
 
 . . £34 
 
 Shilleber v. Glynn . 
 
 . . 66 
 
 Shilling ». Accidental Death Insur- 
 
 ance Company 
 
 . 971 
 
 Shillito V. Theed . 
 
 . 279 
 
 Shine ». Billon 
 
 . 1331 
 
 Shinley v. Roberts 
 
 . 553 
 
 Shipley v. Craister . 
 
 . 524 
 
 — I}. Kymer . 
 
 . 733 
 
 Sl(ipman v. Henbest 
 
 . 652 
 
 — V, Thompson . 
 
 . 183 
 
 Shippey v. Denison . 
 
 765, 790 
 
 Shipton V. Casson . 
 
 . 90 
 
 Shipwick V. Blanchard 
 
 .1305 
 
 Shirley li. Newman 
 
 . 631 
 
Ixxvi 
 
 NAMES OF CASES. 
 
 
 PAGE 
 
 
 PAGE 
 
 Shirley v, Sankey 
 
 . . 114 
 
 Singleton v. Williamson . 
 
 . . 689 
 
 — V. Wilkinson 
 
 . 935 
 
 Siordidt v. Kuczinski 
 
 . 274 
 
 Shoolbred v. Nntt . 
 
 . . 935 
 
 Sisson V. Thomlinson . 
 
 . . 290 
 
 Shore v. Wilson . 
 
 . 810 
 
 Six Carpenters' case 
 
 . 115 
 
 Short d. Gastrell v. Smith 
 
 . . 819 
 
 Skaife v. Jackson 
 
 . . 103 
 
 — V. Hubbard . 
 
 . 1146 
 
 Skeate v. Beale . . 100 
 
 105, 497 
 
 — V. Ealloway 
 
 . . 481 
 
 Skelton v. Cole . 
 
 . . 789 
 
 — V. M'Arthy . 
 
 . 168 
 
 — V. Hawling 
 
 . 708 
 
 — V. Spaokman . 
 
 . . 740 
 
 Skevilli). Avery 
 
 . . 48 
 
 Shove V. Webb . 
 
 . 102, 107 
 
 Skilbeok v. Garbett 
 
 203, 303 
 
 Shower v. Pilck 
 
 . . 1247 
 
 Skingley v, Surridge ■ 
 
 . . 1143 
 
 Shrewsbury, Earl of, v. Gould . 413 
 
 Skinner v. Gonton . 
 
 . 1012 
 
 — V. Blount . 
 
 80, 560, 562 
 
 — 1). South Coast Eailway 
 
 . . 350 
 
 Shubrick V. Salmond 
 
 . 434 
 
 — ■!). Stocks . 
 
 . 1103 
 
 Shuttleworth v. De Fleming . . 754 
 
 — V. Upshaw . 358, 1312, 1326 
 
 — V. Garrett 
 
 . . 84 
 
 Skipp V. Eastern Counties Eailway 
 
 — V. Lincoln, Corporation 
 
 Company .... 
 
 . 1061 
 
 of . 
 
 . . 1018 
 
 Skrine v. Elmore 
 
 . . 573 
 
 — «. Pilkington 
 
 . 523 
 
 Skull V. Glenister . 
 
 . 1266 
 
 Sibbald v. Eoderick . 
 
 , . 1143 
 
 Skuse V. Davis . 
 
 . . 44 
 
 Siboni v. Kirkman 
 
 . 691 
 
 Skyring v. Greenwood . 
 
 98, 99 
 
 Sibree v. Tripp 
 
 148, 160 
 
 Slack V. Shai-pe 
 
 . . 1334 
 
 Sidwell V. Mason . 
 
 . 172 
 
 Slater v. Lawson . 
 
 . 729 
 
 Sievewright v. Archibald . 
 
 799, 805 
 
 — V. May . 
 
 . 697 
 
 Siffken v. Lee 
 
 . . 944 
 
 Sleddon v. Cruickshank . 
 
 . 89 
 
 — ii. Wray 
 
 . . 1220 
 
 Sleigh V. Sleigh . 
 
 288, 308 
 
 Siffkin V. Walker . 
 
 . 335 
 
 Slim V. Great Northern Kailway 
 
 . 344 
 
 Sigard v. Roberts 
 
 . . 1189 
 
 Slingsby's case . 
 
 . . 416 
 
 Siggers v. Lewis . 
 
 . 190 
 
 Slipper V. Stidstone 
 
 . 182 
 
 Sigourney v. Lloyd . 
 
 296, 299 
 
 Sloane v. Packman . 
 
 . . 421 
 
 Siller V. Holman . 
 
 . 36 
 
 Sloeomb's case 
 
 . 1210 
 
 Sillern v. Thornton . 
 
 . . 980 
 
 Sloperi;. Cottrell 
 
 . 247 
 
 Silly V. Dally 
 
 . 1154 
 
 Slubey v. Heyward 
 
 . 1232 
 
 Simmonds v. Humble 
 
 . . 797 
 
 Small V. Moates 
 
 . 359 
 
 — t. Taylor 
 
 . 311 
 
 Smalley v. Blackburn Eailway 
 
 . 684 
 
 Simmons v. Heseltine 
 
 . . 220 
 
 — V. Kerfoot. 
 
 . 1309 
 
 Simon v. Great Western 
 
 Kailway 
 
 Smart V. Harding 
 
 782, 783 
 
 Company 
 
 356, 357 
 
 — V. Hyde 
 
 132, 569 
 
 — -1). Metivier . 
 
 . . 213 
 
 — V. Nokes 
 
 . 272 
 
 Slmond v. Boydell 
 
 . 967 
 
 — V. Sandars . 
 
 . 1087 
 
 Simons, Ke . . . 
 
 . . 200 
 
 — V. Sanders 
 
 . 733 
 
 Simonds v. Hodgson 
 
 . 877, 969 
 
 Smeed v. Foord 
 
 . 368 
 
 — V. Lawnd 
 
 . . 629 
 
 Smethhurst ». Tomlin . 
 
 . 689 
 
 Simpson v. Accidental Death Insur. | 
 
 Smethurst v. Taylor . 
 
 . 160 
 
 Co. 
 
 975, 976,. 978 
 
 Smith, Exp. . . 312, 
 
 313. 314 
 
 — V. Bloss 
 
 . . 108 
 
 — V. Abbott 
 
 . 284 
 
 — V. Clayton 
 
 411, 415, 443 
 
 — V. Adkins . 
 
 . 621 
 
 — V. Dismore . 
 
 . . 494 
 
 — V. Alger . 
 
 . 60 
 
 — 1). Hartop 
 
 . 591, 593 
 
 — V. Allison , 
 
 9 
 
 — nJ. Henderson 
 
 . . 137 
 
 — V. Anderson . 
 
 . 738 
 
 — D. Ingham 
 
 . 162 
 
 — V. Angell 
 
 . 537 
 
 — 1). Lewthwaite 
 
 . . 1268 
 
 — V. Barrow 
 
 . 1105 
 
 — -D. Penton 
 
 92, 771 
 
 — V. Battens . 
 
 . 342 
 
 — x). Heady 
 
 553, 1129 
 
 — V. Beckett 
 
 . 291 
 
 — V. Kobinson 
 
 . 992, 1213 
 
 — V. Biokmore . 
 
 . 110 
 
 — ■». Savage . 
 
 . . 1082 
 
 — V. Birmingham Gas Co. 
 
 . 1308 
 
 , — V. Tresler 
 
 . 691 
 
 — V. Boheme . 
 
 . 333 
 
 Sims V. Bond . 
 
 . . 735 
 
 — 1/. Bond . . 206, 
 
 529, 550 
 
 — V. Marryatt . 
 
 . 566, 676 
 
 — i). Bouchier . 
 
 . 862 
 
 Sinclair v. Bowles 
 
 . . 89 
 
 — 0. Braine 
 
 . 278 
 
 — V. Eldred . 
 
 1008, 1015 
 
 ■ — V. Bromley , 
 
 . 107 
 
 — V. Jackson . 
 
 . . 472 
 
 — V. Carr . 
 
 . 834 
 
 Singleton v, Williams 
 
 . 609 
 
 — V. Chester . 
 
 298, 322 
 
NAMES OF CASES. 
 
 Ixxvii 
 
 
 PAGE 
 
 
 
 PAGE 
 
 Smiths. C]arke 
 
 . . 295 
 
 Smith V. Tett . 
 
 
 616, 681 
 
 — V. Colgay . 
 
 . no 
 
 — V. Thatcher . 
 
 
 . 304 
 
 — V. Compton 
 
 403, 481 
 
 — V. Thomas 
 
 . 
 
 1213, 1214 
 
 — V. Cooker . 
 
 . 254 
 
 — V. Thompson 
 
 
 . 170 
 
 — V. Cuff . 
 
 106, 107 
 
 — •». Thorne 
 
 . 
 
 . . 173 
 
 — ■». Davis 
 
 . 702, 707 
 
 — V. Trowsdale 
 
 
 . 468 
 
 — V. Day . 
 
 . . 707 
 
 — V. Twoart 
 
 , 
 
 . . 1335 
 
 — V. Dimes 
 
 . 200 
 
 — V. Warner . 
 
 
 . 254 
 
 — V. Dixon . 
 
 . . 147 
 
 — v. Watson 
 
 
 . . 790 
 
 — V. Dudley . 
 
 . 285 
 
 — M. Westall . 
 
 
 . 786 
 
 — V. Evans . 
 
 . . 814 
 
 — v, Wilson 
 
 . i; 
 
 i8, 194, 459 
 
 — V. Ferrard . 
 
 . 164 
 
 — V. Wiltshire . 
 
 
 . 858 
 
 — «. Plexney 
 
 . . 918 
 
 — -e. Winter 
 
 . 
 
 . . 1098 
 
 — «. Puge 
 
 . 1323 
 
 — ii. Woodcock 
 
 
 . 285 
 
 — 0. Gfatewood 
 
 . . 1156 
 
 — V. Woodhonse . 
 
 Vi 
 
 5, 136, 142 
 
 — u. Goffe 
 
 . 133 
 
 ^j— V. Woodward 
 
 
 . 454 
 
 — 1^. Goodwin 
 
 . . 611 
 
 — V. Wright 
 
 , 
 
 . . 608 
 
 — V. Goss 
 
 1222, 1224, 1228 
 
 — V. Teltou . 
 
 
 . 877 
 
 — V. Hall . 
 
 . . 621 
 
 — V. Tonng 
 
 , 
 
 . . 1325 
 
 — V. Hayward . 
 
 . 1050 
 
 Smout V. Ilbery 
 
 
 226, 236 
 
 — «>. Hill . 
 
 . . 178 
 
 Smyth V. Holmes 
 
 
 . 58, 60 
 
 — V. Hixon 
 
 . 1005 
 
 Snag V. Gee . 
 
 
 . 1199 
 
 — V. Howell 
 
 480, 481 
 
 Snaith ■;;. Mingay 
 
 
 . . 272 
 
 — V. Hull Glass C 
 
 0. . . 84 
 
 Snee v. Prescott 
 
 
 . 296 
 
 — V. Jeffreys 
 
 . . 811 
 
 Snelgar v. Henston . 
 
 , 
 
 . . 1168 
 
 — V. Johnson . 
 
 . 295 
 
 Snell D. Finch 
 
 
 . 696 
 
 — V. Jones . 
 
 . . 96 
 
 Snelling v. Huntingfield, 
 
 Lord 
 
 . . 785 
 
 — V. Kemp 
 
 . 754 
 
 — V. Stag 
 
 
 . 471 
 
 — V. KendaU 
 
 . . 329 
 
 Snook V. Davidson 
 
 , 
 
 . . 1316 
 
 — V. Kenriok . 
 
 . 1078 
 
 Snowden v. Davis . 
 
 
 100, 123 
 
 — V. Eingsford 
 
 . . 1051 
 
 Soane v. Enight 
 
 , 
 
 . . 982 
 
 — V. Knowelden 
 
 . 991, 1214 
 
 Solarto V. Palmer . 
 
 
 . 307 
 
 — V. Lawrence 
 
 . . 1057 
 
 Solly V. Forbes . 
 
 
 . . 517 
 
 — V. Lindo 
 
 . 74 
 
 Solomon v. Bewicke 
 
 
 . 979 
 
 — V. Lloyd . 
 
 . . 655 
 
 — V. Dawes 
 
 
 . . 1325 
 
 — 17. LoveE 
 
 . 764 
 
 — V. Lawson 
 
 991 
 
 992, 1209, 
 
 — V. M'Clure 
 
 . . 278 
 
 
 
 1216 
 
 — V. Marrable . 
 
 . 1341 
 
 Solomons v. Medex 
 
 
 . 1214 
 
 — V. Martin 
 
 . . 321- 
 
 Somerset, Duke of, t. Fogwell 
 
 . . 752 
 
 — 0. Mawhood 
 
 . 74 
 
 Somerville v. Hawkins . 
 
 
 . 1200 
 
 — V. Maxwell 
 
 . . 25 
 
 Soomes v. Spencer 
 
 , 
 
 . . 806 
 
 — i>. Mercer . 
 
 . 118, 119, 323 
 
 Sorsbie v. Park 
 
 
 416, 416 
 
 — V. Milles . 
 
 . . 1251 
 
 Souch V. Strawbridge 
 
 , 
 
 . . 786 
 
 — V. Monteith 
 
 69, 149 
 
 Soulsby V. Neving . 
 
 
 . 549 
 
 — V. Mullett 
 
 287, 304 
 
 Souter V. Drake 
 
 , 
 
 . . 220 
 
 — V. Mundy . 
 
 . 683 
 
 South V. Tanner 
 
 
 . 496 
 
 — I/. Neale . 
 
 787, 788, 802 
 
 South Carolina Bank v. Case 
 
 . . 266 
 
 — 1). Parker . 
 
 . 993 
 
 — Yorkshire Railway, 
 
 Re 
 
 . 1024 
 
 — V. Pickering . 
 
 . . 299 
 
 Southcot V. Rider 
 
 
 . . 4 
 
 — V. Plummer . 
 
 . 1317 
 
 Southcote's case 
 
 
 . 1170 
 
 — V. Kaleigh 
 
 . . 1341 
 
 Southee v. Deany 
 
 
 . . 1214 
 
 — V. Eeadshaw 
 
 . 941 
 
 Southerton v. Whitlock . 
 
 
 67, 154 
 
 — V. Beynolds 
 
 805, 957 
 
 Southerwood v. Ramsden 
 
 
 . . 1066 
 
 — ii. Sichardson 
 
 . 1212 
 
 Southey v. Denney . . 
 
 
 . 1208 
 
 — V. Royston 
 
 , . 1257 
 
 Sowell V. Champion , 
 
 
 . . 1273 
 
 — •». Scott . 
 
 895, 983 
 
 Sowerby v. Butcher 
 
 
 . 264 
 
 — V. Sleap 
 
 . 123 
 
 — «. Coleman . 
 
 
 . . 1166 
 
 — V. Smith . 
 
 . . 56 
 
 Spalding v. Ruding 
 
 
 . 1240 
 
 — V. Sparrow . 
 
 . 671 
 
 Sparkes v. Marshall . 
 
 
 . . 925 
 
 — V. Spooner 
 
 . 1204, 1214 
 
 Sparks v. Lloyd 
 
 
 . 751 
 
 — V. Stokes . 
 
 . 1306 
 
 Sparrow v. Carruthers 
 
 
 239, 897 
 
 — V. Surman 
 
 780, 791, 792, 793, 
 
 — v. Chismau 
 
 
 . 1103 
 
 
 800 
 
 — V. Hawkes . 
 
 
 . . 640 
 
ixxviii 
 
 NAMES OF CASES. 
 
 Sparrow v. Johns . 
 
 
 199 
 
 Spartali v. Bmcke 
 
 
 575 
 
 Speake v. Kicbards 
 
 
 485 
 
 Spear v. Travers 
 
 
 1238 
 
 Speck V. Phillips . 
 
 
 1051 
 
 Spence v. Albert 
 
 
 730 
 
 — V, Healey . 
 
 
 468 
 
 Spencer v. Dawson 
 
 
 580 
 
 — Lord, V. Swannell 
 
 
 552 
 
 — V. Marriott . 
 
 412, 425 
 
 — V. PaiTy . 
 
 
 93 
 
 — V. Smith 
 
 
 75 
 
 Spencer's case . 412, 440, 
 
 446, 
 
 1293 
 
 Spioer v. Cooper 
 
 
 194 
 
 Spier V. Bernard . 
 
 
 202 
 
 Spieres ». Parker 
 
 
 553 
 
 Spiller V. Westlake 
 
 
 461 
 
 Spilsbary v. Mioklethwaite . 
 
 
 868 
 
 Spindler v. Grellett 
 
 
 341 
 
 Spirit of the Ocean, The . 
 
 
 1193 
 
 Spitta V. Woodman 
 
 ' 878, 968 
 
 Spittle V. Lavender . 
 
 
 264 
 
 Spolpwood «. Barrow 
 
 
 1049 
 
 Spbng V. Wright 
 
 
 173 
 
 Spooner v. Brewster 
 
 
 1249 
 
 Spfaage v. Stone 
 
 
 820 
 
 Spradbery v. Gillam 
 
 ' 18*6, 488 
 
 Spratley v. Wilson 
 
 
 1282 
 
 Spratt V. Hobhouse 
 
 
 121 
 
 Sprightley v. Dnnch . 
 
 
 646 
 
 Sprigwell v. Allen , 
 
 
 558 
 
 Sprdat V. Matthev/s . 
 
 
 283 
 
 Spry V. Emperor . 
 
 
 85 
 
 — V. Gallop . 
 
 
 85 
 
 Sputgeon V. Collier 
 
 
 778 
 
 Staoey V. Whitehurst . 
 
 
 1250 
 
 Staokpole v. Earle . 
 
 
 71 
 
 , — V. Simon . 
 
 
 973 
 
 Stackwood v. Dunn 
 
 
 182 
 
 Stedt v.USl. 
 
 789, 790 
 
 Stafford, Marquis of, v. Coyney 
 
 
 1266 
 
 — Mayor of, v. Till . 
 
 
 1332 
 
 — V. Forcer . 
 
 
 130 
 
 Stag V. Punter . 
 
 
 702 
 
 Stagg i>. Elliott 
 
 
 263 
 
 Stainbank v. Penning 
 
 
 970 
 
 — V, Shepherd . 
 
 "891 
 
 , 970 
 
 Staines v. Wainwright 
 
 
 71 
 
 Stainton et TJz. i;. Jones . 
 
 
 1205 
 
 Stair V. Murray, Earl of . 
 
 
 528 
 
 Stamford, Corporation of, o. Pawlett 
 
 85 
 
 Stamina v. Brown . 
 
 
 903 
 
 Stamper v. Milboume 
 
 
 526 
 
 Stancliffe v. Hardwicke . 
 
 
 1310 
 
 Standen v. Christmas . 
 
 441, 
 
 1331 
 
 Standisb v. Rose 
 
 
 94 
 
 Stanford, Exp. 
 
 
 1032 
 
 Staniland v. Hopkins . 
 
 . 
 
 1129 
 
 Stanley ». Bernes . 
 
 
 692 
 
 — V. Hayes 
 
 415 
 
 , 425 
 
 — ■». Towgood 
 
 
 435 
 
 Stannard v. Forbes . 
 
 
 423 
 
 — V. Harper 
 
 
 1214 
 
 PAGE 
 
 Stannard v. Ullithome . . . 210 
 
 Stansfield v. Hellawell . . . 1145 
 
 — V. Johnson . . . . 784 
 
 — ». Portsmouth, Mayor of . 1297 
 Stante v. Pricket . . . . 45 
 Staples V. Alden . . . .1281 
 Stapylton v. Clough . . . . 677 
 Startup V. Macdonald . . 140, 190 
 Staunton v. Wood . ... 136 
 Stavart v. Eastwood . . ', . 135 
 Stavers v. Curling . . 142, 463, 464 
 Staynrode v, Locock . . .132 
 Stead V. Dawber . . 479, 809 
 
 — V. Gascoigne. . . . 1306 
 
 — V. Thornton . . . . 124 
 Stearn v. Mills , . . .708 
 Stears v. Smith . . . . 855 
 Steavenson v. Berwick, Corporation 
 
 of 166 
 
 Stebbing ii. Spicer . . . .298 
 Stedman v. Bates . . 622, 1158 
 
 — V. Gooch ... 89, 151 
 
 — V. Smith . ... 1307 
 
 Steed V. Salt 1098 
 
 Steedman v. Bose . . . . 152 
 Steel V. Houghton .... 1248 
 
 — V. Eorke 703 
 
 — V. Smith 563 
 
 — V. South-Eastern Railway . . 1066 
 Steele v. Harmer . . . .285 
 
 — «. Hoe 789 
 
 Steigenberger ii. Carr . . . 1092 
 Steiglitz V. Eggington . . . 1097 
 Steinman v. Magnus . . .151 
 Stephens ». Badoook . 121, 124, 1305 
 
 — V. De Medina . . .139 
 
 — V. Elwall .... 1300 
 , — •». Myers .... 41 
 
 — 1). Squire . . . . 772 
 
 — V. Taprell . . .828 
 
 — ■;;. Wilkinson . . . 1219 
 Stephenson v. Hardy . . .251 
 
 — V. Hart .... 1279 
 Sterrys;. Clifton . . . .503 
 Stevens v.Tm 269 
 
 — V. Jackson .... 262 
 
 — V. Lynch . . . . 100 
 
 — Lessee of Gerrard v. Man- 
 
 chester. Lord . . . 813 
 
 — V. Midland Counties Railway 1008 
 
 — V. Pinney . . . . 670 
 
 — V. Whistler . . . 1257 
 Stevenson v. Blakelock . 1315, 1318 
 
 — i>. Cameron . . . 626 
 
 — V. Hardie . . . . 252 
 
 — V. Lambard . . 448, 453 
 
 — V. Newnham . 605, 1279 
 
 — V. Snow . . 963, 966, 966 
 Stevenson's case , . . . 411 
 Stewart v, Aherdein . . . 185 
 
 — J). BeU 906 
 
 — V. Cauty . . . .192 
 
 — V. Dunlop . . . . 933 
 

 NAMES OF CASES. 
 
 Ixxix 
 
 
 PAGE 
 
 
 PAGE 
 
 Stewart v, Greenock 
 
 . 907 
 
 Styan v. Hutchinson . 
 
 . . 1068 
 
 — V. Kennett . 
 
 . . 288 
 
 Style V. Hearing . 
 
 . 411 
 
 — V. Lee 
 
 . 311 
 
 Subley v. Mott . 
 
 . . 1005 
 
 — V. London and N 
 
 -W. Raily. 349 
 
 Sullivan v. Bishop 
 
 . 549 
 
 Stlernold v. Holden . 
 
 . . 1305 
 
 — V. Jones 
 
 . . 1335 
 
 Stiles V. Nokes 
 
 . 984 
 
 — V. Seagrave 
 
 . 627 
 
 Stilk V. Meyrick 
 
 .56,1187 
 
 — V. Stradling 
 
 . . 1163 
 
 Stirling *. Vaughan 
 
 . 957 
 
 Summerville v. Hawkins 
 
 . 986, 987 
 
 Stock V. Mawson 
 
 . . 78 
 
 Sunbolfs;. Alford 
 
 . . 1312 
 
 Stockbridge v. Sussama . 
 
 . 185 
 
 Sunderland Mar. Ass. Co. v. 
 
 Kearney 924 
 
 Stockdale v. Daulop . 
 
 892, 957 
 
 Surcombe v, Pinniger 
 
 778, 779 
 
 — 1). Hansard 
 
 . 985 
 
 Surplice v. Farnsworth . 
 
 . 1342 
 
 — -1). Onwliyn . 
 
 . . 1343 
 
 Surrey Canal Co. v. Hall . 
 
 . . 1265 
 
 Stocken v. Colvin . 
 
 . 303 
 
 Surtees v. Hubbord 
 
 . 58 
 
 Stockport Water Works 
 
 3o. V. Potter 1078 
 
 Sutherland v. Murray, General . . 1010 
 
 Stocks V. Booth . 
 
 . . 1243 
 
 ♦— V. Pratt . 145, 
 
 881, 924, 926 
 
 Stoddart v. Grant . 
 
 . 816 
 
 Sutton V. Buck 
 
 . 1287, 1323 
 
 — V. Palmer . 
 
 . . 1015 
 
 — V. Johnstone 1007, 1011, 10l5 
 
 Stokes V. Cox 
 
 . 980 
 
 — V. Moody 
 
 . . 832 
 
 — V. La Biyiere . 
 
 . 1222, 1227 
 
 — V. Rawlings 
 
 . 626 
 
 — V. Lewis 
 
 55, 95 
 
 — V. Sutton 
 
 . . 819 
 
 — V. Twitchen . 
 
 . . 113 
 
 — 0. Tatham 
 
 93, 734 
 
 Stokoe V. Singers . 
 
 . 1074 
 
 — V. Temple 
 
 574, 1341 
 
 Stone V. Ball . 
 
 454, 455 
 
 Suwerkrop v. Day . 
 
 . 698 
 
 — V. Carr 
 
 . 237 
 
 Swadling v. Piers 
 
 . . 628 
 
 — V. Lingwood 
 
 . . 1320 
 
 Swain v. Lewis 
 
 . 212, 325 
 
 — u. Macnair . 
 
 . 252 
 
 — V. Shepherd 
 
 . 360, 1280 
 
 — V. Rogers 
 
 . . 83 
 
 Swallow V. Aynoliff 
 
 . 1308 
 
 — V. WytbipoU 
 
 . 61, 154 
 
 — V. Emberson . 
 
 . . 720 
 
 Storey v. Robinson . 
 
 . . 592 
 
 Swan V. Phillips 
 
 . 564 
 
 Storm V. Stirling . 
 
 . 277, 332 
 
 — V. Steele . 
 
 . . 265 
 
 Slorr V. L?e 
 
 . . 251 
 
 Swansboroagh v. Coventry 
 
 1073 
 
 — V. Scott 
 
 . 771 
 
 Swanwick v. Sothern . 
 
 . 1238, 1285 
 
 Story, Exp. 
 
 . . 850 
 
 Swatman v. Ambler 
 
 . 418 
 
 *- V. Hodson . 
 
 . 390 
 
 Sweatland v. Squire . 
 
 . . 190 
 
 Stoveld V. Hughes 
 
 . 1231, 1238 
 
 Sweet V. Lee 
 
 785, 802, 810 
 
 Stowell V.' Robinson 
 
 . 218, 808 
 
 — u. Meredith 
 
 . . 507 
 
 Strachan v. Thomas . 
 
 . . 472 
 
 — V. Pym 
 
 . 740 
 
 Straker v. Graham . 
 
 . 287 
 
 Swinfer v. Bacon 
 
 . . 547 
 
 Straton r. Kastall . 
 
 . . 103 
 
 Swinford v. Bum . 
 
 327 
 
 Stratton v. Pettit 
 
 759, 762 
 
 Swinton v. MoUoy 
 
 . . 852 
 
 Street v. Blay 
 
 . 117, 577, 579 
 
 Swinyard v. Bowes 
 
 . 163 
 
 — V. Tugwell . 
 
 . 1070 
 
 Swire V. Leach . 
 
 . . 591 
 
 Stretten v. Busnach . 
 
 . . 240 
 
 Swithin v. Vincent 
 
 . 253 
 
 Strickland v. Ward . 
 
 . 851, 854 
 
 Syeds v. Hay . 
 
 . . 364 
 
 Strong V. Foster 
 
 . . 313 
 
 Syers v. Bridge 
 
 . 880 
 
 — V. Harvey 
 
 . 186 
 
 — Vi Chapman 
 
 . . 46 
 
 — V. Natally . 
 
 . . 897 
 
 — ■!). Jonas 
 
 . 810 
 
 Strother v. Willan 
 
 . 365, 1323 
 
 — V. Pickersgill . 
 
 . . 927 
 
 Stroud V. Rogers 
 
 . . 546 
 
 Sykes v. Dixon 
 
 . 765 
 
 Stroughill V. Buck . 
 
 . 1259 
 
 — V. Dunbar 
 
 . . 1015 
 
 — V. GuUiver 
 
 . . 778 
 
 — V. Giles 
 
 . 214, 221 
 
 Strutt V. Smith 
 
 . 88 
 
 Symes v. Oakes 
 
 . . 622 
 
 Stuart V. Greenock Mai-. 
 
 Ins. Co. . 911 
 
 Symmons v. Enox . 
 
 . 184 
 
 — V. Lovell . 
 
 . 982, 997, 998 
 
 Symonds v. Page 
 
 . . 687 
 
 — V. Wilkins . 
 
 . 579 
 
 Syms «.■ Chaplin 
 
 . 353 
 
 Stubbing v. Heintz . 
 
 . . 1053 
 
 Symson v. Kirton 
 
 . . 815 
 
 Studd V. Acton 
 
 . 621 
 
 
 
 Sturlyn v. Albany 
 
 . . 65 
 
 Taolubub v. Wynn 
 
 . 362 
 
 Sturt V. Blandford, Man 
 
 uis of . 9 
 
 Tait V. Harris 
 
 . . 1272 
 
 — V. Mellish . 
 
 ... 181 
 
 Talbot V. Clark . 
 
 . 1000 
 
 Sturtevant v. Ford 
 
 280 
 
 — V. Hodson 
 
 491, 496 
 
 Sturton V. Richardson 
 
 . . 2 
 
 Tallis V. Tallis 
 
 . 499 
 
Ixxx 
 
 NAMES OP CASES. 
 
 
 
 PAGE 
 
 
 PAGE 
 
 Talver 
 
 V. West . 
 
 ... 795 
 
 Taylor v. Vergette . 
 
 . 565 
 
 Tanoied v. Leyland 
 
 604, 605 
 
 — V. Wakefield . 
 
 . . 793 
 
 Tauner v. Seovell 
 
 1232, 1238, 1285 
 
 — V. Wells . 
 
 . 1309 
 
 
 77. Smart 
 
 172, 173 
 
 — ■». Whitehead . 
 
 . . 1268 
 
 TaDsley v. Turner 
 
 87, 1284, 1286 
 
 — V. Wilson . 
 
 . 893 
 
 Taplej 
 
 V. Wainwrielit . 
 
 376, 387, 1254 
 
 — 0. Zamira 
 
 . . 1163 
 
 Taplin v. Florence 
 
 761, 1087 
 
 Taynton v. Hannay 
 
 . 698 
 
 Taplingv. Jones 
 
 . . 1073 
 
 Teal V. Auty . 
 
 780, 783 
 
 Tapp V. Lee . 
 
 . 560 
 
 Teggetmeyer v. Lumley . 
 
 . 183 
 
 Tappenden v. Bandall . 
 
 110, 111, 114 
 
 Tempany v, Bumand 
 
 . . 476 
 
 Tapper v. Davenport 
 
 . .511 
 
 Tempest v. Fitzgerald . 
 
 . 793, 796 
 
 Tarleton v . Staniforth 
 
 . . 978 
 
 — V. Kilner . 
 
 192, 784 
 
 Tarling ii. Baxter 
 
 . ■ . 1289 
 
 — -u. Kawling 
 
 . 132, 476 
 
 Tarpley v. Blabey _ . 
 
 997, 999 
 
 Templar v. M'Laehlan 
 
 . . 206 
 
 Tarrabocliia v. Hickie 
 
 . 464 
 
 Templeman v. Case 
 
 . 1160 
 
 Tarrant v. Webb 
 
 . . 1059 
 
 Tempson v. Knowles . 
 
 . 58, 69 
 
 TasseU 
 
 V. Lewis . 
 
 . 300, 309 
 
 Tenant v. Elliott . 
 
 . 107 
 
 Taswell v. Stone 
 
 . . 639 
 
 Tennant v. Field 
 
 603, 1162 
 
 Tater 
 
 Hitchins 
 
 . 201, 203 
 
 Tennyson v, O'Brien 
 
 32, 34 
 
 V 
 
 . Humphrey 
 
 . . . 1215 
 
 Terrell v. Matthews . 
 
 . . 717 
 
 Tatem 
 
 V. Chaplin . 
 
 . 445 
 
 Terry v. Duntze 
 
 . 466 
 
 Tatton 
 
 V. Wade 
 
 . . 564 
 
 — V. Parker 
 
 288, 302 
 
 Taunton v. Cooper 
 
 . 597 
 
 Thacker v. Moates . 
 
 . 1196 
 
 
 
 V. Costar 
 
 . 697, 1261 
 
 Thackray v. Blacfcett 
 
 . . 289 
 
 Taverner v. Little 
 
 . 145 
 
 Tharpe v. Stallwood 
 
 . 1291 
 
 Taylerson v. Peters . 
 
 . , 698 
 
 Tharratt v. Trevor . 
 
 . . 390 
 
 Taylor's case 
 
 . 1018 
 
 Theed v. Lovell . 
 
 . 296 
 
 Taylor v. Ashton . 
 
 . 662 
 
 Thellusson v. Fergusson 
 
 938, 960 
 
 
 
 V. Beech 
 
 . . 778 
 
 — 1/. Fletcher . 
 
 . 907, 955 
 
 
 
 V. Blacklow 
 
 . 211 
 
 — ii. Shedden 
 
 . . 960 
 
 
 
 V. Brewer 
 
 . . 1060 
 
 Theobald v. Ciichmore . 
 
 . 116 
 
 
 
 V. Briggs . 
 
 . 194 
 
 Thibault v. Gibson . 
 
 . . 653 
 
 — 
 
 ■B. Bullen 
 
 . . 567 
 
 Thimbleby v. Barron 
 
 . ■ .617 
 
 
 
 V. Clow 
 
 . 526 
 
 Thistlewood v. Cracroft 
 
 102, 107 
 
 
 
 V. Cole . 
 
 . . 667 
 
 Thomas v. Bishop . 
 
 . 263 
 
 — 
 
 V. Croker . 
 
 . 261, 262 
 
 — V. Cadwallader 
 
 137, 457 
 
 
 
 V. Crowland Gas ( 
 
 3o. - 73, 74 
 
 — V. Churtou 
 
 . 1207 
 
 
 
 V. Fenwick . 
 
 . 855 
 
 — V. Cook 
 
 541, 764, 1333 
 
 
 
 V, Freeman . 
 
 . . 850 
 
 — V. Courtnay 
 
 . 78 
 
 — 
 
 V. Hague . 
 
 . 272 
 
 — V. Evans 
 
 187, 188, 816 
 
 
 
 V. Hall . 
 
 . , 1199 
 
 — V. Foyle . 
 
 . 958 
 
 
 
 V. Hare 
 
 . 104 
 
 — V. Fredericks 
 
 . . 761 
 
 
 
 V. Hawkins . 
 
 987, 988, 1200 
 
 — V. Harries . 6 
 
 02, 1157, 1162 
 
 
 
 V. Henniker 
 
 . 605 
 
 — V. Heathorn . 
 
 . . . 149 
 
 — 
 
 V. Hilary 
 
 . . 145 
 
 — V. Parker . 
 
 . 763 
 
 — 
 
 V. Hodgson . 
 
 . 202 
 
 — V. Pemberton 
 
 . . 451 
 
 — 
 
 V. HoUman . 
 
 . . 728 
 
 — •(/. Thomas 2, 56 
 
 , 67, 636, 1079 
 
 — 
 
 V, Jones 
 
 . 340 
 
 — V. Williams 768, 
 
 770, 774, 775, 
 
 — 
 
 V. Kymer . 1 
 
 62, 735, 744, 747 
 
 
 777, 1048 
 
 — 
 
 V. Laird 
 
 1048, 1185 
 
 Thomason v. Frere 
 
 . 1099 
 
 — 
 
 V. Lendey 
 
 . . 106 
 
 Thomett v. Haines . 
 
 . . 214 
 
 — 
 
 V. Mather . 
 
 . 280 
 
 Thompsett v. Bowyer 
 
 . 31 
 
 — 
 
 ■i>, Needham . 
 
 . 473, 476, 544 
 
 Thompson v. Bernard 
 
 . . 1201 
 
 — 
 
 V, Page 
 
 6 
 
 — V. Brown 
 
 . 469 
 
 — 
 
 V, Parry 
 
 . . 655 
 
 — V. Davenport 
 
 737, 811 
 
 — 
 
 V. Perkins . 
 
 . 1199 
 
 — V. Doming 
 
 . 361, 1239 
 
 — 
 
 V. Phillips 
 
 . . 1169 
 
 — V. Farden . 
 
 . . 1145 
 
 — 
 
 ■1/, Plnmer . 
 
 . 741, 1171 
 
 — V, Farmer 
 
 . 746 
 
 — 
 
 V. EoUnson . 
 
 . . 1316 
 
 — V. Gibson . 
 
 391, 1084 
 
 — 
 
 V. Shaw 
 
 . 33 
 
 V. Harding . 
 
 . 700, 726 
 
 — 
 
 V. Shum. 
 
 . . 449 
 
 — v. Havelock 
 
 . . 1187 
 
 — 
 
 V. Smith . 
 
 1253, 1267, 1260 
 
 — V. Hervey 
 
 . 232 
 
 — 
 
 V. Stray . 
 
 . . 93 
 
 — V, Hodgson 
 
 . . 680 
 
NAMES OF CASE^ 
 
 Ixxxi 
 
 PAGE 
 
 
 
 PAGE 
 
 Thompson v. Hopper . . . 954 
 
 Tisdale v, Ess2x 
 
 . 
 
 426 
 
 — V. Maberly . 631, 632 
 
 Titley v. Foxall . 
 
 49. 863 
 
 — V. Maceroni . . . 795 
 
 Todd'w. Emly . 
 
 167, 491 
 
 HOC 
 
 — V. Mashiter . . . 691 
 
 — V. Flight 
 
 
 10:3 
 
 — 1). Morgan . . 325 
 
 — V. Hastings 
 
 
 1208 
 
 — V. Nye . . . 1000 
 
 — V. Kerriok . 
 
 
 1049 
 
 — V. Kowcroft . . .918 
 
 — ■ V. Stokes 
 
 
 228 
 
 — V. Koyal Ex. Ass. Co. 915, 970 
 
 Tolputt V. Wells . 
 
 
 723 
 
 — V. Shaokell . . .983 
 
 Tomkins v. Willshear 
 
 
 3 
 
 — V. Sheppard . . . 165 
 
 Tomkiuson v. Staight 
 
 
 793 
 
 — V. Spencer . . . 126 
 
 Tomlin v. Beck 
 
 
 699 
 
 — V. Taylor . . 892, 893 
 
 Tomlins v. Talbot . 
 
 
 493 
 
 — V. Trail. . . . 1319 
 
 Tomlinson v. Bentall 
 
 
 67 
 
 — V. Wesleyan News. Asa. . 259, 
 
 — V. Day . 
 
 • 
 
 1334 
 
 260 
 
 — V. Gill . 
 
 
 772 
 
 — V. Whitmore . . .896 
 
 'Pbnge V. Watts 
 
 
 892 
 
 Thorn v. Bigland . . . .562 
 
 ■ Toogood V. Spyring 
 
 986, 988, 
 
 1200 
 
 — u. 'Woolcomhe . . . 442 
 
 Took V. Tuck . 
 
 . > • 
 
 78 
 
 Thome v. Tilbury .... 1303 
 
 Tooker ». Smith . 
 
 
 763 
 
 Thornely v. Hebson . . . . 920 
 
 Tooley v. Windham . 
 
 
 61 
 
 Thornley v. Kerry, Earl of . . 982 
 
 Tope V. Hockin 
 
 
 122 
 
 Thornton v. Adams . . . . 601 
 
 Topham v. Braddick 
 
 . " 169, 
 
 1321 
 
 — ■«. Charles . . .805 
 
 Toppin V. Lomas . 
 
 
 785 
 
 — V. Jenyns . • .64, 136 
 
 Topsail V. Edwards . 
 
 
 1217 
 
 — V. Kempster . . 805 
 
 Torrenoe v. Gibbins 
 
 
 1065 
 
 — V. Meux . . . . 804 
 
 Tottage V. Petty 
 
 
 49 
 
 — V. Place . . . .192 
 
 Toulmin v. Copland 
 
 
 162 
 
 • — V. Stephen .... 1000 
 
 Touteng v. Hubbard . 
 
 
 901 
 
 Thorogood v. Bryan . . .351 
 
 Tower v. Popkins •. 
 
 
 205 
 
 — V. Eobinson . . . 1301 
 
 Towers v. Barrett 
 
 
 117 
 
 Thorpe v. Booth . . . 169, 301 
 
 Town V. Mead 
 
 
 180 
 
 — V. Eyre .... 1280 
 
 Towne v. Campbell . 
 
 . ' 63^ 
 
 , 635 
 
 ,.— «. Fry . . . . 685 
 
 — i'. D'Heinrick 
 
 
 1336 
 
 — V. Stallwood . . . . 694 
 
 Townend v. Drakeford 
 
 
 804 
 
 — V. Thorpe . . 57, 135, 138 
 
 Townley v. Crump 
 
 
 1241 
 
 Throgmorton v. Whelpdale . . 643 
 
 Townsend v. Crowdey 
 
 
 97 
 
 Thrupp V. Fielder . . . .156 
 
 — V. Deacon 
 
 
 181 
 
 Thrustout V. Shenton . . . 683 
 
 Townson v. Jackson . 
 
 
 161 
 
 Thunder v. Belcher . . .644 
 
 — V. Wilson 
 
 
 122 
 
 Thurman 1). Wild .... 1062 
 
 Tozer v. Mashford . 
 
 . ' 1199, 
 
 1212 
 
 Thursby ». Plant . . 409, 410, 453 
 
 Trapp V. Spearman 
 
 
 276 
 
 Thynue v. Grlengall, Lord . . . 783 
 
 Trappes v. Harter . 
 
 . 'l295, 
 
 1298 
 
 Tickle V. Brown . . 383, 1078, 1079 
 
 Treacher v. Hinton 
 
 
 304 
 
 Tidsman v. Ainalie . . 993, 1207 
 
 Treasury, Lords of the. 
 
 Eo, and 
 
 
 Tidswell v. Ankerstein . . .972 
 
 Walmsley, Exp. 
 
 
 1028 
 
 Tielens-«. Hooper . . . . 414 
 
 Tredwen v. Bourne 
 
 
 1093 
 
 Tigar v. Gordon . . . .323 
 
 TregmieU and Wiie v. Eeeve . . 
 
 249 
 
 Tighe V. Cooper . . . . 993 
 
 Trelawney ■;;. Coleman . 
 
 
 26 
 
 — 1). Crafter . . . .489 
 
 Tremeere v. Morison 
 
 . 
 
 445 
 
 Tilden v. Walter . . . . 405 
 
 Trenchard v. Hoskins . 
 
 . 
 
 425 
 
 Tilney v. Norris .... 444 
 
 Trent v. Hunt . 
 
 596 
 
 , 604 
 
 Timmis v. Piatt . . 144, 320 
 
 — Navigation v. Wood 
 
 
 346 
 
 Timothy v. Simpson . . 866, 867 
 
 Trentham v. Deverill 
 
 
 174 
 
 Tindal v. Bell 480 
 
 Treport's case 
 
 
 474 
 
 — V. Brown . . . 306 
 
 Tress v. Savage 633, 642 
 
 759, 762 
 
 , 763 
 
 Tindall v. Taylor .... 1319 
 
 Treuttel v. Barandon 
 
 . 
 
 1288 
 
 Tiukleer v. Poole . . .1303 
 
 Trevillian v. Pyne 
 
 , 
 
 1154 
 
 Tinkler v. Prentice . . . . 189 
 
 Trevivan v. Lawrence . 
 
 
 644 
 
 — V. Walpole . . .365 
 
 Trevor v. Wall . 
 
 
 130 
 
 Tinson v. Francis . . . . 280 
 
 Trewiniard's case . 
 
 . 
 
 537 
 
 Tipper v. Bicknell ... 65 
 
 Trimbey v. Vignier 
 
 , 
 
 295 
 
 Tipping V. Johnson . . . . 527 
 
 Tripp V. Armitage 
 
 
 91 
 
 — V. St. Helen's Smelting Co. 1068 
 
 Triston v. Hardey . 
 
 . 
 
 971 
 
 VOL. I. 
 
 
 / 
 
 
Ixxxii 
 
 {TAMES OF CASES. 
 
 
 
 
 PAGE 
 
 
 PAGE 
 
 Trueman v. Fenton . 
 
 . 
 
 67 
 
 Tyrrell v. WooUey . 
 
 . . 1100 
 
 
 
 ■V. Hurst . 
 
 , , 
 
 159 
 
 Tyson v. Gamey . 
 
 . 942 
 
 
 
 ■u. Loder 
 
 738, 805 
 
 — V. Smith . 
 
 . . 755 
 
 Trusoott V. Carpenter 
 
 . 
 
 49 
 
 — V. Thomas . 
 
 . 73 
 
 — 
 
 V. Merchant Taylors 
 
 'Co. . 
 
 1072 
 
 Tyte V. Jones . 
 
 . . 319 
 
 Tryon 
 
 V. Carter 
 
 512, 513 
 
 
 
 Tnam, 
 
 Archbishop of, v. Kobeson 
 
 991 
 
 Udell v. Atherton 
 
 . 562, 663, 1058 
 
 Tubb 
 
 V. Harrison . 
 
 
 237 
 
 Uhde V. Walters 
 
 . . 962 
 
 Tnbby 
 
 V. Stanhope . 
 
 
 1148 
 
 Umphelby v. M'Lean 
 
 . 116 
 
 Tuck V. Fyson 
 
 , 
 
 433 
 
 Underbill v. Matthews 
 
 . 614 
 
 Tucker v. Barrow 
 
 
 127 
 
 Underwood ». Hewson 
 
 . 43 
 
 — 
 
 V. Humphrey 
 
 l'230, 
 
 1240 
 
 — V. Parkes . 
 
 . . 1212 
 
 — 
 
 V. Newman 
 
 , , 
 
 1082 
 
 Unwin v. Leaper . 
 
 . 106 
 
 — 
 
 ■ii. Tucker . 
 
 
 184 
 
 — v. St. Quinton 
 
 . . 1311 
 
 Tuckey v. Hawkins . 
 
 
 514- 
 
 Upsheer v. Betts . 
 
 . 1203 
 
 Tudor 
 
 V. Gruest 
 
 
 625 
 
 Upstone V. Marchant 
 
 . . 337 
 
 Tuf&iell V. Page 
 
 
 812 
 
 Upton V. Dawken . 
 
 . 754 
 
 Tugman v. Hopkins 
 
 . 'l2C 
 
 ,■224 
 
 — V. Townend 
 
 470, 1341 
 
 TuUidge v. Wade 
 
 , 
 
 1065 
 
 Urquhart v. Barnard 
 
 . 952 
 
 Tummons v. Ogle . 
 
 
 1147 
 
 Usher v. Noble . 
 
 . . 920 
 
 Tunney v. Midland Rail. Co. 
 
 The '. 
 
 1060 
 
 Usparicha v. Noble 
 
 . 929 
 
 Tunnicliffe v. Moss . 
 
 
 1206 
 
 Uthwatt V. Elkius . 
 
 . . 622 
 
 — 
 
 V. Tedd . 
 
 
 44 
 
 
 
 TurubuU V. Bird 
 
 
 987 
 
 Vaohekv. Cooks . 
 
 . 666 
 
 Turnei 
 
 V. Ambler . 
 
 1006, 
 
 1014 
 
 Valentine ». Fawcett . 
 
 . . 1165 
 
 — 
 
 V. Barnes 
 
 
 598 
 
 Tallauce v. Dewar . 
 
 . 936, 950 
 
 — 
 
 V. Bennett . 
 
 . '659,660 
 
 Tallejo V. Wheeler 
 
 902, 903 
 
 — 
 
 V. Davis 
 
 . 
 
 92 
 
 Valpy V. Gibson 800 
 
 1225, 1235, 1287 
 
 — • 
 
 V. Deane 
 
 1314, 
 
 1315 
 
 — V. Manley 
 
 . 101 
 
 — 
 
 V. Diaper 
 
 !« 
 
 , 192 
 
 — V. Oakley 
 
 . . 191 
 
 — 
 
 V. Felgate . 
 
 , 
 
 862 
 
 Tan Boven's case . 
 
 . 653 
 
 — 
 
 V. Gibson 
 
 
 704 
 
 Van Castel v. Booker . 
 
 . 1219, 1234 
 
 — 
 
 V. Hardeastle 
 
 1286, 
 
 1328 
 
 Van Omeron v. Dowick 
 
 . 1305 
 
 . — 
 
 V. Hardy 
 
 692, 
 
 1100 
 
 Vanderdonckt v. Thellusson , . S41 
 
 — 
 
 V. Haydeu , 
 
 
 318 
 
 Van Toll v. South Eastern Railway - 347 
 
 — 
 
 V. Horton 
 
 
 1216 
 
 Vaudyck v. Hewitt 
 
 . 113 
 
 — 
 
 ■0. Lee 
 
 
 594 
 
 — •». Whitmore 
 
 . . 929 
 
 — 
 
 ■0. Liverpool Docks 
 
 ' 1234, 
 
 1239 
 
 Vansandau v. 
 
 . 489 
 
 — 
 
 V. Mason 
 
 
 1049 
 
 — V. Browne 
 
 . . 2U9 
 
 — 
 
 V. Merewether 
 
 
 1209 
 
 Varley v. Leigh 
 
 . 639 
 
 ■ — 
 
 V. Meymott 
 
 , 
 
 1261 
 
 — V. Manton 
 
 . . 134 
 
 — 
 
 V. Richardson 
 
 
 451 
 
 Varney v. Hickman 
 
 . 109 
 
 — 
 
 V. Robinson . 
 
 
 1049 
 
 Vaughan v. Browne . 
 
 724, 725 
 
 — 
 
 V. Eookes . 
 
 
 232 
 
 — -v. Hancock 
 
 . 770, 784 
 
 — ■ 
 
 V. Trisby 
 
 , , 
 
 154 
 
 — -v. Lewis 
 
 . . 1042 
 
 — 
 
 V. Turner . 
 
 1006, 
 
 1148 
 
 — V. Norris . 
 
 . . . 1146 
 
 — 
 
 V. Vaughan . . . 
 
 . 
 
 498 
 
 — V. Watt 
 
 . 1299, 1326 
 
 — 
 
 V. Winter . 
 
 
 229 
 
 Vaughton v. Bradshaw 
 
 . . . 44 
 
 Turnley v. M'Qregor . 
 
 
 564 
 
 Vawser v. Jeffery 
 
 . . 823 
 
 Tuson 
 
 V. Jlvans 
 
 
 988 
 
 Venables v. East India Comnanv . 695 
 
 Tutton V. Darke 
 Tweddle v. Atkinson 
 
 
 599 
 63 
 
 Ventrice v. Goodcheap 
 Vere v. Ashby . 
 
 . 409 
 . . 1098 
 
 Twells 
 
 V. Colville 
 
 , 
 
 1145 
 
 Vernon v. Curtis . 
 
 . 725 
 
 Twemlow v. Oswin . 
 
 
 895 
 
 — V. Jefferies 
 
 . 418, 419 
 
 Twigg 
 
 V. Potts . 
 
 . 
 
 1254 
 
 — V. Keyes 
 
 566, 567 
 
 Twyford v. Trail . 
 
 
 695 
 
 — V. Shipton . 
 
 — V. Smith 
 
 . 1310 
 
 Twyman v. Piekard . 
 
 
 440 
 
 436, 445 
 
 Tye V. Gwynne 
 Tyler v. Bennett 
 
 
 207 
 761 
 
 — V. Vawdiy . 
 Verry v. Watkins 
 
 . 707 
 . . 1066 
 
 — 
 
 0. uorne 
 
 
 978 
 
 Vertue v. Beasley . 
 — 1'. Jewel 
 
 . 610 
 
 Tyne 
 
 Commissioners v. Gen. 
 
 Steam 
 
 
 . . 1240 
 
 Navigation Company 
 
 
 1193 
 
 Vicars v. Wilcocks . 
 
 . ' . ! 1206 
 
 Tyrie v. Fletoker , 
 
 963,' 964, 966 
 
 Vice V. Anson . 
 
 . 1092, 1093 
 
NAMES OF CASES. 
 
 Ixxxiii 
 
 PAGE 
 
 Tigers v. Aldrich .... 638 
 
 — V, St. Paul's, Dean and Chap- 
 
 ter of . . . . 588 
 Villers v. Monsley .... 982 
 Vincent v. Beston .... 4 
 
 — V. Horlock . . .295 
 
 — V. Slaymaker . 200, 201 
 Vine V. Saunders .... 252 
 Violett V. Allnutt . . . . 893 
 
 — v. Sympson. . . . 168 
 Vivian v. Campion . . 438, 439 
 
 — V. Shopping . . ' . 133 
 Voohell V. Dancastell . . . . 542 
 Vooght V. Winch . . 1259, 1264 
 Vowles V. Miller . . . 1244 
 
 — V. Young . . . .676 
 Voyce V. Voyoe . . . 1244, 1250 
 Waddilove i;. Barnett . . . 1340 
 Waddington v. Oliver . . . 84 
 Wade's case . . . . 187, 188 
 Wade V. Simeon . . 59, 60 
 Wadeson v. Smith . . . .203 
 Wadham v. Marlowe . . . 542 
 Wadsworth v. Marshall . . .208 
 Wagner 1J. Imbrie . . . . 167 
 Wagstaffi;. Wagstaff . . .812 
 Wain V. Walters . 767, 788, 790,799 
 Wainman v. Kynman . . . 174 
 Wainwright v. Bland . . 973, 974 
 
 — V. Kamsden . . 1334 
 Wait V. Baker .... 1234 
 Waite V. Jones ... . 231 
 Waithman ». Weaver . . 1000 
 Wake V. Atty 936 
 
 — v. Harris .... 811 
 Wakefield «. Newhon. 101, 105, 1315 
 Wakemau V. Lindsey. . .604 
 
 — v. Eobinson . . . 1249 
 Wakley v. Cooke . . . . 998 
 
 — V. Healey 981, 992, 1209, 1210 
 
 — V. Johnson . 997, 998 
 Walcot 1!. Goulding . . 628, 529 
 Waldegrave Peerage ... 24 
 Waldock V. Cooper . . . . 130 
 Walford v. De Pienne, Duchess of . 240 
 Walker v. Barnes . . . 326, 327 
 
 — V. Bartlett . . 450, 785 
 
 — V. Beauohamp . . . 676 
 
 — V. Broadhurst . . . 480 
 
 — 0. Butler . . . .174 
 
 — V. Chapman . . . . HI 
 
 — V. Constable . 213, 784, 802 
 ~ V. Giles. . . 625, 667 
 
 — V. Golling . . . .253 
 
 — f. Great Western Eailway 
 
 Co 1054 
 
 — V. Hall . . . .444 
 
 — V. Hatton . 435, 450, 481 
 
 — V. Holyday ... 2 
 
 — V. Maitland . . . . 881 
 
 — r. Moore .... 217 
 
 — V. Perkins . . . 498 
 
 — V. Keeves .... 460 
 
 Walker v, Eichardson 
 
 — V, Kostron . 
 
 — V. Seaborne . 
 
 — II. Symonds 
 
 — V. Taylor 
 
 — V. Witter . 
 
 York and North Midland 
 Eailway 
 
 PAGE 
 
 . . 764 
 
 . 120 
 
 . . 151 
 
 . 717 
 
 768, 775 
 
 85, 486 
 
 . . 354 
 Walker's case .... 641 
 Wall V. M'Namara . . .852 
 
 — V. WaU . . . . 237 
 
 Walls V. Atchesoa . . . 1333 
 
 Wallace v. Breeds .... 1284 
 
 — -v. Kelsall .... 1100 
 
 — V. King . . 611, 1305 
 •— 0. McLaren . . . 443 
 
 — d. Smith . . . . 116 
 Waller v. Lacy 162, 173, 204, 205, 206 
 
 — ■!/. South Eastern KaUway Co. 1060 
 
 — V. York and North Midland 
 
 Eailway 
 Wallis V. Alpine . 
 
 — V. Day . 
 
 • — ■ V. Delaney . 
 
 — V. Harrison 
 
 — V. Scott 
 Walmsley v. Child 
 
 — V. Cooper 
 Walsby v, Oakley 
 Walsh V. Fassell . 
 Walter v. Clements 
 
 — V. Cubley . 
 
 — V. Eumball 
 Walters v. Mace . 
 
 — (1. Morgan 
 
 — v. PfeU . 
 
 — V. Selfe 
 
 — V. Smith 
 Walthall V. Aldrich 
 Walton V. Butler 
 
 — V. Dodson . 
 
 V. . 
 
 V. Kersop . 
 
 . . 354 
 
 . 1006 
 . . 500 
 
 . 494 
 249, 761, 1087 
 
 . 134 
 . . 293 
 
 . 617 
 51 
 
 . 421 
 . . 184 
 
 . 276 
 
 G02, 605 
 
 1214 
 
 . . 790 
 
 . 714 
 . . 1069 
 
 . 1303 
 
 . 697 
 . . 1095 
 
 . 1102 
 . . 276 
 
 . 1151 
 
 .Walwyn v. St. Quinton 289, 308, 312, 313 
 Wandsworth v. Bentley . . . 1002 
 Wankford v. Wankford . 615, 695, 714 
 Wansborough v. Maton . . . 1294 
 Wantsworth v. Onthwaite . . . 1216 
 Warburton v. Great Western Eail- 
 way Co., The . 1060 
 
 — V. Parke 
 
 . . 386 
 
 Ward V. Beck 
 
 . 1177 
 
 — V. Bryne . 
 
 . . 499 
 
 — V. Cresswell . 
 
 . 750 
 
 — 0. Felton . 
 
 . . 459 
 
 — It, Henley 
 
 . 1148 
 
 • — ■(!. Lumley 
 
 . . 544 
 
 — 1). Macauley . 
 
 . 1261 
 
 — ■w.Eobins 
 
 . . 384 
 
 — V. Shew 
 
 . 597 
 
 — V. Ward . 
 
 . 1076, 1081 
 
 — V. Weeks 
 
 1207, 1215 
 
 — V. Willingale . 
 
 . . 639 
 
 
 /2 
 
Ixxxiv 
 
 NAMES OF CASES. 
 
 
 PAGE 
 
 Warden v. Fermor 
 
 . 493 
 
 Warden v. Jones 
 
 778, 779 
 
 Wardroper ?'. Richardson 
 
 . 390 
 
 Waring v. Cox . 
 
 . . 1239 
 
 — V. Danvers 
 
 . 722 
 
 — V. Favenck . 
 
 . . 735 
 
 — -u. Hoggart 
 
 . 221 
 
 — v. King 
 
 587, 1335 
 
 Warlow «. Harrison 213 
 
 214, 215, 803 
 
 Wame v. Chadwell . 
 
 . . 1215 
 
 Wameford v. Wameford 
 
 . 814 
 
 Warner v. M'Kay 
 
 . 736 
 
 — -t). WiUington 
 
 . 802 
 
 Warr v. Jolly . 
 
 . . 1213 
 
 Warre v. Miller 
 
 . 952 
 
 Warren v. Stawell 
 
 . . 635 
 
 — V. Webb . 
 
 . 1086 
 
 Warrington v. Farley 
 
 . . 275 
 
 Warsopp V. Abell . 
 
 . 623 
 
 Warwick v. Bruce 
 
 154, 156, 781 
 
 — V. Foulkes 
 
 . 866 
 
 — V. Gfreyille . 
 
 . . 692 
 
 Washbom v. Black 
 
 . 603 
 
 Washboum v. Burrows 
 
 . . 781 
 
 Wason V. Walter . 
 
 983, 984, 985 
 
 Watcborn v. Langford 
 
 . 978 
 
 Waterer v. Freeman 
 
 . 1010 
 
 Waterfall ». Penistone 
 
 . . 1295 
 
 Waterhouse i). Bawde 
 
 . 1198 
 
 — V. Gill . 
 
 . . 1204 
 
 — V. Keen 
 
 116, 856 
 
 — V. Skinner 
 
 . . 139 
 
 Waters v. Thanet, Earl of 
 
 . 302 
 
 Watkins v. Hewlett . 
 
 . . 122 
 
 — V. Huntley 
 
 . 115 
 
 — V. Lee . 
 
 . 1013, 1014 
 
 — V. Wake . 
 
 . 485 
 
 — V. Woolley . 
 
 . . 1325 
 
 Watson V. Baker . 
 
 . 508 
 
 — V. Bodell 
 
 . . 852 
 
 — V, Christie. 
 
 . 46 
 
 — ■<?. Denton 
 
 . . 670 
 
 — u. Evans . 
 
 . 330 
 
 — ■!/. King 
 
 1298, 1344 
 
 — V. Mainwairing . 
 
 . 974 
 
 — 1/. Reynolds . 
 
 . . 1204 
 
 — i!. Spratley 
 
 . 785, 792 
 
 — -0. Threlkeld . 
 
 . . 235 
 
 — t). Turner . 
 
 . 66 
 
 — V. Whitmore . 
 
 . . 1009 
 
 Watt V. Baker 
 
 . 87 
 
 Watters v. Smith 
 
 . . 150 
 
 Watts V. Eraser 
 
 990, 999, 1000 
 
 — V. Friend 
 
 781, 791, 792 
 
 — V. FuUarton 
 
 . 819 
 
 — V, Goodman . 
 
 . . 495 
 
 — V. Phipps . 
 
 . 1327 
 
 Waugh V, Carver 
 
 . . 1091 
 
 Way V. Modigllani . 
 
 . 879 
 
 Wayman «. Hilliard . 
 
 . . 127 
 
 Waymell v. Keed . 
 
 . 73 
 
 Weatherston v. Hawkins 
 
 . . 1213 
 
 Weaver v. Belcher . 
 
 . 674 
 
 Weaver v. Bush 
 
 — ». Lloyd . 
 
 — V. Price 
 
 — V. Ward . 
 Webb V. Bird . 
 
 — V. Bishop 
 
 — V. Fairmaner 
 
 — V. Fox. 
 
 — V. Hewitt 
 
 — V. James 
 
 — V. Jiggs . 
 
 — V. Page 
 
 — V. Paternoster 
 
 — V. Plummer . 
 — • V. Eussell 
 
 — V. Smith 
 Webber v. Liversuch 
 
 — V. Haddocks 
 
 — V. Nicholas 
 
 — V. Eichards 
 
 — V. Sparkes 
 Webster v. De Tastet 
 
 — V. Emery 
 
 — V. Foster . 
 
 Weddall v. Capes . 
 Weedon v, Timbrell 
 Weeks v. Peach 
 
 — V. Speed 
 Weeton v. Woodcock 
 Wegersloffe v. Keene 
 Weigall V. Waters 
 Weir V. Aberdeen 
 Welch V. Ireland . 
 
 — V. Myer . 
 Welchman v. Sturgis 
 Welcome v. Upton . 
 Weld V. Baxter . 
 
 — 1/. Hornby 
 Welden v. Bridgewater 
 
 — -0. Gonld . 
 Welford v. Beazeley 
 Weller v. Baker 
 
 — V. Toke . 
 Wellock V. Constantino 
 Wells V. Fydell . 
 
 — V. Girling 
 
 — V. Hopkins 
 
 — V. Hopwood 
 
 — V. Horton 
 
 — V. Moody 
 
 — v. Eose . 
 
 — 1). Watling 
 
 — V. Wells . 
 Welsh V. Hall 
 Wenman v. Ash 
 
 — V. Fisher 
 Wennall v. Adney 
 Wentworth v. Outhwaite 
 
 West V. Blakeway 
 
 — v. Fritche 
 
 — V. Jackson 
 
 470, 
 
 PAGE 
 
 . . 48 
 
 . 1002 
 . . 1252 
 
 . 43 
 . . 1079 
 
 . 112 
 . . 89 
 
 . 1285 
 
 . 515 
 
 . 529 
 . . 539 
 
 . 364 
 760, 1086 
 
 . 413 
 405, 441 
 
 . 563 
 . . 65 
 
 . 275 
 
 . 1015 
 
 . 1251 
 . . 1271 
 
 . 891 
 31, 32, 35 
 
 . 935 
 . . 715 
 
 . 764 
 . . 10 
 4 
 . . 1153 
 611, 1295 
 . . 284 - 
 479, 519 
 . . 935 
 
 . 528 
 
 . . 451 
 
 . . 694 
 
 369, 386 
 
 . . 475 
 
 . 755 
 . . 1243 
 
 . 1316 
 
 . . 790 
 
 246, 249 
 
 . . 855 
 
 . 42 
 . . 724 
 
 . 338 
 
 . . 207 
 
 884, 885 
 
 . . 786 
 
 . 612 
 3 
 
 . 382 
 . . 57 
 
 . 1243 
 987, 1001 
 
 . 849 
 
 58, 66, 67 
 
 1222, 1224, 
 
 1231, 1237 
 
 477, 497, 1297 
 
 . 644 
 . . 580 
 

 NA5 
 
 lES OP CASES. 
 
 Ixxxv 
 
 
 
 PAGE 
 
 
 PAGE 
 
 West V. Moore 
 
 
 1293 
 
 Whitehead v. Hughes . 
 
 . . 1099 
 
 — V. Nibbs . 
 
 604, 610, 
 
 1261 
 
 — V. Lord . 
 
 170, 208, 209 
 
 — 1). Pasmore . 
 
 
 1308 
 
 — V. Procter . 
 
 1025 
 
 — V. Smallwood . 
 
 
 851 
 
 — V. Scott . 
 
 . 1322 
 
 ■Western v. Macdermot . 
 
 
 410 
 
 — V. Taylor . 
 
 . 595 
 
 Westfaling v. Westfaling 
 
 > 
 
 535 
 
 — V. Tuckett 
 
 . 733 
 
 Weston V. Beeman 
 
 . 1007, 
 
 1008 
 
 — V. Vaughan 
 
 . . 1316 
 
 — V. Downes 
 
 . 117 
 
 , 572 
 
 — V. Walker 
 
 . 281, 287 
 
 — V. Ernes . 
 
 
 872 
 
 Whitehouse v, Atkinson 
 
 . . 1328 
 
 — ?), Fournier 
 
 
 859 
 
 — V. Frost 
 
 1238, 1284 
 
 — ». Wright . 
 
 
 1195 
 
 Whitelook v. Hutchinson 
 
 . . 389 
 
 Westrop V. Solomon 
 
 . ' 9? 
 
 , 102 
 
 — V. Musgrove . 
 
 . 494 
 
 Westwood V. Bell . 
 
 
 1316 
 
 Whiteman v. King 
 
 376, 597 
 
 — 'V, Cowne . 
 
 
 605 
 
 Whitfield V. Hunt 
 
 . . 84 
 
 Westzinthus, Ke . 
 
 
 1240 
 
 — V. South Eastern Rail. Co. 981 
 
 Wetherell v. Jones . 
 
 ■ • > 
 
 74 
 
 ■#hitmore v. Green . 
 
 . . 1310 
 
 — V. Langston . 
 
 
 419 
 
 Whittaker v. Howe 
 
 . 499 
 
 Weyland v. Eltins 
 
 
 1058 
 
 Whittingdon v. Gladwin 
 
 . . 1203 
 
 Whaley v. Laing . 
 
 
 1077 
 
 Whittingham v. Hill 
 
 . 156, 472 
 
 Whalley v. Bramwell . 
 
 
 1125 
 
 Whitton V. Peacock . 
 
 . 442 
 
 Wharton v. Mackenzie . 
 
 
 153 
 
 Whitwood V. Jocam 
 
 . ' . 1036 
 
 — V. Naylor 
 
 
 592 
 
 Whitworth v. Hall . 
 
 . . 1010 
 
 Whateley v. Menheim 
 
 
 .1108 
 
 — V. Smith 
 
 . 611 
 
 Wh alley v. Trioker . 
 
 
 285 
 
 Whyatt V. M'Intosh . 
 
 . . 1027 
 
 Wheatley«. Lane . 
 
 
 718 
 
 Whyte V. Rose 
 
 . 689 
 
 — V. Low 
 
 . . 
 
 . 56 
 
 Whywall v. Champion 
 
 . . 156 
 
 Wheeler v. Branseombe . 
 
 . 596, 597 
 
 Wiokenden v. Webster 
 
 . 404 
 
 — u. Honor 
 
 
 484 
 
 Wickens v. Steel 
 
 86, 38, 39 
 
 — 0. Home . 
 
 . 
 
 2, 3 
 
 Wicker v. Norris . 
 
 . 484 
 
 — V. Montefiore. 
 
 . 1250, 
 
 1298 
 
 Wickes V. Grove 
 
 . 31, 33 
 
 Wheelton v. Hardisty 
 
 
 973 
 
 Wickham v. Hawker 
 
 . 835 
 
 Whelpdale's case 
 
 . m, 496, 511 
 
 Wicks «. Fentham 
 
 1005, 1006 
 
 Whippy V. Hillary . 
 
 
 174 
 
 Wiebe v. Simpson . 
 
 . 921 
 
 Whitaker v. Bank of England . . 
 
 299 
 
 Wieler v. Schilizzi . 
 
 . . 574 
 
 — V. Edmunds . 
 
 , 
 
 320 
 
 Wiffen V. Koberts . 
 
 . 300 
 
 Whitoheot v. Fox 
 
 . 
 
 433 
 
 Wigan V. Holmes 
 
 . . 1043 
 
 Whitoomb v. Whiting 
 
 , 
 
 175 
 
 Wiggett V. For 
 
 . 1059 
 
 White V. Barrack 
 
 
 524 
 
 Wiggins V. George . 
 
 . . 1343 
 
 — V. Bartlett . 
 
 , 
 
 125 
 
 — V. Ingleton 
 
 . 1189 
 
 — V. Bluett 
 
 • ■ 
 
 67 
 
 Wightman v. Townroe 
 
 . , 1089 
 
 — V. Garden . 
 
 . 88, 
 
 1279 
 
 Wilbraham v. Snow 
 
 . 1286 
 
 — V. Graham 
 
 
 1309 
 
 Wilby V. Elston . 982, 
 
 992, 1200, 1208 
 
 — V. Gt. Western Kailway Co. . 
 
 365 
 
 
 1314 
 
 — V. Hill 
 
 
 1245 
 
 — V. West Cornwall Eailw. Co. . 347 
 
 — V. Ledwick 
 
 . 
 
 278 
 
 Wild V. Holt . 
 
 . 1274, 1328 
 
 — -1). Morris 
 
 
 1247 
 
 "Wilde V. Clarkson . 
 
 . 489 
 
 — V. Proctor 
 
 
 784 
 
 — ■;;. Gibson 
 
 . . 79 
 
 — V. Eepton 
 
 
 827 
 
 — V. Waters . 
 
 .1293,1294 
 
 — V. Spettigue 
 
 
 1277 
 
 Wilder v. Speer 
 
 . . 603 
 
 — V. Teal 
 
 
 1309 
 
 Wilde's case . 
 
 . 372 
 
 — V. Warner 
 
 
 436 
 
 Wildman v. Noi-ton . 
 
 . . 1152 
 
 — v. Wilks . 
 
 
 1284 
 
 Wiley V. Crawford . 
 
 . 1175 
 
 — -1). Wilson 
 
 . ' 131 
 
 1187 
 
 Wilford V. Berkeley . 
 
 . . 27 
 
 — v. Wiltshire 
 
 
 1262 
 
 Wilkes V. Hopkins . 
 
 341 
 
 — V. Woodward . 
 
 
 789 
 
 — «. Hungerford Market Co. .1071 
 
 Whiteaore v. Symonds . 
 
 
 639 
 
 — V. Jacks . 
 
 . 290 
 
 Whitehall v. Squire . 
 
 
 701 
 
 Wilkin V. Eeed . 
 
 . 31, 34, 1214 
 
 Whitehead v. Anderson . 
 
 1225,' 
 
 1228, 
 
 Wilkins v. Bromhead 
 
 . 1283 
 
 
 1230 
 
 1236 
 
 — V. Despard 
 
 582, 1251 
 
 — V. Banoe . 
 
 
 898 
 
 — u. Jadis . 
 
 . 306 
 
 — V. Brown 
 
 
 130 
 
 Wilkinson v. Byers 
 
 60, 149, 150 
 
 — V. Clifford . 
 
 
 1333 
 
 — V. CoUey 
 
 . 546, 547 
 
 — V. Greetham . 
 
 . 
 
 56 
 
 — V. H^U , 
 
 547, 548 
 
Ixxxvi 
 
 NAMES OF CASES. 
 
 PAGE 
 
 ■Wilkinson «. Haygarth . . . 1244 
 
 — «. Howel .... 1008 
 
 — V. Hyde . . . .908 
 
 — V. Ibbett . . . . 612 
 
 — V. Johnson . . .119 
 
 — ■». King .... 1278 
 
 — V. Kirby . 683, 685, 686 
 
 — V. Lloyd . . . . 417 
 
 — 0. Prind . . .629 
 
 — V. Sharland . . 31, 32 
 
 — V. Traxton 
 Wilks V, Atkinson 
 
 — V. Back 
 
 — V. Smith . 
 Willand v. Fenu . 
 WiUans v. Taylor 
 Willoox V. Hnggins 
 Willes V. Glover 
 Willet V. Sandford . 
 Willett V. Clarke 
 Williams, Ke . . . 
 
 — V. African Steamship 
 
 — V. Barber . 
 
 — V. Bosanquet . 
 
 — V. Bryant . 
 
 — -v. Bryne 
 
 . . 139 
 
 . 474 
 
 135, 136, 141 
 
 . 692 
 
 1006, 1007 
 
 . 176 
 
 932, 935 
 
 . 819 
 
 . 219 
 
 . 1025 
 
 Co. 1193 
 
 . 205 
 
 . 450 
 
 . 491 
 
 . 1048 
 
 . 799 
 
 . 1061 
 
 652 
 
 . 675 
 
 214 
 
 120 
 
 205 
 
 318 
 
 v. Great Western Kailiray 1129 
 ■u. Grey . . . .710 
 ■„. Griffith . . 162, 198 
 
 ■0. Harrison . . 156, 261 
 ■0. Hedley . . 105, 112 
 
 V. Jones, 49, 179, 196, 786, 861, 
 1055, 1255 
 ■0. Lee .... 5 
 V. Leper . 774,- 776, 777 
 
 V. London Ass. Co. . . 882 
 V. MiUington . . .214 
 V. Moore . . 154, 156, 159 
 V. Morris . 761, 1087, 1260 
 589, 1162 
 
 '0. Clongh 
 ■0. Drewe . 
 V. E. I. Co. 
 V. Evans . 
 V. Everett 
 V. Frith . 
 ■I/. Germaine 
 
 V. Price 
 
 1). Kawlinson 
 
 V. Eoberts . 
 
 — V. Shee 
 
 — V. Smith 
 
 — v, Stivea . 
 
 — V. Waring 
 
 — V. Wilcox . 
 
 — V. Williams 
 Williamson v. Alison . 
 
 — V. Bennett 
 
 — V, Clements 
 
 — V. Dawes 
 
 — V. Innes . 
 
 — V. Johnson . 
 
 163 
 
 . . 601 
 
 . 680 
 
 . . 950 
 
 287, 306 
 
 . . 598 
 
 . 341 
 
 . . 755 
 
 . 1277 
 
 558, 579 
 
 . 331 
 
 . . 55 
 
 . 241 
 
 . . 894 
 
 1098 
 
 PAGE 
 
 Williamson v. Watts . . 152, 156, 261 
 
 Willie V. Wilks . 
 
 . 613 
 
 Willis V. Bernard 
 
 . . 26 
 
 — V. England, Bank of 
 
 . 742 
 
 — V. Fletcher 
 
 . . 595 
 
 — V. Poole 
 
 . 974 
 
 Willison V. Patteson . 
 
 . . 890 
 
 Willoughby v. Backhouse 
 
 . 612 
 
 — V. Small . 
 
 . . 4 
 
 — V. Swintou . 
 
 . 528, 531 
 
 Wills V. Noot . 
 
 . . 271 
 
 — V. Kich 
 
 . 691, 698 
 
 Willy V. Hanksworth 
 
 . . 246 
 
 Wilmot V. Hose 
 
 . 606 
 
 Wilmshurst v. Bowker, 1239, 
 
 1288, 1290, 
 
 
 1314 
 
 Wilson, Exp. . 
 
 . . 285 
 
 — D.Anderton 
 
 1277, 1324 
 
 — ■!/. Barker . 
 
 . 1248 
 
 — (J. Beddard 
 
 . . 814 
 
 — V. Carey 
 
 . 93 
 
 — V. Chambers . 
 
 . . 1322 
 
 — V. Curzon . 
 
 . 1104 
 
 — V. Ducket 
 
 . . 590 
 
 — V. Eden 
 
 . 829 
 
 — v. Fuller 
 
 . . 79 
 
 — V. Hart . 
 
 411, 792 
 
 — V. Hirst 
 
 . 162 
 
 — V. Kennedy . 
 
 . . 319 
 
 — V. Knubley 
 
 . 453, 635 
 
 — V. Leiris 
 
 . . 1098 
 
 — V. Mackreth 
 
 . 1243 
 
 — V. Marryat 
 
 . 931, 932 
 
 — V. Merry 
 
 . . 1060 
 
 — V. Milner 
 
 . 96 
 
 — V. Mushett . 
 
 . 231, 420 
 
 — V. NichoUs 
 
 . 209 
 
 — v. Nightingale 
 
 . 604, 605 
 
 — -u. Bankin 
 
 . 953 
 
 — X.. Kastall 
 
 . . 553 
 
 — I). Bay 
 
 . 106 
 
 — V. Eobinson . 
 
 866, 1213 
 
 — V. Koyal Exchange Ass 
 
 .Co. 
 
 
 886, 891 
 
 — V. Tucker . 
 
 . 210, 850 
 
 — V. Tummon 
 
 43, 1248 
 
 — V. Weddell . 
 
 . 623 
 
 — V. Whitehead . 
 
 1094, 1107 
 
 — V. Wigg 
 
 . 720 
 
 — 11. Witherby . 
 
 . . 679 
 
 Wilsons, Re 
 
 . 1142 
 
 Wilton V. Dunn 
 
 . . 1340 
 
 — V. Eeaston . 
 
 . 874 
 
 — V. Webster 
 
 7, 10, 27 
 
 Wiltshear v. Cottrell . 
 
 1294, 1296 
 
 Wiltshire v. Sims 
 
 . . 734 
 
 — V. Wiltshire 
 
 . . 16 
 
 Windham v. Boyer . 
 
 . . 508 
 
 — V. Chetwynd 
 
 . . 768 
 
 — (1. Way . 
 
 . 1244 
 
 — V. Wycomhe, Lord 
 
 . . 9 
 
 Windle i). Andrews . 292. 293, 309 
 
 Winford v. Powell . 
 
 . 180 
 
NAMES OF CASES. 
 
 Ixxxvii 
 
 
 
 PAGE 
 
 
 PAGE 
 
 Wing V, Harvey 
 
 
 975 
 
 Woods r. Eussell 
 
 . . 1283 
 
 — V. Mill 
 
 
 67 
 
 Woodward II. Foxe . 
 
 . 503 
 
 Winn V. Ingilby 
 
 
 1296 
 
 — V. Lander . 
 
 989, 1213 
 
 Winship V. Hudspeth 
 
 
 1080 
 
 — V. Walton 
 
 . 1064 
 
 Winstanley v. Bowden 
 
 
 337 
 
 — V. Woodward 
 
 . . 238 
 
 Winstone v. Linn 
 
 
 472 
 
 Woodyear v. Hadden 
 
 . 1264 
 
 Winter v. Brookwell 
 
 ". 76l', 
 
 1086 
 
 Woodyer v. Great Western Kailway . 368 
 
 — V. Haldimaud . 8 
 
 •2, 87? 
 
 , 920 
 
 Wookey v. Pole 
 
 . 1301 
 
 — v. Henn 
 
 
 9, 10 
 
 Wooldridge v. Boydell 
 
 . . 879 
 
 — V. Wroot 
 
 
 26 
 
 Woollam V. Hearn 
 
 . 477 
 
 Winterbottom v. Ingham 
 
 
 1338 
 
 Woollaston v. Walker 
 
 . . 698 
 
 — V. Derby, Lord 
 
 
 1072 
 
 WooUey v. Clark 
 
 694, 726 
 
 — V. Wright 
 
 
 559 
 
 Woolnoth V. Meadows 
 
 . . 1207 
 
 Winterboum v. Brooks 
 
 
 50 
 
 Woolsey v. Crawford 
 
 . 285 
 
 Winterbourne «. Morgan 
 
 
 610 
 
 Woolton V. Salter 
 
 . . 1154 
 
 Wisdom V. Hodson . 
 
 , 
 
 840 
 
 •Woolverston v. Fynnimore 
 
 . 249 
 
 Wise V. Bellent . 
 
 
 249 
 
 Woolway v, Howe 
 
 . . 1272 
 
 — V. Metcalfe 
 
 
 1297 
 
 WoottonD. Steffenoni 
 
 . 441 
 
 Wish V. Small 
 
 
 1095 
 
 Worley v. Harrison 
 
 4, 332 
 
 Wiseman 1). Euston . 
 
 
 265 
 
 Worsley v. Wood 457, 459, 937, 977 
 
 Withall «. Masterman & Co. 
 
 
 314 
 
 Worth V. Terrington 
 
 . 51, 867 
 
 Withers v. Biroham . 
 
 , 
 
 416 
 
 Worthington v. liarlow . 
 
 . 709 
 
 — V. Henley 
 
 
 846 
 
 — V. Qrimsditch 
 
 . . 173 
 
 — V. Lys 
 
 ' 1229, 
 
 1284 
 
 — V. Warrington 
 
 . 217 
 
 Wolf V. Summers 
 
 . . 
 
 1317 
 
 Wortley Montague v. Sandwich, Ld. 1321 
 
 Wolff 11. Horneastle 
 
 
 876 
 
 Wotton V. Hele 
 
 . . 427 
 
 Wollaston v. HakewiU 
 
 
 445 
 
 Wray v. Milestone 
 
 400, 1104 
 
 Wolverhampton Banking Co., 
 
 The, V 
 
 
 Wright, In re . 
 
 . 24, 980 
 
 Mai-ston . 
 
 , 
 
 729 
 
 — V. Banks . 
 
 . 624 
 
 Wolveridge v. Steward 401, 406, 450 
 
 — V. Burroughs 
 
 . . 514 
 
 Womersley v. Dally 
 
 
 442 
 
 — V. Campbell 
 
 . 1239 
 
 Wood V. Bell . 
 
 
 1283 
 
 — V. Clements . 
 
 . . 991 
 
 — V. Benson 
 
 
 784 
 
 — V. CoUis . 
 
 . 104 
 
 — K. Braddiok 
 
 
 1108 
 
 — V. Dannah . 
 
 . . 803 
 
 — V. Brown 
 
 
 991 
 
 • — V. Dewes . 
 
 . 592 
 
 — 1.. Clarke 
 
 , . 
 
 '591 
 
 — V. Elwood . 
 
 . . 16 
 
 — ■;;. Drury 
 
 
 493 
 
 — V. Fawcett 
 
 . 1039 
 
 — V. Dwarris 
 
 957, 973 
 
 — V. Howard . 
 
 . . 1075 
 
 — V. FoUiott . 
 
 
 855 
 
 — 11. Johnson 
 
 . 132 
 
 — V. Lake . 
 
 
 760 
 
 — v, Laing 
 
 . 76, 162 
 
 — V. Lane • . 
 
 
 848 
 
 — V. Lawes 
 
 . 1235 
 
 — V. Leadbitter . 
 
 ■ 761, 
 
 1086 
 
 — 1). Leonard . 
 
 . . 253 
 
 — V. Stanley . 
 
 761, 
 
 1087 
 
 — -1). Eattray 
 
 . 1269 
 
 — V. Morewood 
 
 
 1328 
 
 — V. Reed 
 
 188, 189 
 
 — V. Bowcliffe . 
 
 
 746 
 
 — ». Smith . 
 
 . 547 
 
 — V. Veal . 
 
 
 1265 
 
 — "^ r. Snell 
 
 . . 358 
 
 — V. Waud . 1075 
 
 1076, 
 
 1077 
 
 — V. Stavert 
 
 . 779 
 
 — V. Wedgewood 
 
 
 1271 
 
 — V. Wakeford 
 
 . . 814 
 
 — V. Wood 
 
 , 
 
 25 
 
 — V. Walmaley 
 
 . 525 
 
 Woodbridge v. Spooner . 
 
 
 342 
 
 — v. Wheatley 
 
 . . 628 
 
 — V. Swanu 
 
 
 1099 
 
 — V. Williams 
 
 i078, 1080 
 
 Woodcock V. Gibson . 
 
 
 621 
 
 — 'v. Woodgate 
 
 . . 987 
 
 — I.. Houldsworth . 
 
 , 
 
 286 
 
 Wyatt v. Gore 
 
 . 999 
 
 _ 0. Nuth 
 
 
 1342 
 
 — -1). Hodson 
 
 . . 176 
 
 Woodford v. Deacon 
 
 
 82 
 
 Wyld V. Pickford . . 3^ 
 
 4, 354, 364 
 
 Woodhouse v. Farebrother 
 
 
 313 
 
 Wynn v. Tyrwhitt 
 
 . 495 
 
 — V. Jenkins 
 
 41S 
 
 , 429 
 
 Wyse V. Myers . 
 
 . . 1340 
 
 Woodin V. Burford 
 
 . 572, 
 
 1054 
 
 Wyvill V. Stapleton 
 
 . 466 
 
 Woodley v. Coventry 
 
 
 1286 
 
 
 
 Woodliefe v. Curties 
 
 
 348 
 
 Tarboeotoh v. Bank of Engla 
 
 nd . 1308 
 
 Woodman v. Chapman . 
 
 
 223 
 
 Yard v. Eland . 
 
 . . 246 
 
 Woodroffe v. Daniel . 
 
 . 
 
 660 
 
 Yates V. Aston 
 
 401 
 
 Woods V. Durrant 
 
 60S 
 
 , 603 
 
 — V. Dalton 
 
 1097 
 
Ixxxviii 
 
 TABLE OF CASES. 
 
 
 PAGE 
 
 
 PAGE 
 
 Yates V. Eastwood 
 
 . 606 
 
 Young V. Cole 
 
 102, 577 
 
 — V. Hoppe 
 
 . . 120 
 
 — V. Cooper 
 
 . . 1310 
 
 — V. Jack 
 
 . 1074 
 
 — ■!). Grote 
 
 . 311 
 
 — *. Sherrington 
 
 i:48, 252 
 
 — V. Higgon 
 
 . . 864 
 
 — V. Whyte . 
 
 . 978 
 
 — V. Holmes . 
 
 . 625, 667 
 
 Yearsley i>. Heaue . 
 
 . . 1012 
 
 — V. Mantz 
 
 . . 435 
 
 Yelverton v. Yelverton . 
 
 . 25 
 
 — V. Marshall 
 
 . 119 
 
 Yeomans v. Bradshaw 
 
 258, 706 
 
 — V. Eaincock . 
 
 425, 427, 1259 
 
 Yonge V. Jones 
 
 . 507 
 
 — V. Turing . 
 
 . 912 
 
 York and North Midland 
 
 Eaiiway c. 
 
 Young V. Wright 
 
 . . B17 
 
 Bex 
 
 . 1022, 1030 
 
 
 
 — V. Stone 
 
 . 823 
 
 Zagdht V, Fumell 
 
 . 1284 
 
 Yorke v. Grenaugh . 
 
 . 1312 
 
 Zenobio v. Axtell 
 
 . . 991 
 
 Youl V. Harbottle 
 
 . 364 
 
 Zwiuger v. Samuda 
 
 . 1240 
 
 Yonng V. Cawdrey . 
 
 . . 707 
 
 
 
TABLE OF STATUTES. 
 
 
 PAGE 
 
 
 PAOE 
 
 £0 Hen. III. o. 4 
 
 . 375 
 
 4 Jac. I. 0. 3, s. 2 
 
 . . 1167 
 
 52 Hen. III. c. 4 
 
 602, 612 
 
 7 Jao. I. c. 5 . 
 
 21^ao. I. 0. 4, ss. 1, 2, 3, 4 
 
 . 46 
 
 0. 21 . 
 
 1143, 1144 
 
 . 168, 551 
 
 3 Edw. I. (Westm. 1) o. 34 
 
 . 1197 
 
 0. 12, s. 6 .45 
 
 , 46, 860, 861 
 
 6 Edw. I. 0. 1, s. 2 . 
 
 391, 1166 
 
 c. 16 
 
 178, 179, 654 
 
 13 Edw. I. e. U . 
 
 6 
 
 0. 16, s. 3 4, 44 
 
 61, 175, 179. 
 
 Stat. 1, t. '^3 
 
 . 3, 712 
 
 545, ll53, 1190, 
 
 Btat. 1, c. 46 . 
 
 . 375 
 
 1206, 1214. 1250 
 
 18 Edw. I. Stat. 2, s. 2 . 
 
 . 1110 
 
 a. 4 . 
 
 . . 176 
 
 4 Edw. III. c. 7 . 
 
 626, 710 
 
 s, 6 . 391, 392, 1216 
 
 25 Edw. III. Btat. 4, c. 4 . 
 
 . . 755 
 
 B. 7 177, 179, 1190, 1205 
 
 Stat. 5, c. 5 . 3 
 
 694, 710, 712 
 
 0. 28, s. 1 
 
 . 46 
 
 31 Edw. III. Btat. 1, c. 11 . 
 
 . 3, 712 
 
 12 Car. II. 0. 18, s. 1 . 
 
 113, 114 
 
 2 Rio. II. c. 6. 
 
 1197, 1198 
 
 0. 24, S3. 8, 9 
 
 . 625 
 
 12 Rio. II. c. 2 . 
 
 . . 70 
 
 13 Car. II. Stat. 2, c. 1 
 
 . . 1122 
 
 c. 11 . 
 
 . 1197- 
 
 16 & 17 Car. II. c. 8, s. 3 
 
 . 683 
 
 23 Hen. VI. c. 9 . 619, 
 
 520, 621, 522 
 
 17Car. 11.0.7, s. 2 . 
 
 1148, 1164 
 
 12 Edw. IV. c. 7 
 
 . . 755 
 
 s. 3 
 
 . 1166 
 
 21 Edw. IV. c. 66 . 
 
 . 1143 
 
 u. 8 . 
 
 454, 696 
 
 7 Hen. VIII. c. 4 
 
 . . 694 
 
 Ki. 8f a, X 
 
 . 1002 
 
 c. 4, s. 3 . 
 
 . 1166 
 
 19 Car. II. ,;. 6 . 
 
 . . 675 
 
 21 Hen. VIII. e. 6, a. 3 . 
 
 . . 712 
 
 20 Car. II. u. 7, a. 2 
 
 . 718 
 
 v;. 19 
 
 . 1166 
 
 22 Car. II. u. 6 . 
 
 . . 594 
 
 u. 19, B. 2 
 
 . 1157 
 
 22 & 23 Car. II. c. 11 . 
 
 . 94 
 
 23 Hen. VIII. c. 15 
 
 . 729 
 
 25 Car. II. o. 2, ss. 2, 3 . 
 
 . . 1122 
 
 26 Hen. VIII. c. 21 
 
 . 15 
 
 29 Car. II. c. 3, s. 3 
 
 . 443, 679 
 
 28Hen. VIII. e. 7,8.11 . 
 
 . . 19 
 
 S.4 . 
 
 58, 563, 718 
 
 32 Hen. VIII. c. 1 
 
 . 813, 815 
 
 s. 10 . 
 
 . 668 
 
 0. 1, a. 2 . 
 
 . . 824 
 
 s. 17 . 
 
 . . 213 
 
 c. 34 410, 
 
 439, 440, 453 
 
 C. 7, B. 1 
 
 . 671, 853 
 
 v;. 37, s. 1 
 
 . 540, 594 
 
 B. 6 . 
 
 850, 1169 
 
 ss. 3, 4 
 
 . . 595 
 
 1 Jac. II. 0. 1 7, s. 5 
 
 . 696 
 
 u. 38 
 
 8 
 
 2 W. & M. 0. 5 . 
 
 . . 606 
 
 33 Hen. VIII. c. 39, s. 50 . 
 
 . . 702 
 
 Bess. 1, 0. 5, B. 2 
 
 . 603,604, 
 
 5 & 6 Edw. VI. c. 16 . 
 
 . 70,504 
 
 
 607, 609 
 
 ss. 2, 
 
 3, 4 . 603 
 
 s. 3 
 
 . 590 
 
 1 & 2 Ph. & M. 0. 12 . 
 
 . . 602 
 
 sess. 1, 0. 8 . 
 
 . 1116 
 
 =.2 
 
 . 606 
 
 3 & 4 W. & M. c. 14, S3. 5, 
 
 6 . . 634 
 
 s. 3 . 
 
 . . 1144 
 
 4&5W. &M. 0. 18 . 
 
 1111, 1113 
 
 6 Eliz. 0. 4, s. 42 
 
 . . 471 
 
 c. 24, B. 12 
 
 . . 718 
 
 13 Eliz. 0. 20 . 
 
 . 421 
 
 7 & 8 Will. III. u. 36, S3. 2 
 
 3 . . 703 
 
 18 Eliz. 0. 5, s. 1 
 
 . . 552 
 
 8 & 9 Will. III. ell . 
 
 . 631 
 
 27Eliz. u. 4 . 
 
 . 624 
 
 c. 11, s. 1 
 
 . 392, 1167 
 
 c. 4, s. 2 
 
 . . 1304 
 
 s. 8 
 
 . 528 
 
 c. 10'. . • . 
 
 . 652 
 
 9 & 10 Will. HI. 0. 17 
 
 292, 309 
 
 31 Eliz. c. 5, BS. 2, S, 6 . 
 
 . 650 
 
 3 &,4 Ann. u. 9 . 
 
 309, 333 
 
 c. 6, BS. 5, 6, 7, 8 
 
 . 506 
 
 0. 9, s. 5 
 
 . 282 
 
 43 Eliz. u. 2, B. 19 . 
 
 . 1165 
 
 4 Ann. c. 16 
 
 . 4, 524, 1043 
 
 c. 6, s. 2 
 
 . . 390 
 
 c. 16, s. 4 . 
 
 . 1163 
 
 1 Jao. I. 0. 22, s. 14 
 
 . 662 
 
 s. 9 
 
 . . 640 
 
xc 
 
 TABLE OF STATUTES. 
 
 
 PAGE 
 
 
 
 
 AGK 
 
 4 Ann, u. 16, s. 11 . 
 
 . 142 
 
 24 Geo. II. e. 40, s. 12 
 
 
 . . 75 
 
 s. 12 . 
 
 . . 513 
 
 c. 44, s. 6 . 
 
 851, 
 
 856, 1143 
 
 s. 13 . 
 
 . 629 
 
 s. 8 
 
 
 . . 858 
 
 Bs. 17—19 
 
 179, 1190 
 
 26 Geo. II. c. 33 
 
 
 
 11 
 
 B. 20 . 
 
 . 524 
 
 v;. 33, B. 1 . 
 
 
 
 19 
 
 B. 27 . 
 
 2, 3, 5, 716 
 
 29 Geo. II. u. 36 
 
 
 
 376 
 
 4 & 5 Ann. u. 16, ss. 9, 10 
 
 . . 1344 
 
 31 Geo. II. c. 41 . 
 
 
 
 376 
 
 B. 14 . 
 
 .■ .824 
 
 13 Geo. III. c. 78, s. 1 
 
 . 
 
 
 1024 
 
 B. 19 
 
 . . 178 
 
 B. 47 . 
 
 
 
 1142 
 
 7 Ann. c. 12, b. 3 . 
 
 . .592 
 
 0.81 
 
 
 
 376 
 
 8 Ann. o. 14, b. 4 
 
 . . 639 
 
 14 Geo. IIL c. 48 . 
 
 
 
 971 
 
 BS. 6, 7 . 
 
 . 698 
 
 0.76 . 
 
 
 
 102 
 
 9 Ann. o. 6, b. 57 
 
 . 871 
 
 0. 78, s. 83 . 
 
 
 
 977 
 
 0. 14, B. 1 . 
 
 . 278 
 
 21 Geo. III. u. 63 
 
 
 
 19 
 
 0. 20 1042, 104 
 
 4, 1113, 1123, 
 
 22 Geo. III. u. 25, s. 1 . 
 
 
 
 898 
 
 
 1165 
 
 23 Geo. III. i;. 70, s. 30 
 
 . 
 
 
 116 
 
 c. 20, B. 2 . 
 
 . 1043 
 
 26 Geo. III. r. 51, ss. 60, 
 
 61 . 
 
 
 365 
 
 B. 4 
 
 . . 1112 
 
 26 Geo. III. 0. 67, ». 38 
 
 , 
 
 
 495 
 
 o. 5 . 
 
 1112, 1137 
 
 0. 60, ri. 17 . 
 
 
 
 422 
 
 s. 7 . 
 
 . . 1043 
 
 0. 73, s. 64 
 
 , 
 
 
 74 
 
 12 Ann. stat. 2, c. 12, a. 2 
 
 . 507 
 
 28 Geo. III. c. 56 . 
 
 
 
 874 
 
 3 Geo. I. 0. 15, s. 10 . 
 
 . . 603 
 
 31 Geo. III. c. 25, s. 19 
 
 , 
 
 270, 271. 
 
 6 Geo, I. c. 18, s. 12 
 
 114 
 
 
 
 272 
 
 7 Geo. I. 0. 21, s. 2 . 
 
 . . 970 
 
 32 Geo. III. 0. 58, a. 1 
 
 . 1123,1134 
 
 10 Geo. I. u. 10, s. 13 . 
 
 . 1263 
 
 0. 60, ss. 2, 3 
 
 ,4 . 
 
 . 1002 
 
 11 Geo. I. M. 4, es. 1, 2 
 
 . . 1019 
 
 33 Geo. III. c. 66, ss. 37, 
 
 38 
 
 . 898 
 
 c. 30, s. 43 . 
 
 . 476, 926 
 
 35 Geo. III. u. 63, a. 13 
 
 
 886, 887 
 
 2 Geo. II. c. 19, s. 17 
 
 . . 653 
 
 37 Geo. III. .i. 136, b. 6 
 
 , 
 
 . 271 
 
 c. 22, s. 13 
 
 181, 182, 518 
 
 38 Geo. III. 1=. 87, s. 1 . 
 
 
 . 697 
 
 4 Geo. 11. c. 28, s. 1 
 
 . ' . 546 
 
 u. 87, a. 6 
 
 , 
 
 . 696 
 
 ss. 2, 4 
 
 . . 650 
 
 39 Geo. III. 0. 79, b. 27 . 
 
 
 . 74 
 
 S.5 . 
 
 . 687, 597 
 
 39&40Geo. III.,c. 42 
 
 , 
 
 . 300 
 
 5 Geo. 11. c. 30, s. 11 
 
 . . 107 
 
 42 Geo. III. c. 38 . 
 
 
 . 73 
 
 7 Geo. II. c. 8, s. 8 
 
 75, 108 
 
 0. 85, s. 6 
 
 . 45, 
 
 860, 861 
 
 u. 20, ss. 1, 3 
 
 . . 626 
 
 43 Geo. III. c. 46, s. 4 
 
 . 
 
 . 539 
 
 8 Geo. II. o. 24, ss. 4, 5 
 
 181, 184, 518 
 
 c. 127, B. 6 . 
 
 
 . 272 
 
 11 Geo. II. u. 19 
 
 . . 606 
 
 c. 160, ss. 34 
 
 35* 
 
 . 898 
 
 BS. 1, 2 . 
 
 . 600 
 
 44 Geo. III. c. 77 . 
 
 
 . 19 
 
 s. 7 . 
 
 600, 601 
 
 c. 98, 8. 14 
 
 , 
 
 . 74 
 
 B. 8 590, 
 
 600, 603, 606 
 
 45 Geo. III. u. 72, ». 3 . 
 
 
 . 967 
 
 SB. 9, 10 
 
 602, 606, 1162 
 
 46 Geo. III. u. 65, as. 115 
 
 195 
 
 . 422 
 
 B. 11 . 
 
 . 1162 
 
 48 Geo. III. u. 127 
 
 
 . 19 
 
 ss. 12, 13 
 
 . . 647 
 
 49 Geo. 111. u. 121, b. 19 
 
 , 
 
 . 482 
 
 s. 14 . 
 
 . 1331 
 
 ,=. 126, a. 7 . 
 
 
 . 504 
 
 s. 16 
 
 542,712 
 
 52 Geo. III. u. 93 . 
 
 . 
 
 . 916 
 
 s. 16 . 
 
 . 653 
 
 56 Geo. III. c. 184 
 
 "309, 
 
 337, 338 
 
 s. 18 
 
 649, 588 
 
 0. 184, ss. 8, 
 
 19 
 
 . 272 
 
 s. 19 . 
 
 604, 610, 1305 
 
 ss. 45 
 
 ,48 
 
 . 702 
 
 s. 21 
 
 . . 1255 
 
 0. 192 . 
 
 
 813, 824 
 
 s, 22 . 
 
 1157, 1167 
 
 0. 194, s. 21 
 
 
 . 337 
 
 8.23 
 
 1146, 1149 
 
 56 Geo. III. c. 60, s. 11 
 
 
 . 605 
 
 12 Geo. II. c. 28, bb. 2, 8 
 
 . 603 
 
 0. 68, SB. 11, 
 
 12 
 
 . 188 
 
 18 Geo. II. 0. 34 
 
 . . 503 
 
 57 Geo. III. c. 52 . 
 
 
 . 663 
 
 14 Geo. II. 0. 20, s. 9 . 
 
 . 824 
 
 c. 99, B. 1 
 
 
 . 606 
 
 16 Geo. II. 0. 30, s. 3 . 
 
 . . 1122 
 
 BS. 2, 3 
 
 ,'4,5 
 
 . 607 
 
 17 Geo. II. 0. 3, s. 1 
 
 1143 
 
 li. 99, a. 3 . 
 
 
 . 73 
 
 >;. 38, B. 3 
 
 702 
 
 58 Geo. III. c. 30, a. 2 
 
 
 . 1217 
 
 ss. 8, 10 
 
 . 611 
 
 c. 73, s. 1 . 
 
 
 . 703 
 
 19 Geo. II. V. 13, B. 1 
 
 . . 26 
 
 59 Geo. in. c. 12, s. 17 
 
 
 . 621 
 
 o. 37 . 
 
 113, 955, 957 
 
 1 Geo. IV. c. 87, s. 1 . 
 
 
 . 648 
 
 u. 37, ss. 1, 2, 3 
 
 , 955, 966 
 
 c. 119, a. 7 
 
 
 . 718 
 
 B. S 
 
 . . 970 
 
 1 & 2 Geo. IV. 0. 23, ri. 2 
 
 
 . 377 
 
 B. 7 , 
 
 . . 979 
 
 0.78 
 
 
 , 
 
 283 
 
TABLE OP STATUTES. 
 
 XCl 
 
 1 & 2 Geo 
 
 3 Geo. IV 
 
 4 Geo. IV, 
 
 5 Geo. IV. 
 
 6 Geo. IV. 
 
 >. IV. 0. 78,s. 1 
 
 s. 2 . 
 . c. 75, S3. 2, 3, 4, 5 
 0. 17 . 
 c. 76, ss. 2, 3, 7 
 
 ss. 17, 19, 22 
 c. 91, B. 1 . 
 c. 94, SB. 132, 133 
 u. 18, s. 6 . 
 i;. 32 
 
 u. 114, ss. 1, 2 
 0. 16, s. 33 
 
 s. 75 . 
 0. 80, s. 124 . 
 
 s. 98 . 
 c. 25, B. 7 
 0. 50, s. 34 . 
 c. 81, s. 25 
 c. 91 . 
 0. 92 
 0. 94, s. 1 . 
 
 o. 2 
 
 ss. 3, 4 
 
 ss. 5, 6 
 u. 105 
 
 0. 126, B. 59 . 
 0. 46 
 IV. c. 15, B. 1 
 
 ss. 2, 3 
 c. 17 . 
 0.25 . 
 c. 14 . 
 c. 14, s. 1 . 
 
 B. 5 
 
 s. 6. 
 s. 7 . 
 u. 15 
 
 u. 17, ss. 2, 3, 4 
 u. 31, SB. 27, 28, 29 
 c. 49, s. 1 . 
 c. 94 
 0. 7 s. 14 
 •. & I'wm. IV. c. 18 
 u. 21, ss. 3, 4 
 c. 40, B. 2 
 c. 47, a. 2, 3, 4, 5, 
 0. 47, s. 9 . 
 IV. c. 32, s. 2 . 
 s. 3 
 
 S3. 4, 5 
 s. 6 . 
 BS. 7, 8, 9, 
 U . 
 
 B. 12 
 
 S3. 13, 14 
 ss. 15, 16, 
 ss. 23, 30 
 ss. 31, 34, 
 BS. 36, 46, 
 
 c. 41, s. 19 
 c. 68 . 
 2 Will. IV. 0. 16, s. 12 . 
 
 7 Geo. IV. 
 7 & 8 Geo 
 
 9 Geo. IV. 
 
 10 Geo. IV 
 
 11 Geo. IV 
 1 Will. IV. 
 
 1 & 2 Will. 
 
 PASK 
 317 
 282 
 13, 14 
 14 
 14 
 20 
 23 
 74 
 866 
 19 
 891 
 852 
 433 
 74 
 199 
 624 
 397 
 74 
 114 
 19 
 742 
 743 
 744, 746 
 745 
 113 
 1193 
 1106 
 304 
 300, 304 
 607 
 610 
 175, 563 
 170 
 155, 156 
 563 
 791 
 29 
 1122 
 44 
 886 
 610 
 1123 
 19 
 1044 
 693 
 453 
 532 
 836 
 842 
 843 
 836, 841 
 10, 
 
 836, 837 
 
 . 837 
 
 . 841 
 
 17 842 
 
 . 837 
 
 35 839 
 
 17 839, 
 
 840 
 
 . 1143 
 
 . 1044 
 
 . 74 
 
 2 & 3 Will, IV. c. 71 
 
 c. 71, s. 2 
 c. 27, B. 5 
 
 PAOB 
 
 . . 1077 
 
 1078, 1273 
 
 1079,^085, 
 
 1268 
 
 a. 8 1079, 1082 
 
 u. 98 . . . 309 
 
 3 & 4 Will. IV. u. 14, rf. 28 . . 703 
 
 0. 27 376, 664, 671 
 
 c. 27, s. 2 699, 656, 668 
 
 s. 3 666, 657, 658, 
 
 s,4 
 s. 5 
 
 8. 6. 
 
 s. 7 
 s. 8 
 s. 9 
 
 . . 656 
 . 66S 
 . . 663 
 657, 659 
 . . 658 
 668 
 
 ss. 10, 11, 12 660 
 ss. 13, 14 660, 661 
 s. 15 . . 659 
 ss. 16, 17 . 661 
 S3. 18, 19 . 661 
 ss. 20, 21, 22 662 
 
 s. 23 
 B. 29 
 s. 34 
 s. 35 
 s. 36 
 
 662 
 663 
 663 
 663 
 537, 615 
 
 SB. 40, 41, 42 
 
 179, 472, 545, 
 
 599 
 
 . 42,rf. 2 707,710,717 
 
 B. 3 175, 179, 472, 
 
 514, 545, 550 
 
 B. 6 . . 176 
 
 B. 7 . . 178 
 
 s. 8 142, 419 
 
 B. 9 . . 143 
 
 83.10,11 . 143 
 
 8. 13 . . 716 
 
 s. 16 . . 530 
 
 s. 21 . . 1164 
 
 s. 22 454, 540, 
 
 1253 
 
 . . 317 
 
 206, 326 
 
 962, 1273 
 
 . 729 
 
 392, 1167 
 
 . 695 
 
 . . 674 
 
 . 29 
 
 . 45, 47 
 
 861 
 
 H. 23 
 
 s. 28 
 
 8.29 
 
 B. 31 
 
 s. 32 
 
 s. 37 
 
 B. 38 
 0. 43, 8. 23 . 
 li. 53, B. 107 . 
 .;. 71, B. 4 . 
 c. 74, BS. 40, 77 
 c. 98, 8. 6 
 0. 104 . 
 0. 106, 3. 2 
 
 8.3 
 
 237 
 188 
 709 
 664 
 533, 664 
 664 
 
 SS. 4, 5, 6 
 83. 7, 8, 9, 10, 
 
 11, 12 665 
 4 & 5 Will. IV. 0. 22, B. 1 . . 712 
 
xcu 
 
 TABLE OF STATUTES. 
 
 
 fAQE 
 
 
 
 AQE 
 
 4 & 5 Wm. IV. c. 22, S3. 1, 2 
 
 . 542 
 
 1 & 2 Vict. 
 
 0.110,8. .19 . 
 
 . 704 
 
 c. 76 . 1117, 1118 
 
 
 8.80 . 
 
 ... 478 
 
 0. 76, B. 57 
 
 . 237 
 
 2 & 3 Vict. 
 
 0. 11, SB. 1, 2 
 
 . 703 
 
 B. 84 . 
 
 . 66 
 
 
 c. 35, 8. 4 . 
 
 . . 845 
 
 5 & 6 Will. IV. c. 41 
 
 . 279 
 
 
 SB. 13, 14, 
 
 16 . 845 
 
 0.54 
 
 . 19 
 
 
 v;. 47,8. 64 . 
 
 . 865,868 
 
 BS. 2, 3 
 
 . 25 
 
 
 i;. 93, a. 8 
 
 . . 1143 
 
 i;. 59, SB. 4, 5 
 
 . 603 
 
 3 & 4 Vict 
 
 «. 5 . 
 
 . 112 
 
 0. 63, s. 6 
 
 . 73 
 
 
 c. 24, B. 1 
 
 . . 392 
 
 0. 69, S3. 8, 9 
 
 . 622 
 
 
 ti. 2 . 
 
 391, 392 
 
 c. 76, s. 1 . 
 
 . 1126 
 
 
 s. 2 . 
 
 . 1002 
 
 s. 13 
 
 . 1128 
 
 
 8.3 
 
 . . 391 
 
 s. 28 . 
 
 . 1129 
 
 
 0. 69, ss. 1, 2, 4, 
 
 6, 20 .1 12 
 
 s. 50 
 
 . 1120 
 
 
 c. 72, s. 1 . 
 
 . 20 
 
 s. 62 . 
 
 . 1128 
 
 
 0. 82, s. 2 . 
 
 . 704 
 
 8.66 
 
 . 1122 
 
 
 0. 108, 8. 58 . 
 
 . 1129 
 
 s. 69 . 
 
 . 1130 
 
 4 & 5 Vict. 
 
 c. 14 
 
 . 73,266 
 
 B. 72 
 
 . 1129 
 
 
 c. 38, B. 2 . 
 
 . 376 
 
 B. 90 . 
 
 . 1130 
 
 5 & 6 Vict 
 
 u. 39 
 
 . . 746 
 
 6 & 7 Wm. IV. 0, 58, 6s, 1, 2 
 
 . 310 
 
 
 s. 1 . 
 
 . 746 
 
 c. 7),s. 81 . 
 
 . 1167 
 
 
 ss. 2, 3, 4 
 
 . . 747 
 
 c. 76, s. 6 . 
 
 . 1001 
 
 
 b. 5 . 
 
 . 748 
 
 8.8 
 
 . 1001 
 
 
 B. 7. 
 
 . . 748 
 
 8.66 . 
 
 . 1028 
 
 
 c. 54, 8. 1 8 . 
 
 . . 1159 
 
 c. 85, SB. 1, 2, 4 
 
 6, 
 
 
 c. 82, s. 26 
 
 . . 886 
 
 7, 10, 11, 12, 
 
 14, 20, 
 
 
 c. 85 . 
 
 . 1107 
 
 C 
 
 1, 22, 24 
 
 
 0. 97, B. 2 . 
 
 . . 1167 
 
 c. 86 . 
 
 . 20 
 
 
 s. 4 . 
 
 . 116, 854 
 
 ss. 35, 36 
 
 . 11 
 
 
 c. 98, 8. 31 
 
 1168, 1170 
 
 s. 38 
 
 11, 675 
 
 
 0. 104 . 
 
 . 1126 
 
 0. 105, 8. 4 
 
 . 1019 
 
 
 B.l 
 
 . , . 1129 
 
 7 Will. IV. & 1 Vict. c. 22, ss. 2 
 
 4,36 20 
 
 
 0. 113 . 
 
 . 25 
 
 c. 26. 
 
 . . 822 
 
 5 & 6 Vict 
 
 0. 122, s. 66 . 
 
 . 852 
 
 c. 26, s. 1 
 
 . 823 
 
 6 & 7 Vict 
 
 c. 67 
 
 . . 1043 
 
 8. 2 . 
 
 . 826 
 
 
 BS. 2, 3 
 
 1045, 1046 
 
 8. 3 . . 
 
 . 824 
 
 
 0. 73 . 
 
 . 129 
 
 ss. 4, 5, 7 
 
 . . 825 
 
 
 ». 2 
 
 . . 195 
 
 ss. 8, 9 . 
 
 . 825 
 
 
 88. 17, 18 
 
 . 195 
 
 B3. 10, 11 
 
 , 12, 
 
 
 B. 37 
 
 . . 199 
 
 13 
 
 . . 827 
 
 
 B.43 . 
 
 . 703 
 
 s. 15 . 
 
 . 827 
 
 
 u. 86, B. 16 
 
 . . 365 
 
 ss. 16—22 
 
 827, 828 
 
 
 s. 47 . 
 
 . 860 
 
 SB. 23—31 
 
 828, 829 
 
 
 i;. 89 
 
 1124. 1126 
 
 ss. 32—35 
 
 829, 830 
 
 
 8.5 1017. 1034! 1135 
 
 ^. 78, s. 1 . IC 
 
 18, 1121, 
 
 
 0. 96, 8. 1 . 
 
 . 995,1214 
 
 
 1135 
 
 
 S.2. . 
 
 B. 4 
 
 992, 994 
 
 8.23 
 
 1124 
 
 
 . 1003 
 
 8.25 . 
 
 . 1127 
 
 
 B. 5 
 
 . . 1003 
 
 <i.'.9i. 1 
 
 018, 1127 
 
 
 8.6 . 
 
 . 1003 
 
 a. 76. 
 
 . . 1019 
 
 7 & 8 Vict 
 
 c. 32, B. 27 
 
 . . 268 
 
 1 Vict. 0. 20, a. 2 . 
 
 . 812 
 
 
 0. 37, B. 3 . 
 
 . 377 
 
 B. 6 
 
 712, 816 
 
 
 c. 66 
 
 . . 19 
 
 1 & 2 Vict, i; 94, o. 13 . 
 
 . 638 
 
 
 0. 76, ss. 3, 4 
 
 . 764 
 
 c. 96 
 
 . . 1106 
 
 
 c. 81 
 
 . . 25 
 
 c. 106, 0. 29 . 
 
 . 266 
 
 
 c. 110,8. 45 . 
 
 . 269 
 
 ^. 110 
 
 520, 621, 
 
 8 & 9 Vict 
 
 c. 16, s. 97 
 
 . . 1332 
 
 
 622, 526, 
 
 
 u. 89, 6s. 18, 19 
 
 . 1173 
 
 
 537, 704 
 
 
 u. 91, B. 1 
 
 . . 714 
 
 8. 2 
 
 . . 189 
 
 
 u. 106 . 
 
 443. 631. 642 
 
 s. 8 . 
 
 620, 1009 
 
 
 88. 1, 2, 17 . ' . ' 768 
 
 8.4 
 
 . . 520 
 
 
 s. 3 . 
 
 430, 476, 546, 
 
 8. 11 
 
 8. 18 . 
 
 . 668 
 . 703 
 
 
 
 679, 768, 761, 
 762 
 
TABLE OP STATUTES. 
 
 XCIU 
 
 PAGE 
 
 
 PAGE 
 
 8 & 9 Yiot. li. 16, s. 4 . . 411, 768 
 
 15 & 16 Viot. 0. 76, ri, 87 
 
 . 52 
 
 c. 109, s. 15 . . . 279 
 
 rf. 91 
 
 82, 1208 
 
 B. 18 . 109,111,279 
 
 a. 100 
 
 . 1043 
 
 0. 112 . . . 618, 680 
 
 B. 104 
 
 ■ • 6 
 6 
 
 9 & 10 Vict. c. 70, a, 11 . . . 380 
 
 s. 107 
 
 0. 72 . . . . 25 
 
 3.112 
 
 . . 650 
 
 0. 93, SB. 1, 2 . . 711 
 
 a. 113 
 
 . 648 
 
 c. 95, B. 4 . . . 1144 
 
 s. 129 
 
 . . 6 
 
 t>. 33 . . . 1149 
 
 s. 143 82, 130, 134, 
 
 B. 58 . 393, 397, 1144 
 
 
 1154 
 
 s. 121 . . . 1146 
 
 B. 168 
 
 616, 645 
 
 lO&ll Vict. c. 18 ... 22 
 
 a. 170 
 
 645, 653 
 
 11 & 12 Viot. 0. 29 . . 836, 842, 844 
 
 s. 172 
 
 616, 647 
 
 SB. 1, 2, 4, 6 . 845 
 
 s. 173 
 
 616, 648 
 
 c. 42, s. 11 . . . 866 
 
 - s. 174 
 
 . 616 
 
 c. 43, s. 27 . . 1143 
 
 • 3. 175 
 
 616, 628 
 
 0. 44, s. 2 .45, 851, 863 
 
 s. 177 
 
 . 684 
 
 ■ ss. 3, 4 . . 853 
 
 s. 178 
 
 616, 628 
 
 s. 5 . . 853, 1025 
 
 a. 180 
 
 616, 627, 
 
 s. 6 . . . 853 
 
 
 628, 680 
 
 ss. 8, 9 . 853, 854 
 
 s. 181 
 
 . . 681 
 
 o. 10 45, 47, 861 
 
 8.183 
 
 . 681 
 
 S3. 11, 12, 13 455, 
 
 s. 188 
 
 . . 680 
 
 456 
 
 s. 208 
 
 . 683 
 
 i;. 99, s. n . . 377 
 
 s. 209 
 
 . 647 
 
 12 & 13 Vict. c. 29, s. 7 . . . 1173 
 
 a. 210 
 
 650, 651 
 
 0. 45, s. 5 . . . 1143 
 
 3.212 
 
 . 650 
 
 c. 68 . . . 24, 25 
 
 3.214 
 
 616, 681, 
 
 c. 101, s. 14 . . 860 
 
 
 684, 685 
 
 c. 106 . . . . 432 
 
 s. 215 
 
 . . 682 
 
 s. 6 . . 852 
 
 B. 219 
 
 . 626 
 
 s. 1071 . . 856 
 
 B. 220 
 
 . . 626 
 
 Bs. 109, 110, 
 
 B. 221 
 
 . 682 
 
 111 . . 1263 
 
 s. 222 
 
 130, 317 
 
 s. 129 . . . 587 
 
 16 & 17 Vict. u. 113, B. 20 
 
 176, 179 
 
 B.145 . . 432 
 
 17 & IS Viot. 0. 83, a. 27 
 
 . 272 
 
 ». 179 . 746, 748 
 
 c. 102, a. 2 
 
 . 554 
 
 13 Vict. c. 21, s. 4 . . . . 630 
 
 c. 104 . 422, 903, 928 
 
 13 & 14 Vict. c. 61, li. 1 . . . 393 
 
 a. 18 
 
 . 1174 
 
 B. 19 . . 1149 
 
 a. 19 . 
 
 . . 1173 
 
 14 & 15 Viot. e. 25, s. 2 . . . 692 
 
 S3. 26, 28, 
 
 29 . 1196 
 
 s. 3 . . . 1296 
 
 a. 30 . 
 
 . . 1174 
 
 u. 99, s. 7 . . . 486 
 
 B. 33 
 
 . 1174 
 
 o. 11 . . 538 
 
 63. 34, 35, 
 
 36 . 1175 
 
 «. 13 . . . 1013 
 
 a. 37 
 
 . 1174 
 
 s. 14 11, 667, 675, 
 
 ss. 38, 39 
 
 . . 1175 
 
 727 
 
 s. 40 
 
 . 1176 
 
 c, 100, s. 19 . . 1011 
 
 3.42 . 
 
 . . 1173 
 
 15 & 16 Viot. c. 76 29,33, 47, 82, 126, 
 
 s. 43 
 
 .1173,1174 
 
 135, 143, 168, 991 
 
 S3. 44, 45, 
 
 46 . 1175 
 
 0. 76, B. 7 . . . 206 
 
 SB, 48, 49, 50, 
 
 B. 38 . . . 143 
 
 51 
 
 . . 1175 
 
 s. 41 . . 363 
 
 3.53 . 
 
 1173, 1175 
 
 s. 49 . . 82,130 
 
 o. 54 
 
 . 1175 
 
 s. 51 . 130, 190 
 
 3.55 . 
 
 . . 1176 
 
 s. 65 . 545, 691 
 
 3.56 
 
 . 1176 
 
 s. 56 . . 545 
 
 s. 57 . 
 
 1173, 1176 
 
 B. 57 . . . 134 
 
 3.58 
 
 1174, 1176 
 
 s. 61 991, 1208, 
 
 s. 59 . 
 
 1174, 1176 
 
 1209, 1211 
 
 3. 60 
 
 1174, 1176 
 
 s. 69. . . 167 
 
 3.61 . 
 
 . . 1174 
 
 a. 70 165, 869, 992, 
 
 s. 62 
 
 1174, 1176 
 
 1012, 1154, 1212 
 
 as. 63, 64 
 
 1174, X176 
 
XCIV 
 
 TABLE OF STATUTES. 
 
 FASII 
 
 17 &18Viot.c. 104,8.65. . .1177 
 ss. 66,67,08,69, 
 
 70, 71 . .1177 
 s. 72 . . 1178 
 ss, 73, 76, 76 . 1184 
 ss. 73,74,75,76, 
 
 77, 78 . . 1178 
 s. 80 . 1178, 1179 
 s. 81 . . . 1179 
 s. 83 . . 1179 
 6. 84 . 1173, 1179 
 ss. 85,86,87,88 1179 
 s. 89 . 1174, 1180 
 s. 90 . . 1174 
 s. 91 . 1174, 1180 
 s. 92 . . 1180 
 B. 97 . . . 1176 , 
 s. 98 . 1173, 1175 
 s. 99 . . . 1176 
 s. 100 . . 1179 
 s. 107 1180, 1323 
 s. 112 . . 1181 
 ss. 122, 124 . 1181 
 s. 131 . . 1181 
 ss. 134,135, 136 1181 
 ss. 149,150, 151, 
 
 152,153,154 1182, 
 1189 
 ss. 161, 162 . 1181 
 ss, 163, 165,166, 
 
 167,168,169 1182, 
 1183 
 83.170,171,173, 
 
 175, 176 . 1183 
 ss. 181,182,188 891, 
 1184, 1185 
 s. 186 . . 1185 
 s. 187 . . . 1186 
 s. 188 . . 1191 
 ss. 189, 190 . 1191 
 s. 191 1190, 1191 
 s. 207 . . . 1188 
 s. 209 . . 1185 
 a. 214 . . . 1189 
 a. 216 . 1185, 1189 
 a. 224 . . . 1186 
 n. 228 . . 1185 
 ». 233 . . . 1192 
 B, 243 . 1187, 1188 
 ss. 244, 249 . 1188 
 B. 277 1180, 1184, 
 1190 
 s. 280 . . . 1189 
 ss. 281,282,283, 
 
 285, 286 . 1190 
 ss. 295—299 . 1196 
 88,331,332,333 1192 
 88.340,341,342 1192 
 ss. 853, 354 . 1192 
 ss. 366—365 . 1192 
 BS. 362, 363 . 1192 
 SB. 367—387 . 1192 
 • 8. 388 . . . 1192 
 
 
 
 JAGB 
 
 17 & 18 Viet. 0. 104 
 
 s. 603 
 
 . 1193 
 
 
 BS. 506, 507, 508, 
 
 
 •509 
 
 . . 1194 
 
 
 ss. 511,512,513, 
 
 
 614, 
 
 515 . 1194 
 
 
 s. 616 . 
 
 . . 1179 
 
 
 s. 517- 
 
 -543 . 1196 
 
 
 83.527,628,629 1196 
 
 u. 120 
 
 
 . 113 
 
 c. 125 
 
 8.31 
 
 . . 274 
 
 
 B. 32 
 
 . 683 
 
 
 s. 36 
 
 . . 687 
 
 
 8,42 
 
 . 687 
 
 
 88. 68, 
 
 69, 70, 
 
 
 71 
 
 1032, 1033 
 
 
 ss. 72,73,74,76 1033 
 
 
 s. 76 
 
 . 1036 
 
 
 8.77 
 
 . . 1034 
 
 
 s. 87 
 
 . 293 
 
 
 s. 96 
 
 29, 130, 317 
 
 18 & 19 Viofc. c. 63, 
 
 s. 23 
 
 . . 702 
 
 I.. 67 
 
 , 
 
 . 316 
 
 u. 91, 
 
 8. 16 
 
 . . 1180 
 
 19 & 20 Vict. t. 25, 
 
 B. 1 
 
 . 311 
 
 C.47, 
 
 83. 31, 
 
 43 260, 261 
 
 c. 96, 
 
 8.2 
 
 . . 25 
 
 c, 97. 
 
 , 
 
 . 175, 282 
 
 
 3.3 
 
 . . 788 
 
 
 5. 9 . 
 
 4, 175 
 
 
 3. 10 
 
 . . 179 
 
 
 3. 12 
 
 . 178 
 
 
 3. 13 
 
 . . 170 
 
 0. lOS 
 
 , s, 3 
 
 . 1144 
 
 
 s. 18 
 
 . . 393 
 
 
 83. 43, 
 
 44 . 1025 
 
 
 ss. 63, 
 
 64 . 1144 
 
 
 3.65 
 
 1145, 1146, 
 1149 
 
 
 s. 66 
 
 1145, 1146, 
 1149 
 
 
 8.67 
 
 1145, 1146, 
 1467 
 
 
 8.70 
 
 . 1145 
 
 
 s. 75 
 
 . . 597 
 
 c. 119, SB. 17, 21 . 20, 22 
 
 20 & 21 Viet. c. 77 
 
 s. 3 
 
 . 688 
 
 
 8.4 
 
 . . 689 
 
 
 s. 23 
 
 . 667 
 
 
 ss. 25, 
 
 46, 47 . 689 
 
 
 BS. 43, 
 
 44,45 . 195 
 
 
 B. 61 
 
 . . 830 
 
 
 8. 62 
 
 . 690, 830 
 
 
 s. 63 
 
 . . 830 
 
 
 s. 64 
 
 666, 690, 831 
 
 
 s. 65 
 
 . .666 
 
 
 ss. 75, 76, 86 . 690 
 
 
 s. 77 
 
 . . 69] 
 
 
 s. 79 
 
 . 692, 695 
 
 0. 79, 
 
 88. 94, 
 
 95 . 689 
 
 0. 85, 
 
 S.7 
 
 . . . 673 
 
 
 ss. 21, 
 
 25,33,34 28, 
 
 242 
 
 
 s. 26 
 
 . . 238 
 
TABLE OF STATOTES. 
 
 XCV 
 
 30&21 Viot. 0. 85, a. 33 . 
 
 
 8 
 
 23 & 24 Vict. c. 144 . 
 
 8 
 
 B. 59 
 
 7, 
 
 165 
 
 0. 145, s. 30 . 
 
 . 696 
 
 aiVict. 0. 25 .... 
 
 
 12 
 
 24 & 25 Viot. 0. 91, s. 17 . 
 
 . 845 
 
 21 & 22 Vict. 0. 79 
 
 
 311 
 
 B. 46 
 
 . 845 
 
 0. 87, s. 1 . 
 
 
 555 
 
 u. 96, SB. 11, 17 
 
 . 840 
 
 0. 90, a. 27 . 
 
 
 147 
 
 Bs. 78, 79 
 
 . 1241 
 
 B. 32 
 
 
 74 
 
 u. 99, a. 33 . 
 
 . 860 
 
 0. 108, S3. 6, 7, 8, 9, 10 
 
 242, 
 
 25 & 26 Viot. u. 63, o. 3 . 
 
 . 1174 
 
 
 
 243 
 
 B. 18 . 
 
 . 1185 
 
 a. 13 . 
 
 
 195 
 
 B. 19 
 
 . 1185 
 
 22 & 23 Vict. u. 6, B. 1 
 
 
 195 
 
 s. 25 . 
 
 . . 1196 
 
 0. 35, SB. 19, 20 
 
 
 664 
 
 B. 64 
 
 . 1193 
 
 s. 27 . 
 
 
 705 
 
 s. 56 . 
 
 . 1194 
 
 B. 28 
 
 
 706 
 
 0. 89, B. 47 
 
 . 261 
 
 B. 29 . 
 
 
 707 
 
 26 Viot. 0. 29, s. 6 . 
 
 , . 566 
 
 0. 61 
 
 
 8 
 
 2ff & 27 Viot. 0. 90, SB. 1, 9, 23 
 
 . 25 
 
 23 Viot. 0. 18, s. 1 . 
 
 
 22 
 
 27 & 28 Viot. c. 44, 
 
 8 
 
 23 & 24 Vict. 0. 28 . 
 
 
 109 
 
 c. 95, sa. 1, 2, 3 
 
 . 711 
 
 0. 90, s. 1 . 
 
 
 843 
 
 28 & 29 Viot. c. 64, s. 1 
 
 . 24 
 
 ». 2 
 
 
 845 
 
 0. 94, a. 1 . 
 
 . 352 
 
 S3. 2, 3, 4, 5 
 
 
 844 
 
 29 & 30 Vict. 0. 14, a. 11 
 
 . 1149 
 
 ». 6 
 
 841 
 
 , 844 
 
 0. 32 . 
 
 8 
 
 BB. 9, 10, 11 
 
 18 
 
 844 
 
 30 & 31 Viot. 0. 142, a. 1 
 
 394, 397 
 
 0. 97, s. 61 
 
 
 868 
 
 a. 4 . 
 
 . 76 
 
 u. 126, a. 19 . 
 
 
 39 
 
 s. 5 
 
 . 390 
 
 . 127, a. 22 . 
 
 
 211 
 
 
 
TABLE OF ABBKEVIATIONS. 
 
 A. &E. . 
 Add. E. R. . 
 Aleyne ' . 
 Ambl. . 
 And. 
 Andr. . 
 
 A. P. B. Dampier MS3, 
 L. I. L. . 
 
 Aston's Ent. 
 Atk. 
 Bae. Abr. 
 
 B. & A. . 
 B. & Ad. . 
 B. & C. . 
 Batty . 
 Beav. 
 Beaw. . 
 Blugh. 
 Bingh. N. C. 
 Bl. Comm. 
 BI. H. . 
 BLR. 
 Bli. . 
 Bli. N. S. 
 Bos. & Pul. . 
 Bos. & Pul. N. R. 
 
 B. P. B. 
 Bro. Abr. 
 Broderip . . 
 Brod, & Bingh. 
 Bro. Ca. C. . 
 Bro. P. C. 
 Brownl. 
 Bull. N. P. . 
 Bulst. . 
 Bunb. 
 Bum E. L. 
 Burr. 
 
 Burr, S. C. 
 Campb. . 
 Carth. 
 Ca. Temp. Holt 
 
 C. T. H. . 
 C. T. N. . 
 C. & P. 
 C. T. T. 
 CI. & Fi. . 
 
 J., and Dampier, J., 
 
 Adolphus and Ellis's Reports. 
 Addams's Ecclesiastical Reports 
 Aleyne's Reports, 
 Ambler's Reports. 
 Anderson's Reports. 
 Andrews's Reports. 
 
 Ashurst J., Paper Book (1). 
 
 Alton's Entries. 
 
 Atkyns's Reports. 
 
 Bacon's Abridgment. 
 
 Barnewall and Alderson's Reports. 
 
 Barnewall and Adolphus's Reports. 
 
 Barnewall and Cresswell's Reports. 
 
 Batty's Irish Reports. 
 
 Beavan's Reports. 
 
 Beawes's Lex Mercatoria, 
 
 Bingham's Reports. 
 
 Bingham's New Cases. 
 
 Blackstone's Commentaries. 
 
 Henry Blackstone's Reports. 
 
 Mr. Justice Blackstone's Reports. 
 
 Bligh's Reports of Cases in the House of Lords. 
 
 Bligh's New Series. 
 
 Bosanquet and Puller's Reports, in' 3 vols. 
 
 Bosanquet and Puller's New Reports. 
 
 Paper Book of BuUer, J. (2). 
 
 Brooke's Abridgment. 
 
 Broderip's Reports. 
 
 Broderip and Bingham's Reports. 
 
 Brown's Reports of Cases in the Court of Chandery. 
 
 Brown's Cases in Parliament. 
 
 Brownlows Reports. 
 
 BuUer's Nisi Prius. 
 
 Bulstrode's Reports. 
 
 Bunbury's Reports. 
 
 Bum's Ecclesiastical Law. 
 
 Burrows' Reports. 
 
 Burrows' Settlement Cases. 
 
 Campbell's Nisi Prius Cases. 
 
 Carthew's Reports. 
 
 Cases in the time of Holt, Chief Justice of King's Bench. 
 
 Cases in the time of Lord Hardwioke. 
 
 Cases in the time of Lord Chancellor Northinglon. 
 
 Carrington and Payne's Reports. 
 
 Cases in the time of Lord Chancellor Talbot. 
 
 Clark and Finnelly's Reports in House of Lords. 
 
 W These MSS. consist of the Paper Books of Ashurst, J., Bvller, J., Lawrence, 
 , -w^ • . T •__ __ ___• i. 4.„J i^r. t — «, Ol rp O n^^ TTT 4-rt "M" Ti Kfl 
 
 , in an uninterrupted series from T. T. 9 Geo. IIL, to M. T. 56 
 Geo. III. They are in Lincoln's Inn Library, and are ref eri'ed to in the following 
 pages as P. B. Dampier, MSS. L. I. L., preceded by the initial of the judge. 
 (2) See note (1). 
 VOL. I. B 
 
XCVUl 
 
 TABLE OF ABBEEVIATIONS. 
 
 Clayton . 
 Clift . 
 Co. R. . . 
 Co. Ent. 
 Co. Lit. . 
 Co. B. L. 
 Coll. 
 Com. R. 
 Com. Dig. 
 Comb. 
 
 C. B. 
 
 0. B. isr. S. 
 
 Cowp. 
 Cox . 
 Cro. Car. . 
 Cio. Eliz. 
 Cro. Jac. . 
 Cr. & J. 
 Cr. & Mee. 
 Cr. M. & E. 
 Cr. & P. . 
 Curt. Ece. Rep. 
 Dalton's Shff. 
 Dav. . 
 Degge 
 DeG. . 
 De G. & J, 
 Boot. PI. 
 Doct. & Stud, 
 Doug. 
 
 D. & L. . 
 Dowl. P. C. 
 D. P. B. . 
 
 D. &R. 
 Dyer 
 
 East, P. C. 
 East 
 Eden . 
 
 E. & B. . 
 E. B. & E. 
 
 E. & E. . 
 Eq. Ca. Abr, 
 Exch. 
 EBp. N. P. 
 Fitzgib. . 
 Fitz. Abr. 
 
 F. N. B. . 
 Fort. . 
 F. & F. . 
 Freem. 
 G &D. . 
 Gilb. Debt 
 Gilb. R. . 
 Gilb. C. B. 
 Gilb. Evid. 
 Gouldsborough 
 Gow's N. P. C. 
 Gundry 
 
 Clayton's Reports. 
 
 Cliffs Entries. 
 
 Coke's Reports. 
 
 Coke's Eptries. 
 
 Coke upon Littleton. 
 
 Cooke's Bankrupt Law. 
 
 CoUyer's Reports, V.-C. Knight Bruce. 
 
 Comyns' Reports. 
 
 Comyns' Digest. 
 
 Comberbaoh's Reports. 
 
 Common Bench Reports. 
 
 Common Bench Reports, New Series. 
 
 Cowper's Reports in the King's Bench. 
 
 Cox's Chancery Cases. 
 
 Croke's Reports in time of Charles I. 
 
 Croke's Reports in time of Elizabeth. 
 
 Croke's Reports in time of James L 
 
 Crompton and Jervis's Reports. 
 
 Crompton and Meeson's Reports. 
 
 Crompton, Meeson and Roscoe'^ Reports. 
 
 Craig and Phillips' Reports. 
 
 Curteis's Ecclesiastical Reports. 
 
 Dalton's Sheriff. 
 
 Davis's Reports. 
 
 Degge's Parson's Companion. 
 
 De Gex's Report. 
 
 De Gex's and Jones's Reports. 
 
 Doctrina Placitandi. 
 
 Doctor and Student. 
 
 Douglas's Reports in King's Bench. 
 
 Dowling and Lowndes's Reports. 
 
 Dowling's Practice Cases. 
 
 Dampier J., Paper Book (3). 
 
 Dowling and Ryland's Reports in King's Bench. 
 
 Dyer's Reports. 
 
 East's Pleas of the Crown. 
 
 East's Reports in King's Bench. 
 
 Eden's Reports. 
 
 Ellis and Blackburn's Reports. 
 
 Ellis, Blackburn and Ellis's Reports. 
 
 Ellis and Ellis's Reports. 
 
 Equity Cases abridged. 
 
 Exchequer Reports. 
 
 Espinasse's Nisi Prius Cases. 
 
 Fitzgibbon's Reports. 
 
 Fitzherbert's Abridgment. 
 
 Fitzherbert's Natura Brevium. 
 
 Fortescue's Reports. 
 
 Foster and Finlaison's Nisi Prius Reports. 
 
 Freeman's Reports. 
 
 Gale and Davison's Reports. 
 
 Gilbert's Treatise on Debt. 
 
 Gilbert's Reports. 
 
 Gilbert's History of Common Pleas. 
 
 Gilbert's Evidence. 
 
 Gouldsborough's Reports. 
 
 Gow's Nisi Prius Cases. 
 
 Gundry MSS. (4). 
 
 (3) See note (1), p. xevii. 
 T ^1? These MSS. were purchased of Nathaniel Gundry. Esq., the only son of Mr. 
 Justice Gundry, by whom the notes were taken; and wiU be found in Lincoln's Inn 
 Library. 
 
TABLE OF ABBREVIATIONS. 
 
 XCIX 
 
 Gwm. 
 
 Hagg. Cons. 
 Hagg. Eoo. V. 
 Hale, H. C. L. 
 Hard. 
 Hare . 
 Hawk, P, C. 
 H. Bl. . 
 Hob. 
 Holt . 
 Holfs N. P. C. 
 H. & C. 
 H. L. Cas. 
 H. & N. 
 Inst. 
 
 Ir. L. E. . 
 Jac. 
 J. & W. 
 Jon. T. . 
 Jones, W. 
 Jut. . 
 Jur. N. S. 
 Keb. 
 Keen . 
 
 Kenyon . 
 
 L. J. (N.S.) 
 L. R. 
 L. T. . 
 L. T. N. S. 
 Lord Kaym. 
 Leon, 
 Lev. 
 
 Lib. Ass. . 
 Lib. Int. 
 Lill. Ent. . 
 L. L L. 
 Lit. . 
 
 L. M. & P. 
 L. P. B. . 
 Lutw. . 
 M'Clel. . 
 M'Queen's H. 
 U.&.Y. 
 Madd. . 
 M. & Gr. 
 March. 
 Marsh, E. 
 Marsh. 
 M. & S. . 
 M. & Ey. 
 M. &W. . 
 Mer. . 
 Middx. Sit. 
 Mod. . 
 Mod. Ent. 
 Mont. . 
 Mont. & A. 
 Mont. & B. 
 Mont. & Ch. 
 M. D. & D. 
 
 of L. Ca. 
 
 GwilHm's Tithe Cases. 
 
 Haggard's Consistory Reports. 
 
 Haggard's Ecclesiastical Reports. 
 
 Hale's History of the Common Law. 
 
 Hardress's Eeports. 
 
 Hare's Eeports, V.-O. Wigram. 
 
 Hawkins's Pleas of the Crown. 
 
 Henry Blaokstone's Eeports. 
 
 Hobart's Eeports. 
 
 Eeports Temp. Holt, C. J., of the King's Bench. 
 
 Holt's Nisi Prius Cases. 
 
 Hurlstone and Coltman's Eeports, 
 
 House of Lords Cases. 
 
 Hurlstone and Norman's Eeports. 
 
 Coke's Institutes. 
 
 Irish Law Eeports. 
 
 Jacob's Eeports.* 
 
 Jacob's and Walker's Eeports. 
 
 Sir Thomas Jones's Reports. 
 
 Sir W. Jones's Reports. 
 
 The Jurist's Reports. 
 
 The Jurist's Reports, New Series. 
 
 Keble's Reports. 
 
 Keen's Reports. 
 
 Notes by Lord C. J. Kenyon, when at the Bar, Edited by 
 
 Hanmer. 
 Law Journal, New Series. 
 Law Reports. 
 Law Times Reports. 
 Law Times Reports, New Series. 
 Lord Raymond's Reports. 
 Leonard's Reports. 
 Levinz's Reports. 
 Liber Assisarum. 
 Liber Intrationum. 
 Lilly's Entries. 
 Lincoln's Inn Library. 
 Littleton's Tenures. 
 
 Lowndes, Maxwell, and Pollock's Practice Cases. 
 Paper Book of Lawrence, J. (5). 
 Lutwyche's Reports. 
 M'Cleland's Reports. 
 M'Queen's House of Lords Cases. 
 M'Cleland and Young's Reports. 
 Maddock's Chancery Reports. 
 Manning and Granger's Reports. 
 March's Reports. 
 Marshall's Reports. 
 Marshall on Insurances. 
 Maule and Selwyn's Reports. 
 Manning and Rylaud's Reports. 
 Meeson and Welsby s Reports. 
 Merivale's Reports. 
 Sittings for Middlesex, at Nisi Prius; 
 Modern Reports. 
 Modern Entries. 
 Montagu's Reports. 
 Montagu and Ayrtou's Eeports. 
 Montagu and Bligh's Reports. 
 Montagu and Chitty. 
 Montagu, Deacon, and De Gex's Reports. 
 
 (5) See ante, note (1), p. xcvii. 
 
c 
 
 TABLE OF ABBREVIATIONS. 
 
 Mont. & M'A. 
 M. & Malk. . 
 M. & Eob. 
 M. & P. 
 Moore (C. P.) 
 M. & So. 
 Moor 
 
 M. & Cr. . 
 M. & K. . 
 Wev. & Man. 
 Nev. & P. 
 N. R. . 
 Noy. 
 Owen . 
 Palm. 
 Park. . 
 Park's Ins. 
 Peake'a Ad. Ca. 
 Peake's N. P. C 
 P. & D. 
 Phill. 
 Phill. Eco. Rep. 
 Phillipps' Bv. 
 Plowd. . 
 PoUexf. . 
 
 Postleth. Diet. 
 
 Preo. in Chano, 
 Pri. . 
 P. Wms. . 
 Q.B. . 
 R. A. 
 Rast. Ent. 
 Raym. 
 Eaym. T. 
 Rep. 
 Rep. Ch. 
 Rich. C. P. 
 R. T. H. 
 R. T. H. . 
 Rob. A. R. 
 Rol. Abridg. 
 Rol. R. 
 Rose 
 
 Run. Eject. 
 Rubs. 
 
 Russ. & M. 
 Ry. & M. . 
 Salk. . 
 Saund. 
 Say. . 
 Sch. & Lef. 
 Scott. . 
 Scott's N. R, 
 SesB. Ca. 
 Shep. Touch, 
 Show. . 
 Show. P. C, 
 Sidf. . 
 Sim. 
 
 Sim. & St. 
 Skin. 
 Sm. . 
 Sm. & G. . 
 
 Montagu and M'Arthur's Reports. 
 Moody and Malkin's Reports. 
 Moody and Robinson's Reports. 
 Moore and Payne's Reports. 
 Moore's Common Pleas Reports. 
 Moore and Scott's Reports. 
 Sir Francis Moor's Reports. 
 Mylne and Craig's Reports. 
 Mylne and Keene's Reports. 
 Nevile and Manning's Reports. 
 Nevile and Perry's ReportB. 
 Bosanquet and Puller's New Reports. 
 Noy's Reports. 
 Owen's Reports. 
 Palmer's Reports. 
 Parker's Reports. 
 Park, J. A. on Insurance. 
 Peake's Additional Cases. 
 Peake's Nisi Prius Cases. 
 Perry & Davispn's Reports. 
 Phillips' Reports. 
 
 Phillimore's Ecclesiastical Reports. 
 Phillipps on Evidence. 
 Plowden's Commentaries. 
 PoUexf en's Reports. 
 
 Postlethwayt's Universal Dictionary of Trade and Com- 
 merce. 
 Precedents in Chancery. 
 Price's Reports in the Court of Exchequer. 
 Peere Williams's Reports. 
 Queen's Bench Reports. 
 Rolle's Abridgments. 
 Eastall's Entries. 
 Lord Raymond's Reports. 
 Sir Thomas Raymond's Reports. 
 Sir E. Coke's Reports. 
 Reports in Chancery. 
 Richardson's Practice, Common Pleas. 
 Reports time of Hardwicke, C. J. B. R. 
 Reports time of Holt, C. J. B. R. 
 Robinson's Admiralty Reports. 
 Rolle's Abridgment. 
 Rolle's Reports. 
 Rose's Cases in Bankruptcy. 
 Runnington's Ejectment. 
 Russell's Reports. 
 Russell and Mylne's Reports. 
 Ryan and Moody's Nisi Prius Reports. 
 Salkeld's Reports. 
 Saunders's Reports. 
 Sayer's Reports. 
 Schoale and Lefroy's Reports. 
 Scott's Reports, C. P. 
 Scott's New Reports. 
 Session Cases. 
 Shepherd's Touchstone. 
 Shower's Reports. 
 Shower's Parliamentary Cases. 
 Siderfin's Reports. 
 Simons's Reports. 
 Simons and Stuart's Reports. 
 Skinner's Reports. 
 Smale's Reports. 
 , Smale an<J Giffard's Reports. 
 
TABLE OF ABBEEVIATIONS. 
 
 CI 
 
 Starkie N. P. C. . 
 
 . Starkie's Nisi Prius Cases. 
 
 Str 
 
 . Strange's Reports. 
 
 Sty. . 
 
 . Style's Reports. 
 
 Sugd, V. & P. . 
 
 . Sugden's Law of Vendors and Purchasers (10th edit.) 
 
 Swanst. 
 
 . Swanston's Reports. 
 
 Taunt. . 
 
 . Taunton's Reports. 
 
 Tidd. Pr. . 
 
 . Tidd's Practice. 
 
 T. R. 
 
 . Durnford and East's Term Reports, K. B. 
 
 Turn. , 
 
 . 6. Turner's Reports. 
 
 Turn. & E. 
 
 . Turner and Russell's Reports. 
 
 Tyrw. . 
 
 . Tyrwhitt's Reports. 
 
 Tyrw. & G. . 
 
 . Tyrwhitt and Granger's Reports. 
 
 Vaugh. 
 
 . Vaughan's Reports. 
 
 Ventr. . 
 
 . Ventris's Reports. 
 
 Ves. . . . . 
 
 . Vesey, senr.'s, Reports. 
 
 Vea. jun. . 
 
 . Vesey, junr.'s, Reports. 
 
 Vea. & B. . 
 
 . Vesey and Eeames' Reports. 
 
 Vet. entr. 
 
 . Veteres lutrationes. 
 
 Vid. Ent. , 
 
 Vidian's Entries. 
 
 Tin. Abr. 
 
 . Viner's Abridgment. 
 
 Weekly Rep. 
 
 . Weekly Reporter. 
 
 Went. Ofif. Exor. 
 
 . Wentworth's OfBce of Executor. 
 
 West. C. T. H. . 
 
 . West's Cases in time of Lord Hardwicke. 
 
 WiUes . 
 
 . Willes's Reports. 
 
 Wila. . 
 
 . Wilson's K. B. and C. P. Reports. 
 
 Winch. . 
 
 . Winch's Reports. 
 
 Winch. Ent. 
 
 . Winch's Entries. 
 
 H. Wood. 
 
 . Button Wood's Decrees in Tithe Cases. 
 
 Yelv. . 
 
 . . Yelverton's Reports. 
 
 Younge . 
 
 . Younge's Reports. 
 
 Y. & C. 
 
 . Younge and CoUyer's Reports in Exchequer. 
 
 Y. & C. N. C. . 
 
 ( Younge's and CoUyer's New Cases in Chancery, V.-C. 
 
 ■ ( Knight Bruce. 
 
 Y. & J. 
 
 . Younge's and Jervis's Reports. 
 
AN ABRIDGMENT 
 
 THE LAW OP NISI PEIUS, 
 
 CHAPTER I. 
 OF THE ACTION OF ACCOUNT. 
 
 PAGE 
 
 I. In what Oases the Action may he inaintained . . . l 
 II. Of the Pleadings and Evidence 3 
 
 III. Of the Judgment, 
 
 1. To account ........ 4 
 
 2. Final. — Execution . . . . . . . C 
 
 I. In ivhat Cases an Action of Account may he maintained. 
 
 A PREFERENCE having, for many years, been given to the 
 mode of proceeding by bill in a court of equity, the action of 
 account has in a great measure fallen into disuse. It will not, 
 therefore, be necessary to enter fully into the nature of this action, 
 but briefly to apprise the reader in what cases it may be main- 
 tained, what pleas may be pleaded to it, and in what form judg- 
 ment may be entered. To maintain an action of account (a), 
 there must be either a privity in deed, by the consent of the party 
 (for an action of account does not lie against a disseisor or other 
 wrong-doer), or a privity in law, as in the case of a guardian, &c. 
 By the common law, an action of account for the rents and profits 
 may be maintained by the heir, after he has attained the age of 
 fourteen years (h), against the guardian in socage (c) ; so at the 
 
 (a) 1 Inst. 172 a. other accountants, by the common law 
 
 (6) Litt. s. 123 ; 1 In.st. 89 a. may claim an allowance of all his reasou- 
 
 (c) The guardian in socage, like all able costs and expenses. 
 
 VOL. I. ( ^ B 
 
ACCOUNT. 
 
 common law account •will lie against a bailiff (tZ) or receiver (e), 
 and in favour of trade and commerce by one merchant against 
 another (/). But this action did not lie for one joint-tenant, or 
 tenant in common, against his companion, although he should 
 have taken the whole profits to his own use, unless he had been 
 appointed bailiff to render an account (g). But now, by 4 Ann. c. 
 16, s. 27, an, action of account may be maintained by one joint- 
 tenant or lenant in common (h), his executors or administrators, 
 against the other, as bailiff, for receiving more than his share or 
 proportion, and against the executors or administrators of such 
 joint-tenant or tenant in common (i). One tenant in common 
 brought an action of account against another (k), and charged him 
 as bailiff and receiver. As to the account given against him as 
 bailiff, the defendant entered into the account ; and as to the 
 account against him as receiver, demurred specially, because the 
 plaintiff did not state by whose hands the defendant received the 
 money: the court held the exception good, notwithstanding 4 
 Ann. c. 16, s. 27, for that statute only empowered the plaintiff to 
 charge the defendant as bailiff; but as the plaintiff had gone 
 further, and charged the defendant as receiver, he ought to have 
 shown by whose hands he received the money, as was required by 
 the common law {!!). As the statute is a general one, it is not 
 necessary for the plaintiff to set it forth or to refer to it ; but he 
 must set forth so much as to bring his case within it ; and, there- 
 fore, in an action for account by one tenant in common against 
 another upon this statute, the plaintiff must state in his decla- 
 ration, and prove, that he and defendant were tenants in common, 
 and that defendant has received more than his just share (m). It 
 is not sufficient to charge defendant merely as bailiff (ti). The 
 heir of a tenant in common can maintain an action under the 
 statute against his co-tenant for the rent which accrued during his 
 father's life, the Statutes of Apportionment not applying to this 
 case (o). 
 
 An action of account against a tenant in common on this statute 
 differs from an action of account against a bailiff at common law ; 
 for a bailiff at common law is answerable, not only for his actual 
 receipts, but for what he might by his industry or care have 
 reasonably raised or made, deducting his reasonable costs and 
 
 (d) By bailiff is understood a servant ceived will lie in such a case. Thomas 
 •who has administration and charge of v. Thomas, 5 Exch. 28 ; 19 L. J. (Exch.) 
 lands, goods and chattels, to make the 175, S. C. 
 
 best benefit to the owner. (k) Walker v. Holyday, Com. 272. 
 
 (e) 1 Inst. 172 a. h) \ inst. 172 a. 
 
 (/) Per Tindal, C.J., in Cottam v. (m) Henderson v. Eason, 17 Q. B. 701. 
 
 Partridge, 4 M. & G. 284. (n) Wheeler v. Home, Willes, 208 | 
 
 {g) 1 Inst. 200 b. Sturton v. Richardson, 13 L. J., Exch. 
 
 (h) And the. others (semUe) need not 281 ; 13 M. & 'W. 17, S. 0. 
 
 be joined as plaintiffs. Sturton v. Rich- (o) Beery. Beer, 12* c' B. 60 ■ 21 L. J., 
 
 wrdson. C. P. 124, ' 
 
 (i) No action for money had and re- 
 
ACCOUNT. 3 
 
 charges ; but, by the words of the statute, a tenant ia common, 
 when sued as bailiff, is answerable only for so much as he has 
 actually received more thaji his just share and proportion (p) ; and 
 it is not a receipt of more than his just share or proportion, if he 
 has merely had the sole enjoyment of the property, even though, 
 by the employment of his own industry and capital, he makes a 
 profit by the enjoyment and takes the whole of such profit (g). 
 
 Where there is a running account between a mafrchant and 
 broker, the proper remedy for recovering the balance is by an 
 action of account and not of assumpsit (?') ; but for the balance of 
 an account assumpsit lies, though the items on each side are 
 numerous (s). In certain case% however, an action of account is 
 preferable (t). At the common law (w), executors in general could 
 not have this action for an account to be made to the testator, 
 because the account rested in privity ; but the stat. West 2, 13 
 Edw. I. stat. 1, c. 23, gave this action to executors, and (according 
 to Sir Edward Coke, 1 Inst, 89 b ; 2 Inst. 404) the 31 Edw. III. 
 stat. 1, c. 11, to administrators. The 2.5 Edw. III. stat. 5, c. 5, has 
 extended the same remedy to the executors of executors. At the 
 common law, this action did not lie against the executors of the 
 accountant (v) ; but by 4 Ann. c. 16, s. 27, an action of account 
 may be maintained against the executors or administrators of a 
 guardian, bailiff or receiver. This action does not lie against an 
 infant (x) ; nor by one executor against another {y), for the posses- 
 sion of the one is the possession of the other. 
 
 II. Of the Pleadings and Evidence. 
 
 It is not necessary to state in the declaration, that a reasonable 
 time elapsed between the request to account and the commence- 
 ment of the action (0). The defendant may plead in bar (a), that 
 he was never bailiff or receiver ; or that he has fully accounted (6) ; 
 
 (») ' WhecUr v. Home, Willes, 209, in the case of the king, the action lay 
 
 210. (F. K B. 117 ; 11 Eep. 90 a). It should 
 
 (q) Jleiiderson v. Eason, 17 Q. B. 701. also be remarked, that thoiigh at the 
 
 (r) Scott V. M'Intosh, 2 Campb. 238. common law executors in general were 
 
 is) TomMiis V. Willshear, 5 Taunt. not compellable to account ; yet if they 
 
 431. See also Arnold v. Webb, 5 Taunt. consented to settle an account they were 
 
 432 n. liable to an action of debt for the balance 
 
 (t) Wells V. Sose, 7 Taunt. 402. (F. N. B. 267, Lord Sale's note). 
 
 (u) Litt. s. 125 ; 1 Inst. 89 b, 90 b ; 2 (x) 1 Inst. 88 b ; 1 Inst. 172 a ; per 
 
 Inst. 403. Lord Hardwicke, C, in Dormer v. For- 
 
 (r) These rules of the common law, teseue, 3 Atk. 130. Hence an infant 
 
 viz. : 1, That account did not lie In) exe- cannot be guardian in socage. 1 lust. 
 
 cutors (Hargrave's Co. Litt. 90 b, n. (3)); 88 b. 
 
 2, That account could not be maintained {y) F. N. B. 271, 4to edit, note (/). 
 
 against executors, had some exceptions. (z) Beer v. Beer, 12 0. B. 60. 
 
 As to the first, an account might have [a] 1 E. A. 121, L. 5 ; East. Entr. 17, 
 
 been maintained at the common law by 19, 21. 
 
 the executors of merchants; as to both, (i) Baxier v. Hazier, 5 B. S". C. 288. 
 
 B 2 
 
4 ACCOUNT. 
 
 or that he has accounted before auditors assigned by the plaintiff-; 
 or that he has accounted before to the plaintiff himself (c) ; or any 
 matter which tends to show that he was never accountable, e. g. to 
 an action under the 4 Ann. c. 16, facts showing that he is not 
 tenant in common with the plaintiff (d) ; or a release He cannot 
 pay money into court (e). The 70th section of the Common Law 
 Procedure Act, 1852, which provides for payment into court m 
 all actions (with certain exceptions), only ^pphes, it seems, to 
 cases where the money is paid in satisfactwn of th.e cause ot 
 action (/). When the plaintiff charges the defendant as receiver 
 from such a time to such a time (g), the defendant must answer 
 the whole time precisely (h). Actions of account must be com- 
 menced and sued within six years next after the cause of action, 
 21 Jac. I. c. 16, s. 3 ; 19 & 20 Vict. c. 97, s. 9 (i). And one 
 item of claim in an account having arisen withm the six years 
 will not suffice to take the residue out of the statute. If the 
 defendant plead that he was never receiver, he cannot give in 
 evidence a bailment to deliver to another person, and that he has 
 delivered accordingly : for though this special matter prove that 
 he is not accountable, yet, as upon the delivery, he was account- 
 able conditionally {viz. if he did not deliver over), the evidence 
 does not support the plea (j). So a release cannot be given in 
 evidence under the plea, that the defendant was never receiver (Jc). 
 In account against the defendant as receiver by the hands of 
 A., it is sufficient for the plaintiff to prove that A. directed the 
 defendant to borrow of another to pay the plaintiff: that the 
 defendant borrowed accordingly, and that A. gave a bond to the 
 lender {I). 
 
 III. Of the Judgment. 
 
 1. To account. 
 
 2. Final. — Execution. 
 
 1. There are two judgments in this action : — the first judgment 
 
 (c) F. N". B. 117, D. note {d). of the Cormnon Law Procedure Act, 
 
 {d) Ricketts v. Loftus, U Q. B. 482; 1852) ; but if the plea begin as an au- 
 
 Gorely v. Oorely, 1 H. &. N. 144. swer to part, and is in truth an answer 
 
 (e) Anon., Bull. N. P. 128. to part only, the plaintiff ought not 
 
 (/) Bishop of London v. M'Niel, 23 to demur, hut to take his judgment for 
 
 L. J. Ex. ill ; 9 Exch. 490, S. C. the part unanswered by nil didt ; 1 
 
 (g) Southcot T. Rider, T. Raym. 57. Saund. 28, n. 3 ; Henry v. Earl, 8 M. & 
 
 (h) It is a general rule in pleading that W. 228 ; Vincent v. Beston, hoid 'Ray m. 
 
 the plea must answer every material part 716; for if the plaintiff demurs, or 
 
 of the declaration. If a plea begin with pleads over, the whole action is discon- 
 
 an answer to the whole, but in truth the tinned. 1 Roll. .Abrid. 487, pi. 10; 
 
 matter pleaded be only an answer to Market v. Johnson, 1 Salk. 180 ; Peers v. 
 
 part, the plea is bad and the plaintiff may Henriques, 2 Lord Eaym. 841 ; Gilb. 
 
 demur ; Weelcs v. Peach, 1 Salk. 179 ; Hist. C. B. 155, 158. 
 
 Downv. Hatcher, 10 A. &. E. 121 (unless (i) Gottam v. Partridge, 4 M. & Gr. 
 
 the point is doubtful, per Patteson, J., 271 ; post, tit. Assumpsit. 
 
 in Worleyv. Harrison, 3 A. & E. 675 ; (/) 2 Roll. Abrid. 683 (F.), pi. 1. 
 
 in which case an application to amend (k) WillougMnj v. Sinall, 1 Brownl. 24. 
 
 should be made under the 62nd section (l) Harrington v. Deane, Hob. 36. 
 
ACCOUNT. 6 
 
 is, that the defendant do account (m), usually termed a judgment 
 quod computet {n). This is in the nature of an award of the 
 court, interlocutory only, and not definitive (o), and whereon error 
 does not lie. It is, however, essentially necessary that this judg- 
 ment should be entered {p) ; for where the defendant pleaded 
 that he had fully accounted, and issue being joined thereon, the 
 jury found for the plaintiff, and assessed damages and costs, and 
 judgment was entered accordingly and execution taken out, the 
 court, on motion, set aside the judgment and execution, observing 
 that the judgment was wrong, for it ought to have been only a 
 judgment to account : and they compared the irregularity in this 
 case to the irregularity of signing final judgment before interlo- 
 cutory judgment. • 
 
 After the judgment to account, the defendant usually offers to 
 account, and thereupon the court assigns auditors to take and 
 declare the account between the parties. The auditors as- 
 signed {q) are, in general, some of the officers of the court, who 
 may convene the parties before them from day to day, until the 
 account is determined (r). If the auditors find the parties remiss 
 and negligent, they must certify to the court that they will not 
 account. By 4 Ann. c. 16, s. 27, the auditors are empowered to 
 administer an oath, and examine the parties touching the matters 
 in question, and for the trouble in auditing and taking such 
 account shall have such allowance as the court shall judge reason- 
 able, to be paid by the party on whose side the balance of account 
 shall be. Special bail is not to be found until after judgment to 
 account (s). If the defendant (i), after the judgment to account, 
 does not personally appear in court to give bail to account, there 
 must issue a capias ad coinputandum for the purpose of bringing 
 him into court (u). With respect to pleading before the auditors, 
 the following rules are to be observed : — 1. In order to avoid trouble 
 and chai-ge to the parties (x), what might have been pleaded in 
 bar to the action shall not be allowed as a discharge before the 
 
 (m) Co. Ent. 46 b ; East. Ent. 17. the form, 3 Wils. 89. 
 
 (») The form of tliis judgment, in the (r) In Godfrey v. Saunders, C. B., 3 
 
 case of Godfrey v. Saunders, 3 "Wils. 88, "Wils. 73, the three prothonotaries were 
 
 was as follows : — " Therefore it is con- assigned auditors. See Archer v. Pritch- 
 
 sidered, that the defendant account with ard, 3 D. & E. 596 ; Beer v. £eer, 12 C. 
 
 the plaintiff of the time aforesaid, in B. 82. 
 
 which he (defendant) and the said S. S. (s) Beeves v. Gibson, 1 Lev. 300. It 
 were the bailitfs of the plaintiff, and had was said, by all the prothonotaries in the 
 the care and administration of the afore- Court of Common Pleas, that the de- 
 said goods and merchandizes, &o., to be fendant upon the first writ should not be 
 merchandized and made profit of for held to special bail, yet, in special cases, 
 plaintiff ; and the defendant in mercy, by the discretion of the com-t, he shall 
 &c., because he hath not before ac- find baU. Nov, 28. 
 counted," &a. (<) Chester v. Hunt, C. B. M. 13 Geo. 
 
 (0) Metcalf's case, 11 Eep. 38 a. II. 
 
 {p) Hughes v. Burgess, Ca. temp. (u) Pryor v. Pettingell, 2 D. F. S. 1^5. 
 
 Hard. 394. i^) Taylor v. Page, Cro. Car. 116 ; 3 
 
 (q) Williains v. Lee, 1 Mod. -12. See Wil.s. 113, S. P. 
 
6 ACCOUNT. 
 
 auditors. 2. If the party is once chargeable and accountable (y), 
 he cannot plead any matter in lar, except a release, or plene com- 
 putavit ; but must plead before the auditors. The exceptions pro- 
 ceed on this ground, that a release, and the having fully accounted, 
 are total extinctions of the right of action {z), of which the court is 
 to judge ; and even in these cases they must be pleaded specially, 
 and cannot be given in evidence on ne unques receivor. 3. No- 
 thing can be pleaded before the auditors (a) contrary to what has 
 been previously pleaded and found by verdict, because the conse- 
 quences would be either two contradictory verdicts, which would 
 perplex the court, or two similar verdicts, which would be nuga- 
 tory. 4. If the defendant plead before the auditors (6) any matter 
 in discharge which is denied by the plaintiff, so that the parties 
 are at issue, the auditors must certify the record to the court, who 
 will make such order for the summoning of a jury to try it, under 
 the Common Law Procedure Acts of 1852 and J 854, as they 
 think fit. See sects. 104 and 107 of the former act, and sect. 59 
 of the latter and 46th Pr. K., Hil. Term, 1853. If on the trial the 
 plaintiff make default, he shall be nonsuited ; but notwithstanding 
 the nonsuit, he may, it seems, revive the first judgment in the 
 manner pointed out by the 15 and 16 Vict. c. 76, s. 129, et seq. 
 
 2. The final judgment is (c), that the plaintiff do recover against 
 the defendant so much as he, the defendant, is found in arrear (d). 
 Error lies upon this last judgment only ; but, although it may be 
 found erroneous, and reversed, the first judgment shall stand in 
 force, for the two judgments are distinct and perfect (e). 
 
 Execution. — It is not unworthy of remark, that this action is the 
 first of a civil nature in which process of execution against the per- 
 son was given. This process is given by stat. Westm. 3, 13 Ed. I. 
 c. 11 ; but, under this act, the guardian in socage cannot be com- 
 mitted to prison, for he is in loco parentis, and the words of the 
 statute are de servientibus balivis, &c. 
 
 (y) 3 "was. 113, 114. dizes aforesaid, and also 278?. 7s. 9d. for 
 
 (z) 1 Brownl. 24, 2,5. his damages, as well by reason of the 
 
 (a) 3 Wils. 114. interpleading aforesaid, as for his costs 
 
 (6) Bull, N. P. 128. and charges by the plaintiff in and about 
 
 (c) Metcalf's case, 11 Eep. 40 a. his suit in that behalf expended, to the 
 
 (d) The form of this judgment for the said plaintiff by the court here adjudged 
 plaintiff upon demurrer to plea before with his assent ; and that the said de- 
 the auditors, in Godfrey v. Saimders, 3 fendant be in mercy, " &c. 
 
 Wils. 94, was as follows : — " Therefore it (e) The reader who is desirous of fur- 
 is considered, that the plaintiff do re- thor information concerning the nature of 
 cover against the defendant the aforesaid this action, is referred to the record and 
 12, OOOZ. (the sum laid in the declaration), proceedings in the case of Godfrey y. 
 for the value of the goods and merohan- Saunders, 3 'Wils. 73. 
 
CHAPTER 11. 
 OF ADULTEEY. 
 
 PAGE 
 
 I. Of the Remedy for this Injury 7 
 
 11. Of the Evidence, and herein of the Statutes relating to 
 
 Marriage 
 
 Marriages Abroad ..... 
 Proof of Adultery .« 
 
 III. Of the Damages 
 
 Costs 
 
 11 
 
 22 
 25 
 
 26 
 
 28 
 
 I. Of the Remedy for this Injury, and in what Cases an Action 
 may he rnaintained. 
 
 In ancient times adultery was inquirable in tourns and leets (a), 
 and punishable by fine and imprisonment ; but at the present day 
 the courts do not take any cognizance of it as a public wrong. 
 Several attempts, indeed, have been made by the legislature to 
 bring this offence within the pale of criminal jurisdiction, but they 
 have, for the most part, been wholly ineffectual (6). During the 
 time of the Commonwealth, in the year 1650, adultery was made 
 a capital crime (c) : but at the Restoration it was not thought 
 proper to renew a law of such unfashionable rigour. Adultery 
 at the present day is considered merely as a civil injury ; and until 
 the statute 20 & 21 Vict. c. 85, came into operation, the only 
 remedy which the temporal courts afforded was an action, whereby 
 the husband recovered against the adulterer a compensation in 
 damages for the loss of the society, comfort and assistance of his 
 wife in consequence of the adultery (d). By sect. 59 of the above 
 
 (a) 3 Inst. 206. found in Scobell'.s Acts, part 2, p. 121, 
 (J) In the year 1604 (2 Jas. I.) a hill fo. ed. See also 7 C. & P. p. 200, note(a). 
 was bronglit into parliament "For the (d) In Wilton y. Webster, 7C. &P. 198, 
 better Repressing the detestable Crime the plaintiff did not know of the adul- 
 of Adultery." This bill was committed, tery till his wife, about three weeks be- 
 but when the report was made by the fore her death, and then known to be 
 committee, the Earl of Hertford said, dying, confessed it to him. From the 
 that they found the bill rather concerned disclosure to her death, he continued to 
 some particular persons than the public treat her with great kindness. The 
 good, whereupon the bill was dropped. action was commenced five days before 
 See 5th vol. of Pari. HLst. p. 88. An- she died. Coleridge, J., directed that 
 other attempt was made in the year 1800, the plaintiff was entitled to damages for 
 but failed ; the bill passed the Lords, but the shook to his feelings, and the loss of 
 was negatived in the Commons. Pari. the society of his wife down to the time 
 Hist. vol. 35, pp. 225 to 325. of her death, 
 (c) The provisions of this act will be 
 
8 ADULTEEY. 
 
 statute this action was abolished ; but inasmuch as the prin- 
 ciples of law and rules of practice which governed it apply to the 
 petition for damages, which is substituted for it by sect. 33, it 
 is necessary to consider what the law and practice were upon this 
 subject (e). 
 
 It was essentially necessary, in such an action, that the husband 
 should present himself in court, as has been said, with clean 
 
 (e) Divorces were of two kinds, one 
 partial the other total. Partial divorces 
 ■were called divorces d inensd et thoro, lie- 
 cause they separated the married parties 
 from each other's society, without dis- ' 
 solving the marriage union. They were 
 granted at the suit of the hushand or 
 wife for adultery or cruelty. Total di- 
 vorces were called divorces & vinculo ina- 
 iriinonii, because they dissolved that 
 union altogether. They were granted 
 at the suit of the hushand or wife, 
 eaiisd prcccontractHs (abolished by 32 Hen. 
 Tin. c. 38), causa metHs, causa impo- 
 (entice seu frigiditatis, causA consan- 
 (luinilaiis, &o., Co. Litt. 235. Divorces 
 were originally onl^' granted by the Ec- 
 clesiastical Courts, but strictly speaking 
 they had no power of rescinding the mar- 
 riage contract, which was by the law of 
 England an indissoluble contract. "Where 
 they granted such a sentence it was 
 grounded on some antecedent incapacity 
 which rendered the maniage in reality 
 void from the beginning, there being in 
 fact no legal vinculum to dissolve. Such 
 decrees were I'cally decrees of nullity of 
 marriage . They had no authority to dis- 
 solve a marriage, good in itself, whatever 
 might be the delinquency of the parties. 
 A practice grew up in consequence of this 
 .state of things of ajipealing to the legis- 
 lature for a divorce a vinculo malrimonii, 
 where the parties could afford the ex- 
 pense. (The first example of an actual 
 dissolution of the nuptial ties by parlia- 
 ment was the case of the Countess of 
 Macclesfield, Session 1697-8.) The jiro- 
 ceeding was really a judicial one, 
 although by a legislative process. A 
 husband aggrieved only by adultery 
 could demand, as it were, ex debito jus- 
 iitice, such a divorce, unless his own .con- 
 duct had been censurable, but the wife 
 could not obtain it except in cases of ag- 
 gravated enormity, such as incestuous in- 
 tercourse with a relation of the wife. By 
 the parliamentary regulations the hus- 
 band must have obtained a. verdict for 
 damages in a court of law against the 
 adulterer, and also a divorce. d niensd' et^ 
 tkoro before parliament would dissolve 
 
 the marriage (First Eeport, Divorce Com- 
 mission, 1856). By the Divorce Act of 
 1857, all jurisdiction in matters niatri- 
 jnonial was taken away from the Eccle- 
 siastical Courts, and vested in a new 
 court, called the "Court for Divorce and 
 Matrimonial Causes." Ifo decree for a 
 divorce a meiisd et thoro is to be made, 
 but a decree for a judicial separation 
 which the court may grant to the hus- 
 band or the wife, on the ground of adul- 
 tery, or cruelty, or desertion, without 
 cause for two years. On adultery of the 
 wife, or incestuous adultery, or adultery 
 coupled with cruelty or desertion by the 
 husband, a decree for the dissolution of 
 the marriage maybe granted. The action 
 for criminal conversation is abolished, 
 but a hiisband may either in a petition 
 for dissolution of marriage, or for a judi- 
 cial separation, or in a petition limited 
 to such object only, claim damages from 
 the adulterer, who is always to be a co-re- 
 spondent to the petition. Such damages 
 are to be determined by a jury, and the 
 claim is to be tried on the same principles 
 and subject to the same regulations as ac- 
 tions in crim. con. were tried, and the 
 court may direct how the damages are to 
 be applied. In all suits and proceedings 
 cxcepc for dissolution of marriage, the 
 court is to act on the principles and rules 
 of the Ecclesiastical Courts, but the rules 
 of evidence in the common law courts are 
 to be observed in the trial of questions of 
 fact. The com't is, on a petition for a dis- 
 solution, to satisfy itself of the absence of 
 connivance or condonation. In case the 
 petitioner's case is proved, and the court 
 has satisfied itself that there has been no 
 connivance, condonation, or collusion, it 
 must pronounce the decree unless the 
 petitioner has been guilty of adultery, 
 unreasonable delay, cruelty, desertion, 
 wilful separation, or wilful misconduct 
 conducing to the adultery, when the 
 court is not bound to grant the decree. 
 This act has been amended by the acts 
 21 & 22 Tiot. 0. 108 ; 22 & 23 Viet. c. 
 61 ; 23 & 24 Vict. c. Ui ; 27 & 28 Vict. 
 c. 44 ; 29 & 30 Vict. c. Sz.- •• 
 
ADULTEKY. !j 
 
 hands, that is, without having, so to speak, courted his own dis- 
 honour, or having been acquiescent in his own disgrace ; for if 
 the husband had consented to, or provided means for, the adul- 
 terous intercourse of his wife with the defendant, the ground of 
 the action was removed ; for volenti non fit injuria (/). So it 
 was ruled by Kenyan, C.J., that if the husband, after marriage, 
 transgressed those rules of conduct which decency requires and 
 affection demands from him, and in an open notorious and undis- 
 guised manner, carried on a criminal correspondence with other 
 women, he could not maintain this action (gr) ; but in a subsequent 
 case, Lord Alvanley, C.J., held that the infidelity or misconduct 
 of the husband could never be set up as a bar, but only in mitiga- 
 tion of damages, and that the oJily defence was where the husband 
 was accessary to his wife's dishonour (h). So if a wife were suf- 
 fered to live as a prostitute with the privity of the husband, and 
 the defendant had thereby been drawn in to commit the act of 
 which the husband complained, the action could not be main- 
 tained (i). But if the husband had been guilty of negligence 
 merely, or inattention to the behaviour and conduct of his wife 
 with the defendant, not amounting to a consent, such circum- 
 stauces -went in mitigation of damages only (k). In Winter v. 
 Henn, 4 C. & P. 498, Alderson, J., in summing ujd, said, " I 
 apprehend the law to be that the plaintiff will be entitled to 
 recover, unless he has, in some degree, been a party to his own 
 dishonour, either by giving his wife a general licence to conduct 
 herself as she pleased with men generally, or by assenting to the 
 particular act of adultery with this defendant, or by having totally 
 and permanently given up all the advantage to be derived from her 
 society. If you should be of opinion that the plaintiff has done 
 any of these three things, then the defendant will be entitled to 
 your verdict." 
 
 It has been held in the Divorce Court that condonation of adul- 
 
 (/) Per de Grey, C.J., in If award v. otherwise connives at it, it take.s away the 
 
 Burl/mwood, C. B. Middx. Sitt. after ground of the action. If an illicit con- 
 
 Trin. T. 16 Geo. II. Agreed by the versatiun be had, and he is not privy to 
 
 . court in Dulerley v. Gumdng, i T. R. it at the time, but knows of it afterwards 
 
 6ol, and there said by Buller, J., to be and then receives her back, yet he may 
 
 settled law. support an action, and the subsequent 
 
 {(/) WyndhaniY. Lord Wycombe, iYiSyt. reconciliation goes only in mitigation of 
 
 N. P. C. 16; and Sturl v. Marquis of damages." Per de Grey, CJ.,\a Howard 
 
 Blaiidford, there cited, both ruled by v. Burtonioood. In Calcrajl v. Earl of 
 
 Kenyan, G.J. Harharuugh, the plaintiff obtained a ver- 
 
 (A) Bromley v. Wallace, i Esp. N. P. diet, damages 1001., although it was 
 
 C. 237. proved that the marriage had been con- 
 
 (i) Per Lord Mansfield, G. J., in Smith coaled from the mother of the wife, and 
 
 V. Allison, Bull. N. P. 27 ; Hodges v. the husband very seldom saw his wife, 
 
 Windliam, Peake, N. P. G. 39. aud suffered her to remain with her 
 
 (k) Agreed by the court in Dulerley v. mother, as if she were single, and to con- 
 
 Gtmning, 4 T. K. 651. " If the wife is a tiuue to perform at the, theatre in her 
 
 prostitute,, and the husband is not privy maiden name, i C. & f, i^O, Tmdiil, 
 
 10 it, it goes only in mitigatiori vf da-, C.J. ,,,.,, 
 
 mages ; but if he is coiisenting to it, or 
 
10 ADULTEilY. 
 
 tery is a bar to any proceedings by the husband against the 
 adulterer (I). So a co-respondent may set up in answer to a 
 petition for dissolution, coupled with a claim for damages, a defence 
 that would have been no bar to an action for crim. con., but which 
 will justify the court in refusing to grant the decree under the 
 discretionary power given by sect. 31 ; and the petitioner will not 
 be entitled to recover damages on that petition, but will be in the 
 position of a non-suited petitioner as to his claim for damages (m). 
 In an action for adultery with the plaintiff's wife, it appeared 
 that the plaintiff and his wife had agreed to live separately : the 
 plaintiff proved several acts of adultery committed by the .defen- 
 dant after the separation of the plaintiff and his wife, but there 
 was not any direct proof of adultery before the separation. Lord 
 Kenyan, C.J., being of opinion that the gist of the action was 
 the loss of the comfort and society of the wife, which was alleged 
 in the declaration in the usual manner, but was not supported by 
 the evidence, nonsuited the plaintiff. On a motion for a new trial, 
 the court concurred in opinion with the chief justice {n). 
 
 In a case (o), where the husband and wife had entered into a 
 deed of separation with trustees, and the wife was living separate 
 from the husband, though not in pursuance of the terms of the 
 deed, at the time of the adulterous intercourse, Lord Ullenborough, 
 C.J., said that he did not consider the question, " whether the 
 mere fact of separation between husband and wife by deed was 
 such an absolute renunciation of his marital rights, as prevented 
 the husband from maintaining an action for the seduction of his 
 wife," as concluded by the preceding • decision in Weedonv. Tim- 
 hrell. But in the case then before the court, the court were of 
 opinion that, taking the whole deed into consideration, it was 
 evident that the only separation in the contemplation of the parties 
 was a separation ^uith the approbation of the trustees, and that, 
 as the wife had left the husband without such approbation, she 
 was not at the time of the adulterous intercourse living separate 
 from the husband by his consent, and consequently the event and 
 situation provided for in the deed had not happened ; that in 
 that view of the case, there could not be any question, but that the 
 plaintiff's right to recover was not affected by the deed ; and fur- 
 ther, if the wife had left the husband with the approbation of the 
 trustees, yet as the deed had provided " that the wife might have 
 the care of the younger children of the marriage and visit the 
 others, more especially when they should be ill, so as to require the 
 attention of a mother," the husband had not (as it was held that 
 he had done in the case of Weedon v. Timbrell) given up all 
 
 (I) Norris v. Norris, 30 L. J. Mat. 111. (n) Weedon v. Timbrell, 5 T. E. 357. 
 
 (m) Seddo7i, v. Seddon and Doyle, 31 (o) Chambers v. Caulfield, 6 East, 244. 
 
 L. J. Mat. 12. Qacere whether he could See also Winter v. Henn, 4 C. & P. 498, 
 
 afterwards file a petition limited to a Alderson, J. ; and Wilton t. Webster, 7 
 
 claim for damages. C. & P. 198, Coleridge, J. 
 
ADULTERY. 11 
 
 claim to the benefit to be derived fiom the £ociety and ajKiatan/-g 
 of his wife ; and consequently, that the case of Weedon v. Timbrell, 
 allowing it the fullest effect according to the terms of it, could 
 not be considered as an authority against the plaintiff in this 
 action. 
 
 ^Aliere several defendants had carried on an adulterous inter- 
 course with the plaintiff's wife, the plaintiff could maintain sepa- 
 rate actions, although the cause of action had accrued during the 
 same period. 
 
 II. Of the Evidence, and herein of the Statutes relating to 
 Marriage. 
 
 Marriages Abroad ....... 22 
 
 Proof of Adultery . 25 
 
 In other actions, evidence of cohabitation, general reputation, 
 acknowledgment of the parties and reception by their friends, is 
 sufficient to establish the relation of husband and wife. But in 
 the action of crim. con., in order that it might not be converted 
 to bad purposes, by persons giving the name and character of 
 wife to women to whom they were not married, it was held 
 necessary, where the fact of marriage between the parties was 
 put in issue by the pleadings (p), for the plaintiff strictly to prove 
 it, either by the testimony of some person who was present at the 
 marriage, or by the production of the register, or of an examined (q) 
 or certified (r) copy thereof, or by a sealed copy of the register from 
 the General Registiy Office (s), and proof of cohabitation and reputa- 
 tion was insufficient (t) ; but " if it were proved that the defendant 
 had seriously or solemnly recognized that he knew that the woman 
 he had lain with was the plaintiff's wife, it would be evidence 
 proper to be left to a jury without proving the marriage" (u).- In 
 cases where the marriage was to be proved by the production of the 
 register or copy, proof must also have been adduced of the identity 
 of the parties. In Birt v. Barlow, Doug. 170, Buller, J., observed, 
 that it was not necessary to produce the original register, and 
 that it was only where that was required that subscribing witnesses 
 must be called : that in this case the wife's maiden name was 
 Harriet Champneys ; and supposing a maid servant had proved 
 
 (p) KenrickY. Homer, 26 L. J., Q. B. not make such copies evidence. 
 
 214. (s) 6 & 7 "Will. IV. u. 86, =. 38. 
 
 (q) Sayer v. Glossop, 2 Exch. 409 ; {t) Morris v. Miller, i Burr. 2057 ; T 
 
 Eirty. Barlow, Doug. 170. Bl. E. 632, S. C. ; SirtY. £arioK>,Doug. 
 
 (t) Under 14 & 15 Vict. c. 99, s. 14, 174 ; Oatherwood y. Caslon, 13 M. & W. 
 
 for although ,6 & 7 Will. IV. c. 86, ss. 261. 
 
 35, 36, authorize the clergyman, super- (w) Per Cur. Eigg Y. Curgenven, 2 
 
 intendeijf, registrars, to give certified Wils. 399. 
 copies of the local registers, that act does 
 
13 ADULTEllY. 
 
 that she always went by that name till the day of themarriage, that 
 she went out that day, and on her return and ever since had been 
 called Mrs. Birt, that would have been evidence of the identity. 
 An omission in the parish register of the signatures of the ininister, 
 parties and witnesses, has been held not to affect the validity of a 
 marriage, quoad a parish settlement, where it was clearly proved 
 aliunde that a marriage had actually taken place {x). 
 
 By Stat. 3 & 4 Vict. c. 92, intituled "An Act for enabling 
 Courts of Justice to admit Non-parochial Registers as Evidence of 
 Births or Baptisms, Deaths or Burials, and Marriages," certain 
 registers are to be deposited {y) in the custody of the registrar- 
 general, after being certified (0) and identified (a) by the commis- 
 sioners therein mentioned, and are then to be deemed to be in 
 legal custody (6), and to be receivable in evidence in all courts of 
 justice, subject to the provisions contained in the act (c). 
 
 It is proposed now to make some remarks touching mamage in 
 general, in order that the reader may be apprised of the solemnities 
 which 'the law deems essential to constitute a valid marriage. 
 Under the English law previous to the 26 Geo. II. 133, a contract 
 of matrimony could be made per verba de prcesenti, by a mutual 
 promise of present matrimony. A contract per verba de futuro, 
 by a mutual promise for future matrimony, if it were followed by 
 cohabitation, stood upon the same footing as a contract per verba 
 de prcesenti. But such contracts, although they were binding upon 
 the parties, only constituted a sort of irregular marriage, and did 
 not carry with them most of the consequences of a valid marriage. 
 They had the following incidents : the engagement was indis- 
 soluble ; the parties could not, even by mutual consent, release it ; 
 either party might compel solemnization in facie ecclesioe ; it had 
 the effect of rendering a subsequent marriage solemnized in facie 
 ecclesioe, even after cohabitation and the birth of children, void- 
 able.' They did not, however, confer those rights of property or 
 the more important right of legitimacy consequent upon a perfect 
 marriage. To constitute such a marriage, the intervention of a 
 third {d) person, episcopally ordained, was necessary. Although a 
 marriage was considered a clandestine marriage -unless it was 
 solemnized in the church, still it was considered a complete and 
 lawful marriage although performed out of the church, provided 
 the contract was made in the presence and with the intervention 
 of a priest in holy orders. Some religious ceremony was always 
 ■necessary, although this differed at different times. Whatever 
 
 (x) M. y. St. Devereux, Burr. Settl. Ca. (c) These provisions of 3 & 4 Viot. 
 
 £06 ; 1 Bl. R. 367, S. C. e. 92, are now extended Ijy 21 Vict. c. 25, 
 
 (!/) Sect. 1. See Taylor on Evidence, to certain other uon-parochial registers 
 
 vol. ii. p, 1280. certified as correct by commissioners- ap- 
 
 (3) Sect. 2. pointed by the crown and deposited with 
 
 ("■) Sect. 4. the registrAr^gencral. 
 
 (b) Sect. 6. (d) Beamish v. Beamish, 9 H. L. 274. 
 
ADULTERY. 18 
 
 tlie spiritual courts thought sufficient, the common law courts 
 acquiesced in (e). 
 
 A., a member of the Established Church in Ireland, went, 
 accompanied by B., a Protestant dissenter, to the house of a 
 regular Presbyterian minister of an Irish parish, and there entered 
 into a present contract of marriage, the minister performing a 
 religious ceremony. A. and B. afterwards cohabited for two years. 
 This was held not to be a sufficiently valid marriage to support an 
 indictment for bigamy against A. upon a subsequent marriage by 
 him(/). 
 
 B., a clergyman in holy orders of the United Church of England 
 and Ireland, performed a ceremony of marriage between himself 
 and a lady, a Protestant, by reading, in a room in a private house, 
 the form for the solemnization of matrimony as set forth in the 
 Book of Common Prayer. No witness was present at the perform- 
 ance of the ceremony, but it was observed though not heard by a 
 third party, without the knowledge of the parties themselves. 
 The ceremony was followed by consummation, and there having 
 been issue, the question was raised whether, according to the law 
 of Ireland, which at that time was the same as that of England 
 before Lord Hardwicke's Act, the marriage was valid and the 
 issue legitimate, and it was decided in the negative {g). 
 
 Where the marriage ceremony was performed in a private 
 lodging by a Roman Catholic priest, in the year 1705, upon 
 evidence that the prisoner in answer to the question whether he 
 would have the woman for his wedded wife said that he would, 
 and that the woman answered affirmatively to the question put to 
 her whether she would have Mr. Fielding for her husband, Mr. 
 Justice Powell, upon a question of felony, considered it as a valid 
 marriage contracted per verba de prcesenti (h). 
 
 Deaf and dumb persons may marry if of sufficient mental 
 capacity to understand that by the act of marriage they contract 
 to cohabit together, and with no one else (i). 
 
 During a long period, the 26 Geo. II. c. 33, Lord Hardwicke's 
 Act, was the only statute relating to solemnization of marriage, but 
 several statutes have since been made with a view to amend the 
 provisions of that act ; and finally it has been altogether repealed. 
 
 The first of these, viz. 3 Geo. IV. c. 75, after repealing the 11th 
 sect, of the 26th Geo. II. c. 33, relating to marriages, by licence, of 
 minors, without the consent of the proper parties, by sect. 2 enacts, 
 that marriages solemnized by licence before the passing of this act, 
 that is, before 22nd July, 1822, without the consent required by the 
 
 (e) Meg. t. Millis, 10 CI. &F. 534, the (h) R. v. Fielding, 5 St. Tr. 644, fol. 
 
 opinion of Tindal, C.J., judgments of ed. ; Jessony. Collins, Salk. 437 ; 6 Mod. 
 
 Lords Lyndhurst and Cottenham. 155. 
 
 (/) Queen v. Mill-is. (i) Harrod v. Harrod, 1 Kay & S. 4 ; 
 
 (g) Beamish y. Beamish. S. C. 18 Jur. 853, 
 
U ADULTERY. 
 
 nth sect, of Lord Hardwicke's Act, shall be good (if not otherwise 
 invalid), where the parties shall have continued to live together as 
 husband and wife ixntil the death of one of them, or until the 
 passing of this act, or shall only have discontinued their cohabita- 
 tion for the purpose or during the pending of any proceedings 
 touching the validity of such marriage. [As to what shall not be 
 a living together as husband and wife within this section, see 
 Pooh V. Poole, 2 Cr. & J. 66, and 2 Tyrw. 76.] But this act 
 (sect. 8) is not to render valid any marriage which has been 
 declared invalid by any court of competent jurisdiction before the 
 22nd of July, 1822, nor any marriages where either of the parties 
 shall at any time afterwards have lawfully intermarried with any 
 other person. [This 3rd section (which is not repealed by 4 Geo. 
 IV. c. 76) (fc), has a retrospective operation only ; hence it has been 
 held that a marriage which would have been void by the 11th 
 section of Lord Hardwicke's Act, and had once been rendered 
 valid by the 2nd section of the 3 Geo. IV. c. 75, cannot subse- 
 quently be rendered invalid by the marriage of either of the 
 parties during the life of the other with a third person (f).] Nor is 
 this act (s. 4) to render valid any marriage the invalidity of which 
 has been established before the 22nd of July, 1822, upon the trial 
 of any issue touching its validity, or touching the legitimacy of any 
 person alleged to be the descendant of the parties to such marriage ; 
 nor (sect. 5) any marriage, where the validity thereof, or the legiti- 
 macy of descendants of the parties thereto, having been brought in 
 question, in law or equity, judgments or decrees or orders have been 
 made before the 22nd of July, 1822, in consequence of proof having 
 been made of the invalidity of such marriage, or the illegitimacy 
 of such descendants. The right and interest in property and titles 
 of honour, which have been' enjoyed upon the ground of the inva- 
 lidity of any marriage, by reason that it was solemnized without 
 such consent, shall not be affected by this act, although no sen- 
 tence or judgment has been pronounced in any court against the 
 validity of such (m). This statute shall not affect any act done 
 before the 22nd of July, 1822, under the authority of any court, or 
 in the administration of any personal estate, or the execution of 
 any will, or performance of any trust (w). The remaining sections 
 of this statute, from the 8th to the 26th, were repealed by the 4 
 Geo. IV. c. 17, (26th March, 1823), which was also repealed by stat. 
 4 Geo, IV. c. 76, except as to any act done under its provisions, 
 and also except as to its repealing the clauses contained under any 
 former act (o). 
 
 The statute, 4 Geo. IV. c. 76, repealed so much of Lord Hard- 
 wicke's Act as was then in force, from the 1st Nov. 1823. The 
 
 (h) Rose V. Blahemore, Eyan & Moody, (m) Sect. 6. 
 
 382. /jj\ Sect 7 
 
 JJ) R. V. SI. John Delpike, 2 B, & Ad. (o) See Rose v. Blahmore, Ey. & Mo. 
 
 226, 382, ' ^ 
 
ADULTERY. 15 
 
 ftrmcipal provisions are as follow : — The 2nd section relates en- 
 tirely to the mode in -which banns shall be published. The 3rd 
 section empowers bishops to authorize publication of banns in 
 chapels. 
 
 By sect. 7, no minister is obliged to publish banns, unless the 
 persons to be married shall seven days before first publication 
 deliver to such minister notice in writing, dated on day of delivery, 
 of their true Christian names and surnames, and of the houses of 
 their respective abodes within the parish or chapelry, and of the 
 time during which they have dwelt within. 
 
 By sect. 9, marriages not had within three months after the 
 complete publication of banns,»cannot be solemnized without re- 
 publication of banns on three several Sundays in the form pre- 
 scribed, unless by licence. 
 
 By sect. 14, before any licence (p) can be granted, one of the 
 parties is personally to swear before the sun-ogate that there is no 
 lawful cause or impediment to the marriage, and to certain other 
 particulars. 
 
 By sect. 16, the father, if living, of any party under twenty-one 
 years of age, such parties not being a widower or widow ; or if the 
 father shall be dead, the guardian of the person of the party so 
 under age, lawfully appointed ; and in case there shall be no such 
 guardian, then the mother of such party, if unmarried ; and if there 
 shall be no mother unmarried, then the guardian of the person ap- 
 pointed by the Court of Chancery, if any, shall have authority to 
 give consent to the marriage of such party, and such consent is 
 hereby required for the marriage of such party so under age, 
 unless there shall be no person authorized to give such consent. 
 — The language of the foregoing section is merely directory ; 
 it does not proceed to make the marriage void, if solemnized 
 without consent. Hence, where a marriage was solemnized by 
 licence, the man being a minor, whose father was living, and who 
 did not consent to the marriage ; it was held, that the marriage 
 was nevertheless valid (q). 
 
 In case the father or fathers of the parties to be married, or one 
 of them, so under age, shall be non compos mentis, or the guar- 
 dian, mother or any of them whose consent is necessary to the 
 marriage of such party, shall be non compos mentis, or in parts 
 beyond the seas, or shall unreasonably or from undue motives 
 refuse their consent to a proper marriage, then any person desirous 
 of marrying, in any of the before mentioned cases, may apply by 
 petition to the lord chancellor, master of the rolls, or vice-chan- 
 
 (p) A licence is granted ty the ordi- publication of banns. This dispensing 
 
 nary ; it is nothing more than a dis- power was reserved to our bishops by 
 
 pensation from the necessity for the St. 25, Hen. VIII. c. 21, which took 
 
 publication of banns — a licence for the away that power from the pope. 
 
 solemnization of matrimony without the (?) Ji. v. £irmingham, 8 B. & C. 29, 
 
10 ADULTEBY. 
 
 cellor, who are respectively empowered to proceed upon sucli 
 petition in a summary way ; and in case the marriage proposed 
 shall upon examination appear to be proper, the said lord chan- 
 cellor, &c., shall judicially declare the same to be so ; and such 
 declaration shall be as effectual as if the father or guardian, or 
 mother of the person so petitioning, had consented to such 
 maniage (r). 
 
 Whenever a marriage shall not be had within three months after 
 the grant of a licence by any person having authority to grant such 
 licence, no minister shall proceed to the solemnization of such mar- 
 riage until a new licence shall have been obtained, unless by banns 
 duly published (s). 
 
 If any persons shall hnoiolnghj and wilfully intermarry in any 
 other place than a church or such public chapel wherein banns may 
 be lawfully published, unless by special licence (t), or shall knmv- 
 ingly and wilfully intermarry without due publication of banns, 
 or licence from a person having authority to gi'ant the same, or 
 shall knowingly and wilfully consent to or acquiesce in the solem- 
 nization of such maniage by any person not being in holy orders, 
 the marriages of such persons shall be null and void (ii). 
 
 In order to render a marriage void under this enactment, it must 
 have been contracted by both parties with a knowledge that a due 
 publication of banns had not taken place. Therefore, where the 
 intended husband procured the banns to be published in a Christian 
 and surname which the woman had never borne, but she did not 
 know that fact until after the solemnization of the marriage ; it 
 was held that the marriage was valid {v). In Wiltshire v. Wilt- 
 shire, 3 Hagg. Ecc. Rep. 333, marriage by banns under a false 
 publication, by the suppression of one of the husband's Christian 
 names by which he was known, with the knowledge and consent 
 of both 2^o,'>'ti^s, for the purpose of concealment, was held void 
 under this 22nd section. So a marriage by banns, when the pub- 
 lication of banns was for the purpose of deceiving the man's grand- 
 father, in the name of "John," instead of "Bowen," the real Christian 
 name of the man, both parties being at the time of the solemniza- 
 tion of the marriage aware of such misdescription, and the woman 
 believing on the representation of the man that the marriage 
 would not thereby be invalidated, was, on a petition by the woman, 
 pronounced null and void («). But there is and always has been a 
 great distinction between banns and licences. In licences the identity 
 is the material circumstance, and a partial departure from the true 
 
 (r) Sect. 17. 7 Will. IV, c. 85. 
 
 (s) Sect. 19. _ (v) R. V. Wnxtm, 4 B. & Ad. BiO, 
 
 (t) The power of gi'anting whicli was and 3 Nev. & M. 712. See nrigJUv. 
 
 reserved to the Archbishop of Canter- Mieood, 1 Cvirt. Ecc. R. 662. 
 
 bury, by s. 20. (x) MidgeUy (fcdsdy called ]Yood) v. 
 
 (m) Sect. 22. But wapost, p, 10, 6 & Wood, 30 L. J. Mat. 57. 
 
ADULTERY. 17 
 
 name, for the purpose of concealing the marriage, is, in the case of 
 a licence no cause of nullity if the altered name may represent the 
 person. A marriage was solemnized by virtue of a licence in which 
 the name of the woman was stated to be " Margaret Bevan," 
 whereas her baptismal name, and that by which she was commonly 
 called, was " Margaret Lea Bevan." The licence was obtained in 
 the altered name by the man, knowingly and by the direction of 
 the woman, in order that the surrogate might not know who she, 
 was, and that the marriage might be kept secret from her friends. 
 It was held, in a suit for nullity instituted by the woman, that as 
 the name M. B. might represent her, and the licence was obtained 
 by her direction in that name, the marriage was not void, as having 
 been solemnized without licence (y). The marriage of parties 
 under a licence from a person not having authority to grant the 
 same, is not void under this section, unless both parties knowingly 
 and wilfully intermarry by virtue of such licence (0). 
 
 The second section of Lord Hardwicke's act required a notice in 
 writing of the true christian and surnames to be delivered to the 
 minister, and the 8th section enacted that all marriages solemnized 
 without publication of banns or licence should be void. Now it was 
 held by Lord Stowell (a), that the intention of this act was, that 
 the true names should be published, and that if they were not, there 
 was no publication. It would seem, therefore, that when the 
 description has been made with the knowledge of both parties, the 
 law as applicable to the old sta,tute is also applicable to the statute 
 of Geo. IV. The following cases were decided upon the old statute. 
 A person whose baptismal and surname was Abraham Langley 
 was married by banns by the name of George Smith, having been 
 known in the parish where he resided and was married by that 
 name only, from the time of his first coming into the parish till 
 his marriage, which was about three years : it was held that the 
 marriage was valid (b). In the publication of banns, a woman 
 named Mary Hodgkinson was called White, a surname entered by 
 mistake in the register of her baptism, but which she had never 
 gone by nor been entitled to. No individual having any interest 
 in the marriage was deceived ; it was held that the marriage was 
 void (c). In this case. Lord Tenterden, C.J., stated the result of 
 the decisions thus : — " The clear intention of the legislature was, 
 that the banns are to be published in the true names of the 
 parties, otherwise it is no publication at all. By the decisions 
 these rules are established: — First, that if there be a total 
 variation of a name or names; that is, if the banns are pub- 
 lished in a name or names totally different from those which the 
 parties, or one of them, ever used, or by which they were ever 
 
 (y) Sevan v. M'Mahon, 30 L. J, (a) Pong-eiv. TomKas, 2 Hag. Con. 142. 
 
 Mat 61. (i) R- y- BilUnghurst, 3 M. & S. 260. 
 
 (s) Dormer V. Williams, 1 Curt, Ecc. (c) R. v. ri6sAe//;iB.&Ad.l90, recog- 
 
 B. 870. nizedin^ZZewv. Wood, 1 Biiig. IC. C. 8. 
 
 VOL. I, " 
 
18 , ADULTERY. 
 
 known, the marriage in pursuance of that publication is invalid ; 
 and it is immaterial in such cases whether the misdescription has 
 arisen from accident or design, or whether such design he fraudu- 
 lent or not. But, secondly, if there be a partial variation of name 
 only, as the alteration of a letter or letters, or the addition or sup- 
 pression of one, christian name, or the names have been such as 
 the parties have used and been known by at one time, and not at 
 another ; in such cases the publication may or may not be void; 
 'the supposed misdescription may be explained ; and it becomes a 
 most important part of the inquiry whether it was consistent with 
 honesty of purpose, or arose from a fraudulent intention." 
 
 When in a licence one of the parties was described by a. name 
 wholly different from his own, the marriage was held va,lid. But 
 in this case, Palteson, J., said that perhaps if a licence were obtained 
 for one peirson with the intention that it should be used for an- 
 other, such a licence might not be valid (d). So where a deserter 
 had gone by an assumed name for sixteen weeks, in order more 
 effectually to conceal himself from the military authorities, there 
 being no fraud intended in respect of the marriage,it was held good (e). 
 
 If any valid marriage, solemnized by licence, shall be procured 
 by a party to such marriage to be solemnized between persons, one 
 or both of whom shall be under the age of twenty-one years, con- 
 trary to the provisions of this act, by means of such party' falsely 
 swearing to any matter to which such party is hereinbefore required 
 personally to swear, such party shall forfeit all property accruing 
 from the marriage, and the court of chancery is to settle it for the 
 benefit of the innocent party or the issue of the marriage or any of 
 them, as it shall think proper (/). 
 
 Iii order to preserve the evidence of marriages, and to make 
 the proof thereof more certain and easy, and for the direction of 
 ihinisters in the celebration of marriages and registering thereof, 
 all marriages shall be solemnized in the presence of two credible 
 witnesses;. besides the minister who shall celebrate the same ; and 
 immediately after the celebration, an entry thereof shall be made in 
 the register book kept for that purpose, in which it shall be ex- 
 pressed that the marriage was celebrated by banns or licence, and 
 if both or either of the parties married by licence be under age, not 
 being a widower or widow, with consent of the parents or guardians, 
 as the case shall be ; and such entry shall be signed by the minister 
 with his proper addition, and also by the parties married, and 
 attested by such two witnesses ; which entry shallbe made in the. 
 form therein set forth Qj). 
 
 In consequence of a decision {R. v. Northfdd, Doug. 658), which 
 took place, confining the construction of Lord Hardwicke's act, 
 
 ■{£) Lamy. Goodwin, 4 Q. B. 361. ' (/) Sect. 23. See Attorney-Gen. y, 
 
 (e) B. r. Burton on Trent, 3 M. & S. MMUay,.i Russ, 329. 
 537 (^) Sect." 28. ' 
 
ADULTEEY. 19 
 
 26 Geo. II. c. 33, s. 1, to chapels existing at the time of passing 
 the act, several statutes have been made from time to time, to give 
 validity to marriages solemnized in chapels erected since Lord 
 Hardwicke's act, and to make the registers of such marriages evi- 
 dence. See Stat. 21- Geo. III. c. 53 ; 44 Geo. III. c. 77 ; 48 Geo. 
 
 III. c. 127 ; 6 Geo. IV. c. 92. Stat. 5 Geo. IV. c. 32 ; 11 Geo. 
 
 IV. & 1 Will. IV. c. 18, relate to the solemnization of marriages 
 where churches are rebuilding or under repair (A). See stat. 7 & 8 
 Vict. c. 56, concerning banns and marriages in district churches or 
 chapels. 
 
 By stat. 5 & 6 Will. IV. c. 54, after reciting that marriages be- 
 tween persons within the prohibited degrees are voidable only by 
 sentence of the ecclesiastical court pronounced during the lifetime 
 of both the parties thereto, it is enacted, that all marriages cele- 
 brated before the 31st August, 1835, between persons within the 
 prohibited degrees of affinity, shall not be annulled for that cause by 
 any sentence of the ecclesiastical court, except in suits depending at 
 that time ; provided that nothing thereinbefore enacted shall affect 
 marriages between persons within the prohibited degrees of consan- 
 guinity ; and by sect. 2, all marriages celebrated after that time 
 between persons within the prohibited degrees of consanguinity or 
 affinity, are made absolutely void. This act, however, does not 
 extend to Scotland (i). 
 
 The prohibited degrees are those enuiiierated by stat. 28 H. VIII. 
 c. 7, s. 11, as being prohibited by God's law. Consequently, if a 
 man marry his deceased wife's sister, and in the latter's lifetime 
 marry another woman, he cannot be indicted for bigamy, inasmuch 
 as the marriage with his deceased wife's sister was void ; and the 
 law extends to an illegitimate as well as to a legitimate child of 
 the late wife's parents (/<;). The rule that a bastard is nullius 
 filius applies only to inheritances (V). The statute also applies to 
 all domiciled English subjects wherever they may be transiently 
 resident, for although the general rule is that a foreign marriage, 
 valid according to the law of a, country w^here it is celebrated, is 
 good everywhere, this only applies to the forms of entering into the 
 contract : the essentials of the contract, such as the capacity of the 
 parties to contract, and also the rights, duties, and obligations 
 thence arising, depend upon the lex domicilii. Therefore, where a 
 man married his deceased wife's sister in a foreign country where 
 such a marriage according to, the lex loci was valid, both the par- 
 ties being domiciled British subjects, who had resorted to such 
 couiitry for the, avowed purpose of evading the statute, the mar- 
 riage was held void (m). 
 
 (h) See R. v. Bowen, 2 C. & K. 227. ■ (I) Co. Litt. 123 ; R. v. Eodnett, 1 T. 
 
 (i) Sect. 3l E. 11. 
 
 (k) B. V. Chadvnck, 11 Q. B. 173 ; (m) Broohr. BrooTc, 9 H. of L. 193, 27 
 
 S. C, 17 L. J. M. C. 33. L. J. Ch, 401. 
 
 C 2 
 
20 ADULTERY. 
 
 Between 1754 and 1837, no regular marriage could, except by 
 special licence^ be celebrated in England in any other place than a 
 church or chapel of the EstabUshed religion. To ease the scruples of 
 those who objected to this, certain acts have been passed, whereby 
 marriages may be celebrated in any place of religious worship 
 under certain regulations. They are the 6 & 7 "Will. IV. c. 85, " An 
 act for marriages in England ;" and the 6 & 7 WiU. IV. c. 86, " An act 
 for registering births, deaths, and marriages in England ;'' which 
 were amended by 7 Will. IV. & 1 Vict. c. 22 ; the 3 & 4 Vict. c. 72, 
 and the 19 & 20 Vict. c. 119. The following are some of the princi- 
 pal regulations prescribed by these acts : — Where any marriage may 
 be celebrated after publication of banns, such marriage may be so- 
 lemnized in like manner on production of the registrar's certificate, 
 provided that the power of the archbishop of Canterbury to gi'ant 
 a special licence, and of the surrogate to grant a licence, is not 
 affected (to). The notice to the superintendent registrar, and the 
 issue of the superintendent registrar's certificate, shall be used and 
 stand instead of the publication of banns to ail purposes where no 
 such publication shall have taken place, and every minister shall 
 solemnize marriage after such notice and certificate as after due 
 publication of banns (o). 
 
 A superintendent registrar shall have power to grant licences 
 for marriage in any certified place of religious worship, registered 
 for solemnizing marriages under the act {f). 
 
 Notice of every intended marriage shall be given by one of the 
 parties to the superintendent registrar of the district within which 
 they shall have dwelt for not less than seven days then next pre- 
 ceding, or if the parties live in different districts, the notice shall 
 be given to the superintendent registrar of each district (g) ; in 
 case of licence, notice to one registrar is sufficient (r), accompanied 
 by a solemn declaration in writing at the foot of the notice, made 
 in the presence of some registrar of the district, who shall attest 
 the same, that there is no impediment of kindred or other lawful 
 hindrance, &c. Persons making wilfully false declarations shall 
 suffer the penalties of perjury (s). These notices shall be kept in 
 the " Marriage notice book." If the marriage is to be without 
 licence, a copy from the notice book is to be affixed in the superinten- 
 dent registrar's office for twenty-one days, when the superintendent 
 registrar shall give a certificate, provided no lawful impediment is 
 shown and the issuing of the certificate is not forbidden (i). In case 
 of marriage by Hcence, the superintendent registrar shall, after the 
 expn-ation of one whole day next after the day of entry of notice, 
 issue his certificate and also a licence, provided no lawful impedi- 
 
 'f'} ^ ifrMwir' IX- •?;■ *^' ^- ^- <=«"™' <"f ^fter publication of banns. 
 
 "^^ «yV wTi' ^J ^'"o^°- 2^- '• ^^- W 19 & 20 Yiot. .. U9, s. 6. 
 
 (V) 6 & 7 Will. IV. c. 86, s. 11. (s) Sect. 2. 
 
 (?) Sect. 4. This does not apply tO' (t) Sect 4 
 marriages by licence, or by .special li- 
 
ADULTEEY. 21 
 
 ment is s]lo^vll, and the issuing the certificate is not forbidden (u). 
 Every person whose consent is required by law may forbid the 
 issuing of the certificate (x). If the marriage shall not be cele- 
 brated within three months of the entry of the notice, the notice, 
 certificate, and licence shall be void (y). No certificate or licence 
 can be granted out of a district except where there is no registered 
 building, or the usual place of worship of the party is not within 
 the district (0). Marriages may be solemnized (1) in the Estab- 
 lished church (a) ; (2), in a certified place of worship registered 
 under the act (h) ; (in the case of marriage by superintendent 
 registrar's licence, the consent of the minister being necessary (c) ) ; 
 (3), at the superintendent registrar's office (d) : Provided that in 
 either of the latter cases the manifiage shall be solemnized with open 
 doors between the hours of eight and twelve in the forenoon, in 
 the presence of some registrar of the district and of two or more 
 credible witnesses, and that during sorne part of the ceremony each 
 of the parties shall declare : " I do solemnly declare that I know 
 not of any lawful impediment why I, A. B., may not be joined in 
 lawful matrimony to C. D." And each of the parties shall say to 
 the other, " I call upon these parties here present to witness 
 that I, A. B., do take thee, C. D., to be my lawful wedded wife (or 
 husband) " (e). If the marriage is at the office, the presence of the 
 superintendent registrar also is required (/). After marriage at 
 the office, persons may, if they like, add religious ceremony, if the 
 minister thinks fit to perform it in the church or chapel whereof 
 he is minister (g). If any valid marriage shall be had under the 
 act by means of any wilfully false notice, &c., the guilty party shall 
 forfeit all property accruing from the marriage as by 4> Geo. IV. 
 c. 76 (h). If any persons shall knowingly and wilfully intermarry 
 under the provisions of this act in any place other than the church, 
 chapel, registered building or office or other place specified in the 
 notice arid certificate as aforesaid, or without due notice to the 
 superintendent registrar, or without certificate of notice duly 
 issued, or without licence, in case a licence is necessary under this 
 act, or in the absence of a registrar or superintendent registrar 
 when the presence of a registrar or superintendent registrar is 
 necessary under this act, the marriage of such persons except 
 in any case hereinafter excepted, shall be null and void (i). After 
 any marriage shall have been solemnized under the authority 
 of any of the recited acts or of this act, it shall not be necessary, 
 in support of such marriage to give any proof of the actual 
 dwelling, or of the period of dwelling, of either of the parties 
 
 (u) Sect. 9. (c) Sect. 21. 
 
 (x) 6 & 7 Wm. IV. c. 85, s. 10. (d) 19 & 20 Vict. c. 119, s. 11. 
 
 (y) Sect. 15. (e) 6 & 7 Will. IV. o. 85, ss. 20, 21. 
 
 (a) 3 & 4 Vict. c. 72, s. 12 ; 19 & 20 (/) Sect. 21. 
 
 Vict. c. 119, s. 13. (ff) 19 & 20 Vict. ^. 119, s. 12. 
 
 (a) 6 & 7 Will. IV. 0. 85, s. 1. (h) Sect. 19. 
 
 (b) Sect. 20. (i) 6 & 7 Will. IV. c. 85, a. i2. 
 
33 ADULTEEY. 
 
 previous to the marriage within the district stated in any 
 notice of marriage to be th&,t of his or her residence, or of the 
 consent to any marriage having been given by any person -whose 
 consent thereto is required by law, or that the registered building 
 in which any marriage may have been solemnized' had been 
 certified according to law as a place of religious worship, or that 
 such building was the usual place of worship of either of the 
 parties; nor shall any evidence be given to prove the contrary 
 in any suit or legal proceedings touching the validity of such 
 marriage (/c). 
 
 Quakers and Jews may continue to contract and solemnize 
 marriage according to their usages, and every such marriage is 
 declared and confirmed good in law, provided that both parties are 
 of the persuasion of the society of Quakers or professed Jews, and 
 that notice be given to the superintendent registrar, and his cer- 
 tificate or certificate and licence shall have issued (f). 
 
 Although the -marriages of Quakers and Jews had been expressly 
 exempted from the operation of all the previous marriage acts, and 
 so perhaps recognized as valid, and although proof of QuaJkers' 
 marriages according to their forms had been received in our courts 
 without objection (m), still the decision in Queen v. Millis (n) 
 rendered doubtful the validity of such marriages contracted before 
 6 & 7 Will. IV. c. 85, consequently 10 & 11 Vict. c. 18, was passed 
 to declare them valid. 
 
 As to the validity of marriage according to the Jewish rites, see 
 the judgment of Sir W. Scott in Lindo v. Belisario (o). 
 
 A Jewess may give parol evidence of her own divorce in a 
 foreign country, according to the ceremony and customs of the 
 Jews there {p). In Moss v. Smith, 1 Man; & Gr. 232, 3 ;' 1 ScQtt> 
 N. R. 25, to prove a Jewish divorce in England, it was held neces- 
 sary, by Ershine, J., that the written document of divorce delivered 
 by the husband to the wife should be produced. According to the 
 evidence of the high priest of the German Jews in England, this 
 document is the operative part of the ceremony, which must, how- 
 ever, take place in the presence of the high priest and ten other 
 persons. 
 
 Marriages Abroad.— K soldier on service with the British army 
 in St. Domingo, in 1796, being desirous to marry the widow of 
 another soldier, who had died there in the service, and both 
 parties wishing to celebrate their marriage with effect, they Went 
 to a chapel in a town where they were, and there the ceremony 
 
 (k) 19 fe 20 Vict. c. 119, s. 17. (n) 9 H. of L. 832 
 
 (Z) 6 & 7 Will IV. c. 85, s 2 ; 19 & (<,) i Hagg. (C.) 227. See also Gold- 
 
 20 Vict. c. 119, s. 21; 23 Vict. c. 18, «mid v. Cromer, 1 Hagg. (0.) 324 ■ //or» 
 
 s. 1. 
 
 V. Noel, 1 Campb. 61. 
 
 {m) Beam J. Thmms, M. & Malk. (p) Gomtr v.. Laxly Lanesborcmgh, 
 
 361 ; TmUrden, C.J. Peake's N. P. C. 17, Lord Kmym, C.J. 
 
ADULTEEY. 23 
 
 was performed by a person appearing there as a priest, and offici- 
 ating as such ; the service being in French, but interpreted into 
 English by one who oiBciated as clerk ; and which the woman 
 understood at the time to be the marriage service of the Church 
 of England. After this they cohabited together as man and wife 
 for eleven years, until the death of the husband. On a question 
 as to the settlement of the woman, a doubt was raised whether the 
 marriage was valid. The Court of B. R (g) were clearly of opinion 
 that it was a valid marriage, whether it was to be considered as a, 
 marriage, celebrated in a place where the law of England prevailed, 
 or as a marriage according to the law of St. Domingo, whatever 
 that might be. Upon the former ground, inasmuch as there was 
 a contract per. verba de prcesenii, which contracts were binding on 
 the parties before Lord Hardwicke's act, which did not affect the 
 present case, this being a marriage beyond seas, and because the 
 marriage was celebrated by a person who publicly assumed the 
 office of a priest, and appeared habited as such ; upon the latter 
 ground, because, upon the facts stated, every presumption must be 
 made in favour of its validity, according to the law of the country 
 where it was celebrated, the marriage ceremony having been per- 
 formed there in a proper place, and by a person officiating as one 
 competent to perform that function, and more especially as it had 
 been followed by a cohabitation between the parties, as man and 
 wife, for eleven years. 
 
 But where A., a domiciled Englishman, and B., both being mem- 
 bers of the Church of England, were married at the Consulate 
 Office, at Beyrout in Syria, by an American missionary, not 
 apparently a priest according to the rites of the Church of 
 England, such marriage was held invalid (r). 
 
 The canon law is the basis of the matrimonial law of Europe. 
 Before Lord Hardwicke's act, marriages in this country were 
 governed by the king's ecclesiastical law, of which the general 
 canon law was no doubt the basis (s). That statute did not follow 
 British subjects to our foreign settlements ; hence it has been 
 - held, that a marriage between two British subjects soleninized by 
 a Roman Catholic priest at Madras, according to the' rites of 
 the Roman Catholic Church, followed by cohabitation, is' valid, 
 although without the licence of the governor, which it had been 
 uniformly the practice to obtain : for that does not alter the law, 
 which the parties carried with them (f). 
 
 By stat. Geo. IV. c. 91, s. 1, after reciting, that it is expedient 
 to relieve the minds of his Majesty's subjects from any doubt con- 
 
 (q) H. v. Brampton, 10 East, 282. the canon law'was received into the law 
 
 (r) Catherwood v. Caslon, 13 M. &. "W. of England. 
 261. (t) LaUtour\. TeesdaU, 8 Taunt. 830. 
 
 (s) See Queen v. Millis, opinion of Tin- See' Catherwood v. Caslon. 
 dal, C.J., where he shows to what extent 
 
24 ADULTERY. 
 
 cerning the validity of man-iages solemnized by a minister of the 
 Church of England in the chapel or house of any British ambas- 
 sador or minister residing within the countiy to the court of which 
 he is accredited, or in the chapel belonging to any British factory 
 abroad, or in the house of any British subject residing at such 
 factory, as well as from any possibility of doubt concerning the 
 validity of marriages solemnized within the British lines by any 
 chaplain or officer, or other person officiating under the orders of a 
 commanding officer of a British army serving abroad, it is declared 
 and enacted, " that all such marriages shall be deemed to be as 
 valid in law as if the same had been solemnized within his 
 Majesty's dominions with a due observance of all forms required 
 by law." 
 
 The marriage of an officer celebrated by a chaplain of the 
 British army within the lines of the army, when serving abroad, is 
 valid under this statute, though such army is not serving in a 
 country in a state of actual hostility ; and though no authority for 
 the marriage was previously obtained from the officer's superior in 
 command (u). And this statute gives validity to the marriage of 
 a British subject in the chapel of the British ambassador abroad, 
 whether the other party to the marriage is a British subject or 
 not (v). 
 
 By the 12 & 13 Vict. c. 68, "An Act for facilitating the Mar- 
 riage of British Subjects resident in Foreign Countries," marriages 
 (both or one of the parties thereto being subjects or a subject of 
 this realm) may, when the parties have resided for one month 
 within the district of a British consul, be solemnized at the consu- 
 late, in the presence of the consul and two witnesses, according to 
 such form and ceremony as the parties may wish to adopt, or they 
 may be solemnized by the consul. The regulations as to notice, 
 certificate, &c., are in the main the same as those contained in 
 the English Registration act, 6 & 7 Will. IV. c. 85, which is 
 incorporated with this act. The act does not affect the validity 
 of any marriage celebrated otherwise than as is therein pro- 
 vided (or). 
 
 By 28 & 29 Vict. c. 64, s. 1, colonial laws establishing validity 
 of marriages are to have effect throughout her Majesty's dominions. 
 
 The result of these statutes and of the general law as affecting 
 the marriages of British subjects abroad would seem to be : that 
 generally the validity of the marriage contract is to be determined 
 by the lex loci contract4s where there is no incapacity to contract 
 existing in the parties according to the laws of their country (y). 
 Therefore, where an Englishman marries abroad, where there is 
 
 (u) Waldegrave Peerage, i CI. & K. (y) Dalrymple v. Dalrymple, 2 Hagg. 
 
 ;\ 7 nr • J,, or T T ^, ^°"^- 5*! Brooky. Brook, 9 H. L. 193 ; 
 
 (v) Jn re WngM, 25 L J., Chano. 27 L. J. Ch. 401 ; HmltiAey. Murray, 2 
 
 621 ; Lloyd v. Pehtjean, 2 Ourt. 251. Addam Eoo. Eep 400. 
 
 (x) Seota, 1, 9, 21. ^ 
 
ADULTEEY. 25 
 
 no embassy, factory, or consulate, the lex loci will determine the 
 validity of the marriage (0). If there be an embassy, factory, or 
 consulate, the parties may marry either according to English forms 
 at the embassy, factory, or consulate, or they may marry according 
 to the forms of the country. In the former case the English law 
 would seem to override the lex loci contractils, and a marriage 
 good under 12 & 13 Vict. c. 68, would be good, although void by 
 the lex loci (a). 
 
 All the statutes we have been considering are confined to Eng- 
 land, with the exception of Lord Lyndhurst's act, 5 & 6 Will. 
 IV. c. 54, the only reservation in which is that it shall not apply 
 to Scotland. The same law already existed there (&). By the 
 19 & 20 Vict. c. 96, s. 2, "ito irregular marriage contracted in 
 Scotland by declaration, acknowledgment, or ceremony shall be 
 valid, unless one of the parties had at the date thereof his or her 
 usual place of residence there, or had lived in Scotland for twenty- 
 one days next preceding such marriage, any law, custom, or usage 
 notwithstanding." Irish Protestant marriages are regulated by 
 Stat. 7 & 8 Vict. c. 81, amended by 9 & 10 Vict. c. 72, and 26 & 
 27 Vict. c. 90, the provisions of which, ss. 1 — 9, 23, are similar to 
 those of the English act of Will. IV. Various acts had been 
 passed, affirming marriages by Presbyterian ministers previous to 
 that act — the 5 & 6 Vict. c. 113, &c. By an act of the Irish 
 Parliament, 19 Geo. II. c. 13, s. 1, every marriage, if celebrated by 
 a popish priest, between a Papist and any person that hath been 
 or hath professed himself to be a Protestant at any time within 
 twelve months before such celebration, shall be null and void to 
 all intents. For the law of irregular marriages in Scotland, see 
 Yelverton v. Telverton, 4 Macqueen H. of L. Cases, 743. 
 
 Proofs of adultery must in many cases be in some degree pre- 
 sumptive ; real and direct proof of the fact is not always to be 
 expected ; therefore the question in these cases will be, whether 
 there is evidence of such near, such approximate acts, that there 
 must be a legal presumption of the adultery (c). The confession 
 of the wife is not evidence against the defendant ; but convei-sa- 
 tions between her and the defendant may be given in evidence (d). 
 So letters written to her by the defendant are evidence against 
 him ; but the Avife's letters to the defendant are not evidence for 
 
 (z) Marriage.? abroad accorJing to kx v. Ryde, 36 L. J., Mat. 30. 
 
 loci held good here ; Herbert v. Herbert, (a) Este v. Smyth, 18 Beav. 112. 
 
 2 Hagg. Cons. 269 ; Smith v. Maxwell, 1 (b) Paterson, Compendium of English 
 
 Ry. & M. 80. Foreign marriage not and Scotch Law, s. 868, n. 1. 
 
 valid according to lex loci, held bad here ; (c) See Wood v. Wood, 4 Hagg. Ecc. 
 
 Lacm V. Higgin, 3 Star. 178 ; Butler v. R. 138, n. 
 
 Freeman, Amh. 303 ; Kent v. Burgess, {d) Biker v. Morley, M. D., London 
 
 11 Sim. 361 ; iSmms/nVev. ScrinwAire, 2 Sittings, 30 June, 17il, Lee, Ch. J., 
 
 Hagg. Cons. 385. A Monnonite poly- special jury. Verdict for defendant, 
 
 gamous marriage is not considered a mar- Bull, N. P. 28, S, C. 
 riage at all in this country. See Hydi 
 
26 ADULTERY. 
 
 him. In a case where the plaintiff and his wife were servants, and 
 necessarily living apart in different families. Lord Kenydn, C.J., 
 was of opinion, that letters written by the wife to her husband, 
 before any suspicion of the adultery, might be read as evidence of 
 the connubial affection which subsisted between the plaintiff and 
 his wife, observing, at the same time, that before he admitted the 
 letters to be read, he should require strict proof when, and under 
 what circumstances, they were written, in order to show that at 
 this time there was not any suspicion of misconduct in the wife(e) ; 
 and in Willis v. £erna/rd, 8 Bing. 376, a letter of the wife to a 
 third person was admitted, to show the state of the wife's feeHngs 
 at the time it was written, although it contained a statement of 
 facts, which could not with propriety be submitted as_ evidence to 
 a jury ; on which, however, the judge cautioned the jury, telling 
 them that the letter was not evidence of those facts. In Winter 
 V. Wroot, 1 M. & Rob. 404, Lyndhurst, G. B., permitted a witness 
 to be asked generally, whether the wife made complaints of the 
 manner in which her husband treated her. 
 
 In Hoare v. Allen (/), a witness was called by the. husband to 
 prove the representation made by the wife to him of the place 
 to which she was going previously to her elopement, in order to 
 remove all suspicion of connivance on the part of the husband. 
 The Court of King's Bench were of opinion that this evidence, 
 being part of the res gestae, was therefore admissible. 
 
 III. Of the Damages. — €osts. 
 
 The damages given by the juiy in the action of crim. con. were, 
 in general, proportioned to the degree of the injury. Circum- 
 stances of aggravation of the injury, and which might therefore 
 operate as an inducement with the jury to give large damages, 
 were, the plaintiff's having lived happily with his wiffe befqre her 
 connection with the defendant ; the unblemished character and 
 antecedent virtuous behaviour of the wife ; a provision having 
 been made for the children of the marriage by settlement or 
 otherwise ; and other similar topics, which the extraordinary cir- 
 cumstances of the individual case might furnish (gf). PrObf was 
 frequently adduced of the defendant being a man of fortune, by 
 calling his banker, or producing a settlement, under which he was 
 entitled to any estate real or personal. But in James v. Bidding- 
 ton, 6 C. & P. 589, Alderson, J., rejected evidence of this descrip- 
 tion, observing, that the amount of the defendant's property was 
 
 (e) Edwards v. Crock, 4 Esp. N. P. C. wife were not servants. 
 
 89 ; Kenyan, C.J., Trelwumey v. Cole- (/) Soare v. Allen, 3 Esp. N. P. C. 
 
 man, 1 B. & A. 90, S. P. ; and 2 Stark. 276. 
 
 191. But in this case the husband and (g) Bull. IT.- P. 27, 
 
ADULTEEY. 27 
 
 not a question in the cause. So Gresswell, J., in a case in the 
 Divorce Court, refused to admit such evidence, as it did not appear 
 that the co-respondent had used his fortune as a means of seduc- 
 tion (A). And in another case, where evidence had been given 
 that the co-respondent was a partner in a large brewery, the same 
 judge told the jury "that it was not a question what the co- 
 respondent was worth, because if he could not pay in purse he 
 must pay in person ; but if a man made use of his wealth in 
 order to corrupt a woman, the jury might conclude that she was 
 not easily corrupted, and therefore of more value to her hus- 
 band " (i). 
 
 Circumstances of extenuatioi^ on the part of the defendant, and 
 which might tend to the mitigation of the damages, were the 
 plaintiff's ill usage or unkind treatment of his wife ; evidence of 
 his intolerable ill temper, of his having turned his wife out of 
 his house, and refused to maintain her, &c., previously to the 
 adulterous intercourse (k) ; gross negligence or inattention of the 
 plaintiff to his wife's conduct, with respect to the defendant (Q ; 
 the wanton manners of the wife, or first advances made by her to 
 the defendant (m) ; a prior elopement of the wife and adulterous 
 intercourse with another person, or having had a bastard before 
 marriage (n) ; because by bringing this action the husband put the 
 general behaviour of the wife in issue. So letters written by the 
 wife to the defendant before his connection with her, soliciting a 
 criminal intercourse, &c., might be given iu evidence (o). But the 
 defendant was not permitted to prove acts of misconduct of the 
 wife subsequent to the commission of the act complained of in the 
 action (p). 
 
 In a case (said to have been unprecedented) where the wife was 
 dead before the trial of the action, Coleridge, J., told the jury that 
 they must award damages for the loss of the society of the wife, 
 &c., down to the time of the death only (q). 
 
 It has been supposed that in this action a new trial could not 
 be granted for excessive damages (r) ; " but where it appeared to 
 the court, from the amount of the damages given, as compared 
 with the facts of the case laid before the jury, that the jury must 
 have acted under the influence, either of undue motives or some 
 gross error or misconception on the subject, the question was sub- 
 
 (h) Covniig V. Cowing and Urllen, 33 ()i) Eobertsr. Malslon, Hereford, 17 i5, 
 
 L. J. Mat. 149. per Willes, C.J., GUb. Evid. 113, ed. 
 
 (i) Foster y. Foster and Berridge, u. 1731 ; Bull. N. P. 296, S. C. 
 
 (1) to preceding case. (o) Per Lord Kenyan, C.J., Elsam v. 
 
 {k) Bull. N. P. 27. Fawcett, 2 Esp. N. P. C. 662. 
 
 (l) Per Buller, J., in DuherUy v. {p) Ibid. 
 
 Gunning, 4 T. R. 657. (?) Wilton v. Webster, M.D., 7 C. & P. 
 
 (m) Per Lord Ellenborough, C.J., in 198. 
 
 GarcZmerv. /«(iis, March 2, 1805, London (?•) &ee Wilford v. BerTceley, 1 Burr. 
 
 Sittings. 609 ; Duberley v. Gunning, i T. E. 651. 
 
^8 ADULTERY. 
 
 raitted to the consideration of a second jury (s). So if the verdict 
 was very much against the weight of evidence, the court would 
 grant a new trial on payment of costs (t). With respect to 
 damages, however, the court never interfered, unless they were 
 very excessive, or a strong case was made out to show that the 
 jury had taken a perverted view of the matter (u). 
 
 Upon a petition containing a claim for damages against the 
 adulterer under the 20 & 21 Vict. c. 85, the court has power to 
 direct in what manner the damages given by the jury shall be 
 paid and applied, and to direct that the whole or any part thereof 
 shall be settled for the benefit of the children (if any) of the mar- 
 riage, or as a provision for the maintenance of the wife (x). 
 
 Costs. — By sect. 34 of the 20 & 21 Vict. c. 85, " whenever in 
 any petition presented by a husband the alleged adulterer shall 
 have been made a co-respondent, and the adultery shall have been 
 established, it shall be lawful for the court to order the adulterer 
 to pay the whole or any part of the costs of the proceedings ; " and 
 by sect. 51, it is further enacted, that " the court on the hearing of 
 any suit, proceeding or petition under this act, and the House of 
 Lords on any appeal under this act, may make such order as to 
 costs as to such court or to such house respectively may seem just : 
 provided always, that there shall be no appeal on the subject of 
 costs only." 
 
 (s) Chambers v. Caulfidd, 6 East, 256. 1 Man. & Gr. 225 ; 1 Scott, N. R. 118. 
 
 (t) MelKn v. Taylor, 3 Bing. K C. N.— The action was for false imprison- 
 
 109 ; 8 Sc. 513. ment. 
 
 (u) PerTindaJ, Q.3.,Edgell \. Francis, (x) Sect. 33, ante, p. 8. 
 
CHAPTER III. 
 
 AMENDMENT UNDER THE COMMON LAW PROCEDURE 
 
 ^TS. 
 
 PAGE 
 
 I. 15 & 16 Vict. c. 76, s. 222, 17 & 18 Vict. c. 125, s. 96, and 
 
 23 & 24 Vict, c. 126, s. 36, and their General Effect . 30 
 
 II. Amendments, by whom to be made 31 
 
 III. Amendments, when and how to be Tnade . . .31 
 
 IV. What Amendments allowed 33 
 
 V. Am,endments in case of Nonjoinoder and Misjoinder 
 
 of Parties 36 
 
 FoEMEELT amendments could only be made at chambers, but 
 the 9 Geo. IV. c. 15, empowered the judge at the trial to amend 
 in the case of a variance "between any matter in writing or 
 in print produced in evidence, and the recital or setting forth 
 thereof upon the record." This power was extended by the 3 & 4 
 Will. IV. c. 43, s. 23, enabling him (a) to amend "when any variance 
 shall appear between the proof and the recital, or setting forth on 
 the record, &c., of any contract, custom, prescription, name, or other 
 matter in any particular or particulars in the judgment of such 
 court or judge, not material to the merits of the case, and by which 
 the opposite party could not have been prejudiced in the conduct 
 of his action, prosecution, or defence." The 24th section enacts, 
 " that the court or judge shall and may, if he or they think fit, in 
 aU such cases of variance, instead of causing the record or docu- 
 ment to be amended, direct the jury to find the facts according to 
 the evidence, and thereupon such finding shall be stated in such 
 record or document, and notwithstanding the finding on the issue 
 joined, the court .... shall, if they think the variance immaterial 
 to the merits of the case, and the misstatement such as could not 
 have prejudiced the opposite party in the conduct of the action or 
 defence, give judgment according to the very right and justice of 
 
 (a) By the 18th sect, the like powers his deputy or judge, at the ti'ial of an 
 of amendment are given to the sheriif or issue. 
 
30 AMENDMENT. 
 
 the case " (b). These enactments are not repealed, although they 
 are almost entirely superseded by the Common Law Procedm-e 
 Acts of 1852, 1854' and 1860. 
 
 I. The 15 & 16 Vict. c. 76, s. 222, the 17 & 18 Vict. c. 125, s. 96, 
 and the 23 & 24 Vict. c. 126, s. 36. 
 
 By the 222d section of the Common Law Procedure Act, 
 1852 (c), after reciting that the power of amendment then vested 
 in the courts and the judges thereof was insufficient to enable 
 them to prevent the failure of justice by reason of mistakes 
 and objections of form, it is enacted, that "it shall be lawful 
 for the superior courts of common law, and every judge thereof, 
 and any judge sitting at Nisi Prius, at all times to amend all 
 defects and errors in any proceeding in civil causes, whether 
 there is anything in writing to amend by or not, and whether 
 the defect or error- be that of the party applying to amend or 
 not ; and all such amendments may be made with or without 
 costs, and upon such terms as to the court or judge may seem fit ; 
 and all such amendments- as may be necessary for the purpose of 
 determining, in the existing suit, the real question in controversy 
 between the parties shall be so inade." 
 
 By the Common Law Procedure Act, 1854 (d), it is enacted, 
 that " it shall be lawful for the superior courts of common law, and 
 every judge thereof, and any judge sitting at Nisi Prius, at all 
 times to amend all defects and errors in any proceedings under 
 the provisions of this act, whether there is • anything in writing to 
 amend by or not, and whether the defect or error be that of the 
 party applying to amend or not ; and all such amendments may be 
 made with or without costs, and upon such terms as to the court 
 or judge may seem fit ; and all such amendments as may be 
 necessary for the purpose of determining in the existing suit the 
 real question in controversy between the parties shall be so made, 
 if duly applied for." The 36th section of the Common Law Pro- 
 cedure Act of 1860 is in the same words. 
 
 These enactments, it will be observed, are in substance the same, 
 the only difference being that the latter of them is unclogged by 
 the preamble as to "objections of form" in the' former (e), and 
 introduces the words " if duly applied for." The 69th section of 
 the Common Law Procedure Act, 1854, also appears to be treated 
 by the courts as applicable to all proceedings in civil cases, not- 
 withstanding that the section in terms applies only to proceedings 
 under that act (/). " I think," sayg Mr. Baron ParJce, " we ought 
 
 (6) The cases on this statute wiU be {d) 17 & 18 Vict. c. 125. s. 96. 
 
 found m the notes to Chitty Statutes, tit. (e) See May v. Footner, 5 E. & B. 
 
 Amendment. 5Qg_ 
 
 (c) 15 & 16 Vict. c. 76, (/) im. ; and Brennan v. Howard, 
 
AMENDMENT. 31 
 
 to extend the power of amendment as far as we reasonably can, in 
 order to prevent the parties from being tripped up by technical 
 objections " (g). The object of any proposed amendment must be 
 to determine, in the existing suit, the real question in controversy 
 between the parties. This provision, in the earlier stages of the 
 action, would probably scarcely ever, according to the practice, 
 preclude an amendment. In respect to amendments at the trial, 
 however, " it was intended to limit the power of amendment to the 
 introduction of matters which the parties hoped and intended to 
 try in the cause, and not to authorise amendmeiits which might 
 raise questions which never were contemplated before" (h). And 
 it is for the judge at the trial, looking at the record and the 
 evidence, to decide what is the rSal question in controversy between 
 the parties (i). But a writ issued under the Bills of Exchange 
 Act may be amended so as to appear as an ordinary writ specially 
 indorsed, since the real question to be decided is, whether or not 
 the plaintiff is entitled to recover against the defendant the amount 
 of the bill (yfc). 
 
 It is no objection to-the allowance of an amendment that it takes 
 away a, right of action or defence which should otherwise be vested 
 in the opposite party (I). 
 
 II. Amendments, hy whom to~he made. 
 
 The Act of Parliament includes the superior courts and the 
 judges thereof, or any judge sitting at Nisi Prius ; but does not 
 extend to the sheriff or other person presiding at the trial of a 
 cause under a writ of trial (■to). Whether or not an arbitrator has 
 power to amend under an order of reference at or before trial, will 
 depend upon the terms of the reference. When a reference was 
 " by consent, order upon the usual terms,'' it was held that he had 
 such power (n). 
 
 III. Amendments, when and how td he made. 
 
 Amendments may be made at all times (o). Thus amendments 
 may be made in the writ (p) or other proceeding before trial, or at 
 
 1 H. & N. 138. See, however, Leigh v. HocJcin, 1 E. & B. 602. 
 
 £aker, 2 C. B., S. S. 376. (m) Wickes v. Grove, 2 Jur., N. S. 
 
 (g) In Wilkinson v. Sharlamd, 11 212. 
 Exch. 36. (w) Thompsett v. Bowyer, 9 C. B., 
 
 {h) Per MduU, J., in Wilkm v. Seed, N. S. 285. 
 15 0. B. 192. (o) 15 & 16 Yiot. c. 76 ; 17 & 18 Vict. 
 
 (i) Wilkin V. Seed, 15 C. B. 192 ; Web- c. 125,, s. 96. 
 ster V. Emery, 10 Exch. 907. (p) Knight v. Pocock, 17 C. B. 177 ;, 
 
 (S) Zeigh v. Haker, 2 C. B., N. S. Leigh v. £aker, 2 C. B., N. S. 367 ; 
 
 367 ; KnigMY. Pocock, 17'C. B. 177. Cornisli\. Eockin, 1 E. & B. 602; and 
 
 ' (Vj See per Erie, J., iix Cornish v. sseQilsonv. Varley, 7 E. & B, 49. 
 
32 AMENDMENT. 
 
 the trial, or by the court in banc after the trial (g), or even after judg- 
 ment and commencement of proceedings in error (r). In the latter 
 case, if the appKcation is made before the day of sitting of the court 
 of error, it must be made to the court below, since the record is not 
 removed into the court of error until that day (s). The particulars 
 of demand may be amended, and that after the cause has been re- 
 ferred compulsorily under the Common Law Procedure Act, 1854 (t) : 
 there would, however, be a difficulty in amending them at the trial. 
 
 It is not quite clear how far the court in banc has power to 
 review the decision as to amendments of a single judge sitting at 
 chambers or at Nisi Prius (u). Although the judges have held dif- 
 ferent opinions upon the point, perhaps that of Pollock, C.B., may 
 be considered the soundest : " We (the court) have of necessity a 
 power to review every such decision, and to do wtiatever is neces- 
 sary to ensure substantial justice, and for that purpose we might 
 interfere in many cases where we do not ordinarily interfere, but I 
 think it is for the judge to exercise his discretion, and as a general 
 rule we ought not to interfere " (v). Perhaps it may be laid down 
 as a rule that a court will not interfere with the discretion of the 
 judge at the trial, unless it appear affirmatively that injustice has 
 in fact been worked thereby (x). A court of error will not on 
 demurrer inquire into the propriety of an amendment stated in 
 the pleadings to have been allowed by a judge, and which the 
 judge had jurisdiction to make {y). The judge frequently allows 
 an amendment, subject to the opinion of the court as to its pro- 
 priety {z). In an action for falsely representing the receipts of a 
 public-house, the declaration alleged the agreement of purchase to 
 be for " goodwill, furniture, fixtures, &c.," whereas the word " good- 
 will" was not in it, and the judge nonsuited, giving leave to enter 
 a verdict, but refused to make an amendment, or to reserve leave 
 to amend, Erie, C.J., after argument of a rule nisi for entering 
 the verdict, first stating his impression that an amendment was 
 not needed, added, " the case is one in which the court has power 
 to^ amend, and in which it ought, if it were necessary, to exercise 
 it," and the rest of the court concurred (a). 
 
 An omission in a writ of summons or copy, whether under the 
 Bills of Exchange Act or otherwise, may be amended upon a motion 
 
 (?) Edwards v. Hodges, 15 C. B. 477 ; Morgcm v. Pike, 14 C. B. 483. See, 
 
 ParaoBS T Alexamder 5 E. & B. 263. however, Brennan v. Howard, 1 H. & 
 
 (r) Willanson v. Sharland, U Excli. N. 138. 
 
 33. The amendment was the introduc- \v) JBrennan v. Houmrd, 1 H & N". 
 
 taon of the words for money payable," ] 38. See, for other opinions, Wilhn y. 
 
 &o., at .the commencement of the money Heed, 15 C. B. 192 ; Morgan v. Pike, 
 
 counts. Hooper v. Lane, 3 Jur., N. S. 14 C. B. 483 ; Holden w. Ballantyne, 
 
 1026. 29 L J 149 
 
 W ^^'''">y:f«^^''Ms'^ra. {X) Tennyson v. ffBrien, 5 E. & B. 
 
 {t) Chbbs V. Knightly, 2 H. & N. 34 ; 501 
 
 and see Cannon v Reynolds, 5 E. & B. (y) Webster v. Emery, 10 Exch. 901. 
 
 10 Exch. 901, 5. C. ; 2 Arch. Pr. 1362, (a)- Cater v Wood 19 f R W S 
 
 iu) Wilkin V. Reed, 15 C. B. 192; 286. ' ' 
 
AMENDMENT. 33 
 
 to set aside the writ or copy and service (b). And also a writ 
 issued in one of the forms given by the Common Law Procedure 
 Act, 1852, by mistake for another of them, may be amended on an 
 ex parte application without costs (c). 
 
 IV. What Amendments allowed. 
 
 Writs of summons are, as above observed (d), in general 
 amendable ; there is no power, however, to amend by ante- 
 dating a writ for the purpose of saving the Statute of Limi- 
 tations, since the fifth section of the Common Law Procedure 
 Act provides, that the " writ shall bear date on the day on which 
 the same shall be issued " (e).* Amendments by adding counts 
 are usually made on terms if applied for a sufficient time 
 before trial as a matter of course (/). And the judge has the 
 power to add a count at the trial, provided the subject matter of 
 the proposed count has been sufficiently in dispute between the 
 parties in the suit (jf). Thus, in an action for inducing the 
 ■ plaintiff, a surgeon, to attend a case of accident by falsely repre- 
 senting that the defendant wa,s authorised by a railway company 
 to employ him, a count for work and labour was added at the trial, 
 the defendant being at liberty to plead payment into court to the 
 added count Qi). In an action for an excessive distress, the decla- 
 ration not averring that the whole sum distrained for was not due, 
 with a count for selling before the expiration of the five days, an 
 application to amend by adding a count for distraining and selling 
 goods to satisfy more rent than was due, was held to have been 
 properly refused at the trial, on the ground that it was not a 
 matter in dispute in the action (i). In respect to adding pleas, a 
 similar rule prevails (k), subject to the observation that it is not 
 imperative on the court to allow a substituted plea even before 
 trial, and such substituted plea will not be allowed where it is 
 sought to place a new and improper defence on the record. Thus, 
 after issue joined on a plea of never indebted to a declaration for 
 money lent, the court refused the defendant leave to substitute a 
 plea that the money was lent for the purpose of purcliasing shares 
 in a foreign lottery, and reselling them in England (I). So in an' 
 action on a contract to smuggle goods to New York, an amend- 
 ment was refused at the trial, because the court declined to assist 
 
 (6) Krdght v. PococJc, 17 C. B. 177; 287 : 1 Arch. Pr. 186. 
 
 Leigh V. Baker, 2 C. B., N. S. 367 ; 15 (/) See Arch. Pr. 209. 
 
 & 16 Vict. c. 76, s. 20. (g) Taylor v. Shaw, 1 C. L. R. 1057 ; 
 
 (c) 15 & 16 Vict. c. 76, s. 21. See Hobson v. Turnbull, 1 F. & F. 365 ; 
 Green v. Braddyl, 1 H. & N. 69. Wiclces v. Grove, 2 Jur., N. S. 212 ; 
 
 (d) Ibid. Morgan v. Pilce, 14 C. B. 473. 
 
 (e) Clarke v. Smith, 2 H. & N, 753. (Ti) Eobson v. Turnbull, 1 F. & F. 365. 
 As to amendments to save the Statute of (i) Lucas v. Tarleton, 3 H. & N". 116. 
 Limitations,see further Cor!i!s/iT.//ocim, {k) See Edwards v. Hodges, 15 C. B. 
 1 E. & B. 602 ; Cowbiirn v. Weariiig, 9 477 ; Adams v. Smith, 1 F. &. F. 311. 
 Exch. 207 ; Crawford v. Cocks, 6 Exoh. (I) Ritchie t. Van Gelder, 9 Exch. 762. 
 
 VOL. L ^ 
 
Si AMENDMENT. 
 
 the plaintitf to enforce a contract to defraud a foreign govern- 
 ment (m). There is a difference of opinion, however, amongst the 
 judges as to whether the nature of the action or defence ought to 
 be looked to in determining whether an amendment should be 
 allowed (n). Case for negligent driving, pleas, not guilty and not 
 possessed ; at the trial, Jervis, C.J., allowed a plea that the cart 
 and horse were not being used in the plaintiff's employ at the time 
 of the occurrence to he added ; but the point was not decided by 
 the court in banc because the defence was admissible already, 
 under not guilty (o). The omission of a statute from the margin, 
 a plea of " not guilty by statute," may be amended at or after the 
 trial (p). 
 
 The' following examples will show the sort of amendments that 
 may be made and the terms imposed. In a declaration for not 
 accepting a cargo contracted to be delivered at a given time, 
 averring readiness to deliver accordingly, an amendment by aver- 
 ring that the shipment was delayed at the defendant's request, and 
 that the plaintiff was exonerated from delivering until a later day, 
 was allowed at the trial, and it was held that the judge properly 
 refused to postone the trial, no injustice being suggested to have 
 been done to the defendant by such refusal (g). In an action-for 
 slander, an amendment averring that the words were spoken of the 
 plaintiff in the way of his trade, was allowed (r). In an action of 
 libel, on its appearing that the substance only of the libel was 
 stated^ the declaration was amended at the trial by inserting the 
 libel as proved, with the words " meaning thereby " immediately 
 before the libel charged in the declaration, and the judge offered 
 to postpone the trial (s). In an action for obstruction to a water- 
 course, where the evidence proved a narrower right than that 
 declared upon and exercised in fact, the right having been traversed, 
 an amendment according to the restricted right proved was re- 
 fused {t). In an action for giving to the plaintiff a false character 
 of a clerk, however, by saying that he had been dismissed on 
 account of a decrease in the defendant's business, " when in truth 
 he had been dismissed for dishonesty," an amendment to substitute 
 an averment that he had, whilst in the service, been guilty of dis- 
 honesty, was refused at the trial (u). In an action for dismissing 
 a commercial traveller, the declaration stated a yearly service, the 
 evidence showed an usage in the trade for dismissal on three 
 months' notice ; the court considered that an amendment should 
 have been allowed without costs (cc).. To a declaration for dismiss- 
 
 (m) Brennan v. Howard, 1 H. & N. 497. 
 138. (r) RamsdaU t. Greenacre, 1 F. & F. 
 
 {n) Per Crowder, J., in Holmes v. 61. 
 Bury, 1 F. & F. 374. (s) Saunders v. Bate, 1 H. & K 402. 
 
 (o) Mitchell v. Crassweller, 13 C. B. (i!) Cawkwell v. Russell, 26 L. J., 
 
 237. Exch. 34. 
 
 (p) Edwards r. Hodges, 15 C. B, 477. (u) WilJdn v. Reed, 15 0. B. 192. 
 
 (j) Tennyson v. O'Brien, 5 E. & B. [x) Metzner v. Bolton, 23 L. J., Exoli, 
 
AMENDMENT. 35 
 
 ing the plaintiff from his engagement as an actor, the defendant 
 pleaded payment into court of 32^., which the plaintiff, under a 
 mistaken notion that the declaration entitled him to recover that 
 sum only, took out in satisfaction, and the costs were taxed and 
 paid by the defendant. Mr. Baron Parhe afterwards, on the 
 plaintiff's application, made an order that the replication and 
 subsequent proceedings should be set aside, on payment of costs 
 and repayment of the 32Z. paid into court, and the costs paid by 
 the defendant ; the plaintiff to be at liberty to amend his decla- 
 ration and particulars of demand, and the defendant to plead 
 de novo {y). In trover, an amendment to substitute a count in 
 assum/psit for non-delivery of the goods, was, under particular 
 circumstances, refused {z). Trtfepass, q. c. /.; pleas {inter alia) 
 that the close was not the plaintiff's, and liberum tenementum. 
 On the trial it appeared that the real question in controversy was, 
 whether the soil in a lane passing between a field of the plaintiff's 
 and a field of the defendant's was the freehold of one or the other. 
 The evidence showed that the plaintiff's field was in the occupa- 
 tion of a tenant. Held, that an amendment of the count into one 
 for injury to the plaintiff's reversion was properly, made by the 
 judge at the trial {a). But in a declaration for false imprisonment 
 on a charge of felony, an amendment substituting a charge of 
 assault was refused (&). Upon a trial by the record, the court will 
 amend a variance in the declaration in the date (c) or amount {d) 
 of the judgment recovered. Where, in an action on a bill of 
 exchange, it appeared that the bill was accepted by defendant's 
 partner in the name of the firm, and included a private debt due 
 from the partner as well as a debt due from the firm, the court 
 amended the declaration by adding a count for the consideration, 
 so that a verdict could be entered for the sum really due from the 
 firm (e). 
 
 No amendment which would afford reasonable ground for a 
 demurrer ought' to be made at the trial (/). An objection, how- 
 ever, that the amendment has made the plea defective in point of 
 form, must be taken, if at all, at the time it is applied for {g). 
 The judge at Nisi Prius may make successive amendments, or 
 resciijd amendments in order to meet successive objections Qi). 
 
 Although the court has power to amend a special case when the 
 amendment is clearly necessary to raise the substantial question 
 which the parties intended to i-aise, yet the court has no power, 
 
 130. As to costs in such case further, (c) Noble v. Chapman, 14 C. B. 400. 
 
 Buckland v. Jolmson, 23 L. J., C. P. {d) Hunter T. Emmanuel, 15 C. B. 
 
 204. 290. 
 
 (y) Webster v. Emmery, 10 Exch. 901 ; (e) EUstonv. Deacon, 2 L. B. 20, C. P. 
 
 Emery v. Webster, 9 Exch. 242. (/) Martyn v. Williams, 1 H. & N". 
 
 (s) Unmn v. AdaTns, 1 F. & F. 312. 817, ; Hughes v. Bury,l F. & F. 374. 
 
 (a) May v. Footner, 6 E. & B. 505; (g) Buckland v. Johnson, 14 L. J., 
 
 and see Adams v. Smith, 1 F. & F. 311 . C. P. 204. 
 
 ifi) Howe Y. Hawkins, 1 F. & F. 91, (/t) Morgan v. Pike, 14 C. B. 473. 
 
 D 2 
 
86 AMENDMENT. 
 
 without the consent of both parties, to vary a special, for the pur- 
 pose of raising a different, question (i). 
 
 A rule of court, although made absolute, may, under special 
 circumstances, be amended (Jc). 
 
 V. Amendmient in case of Nonjoinder or Misjoinder. 
 
 The 222nd section of the act (l) does not apply to a case of mis- 
 joinder or nonjoinder of parties (m), such cases being provided for 
 by ss. 34 — 39. In a case of ejectment by mortgagee of devisee against 
 heir at law, it appearing at the trial that the devisee was a cestui 
 que trust, an amendment was made by adding the names of the 
 trustees as plaintiffs, with their consent, and the court held that, 
 although section 35 might not apply to ejectment, the judge had 
 power to make the amendment under section 222 (n) ; but it 
 would seem, however, that this case is of very doubtful autho- 
 rity (o). When a foreign bank sued in a corporate name by which 
 it was known, and the defendant pleaded that it was not a body 
 corporate, the court allowed the writ and all subsequent proceed- 
 ings to be amended under section 222, upon the payment of costs, 
 by inserting the name of a director as nominal plaintiff; but this 
 was not adding a new plaintiff, but rather correcting a mistake in 
 the name of the plaintiff (p). Much less has a judge or the court 
 any power to amend at the trial, or at any other time, under any 
 section, by adding a defendant, except after a plea in abate- 
 ment (s. 38). Thus where, in an action against a husband, it 
 appeared that the goods had been sold to the wife dum sola, it 
 was held that the judge had no power to amend by making the 
 wife a co-defendant (g). A wrong person having been sued, the 
 judge at the trial amended by substituting the name of the person 
 really intended to be sued for that of the defendant on the record, 
 and directed a verdict to be entered against him, "sued as," &c., 
 and the court refused to order a verdict to be entered for the 
 defendant named originally on the record for the purpose of 
 enabling him to get costs, there being suspicion of collusion (r). 
 
 There is no power to smend by substituting one plaintiff for . 
 another, under any section. Thus where an action is commenced 
 
 (i) Mersey Bocks v. Jones, 8 C. B., (n) Blake v. Done, 7 H. & N. 466. 
 
 yi. S. 12i; Noimcmv. Anchor Insurance (o) Garrard v. GuibUei, 13 C. B., 
 
 Co., 6 C. B., N. S. 536. N. s. 837. Blackburn, J. 
 
 (J) Siller V. Eolman, 14 C. B., N. S. (p) La Banca NazionaU Sede di Torino 
 
 336. ^ V. Hamburger, 2 H. & C. 330. 
 
 (I) See anu;^. 30. (y) Garrard v. QuiUlei. 
 
 {m) Wickens v. Steel, 2 C. B., N". S. (r) Podmore v. Schmidt, 17 C. B., 
 
 488 ; 26 L. J., C. P. 241, S. C; Eoison S. S. 725 
 V. Doyle, 3 E. & B. 396. 
 
AMENDMENT. 37 
 
 in the name of a dead man, his representatives cannot be substi- 
 tuted as plaintiffs (s). 
 
 By the Common Law Procedure Act, 1852, s. 34, "it shall and 
 may be lawful for the court, or a judge, at any time before the 
 trial of any cause, to order that any person or persons, not joined 
 as plaintiff or plaintiffs in such cause, shall be so joined ; or that 
 any person or persons, originally joined as plaintiff or plaintiffs, 
 shall be struck out from such cause, if it shall appear to such 
 court or judge that injustice will not be done by such amendment, 
 and that the person or persons to be added as aforesaid consent, 
 either in person or by writing under his, her, or their hands, to be 
 so joined, or that the person or persons to be struck out as afore- 
 said, were originally introduced*without his, her, or their consent, 
 or that such person or persons consent in manner aforesaid to be 
 so struck out ; and such amendment shall be made upon such 
 terms as to the amendment of the pleadings (if any), postpone- 
 ment of the trial, and otherwise, as the court or judge, by whom 
 such amendment is made, shall think proper (<) ; and when any 
 such amendment shall have been made, the liability of any person 
 or persons who shall have been added as co-plaintiff or co-plain- 
 tiffs, shall, subject to any terms imposed as aforesaid, be the same 
 as if such person or persons had been originally joined in such 
 cause." 
 
 By sect. 35, — " In case it shall appear at the trial of any action, 
 that there has been a misjoinder of plaintiffs, or that some person 
 or persons, not joined as plaintiff or plaintiffs, ought to have been 
 so joined, and the defendant shall not, at or before the time of 
 pleading have given notice in writing that he objects to such 
 nonjoinder, specifying therein the name or names of such person 
 or persons, such misjoinder or nonjoinder may be amended, as a 
 variance at the trial by any court of record holding plea, in civil 
 actions, and by any judge sitting at Nisi Prius, or other presiding 
 officer in like manner as to the mode of amendment, and proceed- 
 ings consequent thereon, or as near thereto as the circumstances of 
 the case will admit, as in the case of amendments of variances 
 under 3 & 4 Will. IV. c. 42, if it shall appear to such court or 
 judge or other presiding officer, that such misjoinder or nonjoinder 
 was not for the purpose of obtaining an undue advantage, and that 
 injustice will not be done by such amendment, and that the person 
 or persons to be added as aforesaid consent, either in person or by 
 writing under his, her, or their hands, to be so joined, or that the 
 person or persons to be struck out as aforesaid, were originally 
 introduced without his, her, or their consent, or that such person or 
 persons consent, in manner aforesaid, to be so struck out, and such 
 amendment shall be made upon such terms as the court, or judge, 
 
 (») Clay V. Oxford, 2 L. B. 54 Exch. (t) See Williams v. Groves, 1 F. & F. 
 
 S41. 
 
S8 AMENDMENT. 
 
 or other presiding officer, by whom such amendment is made, shall 
 think proper; and when any such amendment shall have been 
 made, the hability of any person or persons, who shall have been 
 added as co-plaintiff or co-plaintiffs, shall, subject to any terms 
 imposed as aforesaid, be the same as if such person or persons had 
 been originally joined in such action." 
 
 By sect. 36,— "In case such notice be given, or any plea in 
 abatement of nonjoinder of a person or persons as co-plaintiff or 
 co-plaintiffs, in cases where such plea in abatement may be 
 pleaded, be pleaded by the defendant, the plaintiff shall be at 
 liberty, without any order to amend the writ and other proceed- 
 ings before plea, by adding the name or names of the person or 
 persons named in such notice or plea in abatement, and to proceed 
 in the action without any further appearance, on payment of the 
 costs of, and occasioned by such amendment only, and in such case 
 the defendant shall be at liberty to plead de novo!' 
 
 By sect. 37, — " It shall and may be lawful for the court, or a 
 judge in the case of the joinder of too many defendants in any 
 action on contract, at any time before the trial of such cause, to 
 order that the name or names of one or more of such defendants 
 be struck out, if it shall appear to such court or judge that in- 
 justice will not be done by such amendment ; and the amendment 
 shall be made upon such terms as the court or judge by whom 
 such amendment is made shall think proper ; and in case it shall 
 appear at the trial of any action or contract that there has been a 
 misjoinder of defendants, such misjoinder may be amended, as a 
 variance at the trial, in like manner as the misjoinder of plaintiffs 
 has been hereinbefore directed to be amended, and upon such 
 terms as the court, or judge, or other presiding officer, by whom 
 such amendment is made, shall think proper." 
 
 Where, in an action of contract, one of several defendants 
 appears at the trial not to be liable, the proper course for the 
 plaintiff is to apply at the trial for an amendment under the 87th 
 section above mentioned; and the misjoinder cannot be amended 
 after the trial by the court in banc under sect. 222 (u). The fact 
 of one of several defendants in an action of contract having 
 suffered judgment by default will not preclude an amendment 
 under the 37th section by striking out the name, either of another 
 of the defendants (a;), or of the defendant who has so suffered 
 judgment by default {y). The 37th section does not apply to a 
 case where the party whose name is sought to be expunged has 
 been joined, not by mistake or inadvertence, but designedly, for 
 the purpose of fixing him with hability : therefore, where the 
 
 («) msonj Doyle, Z E & B. 396 ; 851 ; see, however, the remark on this 
 
 Wickens V. Stml, 2 C. B., N. S. 488. case of Byles, Serjt., in Johnson v. Gos- 
 
 (x) Johnson v. OosUtt, 18 G. B. 728. Ult, supra, 18 C. B 742 
 (2/) Onavcs v. Humfries, 4 E, & B. 
 
Amendment. so 
 
 plaintiff's counsel goes to the jury with a view of obtaining a 
 verdict against all the defendants, and fails as against one, the 
 case is not one in which he has a right to ask for the exercise of 
 the judge's discretionary power in his favour {z). And after the 
 verdict has been returned, an application to amend is clearly too 
 late, even though made before the entry of the verdict (a). 
 
 By sect. 38, — '' In an action on contract where the nonjoinder of 
 any person or persons as a co-defendant or co-defendants has been 
 pleaded in abatement, the plaintiff shall be at liberty, without any 
 order, to amend the writ of summons and the declaration by 
 adding the name or names of the person or persons so named in 
 such plea in abatement as joint contractors, and to serve the 
 amended writ upon the person or persons so named in such plea 
 in abatement, and to proceed against the original defendant or 
 defendants, and the person or persons so named in such plea in 
 abatement : provided that the date of such amendment shall, as 
 between the person or persons so named in such plea in abate- 
 ment and the plaintiff, be considered for all purposes as the 
 commencement of the action." 
 
 By sect. 39, — " In all cases after such plea in abatement and 
 amendment, if it shall appear upon the trial of the action that the 
 person or persons so named in such plea in abatement was or were 
 jointly liable with the original defendant or defendants, the 
 original defendant or defendants shall be entitled as against the 
 plaintiff to the costs of such plea in abatement and amendment ; 
 but if at such trial it shall appear that the original defendant or 
 any of the original defendants is or are liable, but that one or 
 more of the persons named in such plea in abatement is or are not 
 liable as a contracting party or parties, the plaintiff shall never- 
 theless be entitled to judgment against the other defendant or 
 defendants who shall appear to be liable ; and every defendant 
 who is not so liable shall have judgment, and shall be entitled to 
 his costs as against the plaintiff, who shall be allowed the same, 
 together with the costs of the plea in abatement and amendment, 
 as costs in the cause against the original defendant or defendants 
 who shall have so pleaded in abatement the nonjoinder of such 
 person : provided that any such defendant who shall have so 
 pleaded in abatement shall be at liberty on the trial to adduce 
 evidence of the liability of the defendants named by him in such 
 plea in abatement." 
 
 The misjoinder of plaintiffs which unless amended was a fatal 
 defeat, is now no longer so, as by the Common Law Procedure Act, 
 1860 (23 & 24 Vict. c. 126, s. 19), it is enacted that, " The joinder 
 of too many plaintiffs shall not be fatal, but every action may be 
 
 («) Wickens v. Steel, 2 C. B., IT. S. such amendments will be made, see 
 488. Cooper v. Saunders, 1 F. & F. 13. 
 
 (a) Ibid. As to the terms on which 
 
40 AMENDMENT. 
 
 brought in the name of all the persons in whom the legal right 
 may be supposed to exist ; and judgment may be given in favour 
 of the plaintiffs by whom the action is brought, or of one or more 
 of them, or in case of any question of misjoinder being raised, 
 then in favour of such one or more of them as shall be adjudged 
 by the court to be entitled to recover : provided always, that the 
 defendant, though unsuccessful, shall be entitled to his costs 
 occasioned by joining any person or persons in whose favour 
 judgment is not given iinless otherwise ordered by a court or a 
 judge." 
 
CHAPTEE III. 
 OF ASSAULT AND BATTERY. 
 
 I. Of the Nature of an Assault and Battery, and in what 
 
 Cases an Action maybe maintained . . .41 
 II. Declaration 45 
 
 III. Pleadings 46 
 
 General Issue . . . . . . . 46 
 
 Justification in Defence of Person . . . .47 
 
 ■ Justification in Defence of Possession . . . . 48 
 
 Justification hy Officers executing Process . . .49 
 
 Other Justifications . . . . . . . 50 
 
 Local and Transitory Justifications . . .50 
 
 Replication . . . . . . . . 51 
 
 IV. Verdict and Judgment 
 
 52 
 
 I. Of the Nature of an Assault and Battery, and in what Cases 
 an Action may he maintained. 
 
 An assault is an attempt, with force or violence, to do a corporal 
 injury to another against his will (a), as by holding up a fist in a 
 menacing manner (6) ; striking at another with a cane or stick, 
 though the party striking misses his aim ; drawing a sword or 
 bayonet; throwing a bottle or glass with intent to wound or 
 strike ; presenting a gun at a person who is within the distance to 
 which the gun will carry ; pointing a pitchfork at a person who is 
 within reach (c) ; or by any other similar act, accompanied with 
 such circumstances as denote at the time an intention (d), coupled 
 with a present ability (e), of using actual violence against the per- 
 son of another, as by defendant and his servants surrounding the 
 plaintiff, tucking up their sleeves and threatening to break his 
 neck if he did not leave their shop (/). For an assault which is 
 
 (a) Christopherson v. Bare, 11 Q. B. 
 473; 17 L. J., Q. B. 109. 
 
 (6) Finch's Law, Bk. 3, c. 9 ; 1 Hawk. 
 P. C. c. 62, s. 1. 
 
 (c) Gennery. Sparks, 6 Mod. 173, 174, 
 and Salk. 79. 
 
 (d) Alderson v. Waistell, 1 C. & K. 
 
 358, per Rolfe, B. 
 
 (e) See Stephens v. Myers, 4 C. & P. 
 349, Tindal, C.J., ; R. v. St. George, 9 
 C. & P. 492. 
 
 (f) Read v. Coker, 13 C. B. 850 ; 22 
 L.J., C. P. 201. 
 
42 ASSAULT AND BATTEEY. 
 
 considered as an inchoate violence the law has provided a remedy 
 by an action of trespass at the suit of the injured party for the 
 recovery of damages commensurate to the injury sustamed. 
 Whether the act shall amount to an assault must in every case be 
 collected from the intention. Trespass for assault: Plea, son 
 assault demesne. Eeplication, de mjurid.^ The defendant and 
 another person were fighting, and the plaintiff came and took hold 
 of the defendant by the collar, in order to separate the combatants, 
 whereupon the defendant beat the plaintiff. The plaintiff's coun- 
 sel offering to enter into this evidence, it was objected on the 
 other side that the plaintiff ought to have replied this matter 
 specially; but Legge, Baron, overruled the objection, observing 
 that the evidence was not offered by way of justification, but for 
 the purpose of showing, that- there was not any assault, for it was 
 the quo animo which constituted an assault, which was matter to 
 be left to a jury (^f), " No words can amount to an assault, 
 though, perhaps, they may in some cases serve to explain a doubt- 
 ful action ; as if a man were to lay his hand upon his sword, and 
 say, ' // it were not assize time, he would not take such language.' 
 These words would prevent the action from being construed an 
 assault, because they show he had no intent to do him any cor- 
 poral hurt at that time "(A). Where a policeman obstructs a 
 person entering a roorn, rernaining passive and merely opposing 
 his body as any inanimate object to the entrance of the person 
 into the room, this is not an assault {i). Where there has been 
 criminal intercourse, accompanied in the first instance with some 
 degree of violence, an action is maintainable for the assault (/<;). 
 In an action by a woman for assault on her, stating that the 
 assault was followed by a rape and that she had not prosecuted 
 the defendant, the judge nonsuited her (Q. 
 
 A battery, which always includes an assault (m), is an injury 
 indicted on a person by beating, either with the hand or an in- 
 strument, or by any substance put or continued in motion by 
 him (n) ; by throwing water even (o). If A. beats the horse of B., 
 whereby he runs against C, A. is the trespasser and not B. So if 
 A. takes the hand of B., and with it strikes C, A. is the trespasser 
 and not B. (p). The form of action in the case of battery is the 
 
 (.9) Griffin v. Parsons, Gloucester Lent which the action is brought will not 
 
 Assizes, 1754, MS., cited arg. in Ifall v. compel the plaintiff to make his election 
 
 Feamly, 3 Q. B. 920. to pursue either one or the other. Jones 
 
 (h) Bull, JSr. P. 15. V. Clay, 1 B. & P. 191. See 9 Geo. IV. 
 
 (i) JmKS V. Wylie, 1 C. & K. 257, per c. 31, infra. 
 Denirum, C.J. (i) Wellock v. Constantine, 32 L. J., 
 
 (k) Desborough v. Eom£s, 1 Fost. & Ex. 285. 
 Finl. 6. For the law relating to indict- (m) Termes de la Ley, Battery ; Com. 
 
 ments for assault and battery, see 1 Dig. Battery. 
 
 Hawk. P. C. ch. 62, ss. 1, 2 ; 1 East's [n) EawHns v. Till, 3 M. &. "W. 28 ; 
 
 P. C, ch. 8, 3. 1. The party injured 6 Dowl. 169, S. C. 
 may proceed by action and indictment (0) P'u/rsell v. Horn, 8 A. & E. 602. 
 
 for the same assault, and the court iu (p) Per our. Giibomx. Pepper, Salk. 
 
ASSAULT AND BATTEEY. 43 
 
 same as that in assault, viz., an action of trespass. In order to 
 maintain this action, it is immaterial whether the act of the 
 defendant be wilful or not. Neither does the degree of violence 
 with which the act is done make any difference (q). Hence this 
 action lies against a soldier who hurts his comrade while they are 
 exercising, unless the defendant can show such circumstances as 
 will make it appear to the court that the injury done to the 
 plaintiff was inevitable (r), and that the. defendant was not charge- 
 able witb any negligence : the merely pleading that the defendant 
 committed the injury casualiter et per infortunium et contra vo- 
 Iwntatem, suam is not sufficient, for no man shall be excused of a 
 trespass unless it may be judged utterly without his fault. The 
 defendant was uncocking a gun^ and the plaintiff standing to see 
 it, it went off, and wounded bim : it was held that the plaintiff 
 might maintain trespass (s). 
 
 This action lies not only against him who commits the injury, 
 but against him also at wbose command it is done(Q, and whether 
 that command is directed against a particular person by name, or 
 by an illegal order against a class of persons of whom the plaintiff 
 is one (u). It lies against a corporation for the acts of their 
 servants, even without a previous command, provided the act of 
 the servant might have been for the company's benefit and they 
 have ratified it, which they may do without an instrument under 
 seal (x). And the same law of ratification holds with regard to 
 individuals, provided the party actually committing the assault, 
 &c., holds himself out as acting for the defendant (y). Where the 
 defendant hired a caniage and horses, and the horses were driven 
 by postilions, servants of the owner of the horses, the defendant 
 sitting on the box, and the defendant at the time of the accident 
 and subsequently held himself out as responsible, and used ex- 
 pressions showing that he had a control over the postilions 
 at the time it happened, he was held liable in trespass to the 
 plaintiff, whose gig had been overturned by the carriage (z). But 
 a person who requests another, his servant in that behalf, to 
 remove one making a disturbance from his house, is not respon- 
 sible for excess of force or violence in carrying out his command, 
 although perhaps he may be accountable for a negligent perform- 
 ance of his orders (a). 
 
 638 ; Lord Eaym. 39 ; and see Oilbert- (x) Eastern Counties Railway Company 
 
 son V. Richardson, 5 C. B. 602 ; 17 L. v. Sroom, 6 Excli. 314 ; 20 L. J. 196 
 
 J., C. P. 112. (Exch.) ; and see Sharrod v. London and 
 
 '\q) Per he Blwnc, J., 3 East, 602. North-Western Railway Company, 7 D. 
 
 (r) Weaver v. Ward, Hob. 134. & L. 213 ; 4 Exch. 580. 
 
 (s) Underwood v. Hewson, Str. 396. (y) Wilson v. Tummon, 1 D. & L. 
 
 (t) 1 Roll. Abr. 655, (V.), pi. 2. 513 ; 12 L. J., C. P. 306. ,^ ^ „ 
 
 (m) Cohbett V. Grey, (Secretary of (s) M'Zaughlin v. Prior, 4 m. & tr. 
 
 State) 4 Exch. 729 ; 19 L. J., Exch. 48. 
 
 137 ; and see Glynn v. Houston (Lieu- (a) Pidgcon v. Legcje, 5 Weekly Kep. 
 
 tenant-Governor of Gibraltar), 2 M. & 649. See also Greenwood v. Seymour, 30 
 
 G. 337. L- J- 327, Ex. 
 
U ASSAULT AND BATTERY. 
 
 Althouo-h the plaintiff declares for an assault and battery, yet he 
 may recover for the assault only (&). Although a party has been 
 indicted for a felonious assault by stabbing, and acquitted, the 
 party injured may, notwithstanding, sue him for damages m a 
 civil action, if there has not been any coUusion by the plaintiff m 
 procuring his acquittal ; and the same rule holds after indictment 
 and conviction (c). 
 
 By 9 Geo. IV. c. 31, s. 27, persons convicted of unlawfully 
 assaulting or beating, may be compelled, by two justices of the 
 peace, to pay a fine and costs, not exceeding 51. ; but if the justices 
 shall deem the offence not to be proved, or shall find the assault or 
 battery to have been justified, or so trifling as not to merit any 
 punishment, and shall accordingly dismiss the complaint, they shall 
 forthwith (d) make out a certificate under their hands, stating the 
 fact of such dismissal ; and by sect. 28, such certificate, or in case 
 of conviction payment of the whole amount adjudged, or suffering 
 imprisonment in lieu thereof, shall be a bar to any other proceeding, 
 civil or criminal, for the same cause. — Where a complainant, having 
 summoned a party for an assault, declined (on the party summoned 
 pleading not guilty) to proceed, stating that he meant to bring an 
 action, and the justices thereupon dismissed the complaint and gave 
 the defendant a certificate as follows, " We deemed the offence not 
 proved, inasmuch as the complainant did not offer any evidence in 
 support of the information, and have accordingly dismissed the 
 complaint ;" this certificate was held to be a bar to an action for 
 the same assault, under the above section (e). So where after in- 
 formation and summons the complainant gave notice to the defen- 
 dant not to attend, and to the magistrate's clerk that he should 
 not attend, but the defendant attended, and claimed to have the 
 information dismissed and a certificate granted under the statute, 
 it was held in an action that the magistrates were warranted in 
 granting the certificate, and that it was a bar (f). Application for 
 this certificate ought to be made whilst the facts are fresh in the 
 recollection of the justices, and it ought to be heard in the presence 
 of the prosecutor (g) ; and in a plea to an action the grounds' of the 
 dismissal must be stated, so as to show that it is a bar (h). The 
 act, however, does not apply to aggravated assaults, or to assaults 
 in which any question of title, bankruptcy, or legal process is 
 involved ; sect. 29. 
 
 This action must be commenced within four years next after the 
 cause of action (i). It does not lie against justices of the peace for 
 
 (b) Lib. Ass. anno 22, fol. 99, pi. 60 ; 17 L. J. (M. C), 67. 
 
 Bm. Trespass, pi. 40. (/) Vaughton v. BradsTiaw, 8 C. B., 
 
 (c) Crosby v. Leng, 12 East, 409. N. S. 103 ; 30 L. J., C. P. 93. 
 
 yd) See R. v. Rabwmn, 12 A. & E. (g) Coleridge, J., in JJ. v. Robinson. 
 
 67:2. (h) Skiise v. Davis, 10 A. & E. 635. 
 
 (e) Timnicliffc v. Tedd, 5 C. B. 553 ; (i) 21 Jao. I. c. 16, s. 3. 
 
ASSAULT AND BATTERY. 45 
 
 acts done by them in the execution of their duty (1), or against 
 judges, unless they have acted -without jurisdiction (/). 
 
 II. Declaration. 
 
 This is a transitory action (m), and consequently the venue may 
 be laid in any county (n), except where it is otherwise directed by 
 statute (0), as where the action is brought against justices of the 
 peace (p), mayors, or bailiffs of cities, or towns corporate, head- 
 boroughs, port-reeves, constables, tithing-men, churchwardens, 
 overseers of the poor, &c., or other persons acting in their aid and 
 assistance, or by their commandi for anything done in their ofScial 
 capacity ; in these cases the venue, by 21 Jac. I. c. 12, s. 5, must 
 be laid in the county where the facts were committed, otherwise 
 the jury who try the cause shall find the defendant not guilty, 
 without any regard to any evidence given by the plaintiff touching 
 the trespass, battery, &c. The provisions of the 21 Jac. I. c. 12, 
 were, by 42 Geo. III. c. 85, s. 6, extended to all persons holding 
 a public employment, or any office, station or capacity, civil or 
 military, either in or out of the kingdom, and who, by virtue of 
 such employment, had power to commit persons to safe custody ; 
 provided that, where an action shall be brought against such per- 
 sons in this kingdom for any thing done out of this kingdom, the 
 plaintiff may lay the act to have been done in Westminster, or in 
 any county where the defendant shall reside. Actions brought 
 against any persons for anything done by any officer of the cus- 
 toms, or excise, or others acting under the direction of commis- 
 sioners of customs, in execution or by reason of their office, must 
 be laid and tried in the county where the facts were committed (q). 
 
 The day is not material (r) ; proof of the trespass at any time 
 before the commencement of the action being sufficient. An 
 assault, being one entire individual act, cannot be committed at 
 different times, and consequently ought not to be stated in the 
 declaration to have been so committed (s). There should be a 
 separate count for each distinct assault, whether on several occa- 
 sions on the same day or on different days ; for if the declara- 
 tion contain only one count, the plaintiff, after proving one assault, 
 cannot waive that and proceed to give evidence of another (t). 
 
 (Jc) 11 & 12 Vict. c. U, ss. 1, 2 ; Lock nell, 20 L. J., M. C. 1 ; Newbauld v. Colt- 
 
 V. Ashton, 12 Q. B. 871 ; 18 L. J., Q. B. man, Ibid. 149 ; 11 & 12 Vict. c. 44, s. 
 
 76. 10. 
 
 (I) Boulden v. Smith, 14 Q. B. 841 ; (g) 3 & 4 Will. IV. c. 53, s. 107. 
 
 19 L. J., Q. B. 170. (r) Litt. sect. 485 ; 1 Inst. 283a. 
 
 (m) Litt. sect. 485. (s) English v. Purser, 6 East, 395 ; 
 
 (w) Corlett T. Barnes, Cro. Car. 444. Michell v. Neale, Cowp. 828 ; Burgess y. 
 
 (o) See Hughes y. Bvdclcmd, 15 M. & Preelove, 2 B. & P. 425. . 
 "W. 346. (t) Stanie v. Pricket, 1 Campl). 473 ; 1 
 
 (p) I. e. in those oases where this can "Wms. Satmd. 299, n (b). 
 be done. See siipra and Barton v. Brick- 
 
46 ASSAULT AND BATTERY. 
 
 The declaration ought to allege the commission of the fact posi- 
 tively, and not by way of recital, e. g., " for that on such, a day the 
 defendant assaulted, &c., the plaintiff," and not, " for that whereas, 
 &c. ;" and it is no longer necessary to state that the assault was 
 made " with force and arms," and " against the peace of our lady 
 the Queen " (w). 
 
 III. Pleadings. 
 
 General Issue. — The general issue to an action of assault and 
 battery is not guilty, which constitutes a proper issue in case the 
 defendant has not committed the injury complained of, of which 
 touching for the purpose of calling attention on a fit occasion is 
 an instance {v), or has committed the act by the plaintiff's leave {x). 
 So accident, or agency over which the defendant has no control, 
 is a defence admissible under the general issue, as showing the 
 act not to be his {y) ; but a defence admitting the trespass com- 
 plained of to be the act of the defendant, and justifying or excusing 
 it, &c., must be pleaded specially (i/). 
 
 Under the general issue, matter of justification cannot be given 
 in evidence in mitigation of damages, as such matter might have 
 been pleaded {£). But where an action was brought against the 
 captain of a ship, who pleaded not guilty, and the defendant 
 cross-examined the plaintiff's witness as to expressions used by 
 the plaintiff, which would have justified the imprisonment, they 
 tending to raise mutiny and disobedience ; the evidence of what 
 was said by him at the timie of the imprisonment was received in 
 mitigation of damages, though it was objected to by the plaintiff; 
 for every thing that passed at that time is part of the transaction 
 on which the plaintiff's action is founded, and he could not be 
 surprised by this evidence (a). 
 
 By 7 Jac. I. c. 5, " in any action upon the case, trespass, battery, 
 or false imprisonment, against any justice of the peace (6), mayor, 
 bailiff, constable, &c., for any thing done by virtue of their ofiices, 
 and against all others acting in their aid or assistance, or by their 
 command concerning their ofiices, they may plead the general 
 issue, and give the special matter in evidence." This statute was 
 made perpetual by 21 Jac. I. c. 12 (c), and extended to church- 
 wardens {d), overseers of the poor, and others acting in their aid 
 
 («) 15 & 16 Yict. c. 76, s. 49. 5th Ed. 17 ; Syers v. Chazman, 2 C. B., 
 
 (■») Coward v. Baddeley, 4 H. & W. N. S. 438, ace. 
 
 418 ; 28 L. J. Ex. 478. (j) gee ante, p. 45, n. (p). 
 
 (x) Ohrtstopherson v. Bare, 11 Q. B. (c) See, however, 21 Jac. I. c. 28, s. 1, 
 
 ^^? i ^l ^^^''3' ^; ■^*'^' ^ ' ^y ^^^<iii it is continued only to the end 
 
 (y) Hall V. Fearnley, 3 Q. B, !)19. of the then next session of parliament. 
 
 (s) Watson v. Chnstie, 2 B. & P. 2-25. id) See Burton v. Benson, 10 M. & W. 
 
 (a) Bingham v. GwnwiiU, Bull. N. P. 105. 
 
ASSAULT AND BATTEHY. • 47 
 
 or by tlieli- command. See similar provisions as to officers of cus- 
 toms and excise, 3 & 4 Will. IV. c. 53, s. 107 ; and justices of the 
 peace, 11 & 12 Vict. c. 44, s. 10 (e). By the Pleading Rules of 
 Hilary Term, 1853, it is required, that in the margin of the plea 
 the words " by statute " shall be inserted, together with the year 
 or years of the reign in which the act or acts of parliament upon 
 which the defendant relies for that purpose were passed, and also 
 the chapter and section of each of such acts, and shall specify 
 whether such acts are public or otherwise : otherwise such plea 
 shall be taken not to have been pleaded by virtue of any act of 
 parliament : and such memorandum shall be inserted in the margin 
 of the issue, and of the nisi prius record. The plea of the general 
 issue " by statute " will not in ^general be allowed together with 
 other pleas (/). 
 
 Money cannot be paid into court in this action {g). 
 
 Justification in Defence of Person. — If the plaintiff was the 
 aggressor, and the injury of which he complains was occasioned by 
 his own assault on the defendant, so that the act of the defendant 
 became necessary for the defence of his person, the action cannot 
 be maintained Qi) ; because any degree of violence is justifiable, 
 which is necessary for the safety of the person. This defence (i), 
 which is technically termed son assault demesne, must be pleaded 
 specially (j). In like manner a defendant may justify an assault 
 and battei-y in the defence of his wife (/c), child (/), or servant (m). 
 So a wife may justify in defence of her husband (n), a child of a 
 parent, and a servant of his master (o). Where a servant justifies 
 in defence of his master, it ought to be alleged in the plea that the 
 plaintiff would have beat the master, if the servant had not inter- 
 posed ; if the servant plead merely that he was servant to A., and 
 that the plaintiff having assaulted his master in his presence, he in 
 defence of his master struck the plaintiff, the plea is ill; for the 
 assault on the master might be over, and the servant cannot strike 
 by way of revenge, but in order to prevent an injury (p). Simi- 
 larly, per Lyndhurst, C.B., " If a person comes up to attack me 
 and I put myself in a fighting attitude, this is not an assault on 
 my part, and will not make out for that person a plea of son as- 
 sault demesne (q). 
 
 (c) See ante, p. 45, n. (p). Trespass, PI. 128. 
 
 (/) Legge v. Boijd, 1 M. & G. 898 ; (I) Clerk's Assistant, pp. 90, 91. 
 
 s. V. Laniard v. Woods, 7 M. & G. 625 ; (m) 2 Roll. Abr. 546, (B.) pi. 2 ; s. r. 
 
 and see O'Brien v. Clement, 15 M. & "W". per cur. in Leward v. Basely, Salk. 407 ; 
 
 435. • Ld. Eayra. 62 ; Bull, N. P. 18 ; because 
 
 {g) 15 & 16 Vict. c. 76, s. 70. the master may have an action jjct quod 
 
 (h) Oockcroft v. Bmiih, Salk. 642. servitium amisit. 
 
 (i) See the form 15 & 16 Yict. c. 76, (n) Leward v. Basely, Ld. Eaym. 62. 
 
 schedule (B.;, form 45. (o) 2 EoU. Abr. 546, (D.) pi. 3 ; Adm. 
 
 (j) 1 Inst. 282, b, 283, a ; Pi. E. Hil. per cur. in Ld. Eaym. 62, and Salk. 407. 
 
 Term, 1853, E. 17. {p Barfoot v. BeijTwlds, Str. 953. 
 
 {k) 2 Roll. Ab. 546, (D.) pi. 18 ; Bro. (q) Moriarty v. Broolces, 6 C. & P, 685. 
 
48 • ASSAULT AND BATTERY. 
 
 Justification in Defence of Possession.— A defendant may jus- 
 tify in defence of his possession (r) ; as if A. enter the close of B. 
 unlawfuUy, B., having first requested A. to depart (s), may on his 
 refusal, justify laying his hand on A. in order to remove him (i). 
 So where A. seized the bridle of the horse on which B. was riding, 
 it was held, that B, after a request to A. to desist, was justified m 
 striking B. with his riding-whip, using no more force than was 
 necessary to obtain his release (u). It must be observed that B. 
 ought not to begin with striking, or offering violence to A. (x), for 
 the law, in the first instance, merely allows B., in defence of his 
 possession, after a request to A. to depart, to lay his hand gently 
 on him. Hence a charge of beating, wounding, and knocking 
 the party down, is not answered by a plea oimoUiter manus impo- 
 suit (y). If indeed A. should forcibly resist the endeavour to re- 
 move him, it will then be lawful to oppose force to force, and any 
 degree of violence which may be necessary in self-defence will be 
 justifiable. If the entry of the close be forcible (z), as by breaking 
 down a gate, or the like, a previous request is unnecessary (a) ; for 
 acts of violence, on the part of the trespasser, may be instantly 
 opposed by such other acts of violence on the part of the owner, 
 as may be necessary for the immediate defence of his posses- 
 sion (&). 
 
 In framing justifications in defence of possession, it is not neces- 
 sary for the defendant to set forth the particulars of his title ; it is 
 sufficient to state that defendant was possessed, &c. Thus : — trespass 
 of assault, battery, and wounding. Plea to the assault and battery, 
 that the defendant was possessed of a house for years ; that the 
 plaintiff entered his house, and would have thrust him out of pos- 
 session thereof, whereupon he moUiter manus im/posuit, to put 
 him out, and the harm, if any done, was in defence of his own pos- 
 session. On demurrer, it was contended, that the defendant ought 
 to have set forth particularly, who made the lease, when it was 
 made, and for how many years ; but the court held the plea good ; 
 for the statement of the possession for years was only an induce- 
 ment to the justification, the substance of which was, that he 
 offered to thrust him out of the possession of his house, and that, 
 the title or interest not coming in question, it was not necessary 
 that the allegation should be as certain as where a claim of title 
 was made by the defendant (c). 
 
 The observations which have been made in respect of the defence 
 of real property, apply also to the defence of personal property, and 
 
 (r) 2 Roll. Abr. 648, (G.) pi. 2 ; Al- den v. Johnson, 16 Q. B. 218 ; 20 L. J., 
 
 derson v. Waistell, 1 C. & K. 358. Q. B. 95. 
 
 (s) Green t. Goddard, Salk. 641. (z) Milner v. M'Lean, 2 C. & P. 17. 
 
 (i) See the form, 2 Lutw. 1435. (a) PolMnhornv. Wright, 8 Q. B. 197. 
 
 (tt) Eowe V. Hawkins, 1 F. & F. 91. (6) Weaver v. Bv^h, 8 Tr. 78. 
 
 ix) 2 Inst. 316. (c) Skevill v. Avery, Cro. Car. 138. 
 
 {y) Gregory v. Hill, 8 T. R. 299 ; No- 
 
ASSAULT AND BATTEEY. 49 
 
 an owner of goods (or his servants) which are wrongfully taken out 
 of his actual possession, or wrongfully detained after request, may 
 justify an assault in order to repossess himself of them, no unneces- 
 sary violence being used (d). 
 
 Justifications by Officers executimg Process. — In like manner a 
 sheriff's officer cannot justify any act more than laying his hand on 
 another for the purpose of executing legal process, xxnless acts of 
 violence become necessary by a resistance on the part of the person 
 apprehended, or an endeavour to rescue himself (e). A battery 
 cannot be justified by showing an arrest merely (/), because an 
 arrest may be made without tOBching the person, as if a bailiff 
 comes into a room where the defendant is, and, having locked the 
 
 P door, tells him that he is arrested, that is an arrest ; for the defend- 
 dant is in the custody of the officer. In consequence of this deci- 
 sion, it was doubted, whether a defendant could justify a battery 
 by stating that he gently laid his hands on the plaintiff; but this 
 mode of pleading was adjudged to be good, in Titley v. Foxall, 
 Willes, 688. And in Tottage v. Petty, Ca. temp. Hardw. 358, and 
 MS., where to trespass for assault and battery, the defendant as to 
 the assault and battery pleaded, that the plaintiff entered his 
 house without his leave, and there disturbed him ; whereupon the 
 defendant requested the plaintiff to quit his house, and because 
 the plaintiff would not, the defendant gently laid his hands on 
 the plaintiff to thrust him out ; on demurrer, the case of Wil- 
 liams V. Jones, was cited as an authority to show that this plea 
 was bad ; but Lord Hardwiclce, C. J., said, " It was not determined 
 by us in Williams v. Jones, that a battery could not be justified 
 by a molliter manus imposuit, but that it could not be justified 
 by merely showing an arrest." The court were clearly of opinion 
 that the plea was good, and gave judgment for the defendant. 
 " An officer cannot justify more than the assault, by virtue of the 
 arrest, without showing that the plaintiff resisted or endeavoured 
 to rescue himself, unless it be by way of molliter m,anus iynposuit, 
 and in that Tnanner he Tuay justify the beating without showing 
 any resistance or attempt to rescue." Bull. N. P. 19, cites Titley 
 V. Foxall. In this case, however, as well as in the case of a plea of 
 resistance, or an attempt to rescue, it is competent to the plaintiff 
 
 • to reply an unjustifiable or subsequent battery, as suggested by 
 Kingsmil, J., in a case in 21 Hen. VII. " Que puis eel matter 
 de ces mains le defendant batit le plaintiff" (g). Eegularly, when 
 
 (d) Blades v. Higgs, 10 C. B. N. S. (/) Williams v. Jones, Str. 1049. 
 713. (g) See Durnford's note, Willes's Ee- 
 
 (e) Truscott v. CarperUer, Lord. Kaym. ports, p. 17, n. (b), and see an excellent 
 229 ; Williams v. Jones, Str. 1049 ; Ca. note on this subject. Green v. Jones, 
 temp. Hard. 298. Saund. 299, 5th edit, 1845. 
 
60 ASSAULT AND BATTEEY. 
 
 the defendant justifies under a writ, warrant, precept, or any other, 
 authority, he must set it forth in his plea Qi). 
 
 Other Justifications. — The law looks with an indulgent eye on 
 such acts of discipline as are necessary for the preservation of social 
 order. Hence a master may moderately correct his servant, a 
 parent his child \i), and a schoolmaster his scholar {j). In like 
 manner an officer may justify the reasonable correction of those 
 who are placed under his command, if they disobey his orders ; 
 and under particular circumstances a person may lay hands on 
 another, in order to serve him with process (/c). The defendant 
 may justify even a maihem (I), if done by him. as an officer in the 
 army for disobeying orders ; and he may give in evidence the 
 sentence of the council of war upon a petition against him by the 
 plaintiff; and if by the sentence the petition is dismissed, it will 
 be conclusive evidence in favour of the defendant. 
 
 The several preceding instances of justifications must be pleaded 
 specially (m). In framing these pleas the battery should be 
 admitted (n). 
 
 Local and transitory Justifications. — If the cause of the jus- 
 tification be local (o), as if a constable arrests a man under a statute 
 giving a special authority to a constable of the district only, the 
 constable should justify the assault, &c., in the place where it really 
 happened, showing his jurisdiction therein (p), and conclude with 
 averment quce est eadem transgressio, &c. (q). If the matter of the 
 justification be transitory, it ought to follow the place laid in the 
 declaration (r). Action for a battery at D. ; the defendant justified 
 under the command of certain bailiffs executing legal process at S., 
 in the same county. The plea was held on general demurrer to be 
 bad ; for as the bailiffs have authority throughout the whole county, 
 the cause of justification was not local, so that the defendant ought 
 to have justified in the same place in which the plaintiff had de- 
 clared (s). A battery in a man's own defence is not local (t), but 
 may be justified in every place ; consequently, such a justification 
 must follow the place laid in the declaration. If a justification be 
 at the same time and place, it is needless to aver, that it is the 
 
 ■^^^) L?^-,f ^^ '^"■Vi""S T; '^'"■^' ^ (") ^■**'"^ ""■ ^'PP''^' Salk. 637, and 
 
 ^f, w''i f '■ ^^"^^p ^^ ^-o^n . T. ^°'^ ^y"^- 38- Per Lord Denma^, ' 
 
 (I) Wmterboum v. Brooks, 2 C. & K. C.J., in Ball v. Fmmley, 3 Q. B. 921. 
 
 ^®; ., „ ^ (o) 1 Inst. 282 a, b. 
 
 0) EastEntr. 613, pi. 18, 2nd ed. {p) Jones v. Chapman, 14 M. kW. 
 
 {k) Ea/rnson v. Hodgson, 10 B. & C. 124 : 14 L. J., Exch. 313. 
 
 ^^^n T J n J, tr ■■■.Tir-,, Trr (?) ■^««cociT. Peacock, Cro.Eliz. 705: 
 
 (T) Lane and Deglerg H 11 Will. III., BHdgwaUr v. Bythway % Ley. 113. 
 per Treby, C.J., London Sittings, Salk. M 1 Inst 282a b 
 
 Q^lTh.'^^' ^^' "^' "^^' ^"^^ ^- ^- li"^ ^^i<i9^»ter r. ' Bythway, 3 Ley. 
 
 (m) 1 Inst. 282 b. (i) p„^5,i ^_ ffutcMngs, Cro. Eliz. 842. 
 
ASSAULT AND BATTERY. 51 
 
 same trespass (u). Where the defendant pleads a local justifica- 
 tion, the plaintiff may vary in his replication, either in time or 
 place, from the time or place laid in the declaration, and it will not 
 be a departure (a;). The defendant may plead not guilty within 
 four years next after the cause of action (y). 
 
 Replication. — The usual replication to the preceding justifica- 
 tions, where they consist merely of matter of fact, used to be, that 
 the defendant committed the trespass of his own wrong, and with- 
 out the cause alleged by him in his plea. This was termed a repli- 
 cation de injurid, and had the advantage of putting in issue every 
 material allegation, no matter how many, contained in the plea ; 
 which was a considerable advaniStge, as only one material allegation 
 in a pleading could, as a general rule, be traversed, without infring- 
 ing the rule against duplicity in pleading. Since the Common Law 
 Procedure Act, 1852, all the advantage of this replication may now be 
 obtained in every case at this state of the pleadings, and a like advan- 
 tage at all subsequent stages, by joining issue as provided by ss. 
 77, 78, 79 (z). If the defendant pleads son assault demesne, and 
 the plaintiff can justify it, such justification ought to be replied 
 specially ; for it cannot be given in evidence under the general 
 replication of de injurid (a). On the general replication of de 
 injurid to son assault' demesTie (&), the plaintiff cannot give in 
 evidence a battery at a day and place different from that laid in 
 the declaration. Hence if there are two assaults, one of which the 
 defendant can justify and the other not (c), the plaintiff must new 
 assign the assault for which he brings his action, otherwise the 
 defendant will be entitled to a verdict on his justification. So " if 
 there were two batteries on one day, and the one were on the 
 plaintiff's own assault and the other not, if the defendant will jus- 
 tify one de son assault demesne, the plaintiff may make a new 
 assignment of the other batteiy " {d). A new assignment, how- 
 ever, in these cases, is only necessary where there is but one count 
 in the declaration : for if the declaration contain as many counts 
 as there were assaults, &c., and some of them cannot be justified, 
 the plaintiff may prove those without a new assignment (e). 
 Where the plaintiff declares on a single act of assault and battery, 
 to which the defendant pleads son assault demesne, the plaintiff 
 may now, it would seem (/), by leave of a judge, reply de injurid. 
 
 (u) King V. PMppard, Garth. 281. 233. 
 
 {x) SerU v. Da/rford, Lord Eaym. 120, (c) 2 Roll. Abr. 680 (C), pi. 3 ; Walshy 
 
 and Lutw. 1435. v. Oakley, London Sittings after M. T. 
 
 (y) 21 Jac. I. c. 16, s. 3. 40 Geo. HI. MS. S. P. per Kenyan, C.J. 
 
 (z) Bullen & Leake on Pleading, 890 ; (d) Per air. in Elwis v. Lomhe, 6 Mod. 
 
 Dean v. Taylor, 11 Ex. 68; Glover v. 120. 
 Bixm, 9 Ex. 158. (e) Bull. N. P. 17. 
 
 (a) King v. PMppard, Carth. 281 ; (/) Franks v. Morris, 10 East, 81 n. ; 
 
 Webber v.IAiSerrsvueh, IPeake'sAdd. C. 51. and see Worthy. Terrington, 13 M. &W. 
 
 lb) Downs T. Skrymsher, 1 Brownl. E. 781 ; 14 L. J., Exch. 7. 
 
 E 2 
 
m ASSAULT AND BATTERY. 
 
 and also new assign (g) that the defendant used more violence 
 than necessary for the defence of himself; 15 & 16 Vict. c. 76, 
 s. 81 : but if he "joins issue" on the defendant's plea under the 
 provisions of the Common Law Procedure Act, 1852, this is not 
 necessary, as under that form of issue he may show that, although 
 he struck the first blow, the defendant was guilty of excess Qi) ; 
 although this is otherwise with regard to a trespass eostra 
 viam (i). 
 
 Where the defendant pleaded that the plaintiff was defendant's 
 apprentice, and conducted himself improperly, wherefore defendant 
 moderately chastised him, the replication de injurid was held to 
 put in issue only the cause alleged in the plea (that is, whether the 
 plaintiff misconducted himself as an apprentice), and not the 
 moderation of the punishment (k). 
 
 IV. Verdict and Judgment. 
 
 Damages may be given in this action not merely for the corporal 
 injury, which in many cases may be very small, but also for the 
 degrading insult with which it is accompanied. In Brown r. 
 Allen, 4 Esp. 158, a case of joint trespass, in which it was proved 
 that one defendant had acted more violently than the other. Lord 
 Ullenborough told the jury that the true criterion of damage was 
 the amount which the most culpable ought to pay. Lowfield v. 
 Bancroft, Str. 910, and Bull. N. P. 15, is to the same effect. In 
 Glarh v. Newsam, 1 Exch. 131, however, it was laid down that the 
 true criterion of damage is the aggregate of the injury received 
 from both, without regard to the motives of either defendants ; and 
 this would seem to be the better test. 
 
 A libel written by the plaintiff against the defendant may be 
 given in evidence by the defendant in mitigation of damages, 
 although a cross action be pending for the libel (Z). Against joint 
 trespassers there can be but one satisfaction, and, therefore, if they 
 are sued in one action, although they sever in pleas and issues, yet 
 one jury shall assess damages against all ; and if all the issues are 
 found for the plaintiff, the jurors ought not to sever the damages ; 
 for, if they do, the verdict will be vicious (m). And if in such case 
 judgment be entered for the separate damages, such judgment will 
 be erroneous {n). But, before judgment, the defect of the verdict 
 may be cured, by the entry of a nolle prosequi against all the 
 
 . {g) See 15 & 16 Vict. c. 76, s. 87, and 338. 
 
 Sclied. (B.), Forms 55, 56, 57 ; Qlover v. [1) Fraser v. Berkeley, 7 C. & P 621. 
 
 Dixon, 9 Excli. 168. (m) Hob. 66 ; Elliott v. Allen, 1 C. B. 
 
 (h) Dean v. Taylor, 11 Exch. 68. 18. 
 
 (i) Glover v. Dixon, 9 Exch. 158. (n) Cram v. Bummerstone, Cro. Jac. 
 
 (k) Pmn V. Ward,^ 2 Cr., M. ic E. 118; Hill v. GoodcUU, 6 Burr. 2791. 
 
ASSAULT AND BATTEEY. 53 
 
 defendants except one, and taking judgment against that one 
 only (o). So if joint defendants suffer judgment by default, and 
 the plaintiff execute separate writs of inquiry against them, where- 
 upon several damages are given, it is iiTegular ; and if final 
 judgment be entered for those damages, such judgment will be 
 erroneous (p). But, before final judgment, the court will per- 
 mit the plaintiff, in order to cure the error, to set aside his own 
 proceedings upon payment of costs, and to issue a new writ of 
 inquiry. 
 
 (o) Bodney v. Strode, Carth. 19. (p) Mitchell v. Milbank, 6 T. E.. 199. 
 
CHAPTER V. 
 OF THE ACTION. OF ASSUMPSIT. 
 
 PAGE 
 
 tlie Pleading Rules . 
 
 V. Damages. — Judgmerd . 
 
 54 
 
 60 
 62 
 
 I Of the Action of Assumpsit, and of the Agreement for 
 the Non-performance of which this Action may be 
 mm/ntained . . • • • • " ' __ 
 
 Of the Consideration -J ■' kq 
 
 Forbearance of Suit, in what Cases a sufficient Consideration 58 
 
 When not . . ■ • • • 
 
 Consideration must move from Plaintiff . ... 
 
 Consideration must he such as the Party undertaking has 
 Power hy Law to perform . . • • • ■ 
 
 Consideration past or executed 
 
 Moral Obligation, whether a good Consideration 
 
 The Agreement must be Legal 
 
 Of Agreements in Restraint of Trade 
 
 Of Agreements contrary to Public Policy 
 
 Of Agreements in Contravention of Statutes 
 
 Of Fraudulent Agreements .... 
 
 Of Immoral Agreements .... 
 
 II. Of the General Indebitatus Assumpsit . 
 Of the Indebitatus Counts generally . 
 Of Money paid . 
 Of Money had and received 
 On an Account stated . 
 
 III. Of the Declaration 
 
 Of Conditions precedent 
 Concurrent Acts 
 Independent Promises . 
 
 IV. Of the Plea 
 
 1. In Abatement 
 
 2. Of the General Issue and 
 
 3. Accord and Satisfaction 
 
 4. Infancy 
 
 5. Payment 
 
 6. Payment into Court . 
 
 7. Release . 
 
 8. Statute of Limitations 
 
 9. Set-off . 
 10. Tender . 
 
 63 
 
 . 64 
 
 . 65 
 
 . 68 
 
 . 69 
 
 . 70 
 
 . 72 
 
 . 76 
 
 . 80 
 
 . 81 
 . 82 
 . 91 
 . 96 
 . 125 
 
 . 129 
 
 . 134 
 . 138 
 . 141 
 
 . 142 
 
 . 142 
 . 143 
 . 147 
 . 152 
 . 160 
 . 165 
 . 166 
 . 168 
 . 181 
 . 186 
 
 .191 
 
 I. Of the Action of Asswnpsit, and of the Agreement for the 
 Non-performance of which this Action may be maintained. 
 
 The action of assumpsit is an action of trespass on the case, 
 whereby a compensation, in damages, may be recovered for an 
 
ASSUMPSIT. 55 
 
 injury sustained by the non-performance of a parol agreement. 
 Agreements are distinguished into agreements by specialty, i. e. by 
 deed under seal, and agreements by parol. The law of England 
 does not -recognize any other distinction. If agreements are 
 merely written, and not specialties, they are parol agreements (a). 
 The action of assumpsit is confined to agreements by parol, the 
 action of covenant or debt being the proper remedy for the non- 
 performance of agreements by specialty (b), for it is a general rule 
 that assumpsit will not lie where there is a remedy of a higher 
 nature (c). The essential parts of every parol agreement are, the 
 promise or undertaking of one party, and the consideration on 
 ■which such promise or undertaking is founded, proceeding from 
 the other party. Sometimes ^he promise is expressed by the 
 party ; sometimes it is raised by implication of law. In the former 
 case it is termed an express, in the latter an implied, promise.- In 
 parol agreements the law will not imply a consideration (except in 
 the case of bills of exchange and promissory notes, which depend 
 upon the law merchant) ; consequently, in actions of assumpsit, a 
 consideration must be stated and proved. 
 
 Of the consideration. — Every promise, for the non-performance 
 of which an action of assumpsit may be maintained, must be 
 founded on a sufficient consideration (cZ), and no action will lie for 
 a mere nonfeasance, unless the promise is founded on a considera- 
 tion (e). This consideration is either of benefit to the defen- 
 dant (/) or of benefit to a stranger (g), or of damage, or of loss (h) 
 sustained by the plaintiff, at the request of the defendant; and 
 herein the law of England adopts and recognises the rule of the 
 civil law, ex nudo pacto non oritur actio (i). Any act of the 
 plaintiff, from which the defendant derives, or expects to derive (k), 
 a benefit or advantage, or any labour, detriment (V), or incon- 
 venience sustained by the plaintiff, however small (m) the benefit 
 or inconvenience may be, is a sufficient consideration, if such act 
 is performed, or such inconvenience suffered by the plaintiff, at 
 the request or with the consent (n), either express or implied, of 
 the defendant. The giving up to the defendant a' void guarantee 
 
 {a) Sannv. Sughes, 7 T. R. 361, n. v. Guy, 4 East, 194. See Bambridge v. 
 
 (6) Bennus v. OuyMley,Gio. Jao. 505. Firmsione, 8 A. & E. 743. 
 
 (c) Bulstrode v. Oilburn, 2 Stj. 1027 ;, , (i) 17 Edw. IV. 4 b. ; Plowd. 305, a, 
 SchUncker v. Moxsy, 3 B. & C. 789; 308, b; and see ^er CampMl, C. J., in 
 Baber v. Harris, 9 A. & E. 532. Gerhard v. Bates, 2 E. & B. 487. 
 
 (d) 1 Roll. Abr. 9, line 41 ; Doot. and {Tc) Haigh v. Broolcs, 10 A. & E. 309. 
 Stud. Dial. 2, ch. 24. (?) Williamson v. Clements,. 1 Taunt. 
 
 (e) Elsee v. Gatward, 5 T. R. 143. 623. 
 
 (/) Per Buller, J., in Neroty. Wal- (m) Sturlyny. Albany, Cro. Eliz. 67 
 
 lace, 3 T. R. 24 ; and Oooke v. Oxley, March v. Culpepper, Cro. Car. 70. See 
 
 3 T. R. 663. Bailey \. Croft, 4 Taunt. 611, post, p. 68 
 
 ' (g) Per Gawdy and Fenner, Js., in Jones T. Waite, 6 B. N. C. 341. 
 Greenleaf v. Barker, Cro. Eliz. 194. (n) Stokes v. Lewis, 1 T. E. 21 ; Child 
 
 (h) Per ElUnborough, C.J., in Bwim v. Morley, 8 T. R. 610. 
 
50 ASSUMPSIT. 
 
 for instance, and even the paper on which it is written is sufficient (o) ; 
 and so if A. places a sum of money in the hands of B. for the purpose 
 of handing it over to C. (p), or investing it securely (g'), this is suffi- 
 cient to raise an assumpsit by B. It is, however, clearly estab- 
 lished, that the consideration must be of some value, in contem- 
 plation of law (r) ; for where A. in consideration that B. would 
 make an estate at will to him, as his counsel should advise, 
 promised, &c., it was held a void promise, for want of a sufficient 
 consideration, because B. might immediately determine his willfs). 
 So where the testator had committed to the cai-e of the defendant 
 his children, and the disposition of his goods, during their minority, 
 for their education, and thereupon the defendant promised the' 
 testator to procure the assurance of certain lands to one of the 
 testator's children, the consideration was held insufficient ; for the 
 law would not intend that the defendant had made any private 
 gain to himself, but that he had disposed of the goods for the 
 benefit of the children, according to the trust reposed in him (f). 
 So where the consideration stated was the conveyance of all the 
 interest of A. in certain property to third parties, but it appeared 
 that no interest had in reality passed by the conveyance, although 
 executed at defendant's request, the declaration was held bad after 
 verdict, as not disclosing any legal consideration (u). 
 
 The mere performance of an act, which the party was by law 
 or agreement («) bound to perform, is not a sufficient- considera- 
 tion (2/) for a new promise to the same individual (0). Hence a 
 promise made by the master, when a ship was in distress, to pay 
 an extra sum to a mariner as an inducement to extraordinary 
 exertion on his part, has been held to be void ; because a seaman 
 IS bound to exert himself to the utmost in the service of the 
 ship (a). So where, in the course of a voyage, some of the seamen 
 deserted, and the captain not being able to find others to supply 
 their place, promised to divide the wages, which would have 
 become due to them, among the remainder of the crew, it was 
 held that this promise was void for want of a consideration ; for 
 the desertion of a part^ of the crew was to be considered as an 
 emergency of the voyage as much as their death, and the re- 
 mainder of the crew were bound, by the terms of their original 
 contract, to exert themselves to the utmost to bring the ship in 
 safety to her destined port (6). So where a mercantile account 
 
 B^ZTS,:^, ^7: ^7. i?3 ''' ■• s ii^zie To' ' f ^^r- 
 
 ^^. .^ ... ._ . J^&:,^^^..c., 
 
ASSUMPSIT. 57 
 
 "Was agreed to between the plaintiff and defendant, upon which by- 
 usage interest at £5 per cent, was payable, an agreement by 
 defendant to pay interest at that rate was held insufficient to sup- 
 port a promise by the plaintiff, not to require the principal without 
 six months' notice (c). But where the defendant offered a reward 
 to any person who would give such information as would lead to the 
 conviction of a felon, the plaintiff, a constable of the district 
 where the felony was committed, was held entitled to the reward 
 on giving the requisite information, as it involved the performance 
 of services which he was not bound to render, and so formed a 
 good consideration (d). So, where the plaintiff agreed to enter 
 as captain's cook on board of a brig of war, upon an under- 
 taking by the defendant, the coliimander of the vessel, to pay him 
 wages beyond the government pay, which he would be entitled to 
 on his rating as an able seaman ; it was held, that there was a 
 sufficient consideration for the agreement to entitle the plaintiff, 
 on the services being performed, to maintain an action against the 
 defendant for the extra wages (e). So, the performance of an act 
 which a person has agreed with another to perform, is a good con- 
 sideration to support a contract with a third person if the latter 
 derives a benefit from the performance (/), or the former sustains 
 a loss at the latter's request {g). Therefore, where a declaration 
 stated that in consideration that the plaintiff would deliver to the 
 defendant a cargo of coals on board the plaintiff's ship, the defen- 
 dant promised to discharge the same at the rate of forty-nine tons 
 a day, it was held that a plea was no answer which stated that the 
 plaintiff had made a previous contract with other persons for the 
 delivery of the coals to their order in the same way, and they 
 ordered the delivery to the defendant Qi). And so, where A., 
 being about to marry B., the uncle of A. addressed him by letter 
 thus : " I am glad to hear of your intended marriage with B., and 
 as I promised to assist you at starting, I am happy to tell you that 
 I will pay to you £150 yearly," &c., it was held that the letter 
 showed a good consideration to support an action against the 
 executors of the uncle for arrears of the annuity (i). 
 
 Natural affection, although sufficient to raise an use, is not a 
 sufficient consideration whereon an assumpsit may be founded (It). 
 A release of an equity of redemption is a good consideration, and 
 the common law will take notice, that the mortgagor has an equity 
 to be relieved in Chancery (I). Where A. is indebted to B. in one 
 
 (c) Orme v. Galloway, 9 Exch. 5ii ; S. 159. 
 
 23 L. J., Exch. 118. (7t) Scotson v. Pegg, 6 Exch. 295. 
 
 {d) Bngland v. Davidson, 11 A. & E. (i) Skadwell v. Shadwell, 9 C. B. N. 
 
 857; andi sue Gerhard y. Bates, 2 E. & S. 159. 
 
 B. 487. (k) Bret Y. J. S.,Cvo.'m2. 155. See 
 
 (e) Olutterlmck v. Coffin, 3 M. & G. also Thomas v. Thomas, 2 Q. B. 851 ; 
 
 842. ■ White v. Bluett, 2 C. L. K. 301. 
 
 (/) Seotson v. Pegg, 6 Exch. 295. (I) Thorpe v. Thorpe, Lord Eaym. 663 ; 
 
 {g) Shadwell r. Shadwell, 9 C. B, N. Wells v. Wells, 1 Lev. 273 ; but see 
 
58 ASSUMPSIT. 
 
 sum, and B. is indebted to C. in a less sum, if B. promises A. to 
 discharge him of so much of his debt as amounts to B.'s debt to 
 C, this will be a good consideration for a promise by A. to pay C. 
 the debt due to him from B. (m). A mere accord is no con- 
 sideration (n). 
 
 The defendant being indebted to the testator in a sum of money 
 upon simple contract, the plaintiff, his executor, agreed to" take a 
 less sum, payable by instalments, in lieu of the original debt ; in 
 consideration whei-eof, the defendant promised the executor to pay 
 him the lesser sum. On assumpsit brought, an exception was 
 taken, in arrest of judgment, that the consideration was insuffi- 
 cient, because it did not appear that the plaintiff had discharged 
 the defendant of the original debt. But the objection was over- 
 ruled, because the original debt being due to the plaintiff, as 
 executor, the action to recover that must have been in the detinet; 
 but by the agreement on the part of the plaintiff to take a less 
 sum, and the promise by the defendant to pay that sum, it became 
 the proper debt of the plaintiff, and the action for it maintainable 
 in his own name, without being named executor. And (by 
 Teherton, Justice) although the less sum is not any satisfaction of 
 the greater," because they are both of one nature, yet in respect 
 that the nature of the action was changed, it was, therefore, a good 
 consideration (o). 
 
 In order to facilitate the making of an agreement, for which 
 there was sufficient consideration between the plaintiff and a third 
 person, the defendant, who received no benefit to himself by the 
 agreement, became party thereto ; it was held, that as the agree- 
 ment was such as the plaintiff would not have made, unless the 
 defendant had acceded, there was a sufficient consideration for the 
 defendant's promise (p). 
 
 Forbearance of Suit — in what Cases a sufficient Consideration, 
 — If a creditor, at the request of his debtor, forbear to sue him for 
 a certain time, that is a sufficient consideration for a new promise 
 by the debtor, for the non-performance of which an action of 
 assumpsit may be maintained. So if a creditor at the request of 
 J. S. forbear to sue his debtor for a certain time, that is a sufficient 
 consideration to support a promise by J. S. to pay the debt {q), 
 But by Stat, of Frauds, 29 Car. II. c. 3, s. 4, this agreement must 
 
 Preston v. Christmas, 2 -Wils. 87. How (m) GouWsborough, 49 ; and see Fair- 
 
 far a moral obligation is a sufBcient con- lie v. Denton, 8 B. & C. 395. 
 
 sideration, see a note to Wennall v. (n) Lynn v. Sruce, 2 H. Bl. 317. See 
 
 Adney, 3 B. & P. 249, cited in Eastwood Cook v. Wright, 1 B. & S. 559 ; Smylh 
 
 V. Kenyon, 11 A. & E. 488 ; and see post, v. HolTnes, 10 Jur. 862. 
 
 p. 65 ; and so of the assignment of a (o) Goring v. Goring, Yelv. 10, 11. 
 
 chose in action ; Mouldsdale v. Burchall, (p) BaUey v. Croft, 4 Taunt. 611. 
 
 ^^^- ^^-.^I.^'t.P^o ,•?■""''■' "^V ^S^'^<'''^- (?) 1 Roll. Abr. 27, pi. 49 ; Tempson 
 
 mUer, 4 T. E. 341 ; per Lord Ellen- v. Knowles, 7 C. B. 661 : 18 L. J., C. P. 
 
 oorough, m Sv/rtees v. Eubbord, i Esp. 222 
 203. 
 
ASSUMPSIT. 59 
 
 be in writing (r). Forbearance to sue an executor (having assets) 
 for a certain time upon a simple contract debt of his testator, 
 is a good consideration to found a promise by the executor to pay 
 the debt(s). So forbearance for a reasonable time to sue an 
 executor for the debt of his testator, although the executor have 
 not assets (t) ; but the agreement by the executor to pay the debt 
 must be in writing (u), otherwise it will be void by Stat, of 
 Frauds, 29 Oar. II. c. 3. s. 4. That a forbearance to sue may be a 
 good consideration, such forbearance m;ist either be absolute (x), 
 or for a definite portion of time (y), or for a reasonable time (z) ; for- 
 bearance for a little, or some time (a), is not sufficient. A forbear- 
 ance for a given time on the part of the assignee of a bond to sue 
 the obligor, is a good considerOTion for a promise by the obligor to 
 pay the assignee at the expiration of that time, or to give him a 
 warrant of attorney for the amount (6). In cases where an action 
 is brought against a defendant, on a promise made in consideration 
 of forbearance of suit, an objection will not be allowed, after ver- 
 dict, that the declaration does not state how the original debt 
 accrued ; for this is only inducement to the action (c). But it 
 must appear that there is, or that plaintiff had a reasonable ground 
 for believing that there was, a debt actually due (d). If an action 
 had been actually commenced (e), the law will intend that there 
 was some foundation for it (/), unless the contrary be pleaded (g), 
 or that there were cross claims unsettled between the parties, 
 although each party claimed the balance (h). A compromise of a 
 claim may be a good consideration for a promise, although no 
 litigation has commenced, and although there is really no legal 
 claim, provided the claimant bond fide believes there is, and really 
 intends to pursue his claim (i), and the declaration should state to 
 whom the plaintiff forbore and gave day of payment (k), although 
 the omission will, it seems, be cured by verdict (l). 
 
 The consideration of forbearance is not confined to forbearance 
 from suing by action ; for forbearance to sue, though the party is 
 liable in equity only (m), or desisting from a suit in Chancery (n); 
 or the giving up a suit instituted in the Admiralty Court, to try a 
 
 (r) Sing v. Wilson, Str. 873. 641. 
 
 (s) Bond V. Payne, Cro. Jac. 273. (e) Smith v. Monteith, 13 M. & W. 
 
 (t) JofMson V. Whitchcotl, 1 EoU. Abr. 427. 
 24, pi. 33. ■ (/) Tempson v. Knowles, 7 C. B. 651 ; 
 
 (u) OrindallY. Davies, 1 Freem. 532. 18 L. J., C. P. 222. 
 
 (x) Maples v. Sidney, Cro. Jao. 683. {g) Wade v. Simeon, 2 C. B. 548. 
 
 (y) Fish V. Michardson, Cro. Jac. 47. (h) Llewellyn v. Llewellyn, 3 D. & L. 
 
 (z) Johnson-^. Wkitchcott, supra. 318 ; 15 L. J., Q. B. 4. 
 ■(a) 1 RoU. Atr. 23, pi. 25, 26 ; and (i) Cook v. Wright, 1 B. & S. 559. 
 
 see Deacon y. Gridley,.\5 0. B. 295 ; 22 (&) Jones v. Ashbumham, 4 East, 445. 
 
 L. X, C. P. 17. . {I) Marshall v. Birkenshaw, B. & P 
 
 (h) Morton v. Burn, 7 A. & E. 19. 172. 
 
 (c) Austen, v. Bewley, Cro. Jac. 548. (m) Scott v. Stephenson, 1 Lev. 71. 
 
 [d) Edwards v. Baugh, 11 M. & W. (n) Bowdenay v. Oland, Cro. Eliz. 768. 
 
60 ASSUMPSIT. 
 
 question respecting which the law is doubtful (o), hasbeen held to 
 be a good consideration ; and so has forbearing to require sureties of 
 the peace against the defendants (» ; so forbearing to proceed upon 
 a capms utlagatum (g). So staying the trial of a cause after issue 
 joined (r), is a good consideration for a promise to pay the costs 
 incurred. So, an agreement by A. to abandon a reference and 
 discharge B. from his promise to refer the matters originally in 
 difference upon B.'s paying a sum of money is a good consideration 
 in an action by A. against B. for that sum of money (s). Neither 
 is it necessary to show a consideration equally extensive with the 
 promise ; for forbearance by the plaintiff, at the defendant's request, 
 to enforce a fi. fa. against the goods of a third person for dOl. is 
 a valid consideration for defendant's promise to pay plaintiff 1071. 
 in seven days (f). And where an action has been commenced for 
 an unliquidated demand, payment by the defendant of s. liqui- 
 dated sum, is a good consideration for a promise by plaintiff to 
 stay proceedings, and pay his own costs (tt). 
 
 In what Gases Forbearance of Suit is not a Consideration. — 
 Forbearance of suit against a defendant, where originally there 
 was not any cause of action, and where the plaintiff must neces- 
 sarily have failed, is not a consideration to support an assumpsit (w). 
 A. and B. were bound jointly and severally in a bond to C. who 
 released A. ; afterwards B., in consideration that C. would forbear 
 to sue him for the payment of the money due on the bond, 
 promised to pay it. On assumpsit brought, the court were clearly 
 of opinion, that the debt having been entirely discharged by the 
 release (cc) made by the obligee to A., there was not any consider- 
 ation whereon an assumpsit might be gi'ounded (y). So, where in 
 assumpsit, it was stated, that there were controversies between the 
 plaintiff and defendant concerning the profits of certain lands, 
 which the father of the defendant had taken in his lifetime, and 
 that the plaintiff had purchased a writ out of Chancery to the 
 intent to exhibit a bill against the defendant for the said, profits ; 
 the defendant, in consideration that the plaintiff would surcease 
 his suit, promised the plaintiff that if he could prove, that the 
 father of the defendant had taken the profits, or had the possession 
 of the lands, under the title of the father of the plaintiff, he, 
 defendant, would pay the plaintiff for the said profits. \After 
 verdict for the plaintiff upon non assumpsit, the court were of 
 opinion, that there was not any good consideration ; for it was not 
 
 (o) Longridge v. JDorviUe, 5 B. & Aid. (s) Smyth v. Holmes, Ex. 10 Jur. 862. 
 
 117. . {t) Smith Y.Algm; 1 B. & Ad. 603." 
 
 ip) Rippon V. Norton, Cro. Eliz. 881. (m) Wilkinson v. £yers, 1 A. & E. 106. 
 
 {q) Jennings v. Harley, Cro. Eliz. 909, (w) Wade v. Simeon, 2 C. B. 567. 
 
 and Yelv. 19. , {x) 1 Inst. 232, a. 
 
 (r) Dell V. Fereby, Cro. Eliz. 868 ; (y) Mammon v. Roll, March, 202 ; see 
 
 CroviOier v. Farrer, 15 Q. B. 677 ; 20 L. Wade v. Simeon, 2 C. B. 648. 
 J., Q. B. 298. 
 
ASSUMPSIT. 61 
 
 alleged that the defendant was heir or executor ; and even if it 
 had been so alleged, yet there was not any cause to charge him 
 for a personal tort (0). So where the declaration stated that 
 disputes and controversies were pending between the plaintiff 
 and defendant as to whether or not the defendant was indebted to 
 the plaintiff in the sum of 173?. 2s. 5d., for money lent, &c., and 
 thereupon in consideration that the plaintiff would then promise 
 the defendant not to sue him for the said sum, and would accept 
 from the defendant the sum of IQOl. in full satisfaction and 
 discharge of the same ; the defendant promised the plaintiff to 
 pay him the said sum of money within a reasonable time. Breach, 
 the non-payment of the said sum of 100?. It was held that the 
 declaration was bad, as not shfewiag a sufficient consideration for 
 the promise ; it was not alleged that any debt was due to the 
 plaintiff from the defendant, or that a reasonable doubt existed 
 between the parties as to the existence of a debt, or that any suit 
 was pending, the termination of which would be any benefit to the 
 defendant or detriment to the plaintiff (a). So where the decla- 
 ration stated, that the father of the defendant became bound to 
 the plaintiff by bond, with a penalty, conditioned for the payment 
 of money at a day past, and which was not paid, and afterwards 
 the father died ; and the plaintiff intending to sue the defendant 
 as son and heir on the bond, the defendant, in consideration that 
 the plaintiff would forbear his intended suit against the defendant 
 promised to pay the debt : after verdict for the plaintiff, judgment 
 was arrested on the ground that there was not any consideration ; 
 for it did not appear, that the defendant's ancestor had bound 
 himself and his heirs, and if the heir was not bound expressly by 
 name, he was not bound at all (b). So where a bill was brought 
 by the obligee in a bond against the heir of the obligor, alleging 
 that he having assets by descent ought to satisfy the bond ; the 
 defendant demurred because the plaintiff had not expressly alleged, 
 that the heir was bound in the bond; and the demurrer was 
 allowed (c). So where testator was indebted to the plaintiff for 
 money lent, and for merchandise sold and delivered, and promised 
 to pay the plaintiff on a certain day, and died before the day : the 
 plaintiff intending to sue the defendant, the executor, he, in con- 
 sideration of forbearance for a certain time, promised to pay the 
 debt. The defendant pleaded, that, at the time of the delivery of 
 the goods, the testator was an infant. On demuiTer, it was 
 adjudged, that an action would not lie ; for the contract of the 
 infant was void, and there was not originally any cause of action 
 against the testator (d). So where a feme covert trading as a 
 feme sole in the city of London, purchased of the plaintiff articles 
 
 (3) TooUy V. Windham, Oro. Eliz. 206. also Sunt v. Swain, 1 Lev. 165. 
 
 (a) Edwards v. Baugh, 11 M. & W. (c) Crosseing v. Honor, 1 Vern. 180. 
 641. (d) Stoner. WytAipoU, Cro. Eliz. 126. 
 
 (b) Barber v. Pox, 2 Saund. 136 ; see 
 
62 ASSUMPSIT, 
 
 in the way of her trade, and, after her death, her hushand promised 
 to pay, for them ; it was held to be a void promise, for want of a 
 consideration, the husband not being liable (e). So, where a 
 married woman gave a promissory note as a /erne sole, and after 
 her husband's death, in consideration of forbearance, promised to 
 pay it, Pratt, C. J., held, that the note was absolutely void ; and 
 forbearance, where originally there was not any cause of action, 
 was not a consideration to support an assumpsit. He added, that 
 it might be otherwise where the contract was only voidable (/). 
 
 The mere relation of landlord and tenant is a sufScient con- 
 sideration for the tenant's promise to manage a farm in a 
 husbandlike manner {g) ; but not to keep a messuage in good and 
 tenantable repair Qi). But where defendants had for several 
 years, as assignees of a void lease, occupied and paid the rent 
 reserved, it was held, that they were liable to all the stipulations 
 in the lease in the same way as a tenant who holds over, upon the 
 expiration of a valid lease ; and, among others, to the covenant for 
 repair (i). Neglect to cultivate the glebe land in a husbandlike 
 manner is not actionable, there not being any such implied contract 
 between the parson and his successor (/c). 
 
 Consideration must innove from Plaintiff. — The consideration 
 on which* the promise of the defendant is founded, must move 
 from the plaintiff. Therefore where the plaintiff declared, that A. 
 being indebted to the plaintiff and defendant in two several sums 
 of money, and B. being indebted to A. in another sum, the de- 
 fendant, in consideration that A. would permit the defendant to 
 sue B. in his (A.'s) name, for the recovery of the sum due from B. 
 to him, promised that he the defendant would pay A.'s debt to the 
 plaintiff, and alleged that A. permitted the defendant to sue 
 accordingly, and that he recovered ; after verdict for the plaintiff, 
 it was moved in arrest of judgment, that the plaintiff could not 
 maintain this action ; and of this opinion were the court, observing, 
 that the plaintiff was a mere stranger to the consideration, having 
 done nothing of trouble to himself, or, of benefit to the defendant®. * 
 So where the plaintiff declared, that in consideration that one J. S. 
 would make the defendant a title to a house, the defendant 
 promised topay to the plaintiff a certain debt owing from J. S. to 
 him the plaintiff, and then averred that J. S. was always ready to 
 perform his part of the agreement, but that the defendant had not 
 paid the said debt; on demurrer, judgment was given for the 
 defendant, because the plaintiff was a stranger to the consider- 
 ation (m). But if A. remits money to B. to pay to C, and B. 
 
 (8) FciMan v. Plant, 1 Show. 183. (i) BeaU v. Sanders, 3 B. N. C. 850. 
 
 (/) Lloyd V. i«, 1 Str. 94. {k) Bird v. Melph, 4 B. & Ad. 826. 
 
 (g) Powleyv. Walher, 5 T. K,. 373. {1} Bourne y.. Mason, 1 Ventr. 6. 
 
 (h) Borsefall v. Mather, Holt's N. P. (m) Crow v. Jlogers, Str. 592 ; Price v. 
 
 Jackson v. Cobim, 8 M. & "W". 790. i;asion, 4 B. & Ad. 433. 
 
ASSUMPSIT. 63 
 
 promises A. to pay it to him, and allows C. to be told this, C. may 
 m.aintain an action against B. for money had and received ; for the 
 consideration does move from C. through the instrumentality of A. 
 B. assents to become the agent of C. at his request (n). And 
 where the declaration stated, that in consideration that the plaintiff 
 a7id A. B. would sell to the defendant a business, the defendant 
 promised the plaintiff to pay him money, &c., it was held not 
 necessary that A. B. should join in the suit (o). 
 
 The plaintiff declared, that his wife's father being seised of 
 lands then descended to the defendant, and being about to cut 
 down lOOOZ. worth of timber to raise a portion for his daughter, 
 the defendant, being his heir, promised the father, in consideration 
 that he would forbear to fell»the timber, to pay the daughter 
 lOOOZ. : after verdict for the plaintiff, it was moved in arrest of 
 judgment, that the action ought not to have been brought by the 
 daughter, but by the father ; or if the father were dead, by his 
 executors ; for the promise was made to the father, and the 
 daughter was neither privy nor interested in the consideration, 
 nothing being due to her ; but Scroggs, G. J., said, that there was 
 such apparent consideration of affection froin the father to his 
 children, for whom nature obliged him to provide, that the con- 
 sideration and promise to the father might well extend to the 
 children. Judgment for the plaintiff; for the son had the benefit 
 by having the wood, and the daughter had lost her portion by 
 these means (p). This case would seem to support the proposition 
 that a stranger to the consideration of a contract may maintain an 
 action upon it if he stands in such near relationship to the party 
 from whom the consideration proceeds, that he may be considered 
 a party to the consideration. Although this case was in the 
 Exchequer Chamber, there is no modem case in which it has been 
 supported (g). 
 
 The Consideration Tnust be such as the Party undertaking Jias 
 Power by Law to perform. — The plaintiff declared, that he being 
 bailiff to J. S., the defendant, in consideration that the plaintiff 
 would discharge the defendant of a debt due to J. S., promised, &c. 
 After judgment for the plaintiff in the court below, it was reversed 
 in B. R., because the plaintiff could not discharge a debt due to 
 his master (r). The principle established by this case was 
 recognized by Kenyan, C. J., in Nerot v. Wallace, 3 T. R. 22, 
 where the consideration was, that the plaintiffs, the assignees of 
 J. S., a bankrupt, would forbear to have J. S. examined before the 
 commissioners, and that the commissioners would forbear accord- 
 ingly. Lord Kenyan said, " The ground on which I found my 
 
 (n) I/illy V. Hays, 5 A. & E. 548. also Bourne v. Mason, and cases there 
 
 (o) Janes v. BoUnson, 1 Exch. 454 ; 17 cited, 1 Ventr. 60. 
 
 L. J., Exch. 36. (q) Tweddlev. Atkinson, 1 B. & S. 393. 
 
 (p) jDwttonY. Poole, 2 Ley. 210 (Exch. (r) Harvey v. Gibbons, 2 Lev. 161. 
 Ch.); Martyn Y. Hind, Cov/Tp. as. See 
 
64 ASSUMPSIT. 
 
 judgment is this, that every person who, in consideration of some 
 advantage, either to himself or another, promises a benefit, must 
 have the power of confeiTing that benefit up to the extent to 
 which he professes that benefit should go, and that not only in 
 fact but in law. Now as to the promise made by the assignees in 
 this case, which was the consideration of the defendant's promise, 
 it was not in their power to perform it, because the commissioners 
 had nevertheless a right to examine the bankrupt. And no 
 collusion of the assignees could deprive the creditors of the right 
 of examination, which the commissioners would procure them. 
 The assignees stipulated, not only for their own acts, but also that 
 the commissioners should forbear to examine the bankrupt ; but 
 clearly they had no right to tie up the hands of the commissioners 
 by any such agreement. And if any proposal of that sort had 
 been made to the commissioners, they, as acting in a public duty, 
 would have been guilty of a breach of that duty in acceding to it." 
 It must not however be inferred from the above language, that a 
 party may not stipulate for the act or forbearance of a stranger, . 
 and that such stipulation will not in any case form a sufficient 
 consideration ; if the act be such as the stranger might do or 
 abstain from doing legally, or without any breach of duty, no 
 objection can be raised to such a consideration. 
 
 Consideration past or executed. — A consideration, past or exe- 
 cuted, will not support a subsequent promise, unless the act was 
 done at the request, either expressed or implied, of the party 
 promising (s). As, if the servant of A. be arrested for a trespass, 
 and J. S. without the request of A. bails the servant, (which is a 
 mere voluntary courtesy (i)), and afterwards A. promises J. S. to 
 indemnify him, the promise is void ; because the bailing, which 
 was the consideration, was past and executed before (u). But 
 where the act which forms the consideration is done at the re- 
 quest of the party promising, the circumstance of the promise 
 being subsequent in point of time to the consideration will not 
 affect it. As, if A. requests B. to endeavour to procure a pardon 
 for A., and after B. has made such endeavour. A., in consideration 
 thereof, promises to pay him a certain sum of money, this is a 
 good consideration (x). And so if a courtesy be moved by a suit 
 or request of the party promising, it will bind ; for the promise, 
 though it follows, yet is it not naked, but couples itself with the 
 suit before, and the merits of the party procured by that suit, which 
 IS the difference. " Where the act of the plaintiff and the promise 
 of the defendant take place at the same time, the law does not 
 require, as in the case of a bygone transaction, that, in order to 
 make the promise binding, the plaintiff should have acted at the 
 
 (s) 1 KoU Abr 11, pi. 1 ; Osborne v. («) Hunt v. Bate, Dyer, 272 ; Thom- 
 
 Sogers 1 Wms. Sauud. 264, n. (1). ton v. Jenyngs, 1 M. & G 188 
 
 {t) See. Lampleigh v. Brathwait, Hob. (x) 1 Roll. Abr. 11, (Q) pi, 6. 
 
ASSUMPSIT. 65 
 
 Tequest of the defendant (t/)." The distinction established by these 
 cases shows the necessity of stating in declarations on promises 
 - subsequent to executed considerations, that they were done at the 
 request of the party promising ; for although, after verdict, the 
 court will in some cases imply a request, yet after a judgment by 
 default the omission has been held fatal {z). 
 
 In the above cases of voluntary courtesies the law implies no 
 promise ; any subsequent express promise, therefore, must depend 
 upon its own terms. Where, however, the law implies a pro- 
 mise from an executed consideration, there no express promise 
 differing from that which by law would be implied can be en- 
 forced (a). Thus where an action was brought on an account 
 stated, from which the law iirff)lies a promise to pay on request 
 only, it was held that the consideration was not sufficient to sup- 
 port a promise to pay at a future day (6). So where the declara- 
 tion stated that the defendant agreed to let and the plaintiff to take 
 a certain messuage and premises, &c., on certain terms, and that 
 afterwards, in consideration of the premises and that the plaintiff 
 at the request of the defendant had promised the defendant to per- 
 form his part of the agreement, the defendant promised the plaintiff 
 to perform his part of the agreement, and that he then had power 
 to let the messuage and premises without restriction as to the 
 purpose for which the same should be occupied, it was held that 
 no such promise could be implied from the relation between the 
 parties, and that the consideration stated was insufficient to sup- 
 port it (c). 
 
 Moral Obligation, whether a good Consideration. — It was for- 
 merly held (d), that a moral obligation was generally a sufficient 
 consideration for an express promise to pay. In a subsequent case, 
 however (e), Lord Tenterden threw out that the above doctrine was 
 one which should be received with some limitation. This opinion 
 was assented to by the Court of Queen's Bench in Monhman v. 
 Shepherdson, 11 A. & E. 415, and finally in Eastwood v. Kenton, 
 ibid. 438, after a full consideration of all the authorities, the above 
 case, and with it the doctrine that a moral obligation is generally 
 a sufficient consideration for an express promise to pay, was sub- 
 stantially overruled. In the latter case (of Eastwood v. Kenyon) 
 the declaration stated that the defendant promised to repay to the 
 plaintiff money laid out by him in the maintenance of an infant 
 (who afterwards became the defendant's wife) and in the improve- 
 
 ■ (ij) Per Tiiidal, C.J., Tipper v. Bick- 2 D. & L. 296, 297; JRoscorla v. Thomas, 
 
 nell, 3 B. N. C. 716. 3 Q. B. 234. 
 
 (z) Hays v. Warnn, Str. 933 ; s. v. per (5) Hopkins v. Logan, 5 M. & "W. 241. 
 
 Wilmot, J., mPilla-as v. Mityrop, 3 Burr. (c) Jackson v. Cobbin, 8 M. & W. 790. 
 
 1671 ; and see now 15 & 16 Tict. c. 76, {d) Lee v. Muggridge, 5 Taunt. 36. 
 
 ss. 143, ,144. (e) Littlefield v. Shee, 2 B. & Ad. 813. 
 
 (a) Per Tindal, C. J. , in Kaye v. Button, 
 
 VOL. I. JJ" 
 
66 ASSUMPSIT. 
 
 ment of her land, and alleged that the defendant, in right ef his 
 wife, had received the benefit of all the monies so expended, and 
 had agreed to his accounts, &c. ; but the court held it bad in arrest 
 of judgment, for the consideration for it was past and executed long 
 before, and was not laid to have been at the request of the der 
 fendant, nor even of his wife while sole (though if it had, the case 
 of Mitchinson v. Hewson (/) shows that it would not have been 
 sufficient), and the declaration really disclosed nothing but a benefit 
 voluntarily conferred by the plaintiff and received by the defendant, 
 with an express promise by the defendant to pay money. ._ So a 
 subsequent promise will not operate so as to revive a void se- 
 curity (g). The case of Watson v. Turner, Bull. N. P. 147, where 
 overseers were held bound by a subsequent promise to pay an 
 apothecary's bill for care taken of a pauper, and which has some- 
 times been cited in support of the above doctrine, may be sup- 
 ported on strict legal principles, without resorting to the doctrine 
 of moral obligation, of which not a trace can be found in the older 
 cases, for the overseers are bound by law to provide for the poor, 
 which, being a legal obligation, distinguishes the case. The de- 
 fendants, being thus bound, derived a benefit from the act of the 
 plaintiff, who afforded that assistance to the pauper, which it was 
 the duty of the defendants to have provided ; this was the con- 
 sideration, and the subsequent promise by the defendant? to pay 
 for such assistance was evidence from which it might be inferred 
 that th© consideration was performed by the plaintiff, with the con- 
 sent of the defendants, and consequently sufficient to support an 
 assumpsit for work and labour performed by the plaintifip for the 
 defendants, at iheinr request. 
 
 The exceptions to the above ride are cases "of voidable con- 
 tracts subsequently revived, of debts barred by operation of law 
 subsequently revived, and of equitable and moral obligations which, 
 but for some rule of law, would of themselves have been suf- 
 ficient to raise an implied promise " (A). Hence, where the holder 
 of a bill of exchange had failed in giving due notice of the dis- 
 honour of the bill to the drawer, it was adjudged that a subse- 
 quent promise by the drawer that he would see the bill paid would 
 support an assumpsit (i). In like manner it has been held that a 
 promise to pay a debt barred by the Statute of Limitations is 
 good (k) ; a positive and precise promise (Q by a bankrupt after 
 
 (/) 7 T. E. 348. Middx. Sittings, T. 3 Geo. II. per Sam- 
 
 (g) CocJcshottv. Bennett, 2 T. R. 763. mond, C.J. 
 
 (h) Per Denman, C.J., in Soscorla v. (k) Jlyleing v. Bastings, Lord Eaym. 
 
 Thomas, 3 Q.B., 237 ; and see cases re- 389. It must he in writing, signed, 9 
 
 viewed in a note to Wennall v. Adney, 3 Geo. IV. c. 14 s. 1. 
 B. & P. 249 ; Kaye v. Button, 2 D. & L. {I) Mnb'uy v. Weightman, 5 Esp. 198. 
 
 291 ; 13 L. J., C.P. 183. The promise must be distinct and im- 
 
 (i) Hopes V. Alder, 6 East, 16, n. ; equivocal, per Lord Ellenb(rrough, C.J., 
 
 ■Sogers v. Stevens, 2 T. E. 713 ; ZMndiev. in Fleming v. Haynes, 1 Star. 370. 
 Bobeirtson,, 7 East, 231; Haddock y. Bury, 
 
ASSUMPSIT. or 
 
 his certificate to pay aa antecedent debt (m) was good until pro- 
 hibited by statute (tc) : and a promise by a person of full age to 
 pay a debt contracted during his infancy (if in writing and signed, 
 9 Geo. IV. c. 14, s. 5), is binding (o). If the subsequent promise 
 be conditional, it is incumbent on the plaintiff to show the con- 
 dition performed; thus, formerly, if a bankrupt, after obtaining 
 his certificate, promised to pay a prior debt when he should 
 be able, the plaintiff has to prove the ability of the defendant 
 to pay at the time of the action brought on the subsequent 
 promise (p). 
 
 Although in the instances given ante, p. 65, a moral obligation 
 has been held to be a good consideration for an express promise, 
 it has never been carried furtl*er, so as to raise an implied promise 
 in law. Hence, where the parish officers of A. laid out money in 
 providing medical assistance and other necessaries for a pauper, 
 who was taken suddenly ill in the parish, and could not be removed 
 in consequence of his illness, it was held, that the law would not 
 raise an implied promise in the parish of B. in which the pauper 
 was legally settled, to reimburse the money laid out by the parish 
 of A., although the parish of B. had notice of the pauper's ill- 
 ness (s). An accident happened to, a driver of a waggon belonging 
 to I. S., in the parish of A. ; the man was immediately removed to 
 the nearest public-house, which was in the parish of B., where the 
 plaintiff attended him as a surgeon ; the parish ofiicer of B. visited 
 the place, and did not discharge the plaintiff ; it was held, that he 
 was liable to pay the plaintiff for his attendance, the removal 
 being hondfide (t). Note. — The plaintiff was in the habit of atten- 
 ding the parish poor of B. ; and as the defendant did not repudiate 
 the plaintiff's attendance, he did what was equivalent to a pre- 
 vious request. Moreover, the pauper lying sick, as casual poor, in 
 the parish, there was a legal obligation on the parish to look to the 
 supply of his necessities. 
 
 A master is not liable upon an implied assumpsit to pay for 
 medical attendance on a servant, who has met with an accident in 
 his service (u). 
 
 An action on the case does not lie for the recovery of expenses 
 arising from a moral obligation to do a thing which the law does 
 not compel ; as for the expenses arising from the pregnancy of a 
 daughter debauched ; to maintain an action for that injury, there 
 must be a loss of service (a;). See post, tit. " Master and Servant," 
 
 (m) Trueman v. Fenion, Cowp. 544 ; under 4 & 5 W. IV. c. 76, s. 84. 
 
 but see post, tit. "Bankrupt." . (<) Lamb v. Bwnce, 4 M. & S. 275. See 
 
 (n) 12 & 13 Vict. 0. 106, s. 204. Tomlmson v. Bentall, 5 B. & C. 738 ; 
 
 , (o) Southertim v. Whitloch, 1 Str. 690, Wing v. Mill, 1 B. & Aid. 104. 
 
 per Bayrmmd, C.J. . (u) Wennall v..Adiwy, SB. & P. 247. 
 
 - (p) Bssford V. Sa,unders,2 H. Bl. 116. {x) Satterthwaite Y..I>ewhurst, B. E. E. 
 
 (s) Atkins v. Banwell, 2 East, 505. 25 Geo. III. A. P. B. No. 85 ; Dampier, 
 
 Such expenses are now recoverable MSS. L. I. L. 
 
 F 2 
 
68 ASSUMPSIT. 
 
 But the maintenance of an iUegitimate child by its raother is a 
 sufficient consideration for a promise by the reputed father to pay 
 an annuity to her ; for he might have had the child affiliated on 
 him {y). The moral obligation which a father is under to provide 
 for his child, imposes on him no liability to pay the debts incuired 
 by the child ; and he is not so liable unless he has given the 
 child authority to incur them, or has expressly contracted to pay 
 them (z). 
 
 The Agreement must he Legal.— In order to maintain an as- 
 sumpsit, the agreement must be legal ; that is, it must not con- 
 travene any rule of the common law, the express provisions of 
 any statute (a), or the general policy of the ]aw._ The two essen- 
 tial parts in every parol agreement are the consideration and the 
 promise. If either of these be illegal, or if part of the entire 
 consideration be illegal (&), or if the promise be to do two or more 
 acts, one of which is illegal (c), an action cannot be maintained for 
 a breach of the agreement. Hence, where the consideration was, 
 that the plaintiff would procure the defendant to be presented and 
 instituted to a chapel, it was adjudged illegal, on the ground of 
 its being simony,. and therefore incapable of supporting an as- 
 sumpsit (d). So where defendant, an under-sheriff, having seized 
 the goods of J. S. under an elegit sued out by the plaintiff, in con- 
 sideration that the plaintiff, at the request of the defendant, would 
 sue out another writ of elegit, and authorize some person to receive 
 the goods, promised to procure the goods to be found by an in- 
 quisition, and to deliver them to the person authorized ; the court 
 were of opinion that the promise was illegal : 1. Because the 
 seizing the goods under the first elegit was ill, for want of an in- 
 quisition, and it differed from a fi. fa., so that the defendant was a 
 trespasser ah initio, and this promise was to make good his own 
 wrong : 2. It was the duty of the sheriff to return the jury, whc 
 ought to be impartial ; but this promise bound him contrary to the 
 duty of his office, and although one part of the promise was legal, 
 yet that depending on the illegal part vitiated the whole (e). So 
 where a person promised to indemnify a gaoler, if he would permit 
 a prisoner to escape out of execution, it was adjudged, that an 
 action could not be maintained for a breach of the promise, because 
 the consideration, namely, the suffering a prisoner in execution to 
 escape, was against law (/). So where, in consideration that the 
 plaintiff at the request of the defendant had published a libel 
 
 {y) Jermingsv. Brown, 9 M. ftW. 496. (d) MackalUr v. Todderich, Cro. Car. 
 
 (a) Martimore v. WrigM, 6 M. & W. 361. 
 482. (e) Morris r. Chapmmi, T. Jones, 24 ; 
 
 {a) FeathersUme v. Butchms, 3 Leon. Carter, 2^3, S, G. 
 222 ; Cro. Eliz. 199. (/) MaHin v. BlUhman, Yelv. 197. 
 
 (6) Cro. Jac. 103. See also Sherley v. Packer, 1 Roll. 313. 
 
 (c) T. Jones, 24. 
 
ASSUMPSIT. 69 
 
 against a third person, and had consented to defend an action 
 brought against him for such publication, the defendant promised 
 to indemnify the plaintiff against all costs and expenses incuri'ed 
 thereby ; it was held that the consideration was illegal, and that if 
 that objection could be got rid of, and the consideration rejected as 
 surplusage, the promise was one by a stranger to the action, and 
 therefore void for maintenance (g). So where an attorney entered 
 into an_ agreement in France (where such agreements were 
 legal) with a French subject, to sue for a debt due to the latter 
 from a person residing in England, whereby the attorney was to 
 obtain by way of recompense a moiety of the amount recovered, it 
 was held that the agreement was void for champerty ; but as the 
 work had been done, and the«lient had received the benefit of it, 
 the attorney was entitled to his costs as between attorney and 
 client (h)^ 
 
 If an oflScer permit a prisoner to go at large, in consequence of 
 which he (the officer) is obliged to pay the creditor, the officer 
 cannot maintain an action for money paid against the debtor, for 
 he cannot raise a cause of action against the debtor by a payment 
 of money for him caused by his own breach of duty (i). But 
 where an officer discharged a prisoner arrested on mesne process, 
 on payment of the sum sworn to and costs, and was afterwards 
 obliged to pay the residue of the debt, it was held by BuUer, J., 
 that as the officer had not been guilty of any improper conduct, 
 and as he was by law compellable to pay the whole debt, he was 
 entitled to recover against the defendant for so much money paid 
 to his use (k). 
 
 It is not an offence against the law of nations or the law of this 
 country for the subject of a neutral state to supply contraband of 
 war to a belligerent power ; and the right of the other belligerent 
 to seize such contraband of war in transitu, is merely a co-existent 
 conflicting right which exposes the neutral merchant to the risk of 
 confiscation, but does not render illegal a contract between him 
 and another neutral subject for a joint adventure for the supply of 
 such contraband goods (Z). 
 
 Of Agreements in Restraint of Trade. — " The general rule is, that 
 all restraints of trade (which the law so much favours), if nothing 
 more appears, are bad. This is the rule which is laid down in the 
 famous case of Mitchel v. Reynolds, 1 P. Wms. ] 81 (in which all 
 the cases and arguments in relation to this matter are thoroughly 
 weighed and considered). But to this general rule there are some 
 
 {g) Shackell v. Rosier, 2 B. N. C. 634. {T} Per Lord Chancellor Wesfbury, Sx 
 
 \h) Grell v. Levy, 16 C. B. (N. S.) 73. parte Ghauvasse, 34 L. J. Bank. 17. See 
 
 (?) Pitcher v. BaAUy, 8 Ea.st, 171. also The Helen, 35 L. J. Adm. 2, and 
 
 {Ic) Cordron \, Lord Masserene, Peake's Hobisy. Hemming, 17 C. B. N. S. 791. 
 N. P. C. 143. 
 
70 ASSUMPSIT. 
 
 exceptions, as first, that if the restraint be only particular in re- 
 spect to the time and place, and there be a good consideration 
 given to the person restrained, a contract or agreement upon such 
 consideration, so restraining a particular person, may be good and 
 Valid in law, notwithstanding the general rule, and this was the 
 very case of Mitchel v. Reynolds " (m). Thus a promise not to use 
 a trade in a particular place is valid (%). So a contract entered 
 into by an attorney, that he would relinquish and make over to B. 
 and G., two other attornies, his business so far as respected his 
 practice in the profession within London, and 150 miles from 
 thence, and all his business as agent, &c., and that he would 
 recommend his clients and permit B. and G. to use his name in the 
 business, has been held good (o). The limit of exclusion depends 
 upon the character of the business, and it will not be considered 
 unreasonable, as in restraint of trade, if it was necessary for the 
 protection of the purchase {p). 
 
 Of Agreements contrary to public Policy. — The defendant in 
 consideration that the plaintiff, who was master-joiner in one 
 of the Royal dockyards, would procure himself to be super- 
 annuated, undertook, in case he, defendant, should succeed the 
 plaintiff as master-joiner, to allow him the extra pay from the 
 yard books. This agreement having been made without the know- 
 ledge of the navy board, to whom the appointment belonged, was 
 held void, on the ground that it was contrary to public policy {q). 
 So where A., through the interest of B., was appointed to the office 
 of customer of Carlisle, having previously signed an agreement 
 that his name was made use of in trust for B., and that he would 
 appoint such deputies as B. should nominate, and would empower 
 B. to receive the fees of the office to his own use, this agreement 
 was held void ; first, as being against the principles of the common 
 law, masmuch as the public was abused and the king deceived ; 
 and, secondly, because the agreement was in violation of the 12 
 Rich II. c. 2, and 5 & 6 Edw. VI. c. 16, which were made to 
 guard agamst evils of this nature (r). On the same ground, it 
 was held, that upon an agreement for the sale (by the owner) of 
 the command of a ship in the service of the East India Company, 
 
 (m) Per WilUs, C. J., in the Master, And see Hopkins v. Presmtt, i C. B. 578. 
 
 &e., of GunmaUrs v. Fell, WiUes, 388. With respect to offices under government 
 
 See idso Sartleyv Cummmgis, 5 C. B. not mentioned in any statute, it has been 
 
 -247 ; post, tit. ' Debt. Exclusive rights decided, that they cannot be sold. But 
 
 f « w-n^Ti? na "^'f- f'tiolished by 5 there are some offices which may be the 
 
 i7i IJ- "-rfj '; ^n T ..» '^^J'^''* °^ ^^1''' if ^^^ ^^1« takes place 
 
 (») Broad y.Jollyfe, Gvo. Jac. 596. under the authority and with the consent 
 
 ! iT" ^- '^^' ^ ^"I'o \^°V „ °f tlio^s ^^0 liaye the power of appoint- 
 
 (p) Mar-ms v. Parsons, 32 L. J. Chan. ment, as commissions in the arnff, &o. 
 
 i„s T>„^.^ TT. I TT Tji „;,„ ^^'' ^^i^yo^, C. J., and Lawrence, J., 8 
 
 (q) Parsons v. Thompson, 1 H. ,B1. 322. T. R. 92 94 
 (r) Qarforth v. Fearon, 1 H. Bl. 327. ' ■ > ■ 
 
ASSUMPSIT. 71 
 
 made without the .knowledge and against the bye-laws of the 
 companyj an action could not be maintained (s). 
 
 A jpromise was made by the defendant, a friend of a bankrupt, 
 when he was on his last examination, that in consideration that the 
 assignees and commissioners would forbear to examine the bank- 
 rupt concerning certain sums of money with which he was charged, 
 he, defendant, would pay those sums ; the consideration was held 
 void, being contrary to the policy of the bankrupt laws (t). The 
 assignees cannot legally enter into any contract with a particular 
 creditor, that on a certain event he shall receive out of the estate 
 the full amount of any debt. It is the duty of the assignees to 
 make an equal distribution of the effects among the creditors, in 
 proportion to all the debts o^ the bankrupt (u). An agreement 
 by the payee of a bill of exchange to discharge a person liable 
 upon it, in consideration that the latter would not move the Court 
 of Queen's Bench against him (the payee) for a misdemeanor, is 
 illegal (x). But it seems, that in cases of misdemeanor, where the 
 party aggi-ieved is also entitled to an action for damages, e. g., in 
 the case of a nuisance or assault, he may compromise or settle his 
 private damage in any way he may think fit (y). 
 
 So where, a petition having been presented to the House of 
 Commons against the return of a member on the ground of 
 bribery, the petitioner entered into an agreement, in consideration 
 of a sum of money, and upon other terms, to proceed no further 
 with the petition ; it was held that this agreement was illegal (z). 
 Rote. — In this case it was determined that the agreement was 
 admissible in evidence, for the purpose of insisting on the illegality 
 of the transaction, without being stamped, and that a stamp is 
 unnecessary where the instrument shows no contract in law, and 
 cannot be enforced between the parties (a). 
 
 A number of bleachers in the county of Lancaster, finding that 
 losses to a considerable amount had been incurred by them from 
 their not being entitled to retain goods, put into their hands, for a 
 general balance, came to an agreement that they would not receive 
 the goods of any person, who would not consent that they should 
 be retained for a general balance that might happen to be due to 
 them. This agreement came to the knowledge of J. S., who after- 
 wards sent a quantity of goods to A., one of these bleachers, for 
 the purpose of being bleached. J. S. became a bankrupt. The 
 assignees demanded the goods, but the bleacher insisted that he 
 
 {s) Blachford v. Preston, 8 T. E. 89. (x) Pool v. Bousfidd, 1 Campb. 55. 
 
 See Stackpole v. EarU, 2 Wils. 133. If (y) Kdr v. leeman, 9 Q. B. 371 ; S. 
 
 the company consents, see Richardson v. t. Blakemore, 14 iUd. 544. 
 
 Mellish, 2 Bing. 229. (s) Coppock v. Bower, 4 M. & TV. 361. 
 
 (t) Nerot V. Wallace, 3 T. E. 17. (a) So of an unstamped cheque, Keable 
 
 (m) Staines v. Wainwright, 6 B. N. C. • v. Payne, 8 A. & E. 555 ; and see Holmes 
 
 174. V. Swsmith, 7 Exoh. 802. 
 
73 ASSUMPSIT. 
 
 had a lien on fhe goods for what remained due to him for his 
 work and labour .upon other goods delivered to the bankrupt 
 before the bankruptcy. It was contended, on the part of the 
 Assignees, that the object of the agreement was to create a lien m 
 cases where none existed before ; and though an individual might 
 impose such terms on his customers, yet it was not competent to a 
 tlass of men to do it ; and that it was against pubhc policy to 
 permit combinations of this sort to avail. But the court were 
 of opioion, that as the convenience of commerce and natural 
 justice were on the side of liens, the agreement was legal, its 
 object being- merely to enforce that which the law considered 
 as equitable ; more especially as it was made by persons who 
 had an option either to work for this or that person as they 
 chose (b). 
 
 A contract for the sale of goods, to be delivered at a future day, 
 is not invalidated by the circumstance that, at the time of the 
 contract, the vendor neither has the goods in his possession, nor 
 has entered into any contract to buy them, nor has any reasonable 
 expectation of becoming possessed of them, by the time appointed 
 for delivering them, otherwise than by purchasing them after 
 making the contract ; for such a contract does not amount to a 
 wager, inasmuch as both the contracting parties are not cognisant 
 of the fact that the goods are not in the vendor's possession ; and 
 even if it were a wager, it is not illegal, because it has no neces- 
 sary tendency to injure third parties (c). 
 
 A contract in restraint of marriage generally is illegal, as being 
 against the sound policy of the law (d). Aliter, if the restriction 
 be confined to a particular nation, e. g. a Scotchman (e), and hmi- 
 tations (Mr ante vid/witate are valid (/). 
 
 Of Agreements in contravention of Statutes. — " It is perfectly 
 settled, that where the contract which the plaintiff seeks to en- 
 force, be it express or implied, is expressly or by implication for- 
 bidden by the common or statute law, no court will lend its 
 assistance to give it effect. It is equally clear, that a contract is 
 void, if prohibited by a statute, though the statute inflicts a 
 penalty only, because such a penalty implies a prohibition ; Lord 
 Holt, Bartlett v. Vinor (g). And it may be safely laid down, that 
 if the contract be rendered illegal, it can make no difference in 
 point of law, whether the statute, which makes it so, has in view 
 the protection of the revenue or any other object. The sole ques- 
 
 (b) Kirkmam v. Shawcross, 6 T. E. 14. tit. "Wager." 
 
 (c) HibbUwhite v. M' Marine, 5 M. & (c) PerrinY.Lyon,9^ast,nO; Randall 
 W. 462 ; Mortimer v. M'Callan, 6 M. & v. Payne, 1 Bro. C C 55 
 
 W. 76 ; S. C. in error, 9 M. & W. 636. (/) Lloyd v. Lloyd, 21 L. J., Ch. 696. 
 
 {d) Hartley v. Mice, 10 East, 22 ; post,. {g) Carth. 262. 
 
ASSUMPSIT. 73 
 
 tion is, whether the statute Tneans to prohibit the contract " (h). 
 Hence, where an agreement was made between two parties, sub- 
 jects of this country, and one of whom was resident in Guernsey, 
 for the sale and delivery of goods in Guernsey, for the purpose of 
 being smuggled into England ; it was held, that the vendor could 
 not maintain an action for the value of the goods (i). So where 
 the vendor was concerned in giving assistance to the vendee in 
 smuggling the goods, by packing them in the manner most suit- 
 able for, and with the intent to aid, that purpose, although the 
 vendor was a foreigner, resident abroad, and the sale and delivery 
 of the goods were completed abroad, it was held, that the vendor 
 could not resort to the laws of this country to give effect to his 
 agreement (k). The mere knoj^ledge of the vendor, however, that 
 the goods were purchased for the purpose of being smuggled, is 
 not sufficient to prevent Hs recovering in an action for the price of 
 the goods, if the vendor was a foreigner resident abroad, and the 
 sale and delivery were completed abroad (l). A druggist, after the 
 passing of 42 Geo. III. c. 38, which forbad any person from pro-: 
 curing to be mixed or compounded any liquor to imitate beer 
 from any other ingredient but malt and hops, brought an action 
 against the defendants, brewers, for the price of certain drugs 
 which he had sold to them, knowing that they were to be 
 used in the brewery: it was held that he was not entitled to 
 recover (m). 
 
 A contract, e. g. a bill of exchange, with an association of which 
 spiritual persons are members, contrary to 57 Geo. III. c. 99, s. 3, 
 was held void (n), but such contracts are now legalised by 4 & 5 
 Vict. c. 14. 
 
 It was formerly held that when acts had been passed containing 
 regulations as to articles which are the subject of sale, and when 
 the policy of the act was for the security of the buyer and to pro- 
 tect him from the frauds of the seller (o), the seller could not 
 recover the price, unless he observed the regulations, or unless 
 {semhle) they had been expressly waived by the buyer ; but that 
 it was otherwise if the act was passed for the protection of the 
 revenue only {p), but here again the true rule is not whether the 
 act was passed to protect the buyer or the revenue, but whether 
 the legislature intended to prohibit the contract if unaccompanied 
 
 {Ji) Per Parlce, B., Oope v. Sowlands, (o) Law v. ffodson, 11 East. 300. Oun- 
 
 2 M. kW. 157 ; and see Taylor r. Grow- ddl v. Damson, i C. B. 376, as to coals. 
 
 land Gas Company, 10 Exch. 293. ForsUr v. Taylor, 5 B. & Ad. 887 ; 3 
 
 • (i) Biggs v. Lawrence, 3 T. E. 454 ; N. & M. 244, as to firkins of butter. 
 
 Clugas V. Penalvma, i T. R. 467. Tysony. Thmnas, M'CIel. & Y. 119, as to 
 
 {k) Waymell v. Seed, 5 T. E. 599. barley sold by Hobbett, (local measures 
 
 (I) JlolmanY. Johnson, Cowp. 341. are now allowed within certain limitation, 
 
 (m) Layton v. Hughes, 1 M. & S. 592. 6 & 6 W. IV. c. 63, s. 6). 
 
 \n) Hall V. Franklin, 3 M. & W. 259. {p) Brown v. Duncan, 10 B. & C. 93. 
 
74 assumpsit: 
 
 by certain formalities or not (?). In these cases, althotigli a 
 penalty be imposed in the same clause of the act which requires a 
 thing to be done, yet the remedy of the public is not thereby, 
 limited to a proceeding for the penalty, but the clause may be 
 used as a defence to an action (r). Thus a printer cannot recover 
 for work and materials expended in printing a book, if he has not 
 printed his name and place of abode on the first and last leaves, in 
 accordance with the 39 Geo. III. c. 79, s. 27 (s). An opera singer 
 cannot recover on a bill of exchange accepted in discharge of a 
 debt due for performances, &c., at a theatre not duly licensed (t). 
 A person not duly qualified according to the 44 Geo. III. c. 98, s. 
 14, cannot recover for work a&d labour in drawing conveyances of 
 real and personal estate^ &c. (it). Nor an unlicensed person for 
 surgical operations, medicines, &c. (cc). Nor a London broker for 
 commission, &c., unless duly licensed (y). 
 
 Where, on the other hand, the intention of the statute is not to 
 prohibit the contract, the plaintiff is entitled to recover. Thus (z)i 
 where the permit delivered by the seller, a distiller, to the buyerj 
 did not truly specify the strength of the spirits sold in accord- 
 ance with 6 Geo. IV. c. 80, s. 124 (a) ; where the plaintiff, a dis- 
 tiller, sold spirituous liquors to the defendant, who to his know- 
 ledge carried on the business both of a rectifier and retailer of 
 spirits, contrary to the 26 Geo. III. c. 73, s. 64 (b) ; where one 
 of the five plaintiffs, who were in partnership together as dis- 
 tillers, carried on a retail spirit business within two miles of the 
 distillery, contrary to the 4 Geo. IV. c. 94, ss. 132, 133 (c) ; where 
 the plaintiffs, dealers in tobacco, had not painted their names over 
 their premises in accordance with the 6 Geo. IV. c. 81, s. 25 ; in 
 all which cases, the court held, that the provisions of the different 
 statutes were in the nature of excise regulations, and their inten- 
 tion, the protection of the revenue by the imposition of a penalty, 
 but not the prohibition of the contract. 
 
 Where an action was brought for the price of stock sold and 
 transferred by the plaintiff to the defendant, and the defendant 
 pleaded that the stock was transferred by virtue of an agreement 
 with the plaintiff for the transfer of the same, and that, at the 
 time of the agreement for the sale, the plaintiff was not actually 
 
 (q) Taylor v. Orowlcmd Gas Company, now 21 & 22 Vict. c. 90, s. 32. 
 
 10 Ex. 293. (i/) Cope v. Rowlands, supra ; Smith 
 
 (r) Forsler v. Taylor, 5 B. & Ad. 887. v. Lindo, 27 L. J., C. P. 196. 
 
 (s) Bensley v. Bignold, 6 B. & Aid. (s) Wetherell v. Jones, 3 B. & Ad. 
 
 ^55. 225 ; aec. Johnson v. Hudson, 11 East, 
 
 («) Se Begnis v. Armistead, 10 Bingh. 180 ; but see 2 Will. IV. c. 16, s. 12. 
 
 107 ; Levy r. Yaks, 8 A. & E. 129. (a) Hodgson v. Temple, 5 Taunt. 181. 
 
 (m) Taylor v. Crowland Gas and Coke (b) Brown v. Dwnean, 10 B. & C. 98. 
 
 Vompany, 10 Exch. 293. (c) SmUh v. Mawhood, 14 M. & W. 
 
 (x) Qreinaire v. Valon, 2 Campb. Hi ; 462. 
 Cope V. Rowlands, 2 M. & W. 159. See 
 
ASSUMPSIT. 75 
 
 possessed of or entitled to the stock, and therefore that the con- 
 tract was void by the provisions of the 7 Geo. II. c. 8, s. 8 ; it was 
 held, that the plea was no answer to the action, for that, the 
 executed consideration declared on being legal, though the trans- 
 action in its inception might have been illegal, the plaintiff was 
 entitled to recover (d). 
 
 By 24 Geo. II. c. 40, s. 12, it is enacted, " that no person shall 
 maintain any action for any debt or demand, for any spirituous 
 liquors, unless such debt has been bond fide contracted at one 
 time, to the amount of 20s. or upwards ; nor shall any item in any 
 account for distilled spirituous liquors be allowed, where the liquors 
 delivered at one time, and mentioned in such item, shall not amount 
 \o 20s. at the least, without fraftd ; and where no part of the liquors 
 sold or delivered shairhave been returned or agreed to be returned 
 directly or indirectly," &c. 
 
 In assumpsit for goods sold and delivered, it appeared that the 
 defendant had run up a score for grog; beer, and herrings, con- 
 .sumed by him at a public house kept by the plaintiff. It was 
 objected, that the demand for the grog could not be sustained, 
 being illegal within the preceding statute. Thomson, B., was of 
 this opinion, observing, however, that the statute was confined to 
 spirituous liquors. The plaintiff recovered for the residue of his 
 demand (e). The above statute extends to bills of exchange, part 
 of the consideration for which are spirituous liquors sold in less 
 quantities than 20s. value (/) ; although the contrary was held by 
 Lord Ellenhorough in a case at Nisi Prius (g). 
 
 It was at one time thought, that this statute did not apply to 
 cases where the spirituous liquors were sold in less quantities than 
 20s. by a spirit merchant to the keeper of an eating-house for 
 consumption by the customers of the latter as they required it Qi), 
 and Lord A bi/nger (i) expressed an opinion, that this enactment 
 did not apply to cases where ^ spirits are supplied by an inn- 
 keeper to guests who are lodging in the house. But it has been 
 since held (Jc), that this section contains an unqualified prohibi- 
 tion of the sale of spirituous liquors to a smaller amount than 
 20s. at a time : and that the price of spirits sold in quantities less 
 than the required amount, by a spirit-merchant to a publican, to 
 be consumed, not by the publican himself, but by his customers, 
 cannot be recovered in an action. 
 
 But where parties, having cross-demands, balance and settle 
 
 (d) M'Oallwn v. Mortimer, 9 M. ftW. {h) Jackson v. Attrill, Peake's W.P.C. 
 ■636 (Exch. Ch.). 180. 
 
 (e) Oilpin v. Rmdh, Devonshire Lent (i) Proctor v. Nicholson, 7 C. &. P. 
 •Ass. 1809, MS. 69. 
 
 (/) Scott V. Gilmore, 3 Taunt. 226. (i) Hughes v. Done, 1 Q. B. 294. 
 (g) Spencer v. Smith, 3 Cainpb. 9. 
 
76 ASSUMPSIT. 
 
 their accounts, it is no defence to an action, brought for the 
 balance that part of the amount was for spirits dehvered m 
 quantities under 20s. in value (T). Where a payment is made 
 .generaUy on account, and no specific direction as to its apphcation 
 is given, the creditor may apply it to such portion of his claim as 
 consists of spirits supplied under the value of 20s. (m). 
 
 By 30 & 31 Vict. c. 142, s. 4 (n), it is enacted " That no action 
 shall be maintainable to recover any debt alleged to be due in 
 respect of the sale of any ale, porter, beer, cider, or perry, con- 
 sumed on the premises." 
 
 Of Fraudulent Agreements. — The agreement must be fair and 
 honest, and not entered into for a fraudulent purpose ; for fraudu- 
 lent contracts are considered in the same light as illegal contracts, 
 and consequently an action cannot be maintained for the breach 
 of them. The defendants being indebted to the- plaintiffs and 
 other creditors, and being insolvent, assigned aU their effects in 
 trust to pay lis. in the pound to their creditors, to which all the 
 creditors consented, and signed the deed of trust, except the plain- 
 tiffs, who refused to sign and to take any composition, unless the 
 defendants would give them a note for the remaining 9s. in the 
 pound ; the defendants accordingly gave a note to that amount, 
 -whereupon the plaintiffs signed the deed. It appeared, that if the 
 plaintiffs had not signed, the rest of the creditors would not have 
 , signed the deed. An action having been brought on the note, a 
 verdict was found for the defendants : and on an application made 
 to the court for a new trial, it was refused. Lord Kenyan, C.J., 
 observing, that the foundation of his opinion was, " that the temp- 
 tation to give this note was a fraud on the creditors who were 
 parties to the contract, on which their debts were to be cancelled 
 in consideration of receiving a composition. The note preceded 
 the execution of the deed ; all the creditors being assembled for 
 the purpose of arranging the defendants' affairs, they all undertook 
 and mutually contracted with each other, that the defendants 
 should be discharged from their debts after the execution of the 
 deed. Then the plaintiffs, in fraud of that engagement, entered 
 into a contract with the defendants, which prevented their being 
 put into that situation which was the inducement to the other 
 creditors to sign the deed, and to relinquish a part of their 
 demands " (o). So where a trust deed was proposed to the credi- 
 tors of an insolvent, whereby they all engaged to accept payment 
 of their debts by six instalments, the second, third and fourth of 
 which were to be guaranteed by collateral security, and the fifth 
 
 (Z) Dawson v. HemTiant, 6 Eap. 24. (o) CocTcsUU v. Bennett, 2 T. B. 763 ; 
 
 (m) Philpott V. Jmes, 2 A. & E. 41. and see Middletun v. Lord Otislow, 1 P. 
 
 ■Secus, if the contract is /orftitideji by law. Wms. 768, post, "Money had and re- 
 
 Wright v. Lavng, 3 B. & C. 169. ceived." 
 (n) The County Court Act of 1867. 
 
ASSUMPSIT. 77 
 
 and sixth were to remain on the single security of the insolvent ; 
 several of the creditors refused to sign, unless the plaintiffs did : 
 in order to induce the plaintiffs to sign the deed, the defendant, at 
 the instance of the insolvent, agreed that he (the defendant) would 
 procure the plaintiffs a collateral security for the fifth and sixth 
 instalments within a given time, whereupon the plaintiffs signed 
 the trust deed, and the other creditors, who had before refused, 
 signed also, but without any knowledge of the agreement between 
 the plaintiffs and defendant : an action having been brought for 
 the non-performance of this agreement, it was held to be a void 
 agreement, on the ground that it was a fraud against the other 
 creditors : and although, in this case, the stipulation by the plain- 
 tiffs was for a further security,' and not for more money, there was 
 not any difference, in substance, whether a creditor stipulated for 
 that, which he thought would produce him money more certainly, 
 or for a larger sum than he had agreed to take in common with 
 the other creditors ; that it was equally a fraud upon the other 
 creditors to stipulate for either (p). 
 
 So where the plaintiff, before signing a composition deed, by which 
 the creditors of the defendant agreed to take a composition, pay- 
 able partly by instalments and secured by the defendant's promis- 
 sory notes, stipulated, without their knowledge, for a bill of 
 exchange, to be indorsed to him by the defendant for a further 
 sum, it was held, that the whole agreement between the plaintiff 
 and the defendant was void, as being a fraud upon the other 
 creditors, and that the plaintiff could not recover, even upon the 
 defendant's notes, for the amount of the composition-money, 
 although he had received nothing on the biU indorsed to him by 
 the defendant (q). So where the plaintiff refused to sign a com- 
 position deed, unless the defendants would pay him dividends at 
 a rate exceeding that which the other creditors had accepted, and 
 the defendants agreed to this, and, as an inducement to him to 
 make the contract, stated that no other creditor had received a 
 similar preference, a statement which was false within the know- 
 ledge of the defendants, it was held, that this deception of the 
 plaintiff by the defendants was no answer to the defendants' plea 
 of release under the composition deed, for "as the plaintiff was 
 himself, in the transaction of the composition and release, guilty of 
 fraud in respect of the other compounding creditors, in stipulating 
 for a preference to himself, he is not at liberty to insist on the 
 fraud at the same time practised on himself" (r). 
 
 The creditors of a bankrupt entered into a deed of composition 
 to receive eight shillings in the pound in full discharge of their 
 
 (p) Leicester v. Hose, 4 East, 372 ; and See Higgms v. Pitt, 4 Exeh. 323. 
 
 see Ex pwrte Sadler, 15 Ves. 52 ; Cul- (r) Mallalieu v. Hodgson, 16 Q. B. 
 
 lingworth v. Loyd, 2 Beav. 391. 689, per Coleridge and Erie, 33., Wigkt- 
 
 (q) Hoioden v. Haigh, 11 A. & E. 1033. man, J., diss. 
 
78 ASSUMPSIT. 
 
 debts, and agreed to release every thing beyond that, a.nd give wps 
 all securities to the bankrupt, and join in a petition to the chan- , 
 cellor to supersede the commission ; one of the creditors, having 
 two distinct debts due from the bankrupt, for one of which he held 
 bills to the full amount, received his dividend of eight shilhngs m 
 the pound on both debts, and then received the full value of some 
 of the bills ; it was held, that the bankrupt was entitled to sue for 
 the money so obtained on the bills in an action for money had and 
 received (s). But where the creditors of an insolvent agreed, by 
 an instrument (not under seal), that they would accept in full 
 satisfaction of their debts twelve shillings in the pound, payable by 
 instalments, and would release him from all demands : and one of 
 the creditors, who signed for the whole amount of his debt, held 
 at the time, as a security for part, a bill of exchange drawn by the 
 debtor, and accepted by a third person ; the money due on his bill 
 having afterwards been paid by the acceptor, and an allowance 
 made by the creditor to the insolvent of the excess of the com- 
 position-money he had received, it was held, that the creditor 
 might retain the money he had received for the bill, the agreement 
 of composition not containing any express stipulation for giving 
 up securities, nor anything whence such a stipulation could be 
 implied, and the effect of it not being to extinguish the original 
 debt (t). 
 
 Where, however, the debt is actually released by the composition 
 deed, the creditor has not any right to hold any collateral security 
 which may have been deposited with him ; neither can he make 
 the giving up such a security a consideration for a promise by the 
 debtor to pay the residue of the debt, beyond the amount of the 
 composition received under the deed (u). Where defendant entered 
 into a composition to pay his creditors 6s. 8cZ. in the pound, upon 
 condition of being released, and nearly two years afterwards gave 
 one of the creditors, who had agreed to sign the composition, a 
 bond for the residue of her debt, she not having received the 
 amount of her composition, although divers creditors had signed 
 the deed, received their composition and released the defendant ; 
 it was held, that the bond was good : for that, as it was not given 
 or agreed to be given at the time of the composition, it was not a 
 fraud on the other creditors (v). 
 
 Where A. gave B. a sum of money for goods in advancement of 
 C, a secret agreement between B. and C, that C. should pay B. a 
 further sum for the goods, was held void on the ground that it 
 was a fraud upon A. (w). So where it was agi-eed between the 
 vendors and the vendee of goods, that the vendee should pay 10s. 
 per ton beyond the market price, which sum was to be applied 
 
 (s) Stock V. Mawscm, 1 B. & P. 286. {v) Took v. TucJc, 4 Bingh. 224. 
 
 (t) Thomas y. Cowrtnay, 1 B. & Aid. 1. \w) Jackson v. Duchaire, 3 T. R. 551. 
 
 (u) Cowper v. Cfreen, 7 M, & "W. 633. 
 
ASSUMPSIT. 79 
 
 in liquidation of an old debt due to one of the vendors, and the 
 payment of the goods was guaranteed by a third person, to 
 whom the bargain between the parties was not communicated, 
 it was held, that this was a fraud and rendered the guarantee 
 void (x). 
 
 To assumpsit for the non-performance of a written agreement to 
 take a furnished house, the defendant pleaded that the plaintiff 
 procured the defendant to enter into the agi-eement by means of 
 fraud, covin, and misrepresentation ; on which issue was joined. 
 It appeared at the trial, that the plaintiff had employed an agent 
 to let the house in question, and the defendant, being in treaty with 
 the agent for taking it, asked him, "If there was any objection to 
 the house V to which he answered that there was not : the defend- 
 ant signed the agreement, but afterwards discovered that the ad- 
 joining house was a brothel, and on that ground declined to fulfil 
 the contract. It appeared that the principal knew of the existence 
 of the brothel, but that the agent did not, and that he was not 
 authorized to make the statement. It was held, that it was not 
 sufficient to support the plea, that the representation turned out to 
 be untrue, but that for that purpose it ought to have been proved to 
 have been fraudulently made ; that as the representation was not 
 embodied in the contract, the contract could not be affected by it 
 unless it were a fraudulent misrepresentation (y). And this prin- 
 ciple, viz., that to avoid a contract on the ground of a misrepre- 
 sentation collateral to and not part of the contract itself (2;), 
 there must be fraud (co), *• e, the representation must be un- 
 tme in fact, and the representor must kiiow (or believe) it to 
 be untrue, or, in other words, that a misrepresentation inadvert- 
 ently made does not constitute legal fraud (h), has after much 
 discussion in the courts been finally settlgd (c). In Taylor v. 
 
 (x) Pidcoek v. Bishop, 3 B. & C. 605 ; tioned, the case of Oomfoot v. Powke, 
 
 North British Insv/rance Opmpcmy v. decided that the facts there disclosed 
 
 Lloyd, 10 Exch. 523. were not sufficient ^0 bring the case 
 
 (y) Comfoot-v. Powke, 6 M. &"W. 358, within it, for that neither the principal 
 
 Lord Abinger, C.B., diss. nor the agent committed a fraud, — "the 
 
 (a) Aliter, if it is, as in cases of in- principal, becwse, though he knew the 
 
 surance and the like ; Moens v. Heyworth, fact, he was not cognizant of the mis- 
 
 10 M. & "W. 157. ' representation being made nor ever di- 
 
 (a) Knowledge of the untruth is, it rected the agent to make it ; and the 
 
 •seems, conclvMve evidence of fraud, al- agent, because, though he made a mis- 
 
 though there is an absence of corrupt representation, yet he did not know it to 
 
 intention ; Polhill v. Walter, 3 B. & Ad. be one at the time he made it, but gave 
 
 X\i; Poster Y. Charles, 6 'Ring. his answer JowiJ^de." It can scarcely be 
 
 (l) Brunswick and Canada Bailway considered as settled even now that the 
 
 Company v. Coninglean, 31 L. J. Ch. fraud and the statement need be those of 
 
 597, H. of L. the same individual. See on this point, 
 
 ■ (c) Wilson Y. Fuller, 3 Q. B. 68 and per Campbell,, C.J., Wilde v. Gibson, 1 
 
 1009 ; CoUiTis v. Evans, 5 Id. 820; Orm- H. of L. C. 634 ; 2 Smith's L. C. 71 b ; 
 
 rod V. Buth, 14 M. & "W. 851 (all cases Bartlett v. Salmon, 6 De Gex, Mac. & G. 
 
 in Cam. Scacc. ) It is to be observed, 33, 39, 40. See, too, the observations of 
 
 that besides the principle above men- Lord St. Leonards in the National Ex- 
 
80 ASSUMPSIT. 
 
 AsUon (d), this principle was carried somewhat further, and it 
 was held, that it was not necessary to show that the party- 
 making the representation knew it to be untrue; but that it 
 was sufficient if the representation was made for a fraudulent or 
 deceitful purpose (e), and the representer did not know it to be 
 true, or, it seems, had no reasonable and well-grounded belief of 
 its truth (/). 
 
 Of immoral Agreements. — If the agreement be of such a na- 
 ture, that the carrying it into effect, and_ enforcing it, wiU give a 
 sanction and encouragement to immorality, an action cannot be 
 maintained for the violation of it. This position is founded on 
 the maxim, ex turpi causd non oritur actio, or, in the elegant 
 paraphrase of Lord Mansfield, justice must be drawn from pure 
 fountains. 
 
 In an action for the use and occupation of a lodging, where it 
 appeared that the lodging was let to the defendant for the purposes 
 of prostitution, and with a knowledge on the part of the plaintiff 
 of that fact, it was held, that the action was not maintainable (jg). 
 So where an action was brought against the defendant for board 
 and lodging, and it appeared in evidence, that the defendant was 
 a lady of easy virtue, that she had boarded and lodged with the 
 plaintiff, who had kept a house of ill fame, and who, besides what 
 she received for the board and lodging of the unfortunate women in 
 her house, partook of the profits of their prostitution ; Lord Kenyan, 
 C.J., was of opinion, that such a demand could not be heard ia a 
 court of justice (h). On the same principle it was held, that an 
 assumpsit would not lie to recover the value of prints of an immoral 
 (or libellous) tendency, which had been sold by the plaintiff to the 
 defendant (i). If a person lets lodgings to an immodest woman, to 
 enable her to consort with the other sex, he cannot recover for the 
 lod^ngs so supplied, but if the woman merely lodges there and 
 receives her visitors elsewhere, he may (k). But in an action to 
 recover the amount of a bill for washing done by the wife of the 
 plaintiff, where it appeared in evidence, that the defendant was a 
 prostitute, and that the articles washed consisted principally of 
 expensive dresses, in which the defendant appeared at public 
 places, and of gentlemen's night-caps, which were worn by the 
 persons who slept with the defendant ; with all which cir- 
 
 _ _' T. Drew, 2 Maoq., H. {g) Crisp v. Churchill, C. B. E. 34 
 
 of L. 145 ; lie seems not to assent to the Geo. III. Per Eyre, C.J. ; Ace. Oirarday 
 
 first proposition of Cornfoot v. Powke. v. Richardson, 1 Esp. 13. 
 
 (d) 11 M. & W. 401 ; see Preeman (h) Howard v. Hodges, Middlesex Sit- 
 V. Baker, 5 B. & Ad. 801. tings, B. R. 2 Dec. 1796 ; Jennings r. 
 
 (e) i.e. {semhle) for the purpose of in- Throgmorton, E. & M. 261. 
 ducing a person to do what he otherwise (i) Per Lawrence, J., 4 Esp. 97. 
 would not have done. (ft) AppUton v. Campbell, 2 C. & P. 347 ; 
 
 (/) Shrewsbmry v. Slount, 2 M. & G. Oirardy v. Richardson, 1 Esp. Cas. 13. 
 475 ; Hay ward t. Creasy, 2 East, 92. 
 
ASSUMPSIT. 81 
 
 xumstances the plaintiff was acquainted ; it was held, that the use 
 to which the defendant applied the linen could not affect the con- 
 tract, and that the plaintiff was entitled to recover (l). The same 
 doctrine was laid down by Lord Mlenborough, in Bowry v. Bennet, 
 1 Campb. 348, where an action was brought against a prostitute to 
 recover the value of some clothes which had been furnished by the 
 plaintiff. The Chief Justice said, that the mere circumstance of 
 the defendant being a prostitute, within the knowledge of the 
 plaintiff, would not render the contract illegal ; in order to defeat 
 the action, it must be shown that the plaintiff expected to be paid 
 out of the profits of the defendant's prostitution, and that he had 
 sold her the clothes in order to carry it on. But this doctrine is 
 now overruled, and the law wa^thus stated by Pollock, C.B., in a 
 case in which the defendant, a prostitute, was sued for the hire of 
 a brougham, and in which the juiy having found that the plaintiff 
 knew defendant to be a prostitute, and that he supplied the 
 brougham with a knowledge that it was to be used by her as a 
 part of her display to attract men, it was held that the plaintiff 
 could not recover. " Since the case of Gannan v. Bryce (m), 
 cited and followed by Lord Abinger, in M'Kinnell v. Robinson (n), 
 I have considered it as settled law that any person who contributes 
 to the performance of an illegal act by supplying a thing with the 
 knowledge that it is going to be used for that purpose, cannot 
 recover the price of the thing so supplied. If to create that inca- 
 pacity it was ever considered necessary that the price should be 
 bargained or expected to be paid out of the fruits of the illegal 
 act, that proposition has been overruled, and has now ceased to be 
 law. Nor can any distinction be made between an illegal and an. 
 immoral purpose (o)." 
 
 Past or future cohabitation is insufficient to support a pro- 
 mise (p). But an agreement by the reputed father of an illegiti- 
 mate child to pay the mother an annuity if she will undertake the 
 sole maintenance of the child, and not affiliate it on the father, is 
 valid (2). 
 
 II. Of the General Indebitatus Assumpsit. 
 
 The rules laid down in the preceding pages govern the action 
 of assumpsit in both its forms ; that is, whether the plaintiff sets. 
 forth the agreement, for the breach of which he complains,, 
 specially ; or whether, the nature of his case permitting it, he 
 
 IV) Lloyd T. Johnson, 1 B. & P. 340, (p) Binmngton v. Wallis, 4 B. & Aid. 
 
 (in) 3 B. &Ald. 179. 650. 
 
 . \n) 3 M. & W. 434. (?> Crowliurst v. Lavurack; 8 Exch. 
 
 (0) Pe.ar(x v. Brookes, 1 L. E. Excli. 808. 
 213 ; 35 L. J. Exch. 134. 
 
 VOL. I. ^ 
 
8S ASSUMPSIT. 
 
 adopts the more general form of what are called the indebitatws 
 counts. 
 
 The distinction between the actions of assumpsit and debt so 
 far as the vndebitatus counts are concerned,— for debt lies in many 
 cases where assumpsit does not, — ^was, previously to the 15 & 16 
 Vict. c. 76, one of form only, for it was held, that the former would 
 not lie in any case but where the latter did (r). The declaration 
 in both cases recited, that the defendant was indebted to the 
 plaintiff for goods bargained and sold, or sold and delivered, &c. 
 (as the case might be), and in assumpsit proceeded to allege that 
 the defendant, "in consideration of the premises, promised to 
 pay," a promise which the law implied from the sale or delivery, 
 &c. of the goods, and which it was not necessary to prove ; whereas 
 in debt it proceeded to state, that by the non-payment of the sum 
 claimed, an action had accrued to the plaintiff to demand it from 
 the defendant, omitting the statement of the promise. The above 
 act, however (s. 49), directs that " the statement (in pleadings) of 
 promises, which need not be proved as promises in Indebitatus 
 counts, &c. shall be omitted," and in schedule (B.), forms 1 to 14, 
 gives some specimens of such counts in a form somewhat different 
 from that previously used, the appropriate plea to which, by the 
 provisions of the same schedule, is " never i/ndebted." — By s. 91, it 
 is enacted, that the forms in the schedule (B.) inay be used, and 
 they certainly should be (s), so that all actions on the indebitatus 
 counts are now both in form and substance actions of debt. 
 
 Of the Indebitatus Counts. — ^Forms of such counts will be found 
 in the schedule (B.) to the 15 & 16 Vict. c. 76, forms 1 to 14, and 
 it is enacted by s. 91, that " the forms contained in the schedule 
 shall be sufficient, and those and the hie forms may be used with 
 such modifications as may be necessary to meet the facts of the 
 case, but nothing herein contained shall render it erroneous or 
 irregular to depart from the letter of such forms, so long as the 
 substance is expressed without prolixity." Those of the inde- 
 bitatus counts in most frequent use, viz., for work done and 
 materials provided, goods bargained and sold, goods sold and 
 delivered, money lent, money paid, money received, and, on an 
 account stated, are called the common counts. Although the form 
 of the indebitatus counts, as wiU be seen from the examples above 
 given, is very concise, it is necessary that it should appear for 
 what the defendant is indebted. A declaration merely stating 
 that the defendant was indebted, &c., not stating for what, is bad 
 in arrest of judgment {t), or judgment upon it would be reversed 
 in error (u). It should appear, too, that the action is brought for 
 
 (r) Eard's case, Salk. 23. now 15 & 16 "Vict 76 s 143 
 
 <s) See PZace v. P^h 8 Exch 705. („) Woodfmd v. Dem<m, Cro. Jac. 206. 
 
 («) Poster V. Smith, Cro. Car. 31. See 
 
ASSUMPSIT. 83 
 
 a debt payable m prcesenti ; a declaration stating that the 
 defendants were indebted to the plaintiffs for freight, omitting the 
 words " for money payable," was held bad on general demurrer (x). 
 It is sufficient, however, if the cause of action be stated quite 
 generally, e. g., for the agistment of cattle on the plaintiff's 
 ground (y) ; for a premium upon a policy of insurance upon such 
 a ship (z) ; on a foreign judgment, without stating the cause of 
 action on which the judgment proceeded (a). And it is not neces- 
 sary to specify the particular items constituting the debt o!r 
 demand (6). Their generality is limited by the particulars of 
 demand which the plaintiff by Eule 19 of Eeg. Gen. (Hil. T. 1853) 
 is to deliver with the declaration in every case, (except where the 
 writ has been specially indorsed under the provisions of the 25th 
 section of the Common Law Procedure Act,'1852,) a copy of which 
 particulars must be annexed by plaintiff's attorney to the record 
 at the time when it is entered with the proper officer. This 
 annexation supersedes the necessity of proof of delivery at the 
 trial (c), and if the plaintiff gives credit in the particulars for any 
 sum of money paid to him, it is not necessary for the defendant to 
 plead payment of such sum (d) ; see post, tit. " Debt." 
 
 In consequence of their conciseness, and the latitude of proof 
 which they admit of at the trial, the indebitatus counts are gene- 
 rally used where applicable. They will not lie on a special 
 agreement till the terms of it have been performed (e), but " when- 
 ever the terms of a special agreement have been performed, so as 
 to leave a mere simple debt or duty between the parties " [where 
 the duty consists in a money payment], " the plaintiff may give 
 the circumstances in evidence, and recover under the indebitatus 
 counts" (/). 
 
 A corporation aggregate may sue and be sued in the indebitatus 
 counts on an executed parol contract (g), e. g., for goods sold and 
 delivered ; for they may contract without affixing the common 
 seal, in cases where convenience, amounting almost to necessity, 
 requires that they should do so ; as in hiring inferior servants, or 
 doing acts frequently recurring, or too insignificant to be worth 
 the trouble of affixing the common seal (h), or in matters connected 
 with, and necessary for, the business or trade for which they are 
 
 (x) Place V. Potts, 8 ExGh. 25. (e) Oordon v. Martin, Ktzgitbon, 303 ; 
 
 (y) Gardiner v. BelUngham, Hob. 5. Scott v. Parker, 1 Q. B. 809. 
 
 (z) Powk V. Pinsacke, 2 LeT. 153. (/) Per Parke, B., in Stone v. Rogers, 
 
 (a) Plaistow v. Vom Uxem, Doug. 5, n. 2 M. & W. 448 ; and see Linnegar v. 
 
 An Irish judgment since the Union, Hodd, 5 C. B. 437. 
 Harris v. Saunders, 4 B. & C. 411. See . {g) Beverley v. The Lincoln Gas cmd 
 
 Guinness v. Carroll, 1 B. & Ad. 459. Coke Company, 6 A. & B. 829 ; and see 
 
 ■ (i) Hohnes v. Savill, Cro. Car. 116 ; Finlay v. Bristol and Exeter Railway 
 Hibhert v. Courfhorpe, Carth. 276. Company, 7 Exch. 409 ; Haigh v. North 
 
 (c) Macarthy v. Smith, 8 Bingh. 145. Brierly Union, 28 L. J. 62, Q. B. 
 
 ■ \d) 13 PI. R., Hil. T. 1853 ; Morris v. {h) Mayor of Ludlowv. Charlton, 6 M. 
 Jones, 1 Q. B. 397. Post, " Pleadings," & "W. 822. 
 
 " Payment. " 
 
 G 2 
 
84 ASSUMPSIT. 
 
 incorporated©. The appointment of an attorney to conduct 
 important suits affecting the rights and property of the corporation 
 cannot be considered a trifling matter ; nor is it of such frequent 
 occurrence, or of such immediate urgency, as to render it incon- 
 venient to postpone it until the seal of the corporation can be 
 affixed to the retainer (k). It makes no difference as to the right 
 of a corporation to sue on a contract entered into by them without 
 seal, whether the contract be executed or executory, or whether 
 the promises be express or implied (f) ; although it may, if they be 
 the parties sued (m). In a case (n), where the contract was one 
 which did not fall within any of the exceptions to the general rule 
 requiring corporate contracts to be under the common seal, but 
 which had been executed by the corporation, Tindal, C.J., dehvering 
 the judgment of the court, said, " whatever may be the consequences, 
 where the agreement is entirely executory on the part of the corpora- 
 tion, yet, if the contract, instead of being executory, is executed on 
 their part, — if the persons who are parties to the contract with the 
 corporation have received the benefit of the consideration moving 
 from the corporation, — in that case the other parties are bound by 
 the contract, and liable to be sued thereon by the corporation. Even 
 if the contract put in suit by the corporation had been, on their 
 part, executory only, not executed, we feel little doubt but that 
 their suing upon the contract would amount to an admission on 
 record by them that such contract was duly entered into on their 
 part so as to bind themselves ; and that such admission on the 
 record would estop them from setting up as an objection, in a 
 cross action, that it was not sealed with their common seal " (o). 
 
 In addition to the causes of action already enumerated, it has 
 been held, that the indebitatus counts will lie for a fee due from 
 any person who accepts the honour of knighthood, to the gentle- 
 men ushers and daily waiters to the king (p) ; for fees due to an 
 usher of the black rod (5) ; for a reasonable and customary fine 
 due to the heir of the lord from the copyholder, upon the death of 
 the lord (r) ; for a fine upon an admittance to a copyhold (s) ; or 
 customary tenement (t) ; for freight (u) ; for goods and chattels, 
 e. g., fish due by custom in respect of the plaintiff's liability to 
 keep up a capstan and rope for the purpose of hauling the boats 
 
 (i) Jlenderson v. Australian Steam Na- (n) The Fishmongers' Company v. So- 
 
 mgation Company, 24 L. J., Q. B. 322 ; lertson, 5 M. & G. 131, 6 Scotf s S. R. 56. 
 
 Smith V. EuU Glass Compamy, 11 C. B. (0) Ace. Mayor of Sandwich v. The 
 
 897 ; Australian Steam Navigation Com- Queen, 16 L. J Q B 432 
 
 pmy y. Man'zetti, 11 Exch. 228 ; Prince (p) Duppa v. Gerr'ard, Cartli. 95. 
 
 of Wales Insurance Company v. Barding, (q) Sawnderson v. Bngnall, Str. 747. 
 
 2.1 h. J. 297, y. B (r) Shuttleworlh v. Garrett, Garth. 90, 
 
 {k) Arnold v. Mayor of Poole, 4 M. & Bolt, C.J., diss 
 
 ^■,l^V^ ^ ^."°'*''™f ■ ?• ^^'': , ^ («) Shuttleworth v. Garrett, supra. 
 
 (I) Church V. The Imperial Gas light (t) WhUJield v. Hunt, DouglT 727, b. 
 
 and Coke Company, 6 A. & E. 846. (u) 1 Yeutr 100 
 
 (m) Doe V. Taniere, 12 Q. B. 1013. 
 
ASSUMPSIT. 85 
 
 on sliore (v) ; for money due by the custom of London for 
 scavage {xj ; for tolls (y) ; for toUs of wheat (a) ; for stallage, by 
 the owner of a market, and that without showing any contract in 
 fact between him and the occupier of the stall (a) ; for petit 
 customs due to a municipal corporation (h) ; e. g., weighage (c) ; 
 for burial fees {d), if actually paid to a receiver, and the question 
 is one of money had and received as between the rector and 
 receiver, otherwise an action does not lie, the remedy being in 
 the spiritual court (e) ; — for a penalty due by the ordinances of a 
 company for not serving the office of steward, according to a 
 bye-law (/) ; lastly, on a foreign or colonial judgment (g), even for 
 costs only (A.). 
 
 In an action brought in England to recover the value of a given 
 sum, Jamaica currency, upon a judgment obtained in that island ; 
 the value is that sum in sterling money which would have pro- 
 duced the sum recovered in Jamaica currency according to the 
 rate of exchange between Jamaica and England at the date of the 
 judgment (i). 
 
 A foreign or colonial judgment is not only prima, facie evi- 
 dence under these counts, but even conclusive upon the merits (Jc), 
 (d fortiori, therefore, it would seem, upon the regularity of its own 
 proceedings (Z),) except where upon the face of the proceedings it 
 is grounded upon a clear misconception of English (m) or inter- 
 
 (v) Earl of Falmouth v. Penrose, 6 B. ket, witli an express grant of toll, passes 
 
 & C. 385. reasonable toll, though no amount of toll 
 
 (x) City of London v. Gorry, 2 Lev. be specified. The Corporation of Stam- 
 
 174 ; 1 Vent. 298. ford v. Pawlett, 1 C. & J. 57. 
 
 . (y) Seward v. Baker, 1 T. R. 618 ; as (z) Mayor of Reading y. Clark, 4 B. & 
 
 for passing along a way. Such toU is Aid. 268. 
 
 either toll thorough or toll traverse ; (a) Mayor of Nevrport v. Saunders, 3 
 
 •which last is the payment of a sum of B. &Ad. 411. 
 
 money for passing over the soil of another (ft) Mayor of Exeter v. Trimlet, 2 "WU.S. 
 
 in a way not an highway ; 2 Roll. Abr. 95. 
 
 522 ; SicJcards v. Bennett, 1 B. & C. 223. (c) Com. of London v. Hunt, 3 Lev. 37. 
 
 Toll thorough is a payment for passing (d) Spry v. Emperor, 6 M. & W. 639. 
 
 along a highway, to support which some (e) Spry v. Gallop, 16 M. & W. 716. 
 
 consideration must be proved, as repair- (/) Barber Surgeons v. Pelson, 2 Lev. 
 
 ing a road or bridge. The repair of some 252. 
 
 streets in a town is not a sufficient con- {g) Walker v. Witter, Dongl. 1, and m 
 
 sideration to support the claim of toll notis. 
 
 thorough in all parts of the town. Brett {h) Russell v. Smyth, 9 M. & "W. 810..' 
 
 v. Beales, 10 B. & 0. 508. But if the (i) Scott v. Sevan, 2 B. & Ad. 78. See 
 
 -taking of the toll, whether thorough or Story's Conflict of Laws, s. 308, et seq. 
 
 traverse, as well as the right of passage, {k} Bank of Australia r. Nias, 16 Q. B. 
 
 be immemorial, it may be presumed that 717. See Callendan v. Dittrichs, i M. 
 
 the soil was originally granted to the & G. 68. 
 
 public in consideration of the toll ; and (I) See Molony v. Gibbons, 2 Camp, 
 
 such original grant is a, good considera- 602, except where the irregularity is 
 
 tion for the toll, although the soil and CQntrary to the universal principles of 
 
 toll should have been severed and got justice, as in Reynolds v. Fenton, infra. 
 
 into different hands. Lord Pelham v. (m) Novelli v. Rossi, 2 B. & Ad. 757. 
 
 Pickersgill, 1 T. R. 660 ; Bill v. Smith, Whether this fact could be shown by ex- 
 
 4 Taunt. 520, A grant of a fair or mar- tiinsic evidence, qucere. 
 
86 ASSUMPSIT. 
 
 national law (n). It may, however, be questioned on the ground 
 that the foreign court had not jurisdiction of the subject matter of 
 the suit(o), e.g., that the defendant was never within the juns- 
 diction of the court (p) ; or on the ground of fraud, for fraud 
 vitiates the most solemn proceedings even of our own courts (q) ; 
 or on the ground that it is repugnant to natural principles of 
 justice, e.g., that defendant had no opportunity given him of 
 making a defence (r). And such facts may be shown by extrinsic 
 evidence (s). 
 
 They will also lie on a decree of the Court of Chancery, or a 
 colonial court of equity, where the suit terminates in the simple 
 result of ascertaining a clear balance and an unconditional decree 
 that an individual must pay it (t). See post, tit. " Debt." 
 
 The indebitatus counts wiU not lie upon a bill of exchange by 
 the payee against the acceptor (u), because the acceptance is only 
 a collateral engagement to pay the debt of another, namely, the 
 drawer ; nor would they lie for a wager (x) ; nor for goods bargained, 
 unless there has been a sale (y); e. g., for goods made to order, 
 before a delivery of them by the maker, or an appropriation of 
 them by the person for whom they were made {^ ; for the pro- 
 perty must be changed to make the action maintainable. Thus, 
 where the plaintiffs agreed to sell to the defendants a quantity of 
 butter which they expected from Sligo, the quantity, quality, and 
 price being specified in the contract, and the butter to be paid for 
 by bill at two months from the date of landing ; and the defendants 
 accepted the invoice and bill of lading, but the butter was lost by 
 shipwreck on the passage from Sligo, it was held, that the plaintiffs 
 might recover the price of the butter from the defendants in an 
 action for goods bargained and sold ; and per Tindal, C.J. : 
 " I agree that the plaintiffs must show that the property in the 
 goods passed to the defendants by the contract, for unless it did, 
 the goods were not bargained and Sold to them ; but if the goods 
 were ascertained and accepted before the action was brought, it is 
 no objection that they were not in the possession of the plaintiffs 
 at the time of the contract. In Rhode v. Thwaites, the vendor 
 having in his warehouse a quantity of sugar in bulk, agreed to 
 sell twenty hogsheads ; four hogsheads were delivered ; the vendor 
 filled up and appropriated to the vendee sixteen other hogsheads ; 
 informed him that they were ready, and desired him to take them 
 away ; the vendee said he would take them as soon as he could ; 
 
 (m) Poll(wd V. mil, 8 T. R. 444. (r) Seynolds v. Fenton, 3 C. B. 187. 
 
 (0) Ferguson v. Mahon, 11 A. & E. (s) Eavelock v. Mockwood, 8 T. R. 268. 
 
 ^'^/ , {t) Henderson v. Henderson, 6 Q. B. 
 
 ip) Buchanan v. Fucker, 9 East. 191, 288. 
 but this fact would not conclusiyely show {u) Hard)s case, Salk. 23. 
 
 a want of jurisdiction. Douglas v. For- (x) JBovey v. Castleman, Lord Eaym. 
 
 -rest, i Bingh. 686. 69. * > j 
 
 (?) Bowles -v. Orr, 1 Y. & C. 464 ; per (y) Atkinson v. Bell, 8 B. & C. 277. 
 
 Cur. 16 Q. B. 735. (s) Beaumont y. Brengeri, 5 C. B. 301. 
 
ASSUMPSIT. 87 
 
 and it was held, that the appropriation having been made by the 
 vendor and assented to by the vendee, the sixteen hogsheads 
 thereby passed to the latter (a), and that their vjilue might be 
 recovered by the vendor under a count for goods bargained and 
 sold. Here it is impossible to say that the goods wore not 
 ascertained and accepted before the action was brought, for the 
 quantity, quality, and price were all specified in the invoice, and 
 the bill of lading was regularly indorsed to and accepted by the 
 defendants " (6). 
 
 If a plaintiff, having declared on a special agreement, and also 
 on the indebitatus counts, fail in proving the special agreement, 
 he may resort to the general count (c). Formerly it was held that 
 if A. declare upon a special agffeement, and likewise upon a quan- 
 tum meruit, and at the trial prove a special agreement, but different 
 from that which is laid in the declaration, he cannot recover on either 
 count : not on the first, because of the variance ; nor on the second, 
 because there was a special agreement ; but if he prove a special 
 agreement and the work done, but not pursuant to such agreement, 
 he shall recover upon the quantum, m,eruit. But the contrary seems 
 now well settled (d). " I apprehend the rule to be this : where a 
 party declares on a special contract, seeking to recover thereon, but 
 fails in his right so to do altogether, he may recover on a general 
 count, if the case be such, that, supposing there had been no special 
 contract, he might still have recovered for money paid or for work 
 and labour done. As in a case of a plaintiff suing a defendant as 
 having built a house for him according to agreement : there, if he 
 fail to prove that he has buUt it according to agreement, he may still 
 recover for his work and labour done " (e). " If a man agrees to 
 build for another a house, to be paid for it, and afterwards builds 
 the house, in this case he has two ways of declaring, either upon 
 the original executory agreement, as to be performed m futuro, 
 or upon the indebitatus counts on a quantum meruit, when the 
 house is actually built, and the agreem.ent executed " (/). 
 
 Where the defendant answers the plaintiff's claim for breach of 
 the special contract, and the plaintiff resorts to a quantum oneruit 
 for service performed, the jury may inquire what that service is 
 reasonably worth (g). Where a person agrees to do certain 
 specified work for a certain specified sum, under a fraudulent 
 representation by the other party, of the amount of work to be 
 
 (a) See Aldridge v. Johnson, 7 E. & B. PI. B., Hil. T. 1853, R. 1 & 3. 
 
 885, ace. (d) Bull. N. P. 139. 
 
 (6) Alexander v. Gardiner, 1 B. N. C. (e) CocJce v. Munstom, 1 N. E. 354. 
 
 676 ; and see Watt v. Baker, 2 Exch. 1 ; (/) Per Denison, J., Alcorn v. West- 
 
 Godts V. Base, 17 C. B. 229 ; Tansley v. Iroolc, 1 Wils. 117. 
 
 Turner, 2 B. N. C. 151 ; Brmm t. Bare, {g) Saillie v. Kell, 4 B. N. C. 638. 
 
 27 L. J., Exch. 372. See Bmd v. Bann, 10 B. h C. 438. 
 
 (c) Leeds V. Burrows, 12 East, 4. See 
 
88 ASSUMPSIT. 
 
 performed, he cannot recover on a quantum meruit "for the real 
 ■value of the work, but, on ascertaining the fraud, should repudiate 
 the contract, and sue for the deceit Qi). 
 
 Action comnot le hr ought lefore Expiration of Credit. — In an 
 action for goods sold and delivered, it appeared that the goods in 
 question had been valued at a certain sum, for vihich. payment vibA 
 to be made by the defendant in three months by a hill of two 
 months. The action was commenced before the expiration of five 
 months from the day on which the contract was made.' The 
 Court of Queen's Bench were of opinion that the action was 
 prematurely brought before the expiration of the credit, and that 
 the defendant ought to have been sued for the not giving at the 
 end of three months a bill of two months, in which action the 
 plaintiff would have been entitled to recover damages against the 
 defendant for his not having given the bill, such as the loss of 
 interest, &c. (i). So where the bill was in fact drawn but refused 
 acceptance (k). So where goods are sold, to be paid for partly by 
 cash, but not specifying any goods in particular as the object of 
 the cash payment, and' the residue by bills at certain intervals, 
 this is an entire contract, and no action wiU lie for goods sold and 
 delivered, even for the cash payment, till the expiration of the 
 credit (f). But where goods were sold at three months' credit, and 
 the vendor agreed to take the vendee's bUls for three months 
 more, if at the expiration of the first three months the vendee 
 wished for further time, this is a condition, and if the vendee 
 does not avail himself of it by giving the bills, the action may be 
 commenced at the expiration of the first three months (m). So 
 where goods were sold on an agreement for payment by bills at 
 four months or cash, and the defendant paid part of the price in 
 jcash, it was held that he had exercised his option, and that the 
 plaintiff might sue before the expiration of the four months {n). 
 
 Where the goods are fraudulently bought, the seller cannot sue 
 for goods sold and delivered before the credit, if any, has expired, 
 though he may in the interim disafiirm the contract, and maintain 
 trover against the original purchaser (o). "Where, however, goods 
 are sold, and a biU or cheque is taken in payment payable at a 
 future day, but without any express agreement for time for the 
 payment of the goods ; in this case, if the cheque is dishonoured, 
 or the bin refused acceptance, the drawer may be sued imme- 
 diately upon the original cause of action, without any regard being 
 
 (h) .Selway v. Fogg, 5 Q. B. 83. {n) Schneider v. Foster, 2 H. & K 4. 
 
 (i) Mussen v. Pnce, i East, 147. (o) Slruit v. Smith, 1 0. M. & R. 312. 
 
 (4) Duttoji V. ■ Solommson, 3 B. & P, Whether also against a person who has 
 
 ^2. bought the goods from the original pur- 
 ■ (I) Paul y. Dodd, 2 C. B, 800 ; Day chaser without notice of the fraud, qumre. 
 
 V, Picton, 10 B. & e. 12fl. White v. Garden, 10 C. B. 919 : Mei-ry 
 
 (jii) Nickson V. Jepsmi, 2 Sta, 227. v. Kingsford, 1 H. & N. 512 
 
ASSUMPSIT. 89 
 
 liad to the time which the bill or cheque has to mn ; for there 
 being no agreement as to time, the party takes them as payment^ 
 and, therefore, if they turn out to be good for nothing, the creditor 
 has not received that which the other undertook to give him, and 
 may therefore pursue his remedy immediately (^). A debtor is 
 not discharged by giving a cheque which produces nothing, 
 although payment in cash may have been previously tendered ; 
 and the circumstance of the cheque being given by the agent of a 
 debtor, who is at the time indebted to his principal in a larger 
 amount, makes no difference (g). 
 
 Goods were sold at six months' credit, payment to be then made 
 by a bill at two or three months, at the purchaser's option ; it was 
 held {Parh; J., duhita/nte), ttfat this was in effect a credit for 
 eight or nine months ; that the statute of limitations would begin 
 to run from the expiration of that time, and that before that time 
 no action for goods sold and delivered could be maintained, 
 although the plaintiff might have declared specially on the 
 omission to give a bill at the end of six months (r). Where goods 
 were sold " to be paid for in two months," it was held, that the 
 day of the contract was excluded (s). 
 
 Whether Action lies when contract is entire. — A. agreed to 
 deliver to B. 100 bags of hops, at a certain price per cWt. by a cer- 
 tain time. A. having delivered twelve bags before the stipulated 
 time, and demanded payment, which was refused, immediately com- 
 menced an action for the price of the bags delivered. It was held, 
 that as the contract was entire, the plaintiff was not entitled to 
 bring an action, until the whole quantity was delivered, or until 
 the time for delivering the whole had arrived (t). So where A. 
 jandertook, for a specific sum of money, to repair and make perfect 
 a given article, then in a damaged state, and did repair it in part, 
 but did not make it perfect, it was held that he could not recover 
 for the value of the work done and materials found. In this case 
 the contract was to do a specific work for a specific sum (w). So 
 where A. agreed to assign to B. a lease of certain premises, and to 
 sell him a greenhouse erected thereon (which A. had the power to 
 remove at the end of the term) with some plants, &c., for 4<9l., and 
 B. was let into possession, but no assignment of the lease was made 
 to him, it was held that the 'contract was entire, and that as the 
 lease had not been assigned, A. could not recover for the price of 
 the greenhouse, as to which there was no evidence of any new con- 
 tract, although he did for the plants, as to which there was such 
 evidence (a;). So where a seaman agreed to serve for a certain 
 
 (p) Stedman v. Gooch, 1 Esp. 5 ; . (s) Webh v. Fairmaner, 3 M. & "W. 
 
 Owenson v. Morse, 1 T. R. 64 ; Brown v. 473. 
 Kewley, 2 B. & P. 518. (t) Waddington v. Oliver, 2 H. E. 61. 
 
 {q) Everett v. Collins, 2 Campb. 515. (u) Sinclair v. Bov>Us, 9 B. & C. 92. 
 
 \r) Helps V. Winterhottom, 2 B. & Ad. (x) Skddon v. CruicksTianTc, 16 M. & 
 
 431. W. 71. 
 
90 ASSUMPSIT. 
 
 voyage, taking for wages a certain proportion of the net pro- 
 ceeds of the cargo ; and, further, " that no one of the said officers 
 and crew shall demand or be entitled to his share of the net 
 proceeds of the said cargo until the arrival of the saAd ship or 
 vessel at London, &c." and the ship was disabled on the voyage 
 and condemned in a foreign port, and never did reach London, 
 but the cargo was transhipped into another vessel, and delivered 
 in London, and the freight upon it paid, and the seaman died 
 during the voyage in the second ship, it was held that his ad- 
 ministrator was not entitled to anything under the agreement, 
 but only for his service on board the second vessel on a quantum 
 meruit (y). 
 
 But where a ship, being damaged at sea, put into a harbour to 
 receive some repairs which had become necessary, and a shipwright 
 was engaged and undertook to put her into thorough repair : before 
 this was completed, he required payment for the work already 
 done, without which he refused to proceed, and the vessel remained 
 in an unfit state for sailing : it was held, that the shipwright might 
 maintain an action for the work already done ; for there was 
 nothing in the present case amounting to a contract to do the whole 
 repairs, and make no demand till they were completed (z). So 
 where, though the contract be entire, as for the sale and delivery 
 of goods at a particular time, some of the goods are delivered, 
 although the purchaser is not bound to pay for that part before the 
 expiration of the time fixed for the delivery of the whole ; yet if, 
 upon the seller's failure to complete the contract, the purchaser 
 does not return the part delivered, but elects to keep that part, 
 then the seller may bring an action for the value — not the stipu- 
 lated price — of that part, although he (the seller) is liable to a 
 cross-action or reduction of damages, or both (a), for the breach of 
 his contract (6). 
 
 Where A. purchased goods of B., and paid a sum in deposit, and 
 received part of the goods, but A. required B. to take them back, 
 as not being equal to the sample, and to repay the deposit, B. re- 
 sold the residue, and A. sued B. for the deposit ; it was held, that 
 A. could not recover the deposit as money had and received, unless 
 there was fraud in the contract, or there had been an agreement 
 between the parties to rescind the contract (c). Note. — The plain- 
 tiff in this case had examined the bulk. Where an entire contract 
 
 (y) Jesse v. Hoy, 1 C. M. & E. 317 ; treach, which last-mentioned damages 
 
 and see Mitchell v. Darthez, 2 B. N. C. cannot he given in evidence in reduction 
 
 555 ; as to clerks' salaries, Lcumbwm v. of the value of the article in the first 
 
 Cruden, 2 M. & G. 253. action. Mondell y. Steel, 8 M. & "W. 858. 
 
 . (z) Jloberts r. Savelock, 3 B. & Ad. (6) Shipton v. Casson, 5 B. & C. 378 ; 
 
 404. Oxendale v. Wetherell, 9 B. & C. 386. 
 
 {a) i. e., to a reduction of damages in See also James v. Cotton, 7 Bingh. 266 ; 
 
 respect of the decreased value of the Richardson v. Dunn, 2 Q. B. 218. 
 
 article itself, and to a cross action for the (c) Fill v. Cassanet, 4 M. & G. 898. 
 amseguential damages incurred hy such 
 
ASSUMPSIT. 91 
 
 exists to build a house, erect an engine, &c., the different articles 
 necessary for the performance of the contract cannot be sued for 
 by the contractor as goods sold and delivered (d). 
 
 A collateral undertaking must be declared on specially ; as where 
 B. undertook in writing to A., to answer for the payment of certain 
 goods to be sent by him to C, it was held that A. could not main- 
 tain an action against B. for the price of the goods sent to C, but 
 that he ought to have declared specially on the guaranty (e). 
 
 Of Money paid. — Where a person has laid out his own money 
 for the use of another, either with the express or implied consent 
 of such other person, the law implies a promise of repayment, for a 
 breach of which an action for tkonej paid may be maintained (/). 
 As where one person is surety for anothei", and the surety is called 
 upon to pay, it is money paid to the use of the principal debtor, 
 and may be recovered against him in an action for money paid, 
 even though the surety did not pay the debt by the desire of the 
 principal (g). Decker v. Pope, London Sittings, 9th July, 1757, 
 MS. — This was an action brought by an administrator de bonis non 
 of a surety, who, at defendant's request, had joined with another 
 friend of defendant's in giving a bond for the payment of the price 
 of some goods that were sold to defendant : and the surety having 
 been obliged to pay the money, the administrator declared against 
 the defendant for so much money paid to his use : Lord Mansfield 
 directed the jury to find for the plaintiff ; observing, that where a 
 debtor desires another person to be bound with him or for him, 
 and the surety is afterwards obliged to pay the debt, this is a suffi- 
 cient consideration to raise a promise in law, and to charge the 
 principal in an action for money paid to his use. He added, that 
 he had conferred with most of the judges upon it, and they agreed 
 in that opinion. 
 
 A man who is compelled, e.g., by a distress or threat of dis- 
 tress Qi), to pay money, which another is bound by law to pay, is 
 entitled to be reimbursed by the latter : and money paid under 
 such circumstances may be considered as money paid to the use 
 of the person who is so bound to pay it (i). Hence where the 
 indorser of a bill, being sued by the holder, paid him part of the 
 sum mentioned in the bill ; it was held, that he might recover the 
 same from the acceptor in an action for money paid to his use (k). 
 So where several persons jointly contract for a chattel to be made 
 or procured for the common benefit of all, the building of a ship 
 
 {d} Clark V. Bulmer, 11 M. & W. 243 ; & C. 256 ; and see Pitt v. Purssord, 8 M. 
 ahd see Tripp v. Armitage, i ib. 687. & V. 638 ; per Lord Kmyon, C.J., in 
 
 (e) Mines v. Sculthorpe, 2 Camp. 215. Child v. mrley, 8 T. E. 610 ; Griffin- 
 
 ( f) See Jefferys v. Gurr, 2 B. & Ad. hoofe v. Daubuz, 25 L. J., Q. B. 237. 
 843. (i) Exall v. Partridge, 8 T. E. 308. 
 
 {g) Per Kenyan, C.J., 8 T. E. 310. (A) Pmimal v. Ferrand, 6 B. & C. 439. 
 
 (h) Per Pm-ke, B., Pope v. Biggs, 9 B. 
 
93 ASSUMPSIT. 
 
 for infstance or the furnishing of a house, and as to which the 
 ■executors of any party dying before the work is completed, are by 
 agreement to stand in the place of the party dying ; in such a 
 case, though the legal remedy of the party employed would be 
 solely against the survivors, yet the law would certainly imply a 
 contract on the part- of the deceased contractor that his executors 
 should pay their proportion of the price of the article to be fur- 
 nished (Z). So where two persons are sureties for a third (whether 
 by one or more instruments (m) ), and the obligee compels one of 
 the sureties to pay the whole debt, such surety inay maintain an 
 action against his co-surety, and thereby compel him to contribute 
 his proportion (n) towards the payment of the debt ; and it is not 
 jiecessary that the insolvency of the principal debtor should be 
 proved (o). But where it appeared that one of two sureties had 
 been prevailed on to become a surety at the instance of the other, 
 and the other had been compelled to pay the debt, Lord KenyoTU 
 would not permit him to call on his co-surety for contribution, 
 more especially as he had taken a bill of sale from the principal 
 debtor in order to protect himself (p). 
 
 A. being in want of goods went to B,, accompanied by C, and 
 ordered some, C. saying, in A.'s presence, that if A. did not pay 
 he would ; the goods having been supplied, and C. having paid the 
 money, it was held, that he might recover it back from A. ; inas- 
 much as the promise being made in the presence of A., there was 
 an implied contract, that if C. paid the money, A. would repay 
 
 it (a). 
 
 An action for money paid cannot be maintained unless there be 
 a request to pay it, either express or implied. Hence, where the 
 defendant contracted to transfer stock on a certain day to the 
 plaintiff, but failed to perform his contract ; upon which the 
 plaintiff bought the stock, and to recover the consequent loss 
 sustained by him, brought an action against the defendant for 
 money paid : it was held, that such action was not maintainable, 
 and that the plaintiff should have declared specially on -the con- 
 tract (r). So, where A. sold railway shares, of which B. without 
 any privity with A. became the purchaser, and A. transferred them 
 by deed to B. ; B. omitted to register the deed of transfer, and A., 
 thus remaining the registered owner, was compelled [by 8 & 9 
 Vict. c. 16, s. 15] to pay a call made upon them : it was held, that 
 
 A. could not recover the amount paid from B., for there was no 
 request, either express or implied, and B. was in no way liable for 
 
 (I) Per Our., Prior v. ffembrow, 8 M. (o) Cowell v. Edwards, 2 B & P. 268. 
 
 &"W. 873. . Ip) Tunier.v. Davis, 2 Esp. 478. 
 
 (m) 3eeringr. Ea/rl of Winchelsea, 2 (q) Alexander v. Vane, 1 M. & "W. 
 
 B. & P. 268. 611 ; and see Simpson v. Penton, 2 C. & 
 / {n) Which at law is determined by the M. 430. 
 
 number of sureties originally liable. (r) LigUfoot v. Greed, 8 Taunt. 268. 
 
 Bata/rd v. Mawes, 2 E. & B. 287. 
 
ASSUMPSIT. 93 
 
 the call (s). But where a broker is employed by a principal to sell 
 shares, &c., for him on the Stock Exchange, the principal impliedly 
 gives him authority to act in accordance with the rules there esta- 
 blished, and, therefore, if the principal does not perform his 
 contract, and the party with whom the broker agreed for the sale 
 of the shares, &c., buys other shares in the market, charging the 
 broker with the difference, which the broker is compelled by the 
 rules of the Stock Exchange to pay, he may recover the sum paid 
 from his principal as money paid to his use (t). 
 
 A tenant, by a written agreement under which he took a house, 
 agreed to pay taxes, which by statute were due from the landlord. 
 The tenant, having made default, and the landlord having been 
 obliged to pay, sued the tenant for the amount as money paid. It 
 was held (u), that the form of action was misconceived, and that 
 the tenant ought to have been sued on the agreement. The gi'ound 
 of the decision was, " that the plaintiff's payment relieved the 
 defendant from no liability but what arose from the contract 
 between them " (x). The real ground of that decision, however, 
 was, that no request could be implied from the tenant upon the 
 facts of that case, per Cur., in Brittain v. Lloyd (y), which was the 
 case of an auctioneer, who, having been obliged to pay the auction 
 duty to the Crown, was held entitled to recover it back from his 
 employer as money paid, and the rule was laid down, that " a 
 person by requesting another to assume that character which 
 ultimately obliges him to pay, impliedly requests him to pay, and 
 is as much liable to repay as he would be on a direct request to 
 pay money for him, with a promise to repay it." So, where a 
 person has incurred and paid costs in bringing actions at the 
 request of another, he may recover such costs from the person at 
 whose instance he sued, in an action for money pa,id (z). But if 
 an auctioneer is employed to sell an estate by auction, and he 
 undertakes to conduct the auction so as to avoid incurring the 
 duty if the estate is not sold, but through mistake transacts the 
 business so that the duty attaches, which he is obliged to pay, the 
 law will not raise an implied promise on the part of the employer 
 to reimburse the auctioneer for the money paid for the duty, which 
 has been thus incurred through his own blunder (a). So, an officer 
 guilty of a breach of duty, as by letting a debtor out of prison on 
 his promise to pay the creditor, cannot recover money which he 
 has paid in consequence of it, though for the benefit of the 
 defendant (&). 
 
 (sj Savles V. Blane, 14 Q. B. 205. den, 12 M. & W. 423 ; ptr Parke, B. in 
 
 {t) Sutton V. Tatham, 10 A. & E. 27 ; Hutchinson v. Sydney, 10 Exoh. 439. 
 
 Polloclc V. Stables, 12 Q. B. 765 ; Taylor (y) 14 M. & W. 762 ; and see Wilson, 
 
 V. Stray, 26 L. J., C. P. 185; but see v. Carey, U ib. 368. 
 
 Westrop V. Solomon, 8 C. B. 345 ; Bowlby (z) Bailey v. MacauUy, 13 Q. B. 815. 
 
 V. Bell, 3 C. B. 284. (a) Capp v. Topham, 6 East, 392. 
 
 (u) Spencer v. Parry, 3 A. & E. 331. (6) Pitcher v. Bailey, 8 East, 171. 
 
 {x) Per Alderson, B., in Kemp v. Pin- 
 
94 ASSUMPSIT. 
 
 This action may be maintained by the bail against their prin- 
 cipal, for the recovery of such sums of money as they, from 
 their situation as bail, and in order to secure themselves, have 
 expended. The bail may surrender their principal in their_ own 
 discharge ; if, therefore, the principal absconds, and the bail incur 
 expenses in sending after him, and securing him, in order that he 
 may be surrendered, such expenses may be recovered in this action 
 against the principal (c). So, where A., B. and C. were lessees of 
 certain premises, under covenant to pay the rent, and B. and C. 
 assigned their interest to A, subsequent to which assignment, and 
 with full knowledge whereof, the plaintiff put his goods on the 
 premises, where they were taken as a distress for rent ; and the 
 plaintiff, in order to redeem his goods, was obliged to pay the rent 
 due : it was held, that the plaintiff might maintain an action for 
 money paid against A., B. and C, on the ground that they were 
 all liable to the landlord for the rent in the first instance ; and all 
 three released therefrom by the payment of the rent by the plaintiff, 
 which payment was not voluntary but compulsory (d). In this case, 
 the money paid was the pladntiff's money : this is requisite for the 
 maintenance of the action ; for where A. let a house to B., which 
 
 B. underlet to C, and A. distrained the goods of C. for rent due 
 from B., which goods were afterwards sold, and the money arising 
 from the sale paid over by the auctioneer to A. : it was held, that 
 
 C. could not maintain an action against B. for money paid to his 
 use, because, the money in question never was the money of C ; 
 for the moment the goods were converted into money, that money 
 vested in and became the property of the landlord ; and C, the 
 tenant, was only interested in the surplus, if any (e). 
 
 It is observable, that the mere circumstance of one person 
 having received an advantage, from the pa3anent of money by an- 
 other, is not a sufiicient ground for an action against the former ; 
 the consent of the party, either express or implied, is essentially 
 necessary to the support of the action. In an action for money 
 paid by the plaintiffs, to the use of the defendants, it appeared 
 that, by 22 & 23 Car. II. c. 11, the parishes of St. Vedast's and St. 
 Michael le Quern were united ; and that since that time, one set 
 of officers had served for the two parishes, the election of whom 
 had always been made at a joint vestry ; that all the vacancies in 
 the office of sexton which had happened since, had been filled up 
 agreeably to this custom ; that in the year 1759, the sexton's salary 
 was fixed at 201. per annum, which was agreed to be paid equally 
 by both parishes ; that the overseers of St. Vedast's had paid the 
 sexton who was last chosen the whole sum, to recover a moiety of 
 which this action was brought. The defence was, that the last 
 
 (c) Fisher r. Fellows 5 Esp^ 171. (e) Moore v. PyrJce, 11 East, 52 ; and 
 
 (d) Exall V. Partridge, 8 T. E. 308 ; see Qoepel v. Swimden, 1 D. & L. 888 ; 
 see (m(e, p. 80, n. {i}. Standish v. Boss, 3 Exoh. 627. 
 
ASSUMPSIT. 95 
 
 tslection of a sexton was not a joint one, and that the parish of St; 
 Michael claimed a right of choosing a separate sexton for them- 
 selves, of which they had given notice to the other parish. Lord 
 Mansfield, C. J. — " This action must be grounded either on an 
 express or iw/plied consent; but here is neither" (/). The con- 
 sent, however, may be implied from custom : thus where the 
 plaintiffs employed their own attorney to prepare a lease which 
 they had agreed to grant to the defendant, and paid his charges, 
 and it was proved to be the custom for the lessor's attorney to pre- 
 pare such an instrument at the expense of the lessee, it was held 
 that the lessors were entitled to recover the sum they had paid for 
 the preparation of the lease from the lessee {g). 
 
 If A. recover in an action fcwnded on tort against B. and C. and 
 levy the whole damages on B., B. cannot maintain an action 
 against C. upon an implied agreement for the reimbursement of a 
 moiety ; for a contribution cannot be claimed as between joint 
 wrong-doers Qi). " From the inclination of the court, in Phillips 
 V. Biggs, Hard. 164, and from the concluding part of Lord Ken- 
 yon's judgment in Merryweather v. Nixa/n,^' (in which he says that 
 that decision would not affect cases of indemnity, where one man 
 employed another to do acts, not unlawful in themselves, for the 
 purpose of asserting a right,) " and from reason, justice, and sound 
 policy, the rule that wrong-doers cannot have contribution against 
 each other is confined to cases where the person seeking redress 
 must be presumed to have known that he was doing an unlawful 
 act." Per Cur., in Adannson v. Jarvis, 4 Bingh. 72 ; where it was 
 held that an auctioneer employed by the defendant to sell goods, 
 which were not the defendants', and against whom the real owner 
 of the goods had recovered in an action of trover, might sue the 
 defendant on an implied contract of indemnity (i). 
 
 A different rule holds in the case of a joint judgment against 
 several defendants in an action of assumpsit : per Lord Kenyan, 
 C. J., in Merryweather v. Nixan. So an action lies by a ship- 
 owner, to recover, from the owner of the cargo, his proportion of a 
 general average loss, incurred by sacrificing the tackle belonging 
 to a ship on an extraordinary emergency for the benefit of the 
 whole concern (i). So an action may be maintained to recover a 
 contribution, in the nature of a general average, by one shipper of 
 goods against another (J). The owners of a ship's cargo are liable 
 to contribution, at the suit of the ship-owners, for ship's stores 
 thrown overboard to save the lives of the crew, (the cargo not 
 being able to be got at,) after the vessel was captured, and while 
 
 (/) stokes V. Lewis, 1 T. R 20. 57. 
 
 Ig) Griisell v. RobiTison, 3 B. 'S. C. 10. (k) BirkUy v. Presgrave, 1 East, 220. 
 
 (h) Merryweather v. Nixan, 8 T. R. See Job v. Larigton, 6 E. & B. 779. 
 186. (l) Dobson v. Wilson, 3 Campb. 480. 
 
 {i) And see Belts v. Oibbins, 2 A. & E. 
 
96 ASSUMPSIT. 
 
 sBe was In the bands of the enemy (m). The proprietor of gooSs 
 laden on the deck of a ship, according to the custom of a particular 
 trade, is entitled to contribution from the ship-owner for a loss by 
 jettison (to) ; and the ship-owner may in such a case recover over 
 from the insurer, without (semble) proving express notice that the 
 goods would be so stowed (o). 
 
 One of several partners, who pays money on account of his 
 partners, cannot maintain an action against them for contribution, 
 on the ground that he made such payment, not voluntarily, but by 
 compulsion of law (p). 
 
 A. having recovered a judgment against a trader, and taken out 
 execution, a levy was made on the goods of the trader, but after 
 he had committed an act of bankiniptcy ; the money levied was 
 paid over to A. An action of trover was afterwards brought by 
 the assignees against A., the sheriff, and the bailiff, in which 
 damages were recovered : and these damages, together with the 
 costs, were paid by the bailiff ; it was held, that there was no im- 
 plied promise on the part of A. to indemnify the bailiff, or to con- 
 tribute to the damages and costs in the action of trover, they both 
 being wrong-doers ; but that the bailiff might, in an action for 
 money had and received, recover the levy-money, being money 
 paid under a mistake to A., and the baUiff being answerable for it 
 to the assignees (q). 
 
 In a case where there were three assignees of a bankrupt's 
 estate who had acted in the commission, and two of them paid 
 the solicitor's bill, each paying half, it was held, that the two could 
 not maintain a joint action against the third for coatribution, but 
 that each ought to bring a separate action (r). So where three 
 entered into a joint and several bond of indemnity to a sheriff, 
 for the protection of their separate interests, and -the sheriff com- 
 pelled two of them to pay the whole sum, it was held that they 
 could not maintain a joint action against the third for contribu-* 
 tion (s). 
 
 Of Money had and received. — The action for money had and 
 received was called by Lord Mansfield " a kind of equitable 
 action " (i) ; " where money is due ex cequo et bono, it may be 
 recovered in this action " (u). From the following positions it may 
 be collected in what cases this action may be maintained : — 
 
 1. If I pay money to a person who claims an authority to 
 receive it, but really has not any such authority, and afterwards I 
 
 (m) Price v. Noble, i Taunt. 123. (s) Kelby v. Vernon, 5 Esp. 194; Sart 
 (n) Oould V. Oliver, i B. N. C. 134. v. BHggs, Holt, 245, 
 (o) Mawwrd V. HihUrt, 3 Q. B. 120. (<) Moses v. Macfarlme, 2 Burr, loos- 
 er;) Sadler v. Nixon., 6 B. & Ad. 936 ; 1012. 
 see Boulter Y. Peplow, 9 C. B. 493. (u) Per Tindal, C. J., in Smith v. 
 (q) Wilson v. MUner,. 2 Campb. 452. Jones, 6 Jur. 283. 
 (r) Brand y. Boulcott, 3 B. & P. 235. 
 
ASSUMPSIT. 97 
 
 am compelled to pay it again to the person lawfully entitled to 
 receive it, an action for money had and received will lie against the 
 person unjustly receiving the money (x). If A. be indebted to B., 
 and pay such debt to the attorney of a person suing A. in B.'s 
 name, but without B.'s authority, B. may, notwithstanding, recover 
 the debt in an action against A., whose remedy is against the 
 attorney, although the attorney was deceived by a forged power of 
 attorney (y). 
 
 2. Where a person has usurped an office belonging to another, 
 and taken the known and accustomed fees of office, an action for 
 money had and received will Ke at the suit of the party really 
 entitled to the office, against the intruder, for the recovery of such 
 fees (z). Hence this action is frequently brought to try the right 
 to ofi&ces to which fees are annexed. The action, however, will 
 not lie to recover gratuitous donations given to the intruder, e. g. 
 money given by strangers for showing a church (a). The action 
 does not lie by the nominee of a perpetual curacy for the profits 
 thereof, until he has obtained the bishop's licence ; for, in curacies, 
 the party is not in possession until licence (6). But, in the case of 
 a donative, the party is in full possession immediately on the 
 nomination ; and, consequently, if any other person takes the rents 
 and profits, he may maintain the action immediately (c). 
 
 3. Where money, to which there was not any ground of claim 
 in conscience, has been paid under a mistake of fact, the party 
 may recover it back again in an action for money received (d). 
 The fact must be a fact which, if true, would make the person 
 liable to pay the money, not which, if true, would merely make it 
 desirable that he should pay the money (e). 
 
 As where A., who was indebted to the estate of B., a bankrupt, 
 paid the debt to B.'s assignees without setting off, as he was 
 entitled to do, a sum of money due to himself from the bankrupt, 
 it was held, that A. might recover the money, which he had 
 neglected to set off, in an action for money had and received 
 against the assignees (/). "Where a payment has been made, not 
 with full knowledge of the facts, but only under a blind suspicion 
 of the case, and it is found to have been paid unjustly, the party 
 paying may recover it back again," peo' Ashurst, J. (g). So a 
 
 (x) Bonnell v. Fouke, 2 Sid. 4 ; Cripps 2 Bl. E. 851, S. 0. 
 
 V, Seadi, 6 T. R. 606. (c) Per Ashhurst, J., in The King v. 
 
 (y) Sobson v. Eaton, 1 T. R. 62. JBishop of Chester, 1 T. R. 403. 
 
 (z) Arris v. Stukely, 2 Mod. 260 ; (d) Mills v. Alderbury Union, 3 Exch. 
 
 Howard v. Wood, 2 Lev. 245 ; Pollard 590 ; Milner v. Duncan, 6 B. & C. 671. 
 
 V. Gerard, 1 Ld. Raym. 703. (e) Per Bramwell, B., Aiken v. Short, 
 
 (fl) Boyter v. DodswoHh, 6 T. R. 681. 1 H. & ST. 215. 
 
 An information in the nature ot a, quo (/ ) Bize v. Dickason, IT. K. 285. See 
 
 warranto is the only convenient method a note to 4 M. & G. 17. 
 
 of trying the right, where there are no (g) Chatfield T.Paxton, 2 East, 471, n.; 
 
 fees. E. V. Bingham, 2 East, 311. See Townsend v. Orowdey, 8 0. B. {N. S). 
 
 (J) Bowell Y. Milbank, 1 T. E. 399, n. ; 477. 
 
 VOL. I. H 
 
98 ASSUMPSIT. 
 
 payment made in the hours- of business under a forgetfulness 
 of facts which the party making it once knew, may be recovered 
 back in this action (h) ; and it is not sufficient to prevent a party 
 recovering money paid by him under a mistake of fact that he 
 had the meaws of knowledge, unless he paid it mtentionally not 
 choosing to investigate the fact {i). Indeed, m all these cases 
 there must be no laches imputable to the plaintiff, e. g. lying by 
 for five years and not informing the person to whom, the money 
 has been paid of the mistake (j). 
 
 But where money has been paid under the compulsion of legal 
 process in an action, which the party might have defended suc- 
 cessfully if he had been prepared with his evidence, it cannot be 
 recovered in this action ; although such evidence be produced at 
 the trial of the second action, as shows that the other party was 
 not entitled to recover it in the first (k). 
 
 The defendant had brought an action against the present plain- 
 tiff for goods sold, for which the plaintiff had previously paid and 
 obtained the defendant's receipt, but not being able to find the 
 receipt at that time, and having no other proof of the pajnnent, he 
 was obliged to submit and pay the money again. The plaintiff 
 afterwards found the receipt, and brought an action for money had 
 and received ' in order to recover the amount he had so paid twice 
 over. It was held that the action would not lie ; Lord Kenyan, 
 C. J., said, that after recovery hy process of law there must be an 
 end of litigation, otherwise there would not be any security for 
 any person. And Grose, J., said, that it would tend to encourage 
 the greatest negligence, if the -court were to open a door to parties 
 to try their causes again, because they were not properly prepared 
 the first time with their evidence (I). So, " if the money has been 
 paid after proceedings have actually commenced " (e. g. in the case 
 of an action. compromised (m) ), "there being no fraud in the party 
 suing,, it cannot be recovered back " (n). Where it was agreed 
 between A. and B., that A. for a certain commission should ship a 
 cargo of wheat of a specific quality at a foreign port, for B. in 
 England. The wheat, upon its arrival, having been found to be of 
 an inferior quality, B. brought an action against A. for a breach of 
 the agreement, and recovered damages. A. afterwards brought 
 an action against B. for the commission ; but it was held that A. 
 could not recover ; Lord Mlenborough, C. J., observing, that the 
 facts which he relied on in this action might have been given in 
 
 (h) Lucas V. Worswick, 1 M. & Eob. (I) Marriott v. Mampton, 7 T. E. 269 ; 
 
 297. and see Reynolds v. Webb, 4 B. N. C. 
 
 (i) Kelly v. Solari, 9 M. & W. 54. 700 ; Belcher v. Mills, 2 C. M. & E. 160. 
 
 U) Skyving f. Greiriwood, 4 B. & C. (to) ffamletv. RichaMson, 9 Bing.647, 
 
 281. See Denby v. Moon, 1 B. & AM. oven-uling, on this point, Golden v. Ken- 
 
 123. drick, 4 T. R. 432, n. 
 
 (h) Hamlet v. Riclia/rdson, 9 Bingli. (n) PerBolroyd,J.,iTiMilnesy.Dun- 
 
 647. can, 6 B. & C. 679. 
 
ASSUMPSIT. 99 
 
 evidence to reduce the damages when he was defendant ; and that 
 he considered the account as closed between the parties by the 
 former verdict (o). 
 
 The trustees, under a marriage settlement, of stock, the divi- 
 dends of, which they covenanted to permit the bankrupt to receive 
 for his life, executed, after his bankruptcy, a power of attorney to 
 A. to receive the same. A. received the dividends, and paid them 
 over to the wife of the bankrupt, save one sum, which he paid to 
 one of the trustees. Held, that the assignees might recover the 
 total amount of such dividends from the trustees, in an action for 
 money had and received, inasmuch as the whole of the money had 
 been virtually received by the trustees after full notice of the 
 bankruptcy {p). ^ 
 
 A. having received a sum of money bequeathed by will to his 
 wife, gave it to her to take care of The wife, without' his know- 
 ledge, deposited it in a bank, in the name of her son by a former 
 marriage, who was then an infant. It was held, that the bankers 
 were liable to A. for the amount in an action for money had and 
 received (g). 
 
 Where a party pays money to another voluntarily, with full 
 knowledge of all the facts of the case, the party so paying cannot 
 recover it on account of his ignorance of the law. An under- 
 writer of a policy of insurance upon a ship, having paid the amount 
 of the insurance, as for a loss by capture, sought to recover it back, 
 on the ground that the assured had not, at the time of effecting 
 the insurance, disclosed to the underwriter a material letter re- 
 specting the time at which the ship sailed ; but, it being proved, 
 that, before the loss on the policy was adjusted, all the papers, 
 including the letter in question, had been laid before the under- 
 writer (r), it was held, that he could not recover ; for every man 
 must be taken to be cognizant of the law (s). The same doctrine 
 was laid down in Brisbane v. Dacres, 5 Taunt. 143, with this limi- 
 tation only, that the retaining the money be not against the con- 
 science of the party to whom it is paid. And the rule, holds 
 equally where money has been allowed in account, as where it has 
 been actually paid (f). The same principle was i-ecognized in the 
 following case. The drawer of a bill of exchange, with full know- 
 ledge of time having been given to the acceptor, upon a suppo- 
 sition that , he (the drawer) remained liable, promised the holder 
 that he would pay the bill, if the acceptor did not ; it was held, 
 
 {o) Kist V. 4tUns(m, 2 Campb. 63; W. 5'^, per Parke, B.). The position o/ 
 
 Mondell y. Steel, 8 M. & "W. 871, ace.; Zaw, that possession of the means of know- 
 
 Goodinan v. Pocodc, 15 Q. B. 576. ledge is equivalent to actual knowledge, 
 
 (p) Allen Y. Impett, 8 Taunt. 263. is overruled by Sell v. Gardiner, i M. 
 
 (j) Qalland v. Lloyd, 6 M. & W. 26. & G. 11. 
 
 (r) This fact would be strong evidence (s) Bilbie v. Lumley, 2 East, 469. See 
 
 to the jury of actual knowledge of the Oomery v. Bond, 3 M. & S. 378. 
 facts, or of an intention to waive all in- (t) Skyring y. Oreehwood, 4 B. & C. 
 
 quiry into them (Kelly v. Solari, 9 M. & 281. 
 
100 ASSUMPSIT. 
 
 that the drawer was bound by this promise, and could not avail 
 himself of his ignorance of the law at the time when he made the 
 promise (u). So where a person pays an attorney's bill, and the 
 bill is subsequently taxed, and some items struck off, the amount 
 of the sum taxed off cannot be recovered in this action (x). 
 
 What is a payment made voluntarily is sometimes a question. 
 In cases of money paid under distress or threat of distress, it 
 would seem clear that such a payment is to be considered as a 
 compulsory payment {y), although it has been said that a payment 
 under a wrongful distress is voluntary because the tenant might 
 protect himself by replevin (z). Whether money had and received 
 is an admissible form of action when goods have been seized under 
 a wrongful distress seems very doubtful, replevin or trespass being, 
 it is said, the proper and sufficient remedies (a). In Knibbs v. 
 Hall (6), the defendant being tenant to the plaintiff of certain 
 rooms at the rent of tw^enty guineas, the plaintiff insisted on 
 being paid twenty-five guineas, and threatened to distrain if it 
 was not paid. The defendant, in consequence of the threat, paid 
 the larger sum, and an action having been brought by the 
 plaintiff against the defendant for another demand, the defendant 
 insisted on setting off the five guineas which he had paid under 
 the threat of distress, as having been paid by compulsion, and in 
 his own wrong. But Lord Kenyan, C.J., was of opinion, that this 
 could not be deemed a payment by compulsion, as the defendant 
 might, by a replevin, have defended himself against the distress. 
 The reason, however, given by Lord Kenyan is not correct, a 
 distress not being void, and replevin consequently not a sufficient 
 remedy, if some rent be due (c). In Graham v. Tate (d), where 
 a landlord had distrained and sold for rent, without allowing the 
 property tax, or a sum of £20, which the tenant had laid out in 
 repairs, and which the landlord had agi-feed to allow as a deduc- 
 tion from the rent, it was held that the tenant could not recover, 
 as money received, the sum for repairs, but might recover the 
 amount of income tax as money received by his landlord. The 
 case of Knibbs v. Hall, however, was recognized in SJceate v. 
 Beale (e), in which it was held that an agreement by the tenant to 
 pay more than is due, in consideration of a forbearance or with- 
 drawal of a distress, is valid, on the ground that an agreement 
 cannot be avoided by duress of goods, although it may be by 
 
 (u) Stevens v. Lynch, 12 East, 38 ; and to every species of distress. For cases 
 
 see Bramston v. Rohim, i Bingh. 15. on excessive or wrongful distresses of cat- 
 
 (x) Gower v. PopHn, 2 Sta. 85. tie damage feasant, see position 10. 
 
 (y) Pope V. £iggs, 9 B. & C. 256. Ace. (6) 1 Esp. 84. 
 
 Carter V. Carter, 5 Bingh. 406 ; Snowdon {c) Forty v. Imler, 6 East, 434 ; Ear- 
 
 V. Davis, ,1 Taunt 359. rell v. Wink, 8 Taunt. 369 ; Governors of 
 
 (z) Knibbs v. Hall, 1 Esp. 84. Bristol Pootm. Wait, 1 A. & E. 269. 
 
 (a) lAndm, y. Hooper, Cowp. 414. (d) 1 M. & S. 609. 
 
 Although this was a case of a distress ot \e) 11 A. & E. 983. 
 cattle damage feasant, it appears to apply 
 
ASSUMPSIT. 101 
 
 duress of person (i). It is clear that when a landlord distrains, 
 not excessively, for rent in arrear, and demands a larger sum for 
 arrears than the tenant admits to be due, the latter cannot pay 
 the demand under protest without tendering the amount he 
 alleges to be due and then bring an action for money had and 
 received (k). A payment by a tenant of excessive broker's charges 
 under threat of distress may be recovered back in this form of 
 action as being -money paid under duress, neither replevin nor 
 trespass being applicable in such a case (?). A payment of rent 
 by a tenant to his landlord, after notice from the mortgagee, 
 requiring payment of the rent to him, is a voluntary pay- 
 ment (m). 
 
 Where a party, sued on a clMm which he knows to be unfounded, 
 pays it, although at the time of payment he protests against it, 
 and declares his intention to bring an action to recover back the 
 money so paid, yet no action will lie ; for the payment is voluntary, 
 and he ought to have defended the action brought against him (n). 
 But where the steward of a manor charged an extravagant sum for 
 producing some court rolls, &c., at a trial, which were absolutely 
 necessary to the party requiring them, who paid the sum claimed 
 accordingly, it was held, that he might recover the amount over- 
 paid (o). So where money was paid to induce the defendants to 
 perform a duty which they otherwise would not have performed, 
 the non-performance of which would have caused great loss and 
 inconvenience to the plaintiffs (j>). So where a sheriff was in 
 possession of goods under sifi.fa., which he threatened to sell, and 
 the parties claiming the goods paid the amount for which the writ 
 of fi. fa. was indorsed, to avoid the evil and inconvenience of a 
 sale (q). 
 
 Money due in point of honour or conscience, e. g., a debt barred 
 by the Statute of Limitations, though a person is not compellable 
 to pay it, yet, if paid, shall not be recovered back (r). 
 
 4. Where money has been paid without consideration, or on a 
 consideration which wholly fails, an action for money had and 
 received will lie for recovery of it. The plaintiff had insured 
 several numbers in a lottery, at the office of the defendant, for 
 which he had paid in premiums a considerable sum of money. 
 The defendant having refused to pay the sums insured upon some 
 of the chances which had terminated in favour of the plaintiff, he 
 
 (j) But see the remarks of Lord Den- (m) ffiggs v. Scott, 1 0. B. 63. 
 
 man, C. J., upon this case ia Wdkejkld (») Brown v. M'Kinnally, \ Esp. 279. 
 
 V. Newlon, 6 Q. B. 280. See judgment (o) v. Pigott, cited hy Lord 
 
 of Parke, B., in AtUe v. Backhouse, 3 Kenyan, C.J., 2 Esp. 723. 
 
 M. & W. 633. (p) Parker v. Bristol and Exeter Eail- 
 
 (h) Glynn v. Thomas, 11 Ex. 879, in way, 6 Exch. 702. 
 ^rror, recognizing OulUverv. Cozens, IG. {q) Valpy t. Manley, 1 C. B. 594; 
 
 B. 788. Close v. PUpps, 7 M. & G. 586. 
 
 (V) Hills V. Street, 5 Bingh. 37. (r) Farmer v.. Arundel, 2 Bl. E. 824. 
 
102 ASSUMPSIT. 
 
 brought an action for money had and received against the defend- 
 ant, in order to recover the premiums ; it was held, that the action 
 would well he, although it was objected, that the contract was 
 illegal by 14 Geo. III. c. 76, and the plaintiff particeps criminis ; 
 Blackstone, J., observing, that on the part of the insured, the con- 
 tract on which he had paid his money was not criminal, but merely 
 void, cmd therefore havvng advanced his money without any con- 
 sideration, he was entitled to recover it back (s). 
 
 Plaintiff, a stockbroker, sold for defendant four Guatemala bonds 
 and paid him the amount ; the bonds, after they had been in the 
 hands of the purchaser two days, were discovered to be not market- 
 able ; whereupon plaintiff took them back and reimbursed the 
 purchaser. It was held, that_ the plaintiff was entitled to recover 
 from the defendant, in an action for money had and received, the 
 amount he had paid to the defendant (t). So where the plaintiff, 
 a sharebroker, sold forged railway scrip for the defendant, and paid 
 him over the proceeds, and the forgeiy was subsequently dis- 
 covered (u). So where the plaintiff paid conduct money to a wit- 
 ness on a subpcena, but, the action being settled, the witness in- 
 curred no expense (x). So, where the deeds for securing an annuity 
 were set aside for an informality in registering the memorial ; it 
 was held, that money paid to the grantor, as the consideration of 
 the annuity, might be recovered in an action for money had and 
 received (y). So where a deed, a bond, and a warrant of attorney 
 (upon which judgment had been entered) had been given for 
 securing an annuity, and on the apphcation of the grantor to the 
 Court of Queen's Bench, the judgment was set aside, and the war- 
 rant of attorney directed to be delivered up to be cancelled, because 
 the latter instrument was improperly described in the memorial, 
 but no order was made as to the deed or t^e bond, which remained 
 uncancelled ; it was held, that the grantee might recover the con- 
 sideration in an action for money had and received, on the ground 
 that he had contracted for one entire assurance, consisting of 
 several securities, and that he had a right to have the assurance 
 entire, or to have back his money ; and the defendant having taken 
 away one of the securities, the consideration for the money had 
 failed (z). 
 
 In cases of this kind, the action for money had and received 
 will not lie against a mere surety, who has not actually received 
 
 (s) Jaques r. GoUgUly, 2 Bl. E. 1073 ; (a) Scwrfidd y. Gowland, 6 East, 241. 
 
 and see the remarks of Lord ElUnbowugh It does not appear that any sum had been 
 
 in Thistlewood v. Cracroft, 1 M. & S. 502. received hy the plaintiff on account of 
 
 See Jaques v. Withy, 1 H. Bl. 65 ; the annuity in this case. If it had, the 
 
 Clarke v. Shee, Cowp. 197, and post, balance of the consideration money only 
 
 under the sixth rule. would seem to be recoverahle. CoviperT. 
 
 (t) You-ng v. OoU, 3 B. N. C. 724. Godmond, 9 Bingh. 748 ; Churchill v. 
 
 (u) Westropv. Solomon, 8 C. B. 346. Bertrand, 3 Q. B. 568 ; and see J)ams 
 
 {x} Mwrtin v. Andrews, 7 E. & B. 1. v. Bryan, 6 B. & C. 651. 
 
 {y) Shove V. Wehh, 1 T. E. 732. 
 
ASSUMPSIT. 103 
 
 any part of the consideration, although he has joined with the 
 grantor in signing a receipt for it (b) ; for a receipt, even if indorsed 
 on a bill (c) or deed (d), is only a, primd facie acknowledgment that 
 money has been paid, and may be explained or contradicted (e). 
 It is an admission only (/), and the general rule is that an admis- 
 sion, though evidence against the person who made it, and those 
 claiming under him, is not conclusive evidence, except as to the 
 person who may have been induced' by it to alter his condition. 
 
 A lease was sold to the plaintiff by defendant as administrator, 
 without any regular assignment or -other conveyance. The de- 
 fendant's letters of administration were subsequently repealed, and 
 the plaintiff turned out of possession by an ejectment at the suit 
 of the new administrator : "vfhereupon the plaintiff brought an 
 action for money had and received against the defendant, to recover 
 the consideration paid for the lease : and it was held, that it would 
 well lie ; Lord Kenyon, C. J., observing, " that he did not wish to 
 disturb the rule of caveat emptor, adopted in Bree v. Holheach (g), 
 and in other cases, where a regular conveyance was made, to which 
 other covenants (for title) were not to be added ;" (imposing thereby 
 on the buyer a duty to inquire into the title ;) " but here the whole 
 passed by parol, and it proceeded on a misapprehension by both 
 parties, that the defendant was the legal administrator of the lessee, 
 though it turned out afterwards that he was not. As, therefore, 
 the Tnoney was paid under a mistake, he thought that an action 
 for money had and received would lie to recover it back " Qi). So, 
 where the defendant, who was in possession of premises, of which 
 he had been tenant under a lease from a tenant for life, then dead, 
 sold to the plaintiff the lease, pretending that it was a good lease 
 for seven years, and shortly afterw:ards the plaintiff was ejected, it 
 was held, on the authority of Gripps v. Reade, that the plaintiff 
 might recover the consiSeration paid for the lease in an action for 
 money had and received (i). So where two parcels of land were 
 sold at a distinct price for each, and the purchaser was evicted 
 from one parcel for a defect in the title to it, it was held that he 
 might recover the price. Lord Alvanley, C. J., saying, " We by no 
 means wish to be understood to intimate, that where, under a 
 contract of sale, a vendor does legally convey all the title which is 
 in him, and that title turns out to be defective, the purchaser can 
 sue the vendor in an action for money had and received. Every 
 purchaser may protect his purchase by proper covenants ; where 
 the vendor's title is actually conveyed to the purchaser, the rule of 
 
 (V) Straion v. Sastall, 2 T. E. 366. Farrar v. Sutcliinson, 9 A. & E. 641. 
 
 (c) Scholey v. Walsby, Peake's N. P. (g) Doug. 65i. 
 
 C. 24. (A) Oripps v. Eeade, 6 T. E. 606. 
 
 (d) Lampony. Oorke, 5 B. &Ald. 606. (i) Matthews v. Boilings, MS., cited 
 
 (e) Skaife v. Jackson, 3 B. & C. 421. in Woodfairs Landlord and Tenant, 7tli 
 (/) (Jraves v. JKey, 3 B. &Ad. 318, n. ; edit, 628, n. 
 
104 ASSUMPSIT. 
 
 caveat emptor applies. In the present case the plaintiff never has 
 had any title conveyed to him, &c." Qc). 
 
 Where money is paid, and the thing contracted for is not 
 delivered, it is money had and received to the use of the party 
 who has paid it {I). So, where A. paid B. a sum of money for a 
 bill of exchange on a banker, who broke before it could be tendered ; 
 it was held, that A. might recover back the money in an action for 
 money had and received. Bull. N. P. 131. 
 
 But where the consideration has not wholly failed, but the 
 plaintiff has received (or might presumably have received (m)) some 
 benefit from the performance of part of the consideration, so that 
 the parties cannot be replaced in statu quo on the rescission of the 
 contract, the action does not lie {n). As, where the plaintiff paid 
 an annual sum for the use of a patent which turned out to be void, 
 it was held, that the plaintiff could not recover the amount of the 
 sums he had so paid (o). So, where the plaintiff was let into pos- 
 session of premises under the provisions of a contract for sale, which 
 also provided for the delivery by the defendant, within a certain 
 time, of a full and sufficient abstract of title ; it was held, that 
 even if the required abstract had not been delivered, inasmuch as 
 the plaintiff had had the possession of the property (for two years) 
 and the parties could not be placed in statu quo, the action for 
 money had and received could not be maintained {p). But where 
 the plaintiff had entered into an agi-eement for the lease of a farm 
 to him, for which he was to pay a premium of 500?. on possession 
 being delivered, and he entered into possession immediately, and 
 paid part of the premium, and occupied the farm for two years ; 
 but, on the non-execution of the lease by the defendant, brought 
 an action to recover the sum he had paid as premium ; it was held, 
 that the action would lie : for although he had undoubtedly received 
 benefit, and that under the agreement, yet the considerettion for the 
 payment of the premium was the granting of the lease, and that 
 only, and, that having wholly failed, the plaintiff was entitled to 
 recover {q). 
 
 5. If an undue advantage be taken of a person's situation, and 
 money obtained from him by compulsion, such money may be 
 recovered in an action for money had and received (r). As where 
 a common carrier refuses to deliver up goods except upon payment 
 of an unreasonable sum (s). 
 
 (Jc) Johnson r. Johnson 3 B. & P. 162. (p) BlacUurn v. Smith, 2 Exch. 783. 
 
 {lyAmn. ipevEtng CJ,Siv 407. (g) Wright v. Colls, S C. B. 150. 
 
 irro) Beed v. ^Icmford, 2 Y. & J. 278. (r) This position was cited and adopted 
 
 («) Although the plaintiff was ongi- by CoUridge, J., in Duke de CaMml v. 
 
 nally induced to enter into the contract Collins, 4 A & E 867 
 
 by the fraudulent representation of the (s) Ashmole y.' Wainwnght, 2 Q. B. 
 
 defendant. Clarke y. Jhckson, 27 L. J., 837. See Finnic y. Glasgow and 1 W. 
 
 ^■/\ 4 7 IT 1 xr T> <,.„ -RaWway, 2M:'Queen'sH. ofL. Ca. 177. 
 
 (o) Taylor y. Hare, 1 N. B. 260. 
 
* ASSUMPSIT. 105 
 
 The plaintiff having in the month of August pawned some goods 
 with the defendant for 201., without making any agreement for 
 interest, went in the October following to redeem them, when the 
 defendant insisted on having 101. as interest for the 201. ; the plaintiff 
 tendered him the 201., and il. for interest, but, the defendant still 
 insisting on having lOl. as interest, the plaintiff, finding that he 
 could not otherwise get his goods bact, paid the defendant the 
 sum which he demanded, and brought an action for the surplus 
 beyond the legal interest, as money had and received to his use. 
 The court held, that the action would well lie, for it was a payment 
 hy compulsion, and the plaintiff might have had such an immediate 
 want of his goods that an action of trover would not have answered 
 his purpose, and the rule volenti, nonfit injuria holds only where 
 the party has a freedom of exercising his will (t). No tender is 
 necessary in these cases (u). The principle, that money extorted 
 by duress of the plaintiff's goods, and paid by the plaintiff under 
 protest, may be recovered in an action for money had and received, 
 is well established and generally recognized (x). It has been held, 
 that an agreement is not void on the ground of having been made 
 under duress of goods ; and that there is not any distinction in 
 this respect between a deed and an agreement not under 
 seal (y). 
 
 The same principle was recognized in the following case. An 
 action for money had and received was brought to recover a sum 
 of money, as having been unduly obtained by the defendant from 
 the plaintiff under an agreement to compromise a qui tarn action 
 for penalties which had been brought by the defendant against the 
 plaintiff, on the ground of certain usurious transactions, which had 
 taken place between the plaintiff Williams, and one Eagleton. It 
 was held, that the action was maintainable ; for the prohibition 
 and penalties of the 18 Eliz. c. 5, attach only on the "informer, or 
 plaintiff or other person suing out process in the penal action 
 making composition, &c." contrary to the statute, and not upon the 
 party paying the composition, and, therefore, the latter did not 
 stand in this respect in pari delicto nor was he particeps criminis 
 with such informer or plaintiff, and, advantage having unduly been 
 taken of his situation to coerce him, the money paid was recover- 
 able {z). So, where A. had commenced an action of ejectment 
 against B., and had subsequently received notice that B. intended to 
 proceed against him for certain penalties under the General Turn- 
 pike Act, whereon it was arranged between them that the action 
 of ejectment should be discontinued, and B. receive from A. hOl. 
 towards the costs of his defence to the action of ejectment ; and 
 
 (f) AstUy y. Bsynolds, ^tr. 915. Q. B. 276. 
 
 (u) Parker Y. Bristol and Exeter Bail- (y) S/ceate v. Beale, 11 A. & E, 983, 
 
 v)ay Company, 6 Exch. 702. . ante, p. 101. 
 
 ■ (x) Per Lord Demman, C.J., in Wake- («) Williams v. HedUy, 8 East, S78. 
 field V. Netobon, 13 L. J., Q. B. 260 ; 6 
 
106 ASSUMPSIT. 
 
 B. received the 50L accordingly; it was held, that A. might 
 recover the 501. from B., if it was obtained from him by the 
 coercion of the threatened penal action (a). 
 
 One who has voluntarily offered to pay a sum of money for the 
 use of the poor of the parish, in order to avoid a prosecution by 
 a magistrate upon a charge of having instigated the escape of a 
 prisoner in custody for a misdemeanor, which offer has been con- 
 sented to by the magistrate, and the money accordingly paid by 
 the party to the master of the workhouse, for the use of the 
 poor, may countermand the application of the money before it is 
 so applied, and may recover it back in an action for money had 
 and received (&). 
 
 Where the defendant, being a creditor of the plaintiff, entered 
 into a composition deed with the other creditors to receive 10s. 
 in the pound, under an agreement with the plaintiff, that he, 
 the plaintiff, would give the defendant his promissory notes for 
 the remainder of the debt, which notes were accordingly given, 
 and the composition of 10s. was paid to the defendant, and he 
 negotiated the notes, the holder of one of which enforced payment 
 from the plaintiff by action ; it was held, that the plaintiff might 
 recover back the amount from the defendant in an action for 
 money had and received ; for this was not a case of par delictum, 
 but of oppression on one side and submission on the other ; and 
 this might be considered as money paid to the order of the de- 
 fendant, or, in other words, money had and received by him 
 through the medium of the person to whom, by his order, it was 
 paid (c). So, where the plaintiff being in embarrassed circum- 
 stances offered his creditors a composition of 5s. in the pound, and 
 the defendant a creditor refused to accept it unless, the plaintiff 
 paid him 501. and gave him a bill of exchange for 108^., and as 
 the other creditors would not accept the composition if the de- 
 fendant did not, the plaintiff paid the defendant the 501. and 
 gave him the bill of exchange, it was held in the Exchequer 
 Chamber that the plaintiff might recover the 501. in an action for 
 money had and received (d). 
 
 6. Where contracts or transactions are prohibited by positive' 
 enactments, for the sake of protecting one set of men from another, 
 if money is paid upon such contracts by the one, who from their 
 situation and condition are liable to be oppressed and imposed 
 upon by the other, they are not considered as standing m pari 
 
 (a) Unwin y. Leaper, 1 M. & G. 747. does not negotiate the note or biU, and 
 (5) Taylor v. letidey, 9 East, 49. the plaintiff pays him, the payment is 
 (c) Smith V. Cm/, 6 M. & kS. 160 ; Hor- voluntary, and the plaintiff cannot re- 
 ion V. Biky, 11 M. & "W. 492 ; Alsager cover the money so paid. Wilson v. Say, 
 V. Spalding, 4 B. N. C. 410 ; s. v. per 10 A. & E. 82. 
 
 Pwrke, B., in ffiggim v. PiU, i Exch. {d)Atki'nson v. SaMy, 7 H. & N. 934, 
 
 325 ; and if m such a case the defendant in Error ; 81 L. J. 362, Exoh. 
 
ASSUMPSIT. 107 
 
 delicto ; and in furtherance of these statutes, the person injured, 
 after the transaction is finished and completed, may bring his 
 action and defeat the contract. 
 
 A creditor refused to sign the certificate of a bankrupt, unless 
 a sum of money was given him by a friend of the bankrupt. The 
 friend gave the money, and the creditor in consequence signed the 
 certificate. It was held, that this money might be recovered in 
 an action for money had and received ; for the party, who insisted 
 on payment, was acting with extortion, and oppressively, and in 
 the teeth of that which he had agreed to accept, and against the 
 letter and spirit of the stat. 5 Geo. 2, c. 30, s. 11 (e). So, formerly, 
 in cases of usurious contracts (f) ; where it was held, that the 
 debtor might recover from the creditor all beyond legal interest, in 
 this form of action, because the parties did not stand in pari 
 delicto (g). So in cases of lottery insurances (h). 
 
 Where a clerk of the plaintiff had received money, and 
 negotiable notes, from the plaintiff's customers, and paid them 
 over to the defendant as premiums for illegal insurances in 
 a lottery, it was held that the plaintiff, upon identifying the 
 property, might recover it in an action for money had and 
 received ; for the plaintiff was not particeps criminis, and the 
 money had come to the defendant's hands iniquitously and ille- 
 gally in breach of the statute (%). 
 
 7. Where money has been paid by one of two parties to an 
 illegal contract to a third person, for the use of the other party, 
 an action for money had and received will lie against such third 
 person to recover it. As, where money was paid by an under- 
 writer to a broker for the use of the assured on an illegal contract 
 of insurance, it was held, that the assured might recover the 
 money from the broker, on the ground that the broker could not 
 insist on the illegality of the contract as a defence, the obligation 
 on him arising out of the fact of the money having been received 
 by him to the use of the plaintiff, which created a promise in law 
 to pay. Tenant v. Elliott, 1 B. & P. 3. Ace. Bousfield v. Wil- 
 son, 16 M. & W. 185, and Far-mer v. Russell, 1 B. & P. 296 {k), 
 in which case Buller, J., said that the action was not founded on 
 the illegal contract, but on a ground totally distinct from it ; 
 Heath, J., said, the distinction was, that, whether the consideration 
 was good or bad, a man might recover his own money, though not 
 
 (e) Smith v. Bromley, Doug. 696, n. wood v. Cracroft, 6 M. & S. 502. 
 See an application of the principle of (i) Clarke v. Shee, Cowp. 197. The 
 
 this case, by Buller, J., in Nerot v. cases of Shove v. Webb, T. E. 732, and 
 
 Wallace, 3 T. 'R. 25. See per Sayley, J., Scurfield -y. Oowland, 6 East, 241, on 
 
 in Smith y. Cuff, 6 M. & S, 165. the Annuity Act, furnish a further iUus- 
 
 (/) ^y ^^^ 1'^ ^ 18 Vict. 0. 90, all tration of the same principles. See arete, 
 
 laws against usury are repealed. p. 102 ; see also Jagues v. Withy, 1 H. 
 
 (g) LowryY. Bourdieu, Dougl. 471. Bl. 65. 
 
 (h) Jaques v. OoUghtly, 2 Wm. Bl. (h) But see M'Gregor Y. Lowe, E. & 
 
 1073 ; per Ellenhorough, C. J., in Thistle- M. 67. 
 
108 ASSUMPSIT. 
 
 that of another person. The test is whether the plaintiff requires 
 any aid from the illegal transaction to establish his case (J). " It 
 seems to me," said Buller, J., in Farmer v. Russell, " that all the 
 confusion in this case has arisen from the plaintiff having proved 
 too much at the trial. He should have shown that the defendant 
 received so much money to his use, and it was immaterial whether 
 the money were paid on a legal or illegal contract " (m). The 
 same principle was recognised in the following ^ case. The de- 
 fendant had employed the plaintiff to sell a ship to a foreign 
 government, authorising him to employ a part of its proceeds in 
 bribing its oflficials. The plaintiff sold the ship to the government 
 for a certain sum, and informed the defendant that he had sold it 
 for a certain sum net, and that the difference was to be applied in 
 bribing the officials as agreed. This the defendant ratified, and 
 the whole of the purchase money having been paid to the plaintiff 
 as the defendant's agent, the plaintiff paid to the defendant the 
 sum mentioned between them as ' net,' to the officials a part of 
 the difference, and retained the rest for himself. Held that the 
 defendant had a right to set off this latter sum in an action brought 
 against him by the plaintiff ; and as the defendant in claiming it 
 did not set up or rely on the illegal arrangement, he would have 
 a right to recover it as received to his use (»). 
 
 In FaAlcney v. Reynous, 4 Burr. 2369, it was held, that the 
 plaintiff was entitled to recover upon a bond given by the de- 
 fendants, to secure the repayment of a sum of money paid by the 
 plaintiff to a third person on account of the defendants, on a 
 settlement of stock-jobbing differences. The authority of this 
 decision, however, was doubted in Anhert v. Maze, 2 B. & P. 
 371 ; and in Cannan v. Bryce, 3 B. & Aid. 179, it was held, that 
 money lent for the purpose of settling losses on illegal stock- 
 jobbing transactions, and so applied by the borrower, could not be 
 recovered back, although the lender was no party to the stock- 
 jobbing (o). " In the case of M'Kinnell v. Robinson, it was held, 
 and I think properly held, that money lent to play at an illegal 
 game could not be recovered. This was decided on the principle 
 that money lent for the purpose of enabling the party to do an 
 illegal act, and this with the knowledge of the lender, could not 
 be made the foundation of an action." Per Lord Lynd- 
 hurst, C. (p). 
 
 Under the Stock-jobbing Act, 7 Geo. 2, c. 8, contracts for time 
 bargains were declared void and penalties were imposed not only 
 
 (l) Simpson t. Moss, 7 Taunt, 246, (o) Canncm v. Bryce, was recognized 
 
 per Gibbs, C.J. in M'Kinnell y. Robinson, 3 M. & W. 
 
 (m) Illegality of consideration, how- 441 ; and in The Gas Light and Coke 
 
 ever, must be pleaded ; 8 PL E. Hil. T. Compamy v. Turner, 5 B. N. C. 677 ; 6 
 
 1853 ; and, if pleaded, evidence of it B. N. C. 324 (in error) ; and in Pearce 
 
 would of course be given by the de- v. Brookes, 1 L. E. Exch. 213. 
 
 fendaut. „„t t>„o-o , (p) Quarrier y. Colston,! Fhill 151. 
 
 {n) Bone v. EMess, 29 L. J. 438, Exch. 
 
ASSUMPSIT. 109 
 
 on parties entering into such contracts, but also on parties paying 
 or receiving money to compound differences. Hence both making 
 time bargains and settling were distinct substantive illegal acts, 
 and therefore any one who knowingly lent money for the purpose 
 of settling was a direct aider to the performance of an act illegal 
 per se. The Stock-jobbing Acts were repealed by 23 & 24 Vict. c. 
 28, so that now wagering stock-jobbing transactions are on the same 
 footing as ordinary wagers, which are regulated by 8 & 9 Vict, 
 c. 109, which enacts (s. 18), " that all contracts or agreements 
 whether by parol or in writing by way of gaming or wagering 
 shall be null and void, and that no suit shall be brought or main- 
 tained in any court of law or equity for recovering any sum of 
 money or valuable thing allegg^ to be won upon any wager, or 
 which shall have been deposited in the hands of any person to 
 abide the event on which any wager shall have been made. 
 Provided always, that this enactment shall not be deemed to 
 apply to any subscription or contribution, or agreement to sub- 
 scribe or contribute for or towards any plate, prize, or sum of 
 money to be awarded to the winiier or winners of any lawful 
 game, sport, pastime, or exercise." The first branch of this section 
 declares the contract to be null and void : the second prevents the 
 winner from bringing an action to recover the amount of the bet 
 from the loser : and the third prevents the winner from suing the 
 stakeholder. Per Maule, J., Vamey v. Hickman, 5 C. B. 271. 
 Hence it is now no answer to an action for money paid at the 
 request of the defendant to plead that the money was paid to 
 settle losses on time bargains which plaintiff had made as broker 
 for the defendant with third persons. "The law as to gaming 
 contracts is that all such contracts are nuU and void, and no action 
 can be maintained upon them, but they are not therefore illegal. 
 The parties making them are not liable to any actions or any 
 penalties. I am clearly of opinion that if a man loses a wager and 
 gets another to pay the money for him, an action lies for the 
 recovery of the money so paid," per Erie, C.J. (q). 
 
 It has never, it is believed, been directly decided that money 
 paid by request by a third party for the express purpose of settling 
 an illegal contract cannot be recovered by action, but it would 
 seem from the doctrine of Ganiian v. Bryce that it cannot. 
 
 In the case of an action upon an agreement as to time bargains 
 the question is, whether at the time of making the contract there 
 was a bond fide intention to purchase or deliver shares. If there 
 was such an intention the contract is good; if there was not, the 
 contract is " an agreement by way of gaming or wagering " within 
 the 18th section, and by that section is null and void (r). 
 
 In reference to the proviso it is to be observed, that the coh- 
 
 {q) Rosewarm v. Billing, 15 C. B. (N. C. B. 562 ; and Hill v. Fox, 4 H. & N. 
 S.) 322. See also Jessopp v. Lukoyche, 359. - 
 10 Exch. 614 ; Knight v. Cambers, 15 (r) Barry v. Oroshey, 2 J. & H. 1. 
 
no ASSUMPSIT. 
 
 tribution must be in money. Where two men each put 10?. into 
 the hands of a stakeholder, the winner of a foot race between them 
 to take the 2Ql., the bargain was upheld as bemg withm the 
 proviso (s). But where two men being each possessed of a horse 
 agreed to ride a race, and that the winner should have both 
 horses, the agreement was held void, a horse not bemg a con- 
 tribution within the meaning of the proviso (t). . 
 
 Where a plaintiff who by defendant's authority had laid illegal 
 bets in the defendant's name, and upon losing had paid them 
 without an express direction to do so, it was held that he could not 
 recover the amount from the defendant (u). 
 
 Where the money does not appear to have been actually paid 
 into the hands of the defendant, but only an account stated 
 between him and the other party to the illegal contract, in which 
 the defendant has given credit to such party for the money, the 
 court will not sustain the plaintiff's demand ; for by so doing they 
 would compel the execution of an illegal contract, as if it were a 
 legal one (v), Lord EUenhorough, 0. J., observing that " in cases of 
 illegal transactions, the money may always be stopped while it 
 is in transitu to the person who is entitled to receive it. If 
 indeed this had been a legal transaction, the money might per- 
 haps have been considered as paid; but we will not assist an 
 illegal transaction in any respect." 
 
 8. Where money lias been paid by one of two parties to an 
 illegal contract, in a case where both parties may be considered as 
 participes criminis, an action cannot be maintained, after the 
 contract is executed, to recover the money ; for m pari delicto 
 potior est conditio defendentis. This rule is confined to the case 
 of money paid by one of the parties to the other, as will appear 
 from the 7th rule, and from the decision of Cotton v. Thur- 
 la/nd (w). This was an action for money had and received, to 
 recover a sum of money which had been deposited by the plaintiff, 
 as his share of a stake, in the defendant's hands, upon the event 
 of a boxing-match between the plaintiff and another person. The 
 court were of opinion that the action would well lie, notwith- 
 standing the match had been fought ; Lord Kenyan, C. J., ob- 
 serving, " that the action was brought not against one of the 
 parties laying the wager, but a stake-holder" (x) ; all the cases 
 establish the same doctrine, that money received by a third 
 person, not a party to the illegal contract, may be recovered 
 before it is paid over, for to permit this is merely to allow a locus 
 poenitentice, and to prevent the illegal contract from being 
 executed at all (y). 
 
 (s) Batiyr. Ma/rrioit, 5 C. B. 818 ; 17 (v) Edgar v. Fowler, 3 East, 222. 
 
 L. J. 215, C.P. (w) 5 T. R. 405. 
 
 (t) Coorribs t. DMU, 35 L. J. 167, (x) Ak. Smith v. Bichmore, i Taimt. 
 
 Exch. 474. 
 
 (u) Clayton v. DilUy, 4 Taunt. 165. (y) Tappenden v. Bandall, 2 B. & P. 
 
ASSUMPSIT. Ill 
 
 Where there is a stakeholder, the contract is not executed till he 
 has paid over the money, but where this has been done without 
 any opposition from the losing party, no action will lie against him 
 to recover it back (z) ; but where a wager has been laid on the 
 event of an illegal game, e. g. a boxing-match, either party may 
 recover his own stake (a) from the holder, even where the money 
 has been paid over before action brought, if it has been paid over 
 in opposition to the parties' express desire (6). 
 
 There is a sound distinction between contracts executed and 
 executory ; and if an action is brought to rescind a contract, you 
 must do it while the contract remains executory. Per Buller, 
 J. (c). Heath, J., (d) speaking of the preceding observation of 
 Buller, J., said, that it seemed to him that the distinction between 
 contracts executory and executed, if taken with those modifications 
 which Mr. J. Buller would necessarily have applied to it, was a 
 sound distinction ; that undoubtedly there might be cases where 
 the contract might be of a nature too grossly immoral for the court 
 to enter into any discussion of it, as where one man has paid 
 money by way of hire to another to murder a third person ; but 
 where nothing of that kind occurred, he thought there ought to be 
 a locios poenitentice, and that a party should not be compelled 
 against his will to adhere to the contract. Roohe, J., said, that he 
 wished it to be understood, that he fully acceded to the doctrine 
 laid down, by Mr. J. Buller respecting contracts executory and 
 executed. " In Tappenden v. Randall, the court considered the 
 distinction between contracts executed and executory as estab- 
 lished ; the judges aU make that distinction ; it is not called in 
 aid ; it is the ground of their judgment ; " per Sir /. Mansfield, 
 C. J. (e). Agreeably to this distinction was the following case (/). 
 A sum of money had been paid in order to procure a place in the 
 customs ; the place had not been procured, and the party who had 
 paid the money having brought an action to recover it back, it 
 was held that he should recover ; because the contract remained 
 executory (g). I. S. being under sentence of death in Newgate, 
 the plaintiff was prevailed upon to lodge a sum of money in the 
 hands of the defendant, to be applied to the purpose of procuring 
 him a pardon. The pardon not having been procured, an action 
 was brought to recover the money ; but Lord JEldon, C. J., was 
 
 471. See 8 & 9 Vict. o. 109, s. 18, ante, (c) Lowry v. Bourdieu, Doug. 468. 
 
 p. 109. (d) Tappe.nden r. Randall, 2 B. & P. 
 
 (z) 3owsm V. Hancock, 8 T. E. 575. 471. 
 
 (ai) If he claims the whole, semble, he (e) Aubert v. Walsh, 3 Tavmt. 281. 
 
 cannot recover even his own stake. (/) Walker v. Cliapman, stated, hy 
 
 Hearing v. HelUngs, 14 M. feW. 712. Buller, J., in Lowry v. Bourdieu, Doug. 
 
 ' (6) Haslelow v. Jackson, 8 B. & C. 221 ; 471. , 
 
 recognized by £«!/%, B., in Hodson-v. (g) And see Pickardr. Banner, Teake's 
 
 Ten-ill, 1 C. & M. 804 ; Howson v. Han- N. P. C. 221 ; Aubert v. Walsh, 3 Taunt. 
 
 cock, 8 T. E. 675. See Goldsmith v. 227. As to what shall be notice of re- 
 
 Martin, 4 M. & G. 5 ; Brown v. Over- scinding the contract, see Bush v. Walsh, 
 
 bury, 11 Exch. 716. 4 Taunt. 290. 
 
112 ASSUMPSIT. 
 
 of opinion, that the action was not maintainable; that where a 
 person interposed his interest and good offices to procure a pardon, 
 it ought to be done gratuitously, and not for money ; the domg an 
 act of that description should proceed from pure, and not from 
 pecuniaiy motives (d). 
 
 It must be admitted, that the case of Lacaussade v- White (e), 
 militates against position 8. There, money paid on an iUegal 
 wager was recovered, after the event upon which the wager pro- 
 ceeded had terminated against the plaintiff, and the plamtiff had 
 paid over the money to the defendant, the court holding it more 
 consonant with sound policy to permit money paid on an illegal 
 consideration to be recovered by the party paying it, than by 
 denying the remedy to give effect to the illegal contract. But 
 this case has long since been considered as overruled (/). 
 
 The plaintiff and defendant laid a wager on the event of a horse- 
 race, prohibited by 13 Geo. II. c. 19 (g), and deposited the money 
 in the hands of the defendant ; the money was paid over to him, 
 with the consent of the plaintiff, who afterwards brought an action 
 to recover it ; but it was held, that it would not lie ; for although 
 the law would not have enforced the payment of it, yet having 
 been paid, it was not against conscience for the defendant to retain 
 it (h). So if A. agree to give B. money for doing an illegal act, B. 
 cannot (although he do the act) recover the money by an action : 
 yet if the money be paid, A. cannot recover it (i). 
 
 The plaintiff and defendant, who were lottery-office keepers, 
 entered into an agreement mutually to insure the number of a 
 ticket with each other, upon condition that he whose number 
 should be drawn on the day next following the agreement, should 
 receive from the other an undrawn ticket, or the value of it ; the 
 defendant's number being drawn, he chose the value of it, and 
 received the same from the plaintiff; the agreement having been 
 continued, the plaintiff's number was drawn, but the defendant 
 refused to give the plaintiff either an undrawn ticket or the value, 
 whereupon the plaintiff brought an action for money had and 
 received to recover the sum which he paid to the defendant 
 on his number being drawn ; it was held, that the action would not 
 lie, because the plaintiff was not only in pari delicto, but also 
 stood in the light of that species of insurer, from whom the statute 
 meant to protect the unwary (j). 
 
 {d} Norman v. Cole, 3 Esp. 253. , to the same effect. 
 
 (e) 7 T. K. 535. (g) So much of this act as relates to 
 
 (/) Lawrence, J., in WilUaim v. Hed- horse-racing is repealed by 3 & 4 Vict. 
 
 ley, 8 East, 382 n., and BayUy, J., in c. 5. 
 
 SaMelow v. Jackson, appear to have (h) Howson v. Hancock, 8 T. R. 675. 
 
 considered Lacaussade v. White as over- (i) Webb v. Bishop, Bull. N. P. 16, 
 
 ruled. And Lord Mansfield, C. J., de- 132. 
 
 livering the opinion of the court in (j) Browning v. Morris, Cowp. 792. 
 
 Aubert v. Walsh, 3 Taunt. 284, speaks 
 
ASSUMPSIT. 113 
 
 The plaintiff executed an indenture of apprenticeship, by which 
 she bound her son apprentice to the defendant, and she paid the 
 defendant a premium. The indenture did not contain any state- 
 ment respecting the premium, and was not stamped ; by reason of 
 which omissions the indenture was void. The plaintiff sought to 
 recover the premium, on the ground that the indenture being void, 
 the money was paid without consideration. But it was held, that 
 she could not recover, inasmuch as she had lent assistance to the 
 defendant in giving effect to unlawful purposes for defrauding the 
 revenue (k). 
 
 In like manner, where an assurance was made on a ship belong- 
 ing to a British subject, without interest, (which is illegal by 19 
 Geo. II. c. 37,) it was held, thal^the assured could not recover the 
 premium, after the ship had arrived safe : for the court will not 
 interfere to assist either party, where they are in pari delicto (l). 
 On the same principle it was adjudged, that a premium paid by 
 the plaintiff on a re-assurance of the ship, (void by 19 Geo. II. c. 37,) 
 could not be recovered in an action for money had and received 
 after the ship had been captured (m). In like manner it has been 
 held, that the premium paid on an illegal assurance to cover a 
 trading with the enemy, cannot, after the risk has been run, be 
 recovered back again, although the underwriters could not have 
 been compelled to make good the loss (n). So where the plaintiff 
 had insured colonial produce, on a voyage from the West Indies 
 for Gibraltar, and the ship, on board which the goods were laden, 
 was lost by the perils of the seas, it was held, that the premium 
 could not be recovered ; because colonial produce could not legally 
 be shipped from the British West Indies for Gibraltar (o), and 
 consequently the insurance was illegal (p). And, as every person 
 must be taken to be cognizant of the law, the ignorance of the 
 assured, at the time when the assurance was made, that the in- 
 surance was illegal, wiU not avail him. And this rule holds even 
 in cases where the premium is paid by a foreigner, although the 
 policy is illegal by the law of this country only, and not by the law 
 of the country to which the foreigner belongs ; because the rigour 
 of our political regulations ought not to be relaxed in favour of 
 foreigners offending against them, and there is very little reason to 
 presume ignorance of laws peculiarly applicable to the subjects of 
 a foreign state (q). 
 
 But where an insurance had been made on goods, at and from a 
 port in Bussia to London, by an agent residing here for a Russian 
 subject abroad, which insurance was in fact made after the com- 
 mencement of hostilities by Russia against this country, but before 
 
 (k) Stokes V. Tmitehen, 8 Taunt. 492. pealed by 6 Geo. IV. c. 105. The pre- 
 
 (l) Zowry V. Bourdieu, Dougl. 467. sent Navigation Act is the 17 & 18 Vict. 
 
 (m) Andree v. FUUher, 3 T. E. 266. c. 120. 
 
 (n) Vandyck v. Hewitt, 1 East, 97. (p) Lubbock v. Potts, 7 East, 449. 
 
 (o) By 12 Car. II. c. 18, s. 1; re- (j) March \. Abel, 3 B. & P. 35. 
 
 VOL. I. I 
 
114 ASSUMPSIT. 
 
 the knowledge of it here, and after the ship had sailed, and been 
 seized and confiscated, it was held, that although the policy was 
 in fact illegal and void, yet the agent of the assured was entitled to 
 a return of the premium paid under ignoranceof the fact of such 
 hostilities (q). So where a licence was obtained and insurance 
 effected from Riga to Hull, on goods the produce of Russia, on 
 board a Swedish ship, but the ship sailed three days before the 
 letter directing the licence to be obtained reached the agent, the 
 letter having been delayed by contrary winds beyond the usual 
 time, and the licence was obtained two days afterwards, and the 
 insurance effected subsequently to that: it was held, on the same 
 principle as in the foregoing case, that though the voyage was in 
 its inception illegal, being contrary to 12 Car. II. c. 18 (r), never- 
 theless the assured might recover back the premium (s). 
 
 9. Where the contract is not mxilv/m, in se, nor prohibited by any 
 positive law, but is of such a nature that it cannot be put in force, 
 merely because it would be inconvenient that the merits of the 
 question should be publicly discussed, in such case, while the con- 
 tract remains executory, money paid upon it by one of the parties 
 to the other Tnay be recovered. A., in consideration of a sum of 
 money paid to him by B., gave a bond conditioned for the payment 
 of an annuity to B. until A. should make it appear to the satis- 
 faction of B. that the hop duties should amount to such a sum in 
 any one year. Before the day on which the first payment of the 
 annuity was to have taken place, and before any payment had been 
 made, B. applied to A., stating that he considered the bond to be 
 illegal, and demanded a return of the consideration, which having 
 been refused, B. brought an action against A. for money had and 
 received : it was held, that it would well lie ; RooJce,J., observing, 
 that " there was nothing criminal in this contract, nor had it been 
 executed, nor was this a case where money, which has been paid 
 over- by a stake-holder, was sought to be recovered " (f). Wagers 
 on the amount of the hop duties, it is to be observed, are neither 
 illegal nor immoral, but the courts refuse to enforce them, on ac- 
 count of public inconvenience (u). 
 
 A party who had contributed to a proposed tontine scheme was, 
 on the abandonment of the project, allowed to recover his contri- 
 bution from the director ; the scheme not being within the Bubble 
 Act (x). So where A. had sold shares to B. in a projected joint 
 stock coDipany, wherein nothing was to be done until the sanction 
 of the legislature was obtained ; it was held, that, under those cir- 
 cumstances, the proposed company was not illegal within the above 
 statute, and that, the undertaking having been abandoned before 
 
 fe) Oo7n w Bruce, 12 East, 225. („) Sea-Shirley v. Sankey, 2 B. & Pul. 
 
 (r) See note (n), supra. 130. 
 
 (s) Hentigv. Sianiforth, 5 M. & S. 122. (x) NockeU v. Crosby, 3 B. & C. 814. 
 
 JS /"^?f^'" ^- ■K«™'^««. 2 B & P. The 6 Geo. I. c. 18 (the Bubble Act) is 
 
 467. See M'Gregor v. Lowe, R. & M. 57. repealed by 6 Geo. IV. e. 91. 
 
ASSUMPSIT. 115 
 
 any thing was done pursuant to the project, B. might recover from 
 A. the money paid for the shares {y). 
 
 10. The proprietor of cattle wrongfully distrained damage fea- 
 sant, who, although insisting on a right of common, has paid 
 money for the purpose of having his cattle re-delivered to him, 
 cannot recover that money in an action for money had and re- 
 ceived : 1. because such a mode of proceeding would impose great 
 difficulties on the defendant, by not apprising him of what he was 
 to defend : 2. because the law has provided two specific remedies 
 for trying questions of this kind, namely, actions of replevin and 
 trespass {z). And so if the distress is not wrongful, but an ex- 
 cessive sum is demanded for damage, he cannot, without tendering 
 amends, pay the sum demand^, and recover the overcharge in 
 this form of action, because in such cases the onus of ascertaining 
 the amount of damage lies properly on the distrainee. Gulliver 
 V. Cosens, 1 C. B. 788, where it was said that if a sufficient tender 
 be made before distress, the remedy is replevin or trespass ; if 
 after the distress, and before the impounding, detinue. It was 
 held by Sir J. Mansfield, whose opinion was afterwards recognized 
 by the court, that an action on the case would not lie for detainirig 
 cattle distrained damage feasant, after tender of amends, such ten- 
 der not having been made until after the impounding; for the 
 goods are then in custodid legis (a). 
 
 In the case oi Lindon v. Hooper, the right of common was in 
 dispute at the time when the action for money had and received 
 was brought to recover the money paid for the release of the 
 cattle ; the defendant, who had distrained the plaintiff's cattle, 
 agreed to return the money if the plaintiff should make out his 
 right, and the action was brought to try the right. But where it 
 appeared that the plaintiff had, from time to time, paid rent to 
 the defendants for premises which he held of them ; and it after- 
 wards turned out that the defendants had no title, and the plain- 
 tiff was ejected and compelled to pay the mesne profits for the 
 time during which he had held of the defendants ; it was adjudged 
 that an action for money had and received would lie to recover 
 the rent which the plaintiff had so paid to the defendants ; but in 
 this case it did not appear that the defendants, either at the time 
 when this action was brought, or at the trial, claimed to have any 
 title to the land (&). 
 
 Where an action for money had and received was brought 
 against an overseer of the pooi", to recover money in his hands, 
 which had been levied by a sale of the plaintiff's goods on a con- 
 viction which was afterwards quashed, the court held, that the 
 
 (y) Kempson v. Sawiders, 4.Bingh. 5 ; Six Carpenters' case, 8 Eep. 147. 
 see WatHiis v. Huntley, 2 C. & P. 410. (&) Newtsome v. Graham, 10 B. & C. 
 
 (z) Lindon v. Honper, Cowp. 414. 234. 
 
 (a) Anscomh v. Sliore, 1 Camp. 285 ; 
 
 I 2 
 
116 
 
 ASSUMPSIT. 
 
 action was maintainable for the clear money produced by the sale 
 of the goods : for the plaintiff might waive the tort, and sue for 
 the money really due (c). So if a revenue officer seize goods as 
 forfeited, which are not liable to seizure, and take money of the 
 owner to release them, the owner may recover back the money in 
 an action for money had and received (d), brought against the 
 officer, and that whether he has paid the money over to the 
 receiver or not (e). 
 
 A sheriff's officer had wrongfully seized, under a fi. fa. against 
 A., a horse belonging to B. The horse was sold by the sheriff, 
 and the money paid over to the officer ; B. brought an action 
 against the officer for money had and received. It appeared that 
 the horse had belonged to B.'s husband, but that, after his death, 
 she had provided for its keep. No letters of administration were 
 produced. It was held, that this was sufficient evidence against a 
 wrong-doer to entitle her to recover in an action for money had 
 and received (/). 
 
 11. In cases where the contract is legal, the plaintiff cannot 
 recover on the general counts, while the contract remains open 
 and not rescinded by the defendant ; the only remedy is on the 
 special agreement. As where the defendant sold a horse to the 
 
 (c) Feltham v. Terry, Bull. K P. 131, 
 cited in Cowp. 419 ; and see Priestley v. 
 Watson, 2 C. & M. 691. 
 
 (d) Irving v. Wilson, i T. R. 485. A 
 question arose in this case, whether the 
 officer was entitled to a month's notice, 
 hefore the action was brought, under 23 
 Geo. III. u. 70, s. 30, in order to give 
 him an opportunity of tendering amends. 
 The court decided that he was not ; 
 Grose, J., observing, that the act was cou- 
 iined to actions of trespass or tort, and 
 did not extend to an action of assumpsit, 
 and that "if an officer seize goods as 
 forfeited, he does it colore officii, but if bo 
 take money for delivering up the goods 
 there is no pretence to say that that is 
 done colore officii." Ace. per Lord Ellen- 
 borough, 0. J., in Wallace v. Smith, 5 
 East, 122, and Umphelbyr. M'Lean, 1 B. 
 & Aid. 42, where the action was brought 
 to recover the amount of an excessive 
 charge made by the defendants as col- 
 lectors on a distress for arrears of taxes. 
 In Qreenway v. Hurd, 4 T. K. 553, how- 
 ever, where an excise officer levied duties 
 under an act which was repealed at the 
 time when the duties were levied. Lord 
 Kemyon, C. J., expressed an opinion, that 
 the officer was entitled to notice, although 
 the plaintiff sued in assumpsit. " It has 
 been frequently observed by the courts, 
 that the notice which is directed to be 
 given to justices and other officers, before 
 actions are brought against them, is of 
 
 no use to them when they have acted 
 within the strict line of their duty, and 
 was only required for the purpose of pro- 
 tecting them in those cases where they 
 intended to act within it, but by mistake 
 exceeded it." In Theobald, v. Orichmore, 
 1 B. &Ald. 227, Lori mienboroiogh, C. J., 
 said, " The object was clearly to protect 
 persons acting illegally, but in .supposed 
 pursuance and with a bond fide intention 
 of discharging their duty under the act 
 of parliament." Ace. Waterhouse v. Seen, 
 4 B. & C. 200. And the law with regard 
 to notices of action is now settled, that 
 "all who bond fide and reasonably think 
 they fill the character mentioned in the 
 several statutes, and act in pursuance of 
 them, are protected, per Solfe, B., Bam 
 V. Thomborough, 3 Exch. 850, and this 
 whether they are aware of the statute 
 giving them protection or not. Mead v. 
 Ooker, 13 C. B. 850. "Reasonably" 
 means acting "with reason," as opposed 
 to acting "by caprice;" and the terms 
 "bond fide" and "reasonably" are, in 
 this respect, synonymous. Sooth v. Cliee, 
 10 C. B. 827. By 5 & 6 Vict. c. 97, s. 4, 
 the time for giving notice of action in all 
 cases is one calendar month, post, tit. 
 "Imprisonment." 
 
 (e) Atlee v. Backhouse, 3 M. & W. 648 ; 
 and see Qreenway v. Hurd, 4 T. R. 553 ; 
 Oates v. ffudson, 6 Exch. 346. 
 
 (/) Oughton v. Seppings, 1 B. & Ad. 
 
ASSUMPSIT. 117 
 
 plaintiff with a warranty of soundness, and the horse proved 
 unsound ; the plaintiff tendered a return of the horse, but the 
 defendant refused to take him back ; an action for money had and 
 received having been brought, it was held that it would not lie (g). 
 So where the defendant, in consideration of seventy guineas, sold 
 the plaintiff a pair of coach horses, which he undertook to take 
 back if the plaintiff should disapprove of them and return them 
 within a month ; the plaintiff did return them within a month, 
 but took another pair from the defendant, without making any 
 new agreement ; these the plaintiff also returned within a month, 
 and received a third pair on the 23rd of December, without 
 making any new agreement ; the plaintiff disapproved of the third 
 pair, because they were restive ^nd would not draw, and offered to 
 return them on the 5th of January following, but the defendant 
 refused to take them back, and, thereupon, the plaintiff brought 
 an action against the defendant for money had and received. It 
 was held that it would not lie, for the original special contract 
 having been continued through all the subsequent dealings, the 
 defendant ought to have had notice by the declaration, that he 
 was sued upon that conti'act Qi). So where a seaman had con- 
 tracted with the defendant to go a voyage from A. to B. and back 
 again, with a stipulation that he should not be entitled to his 
 wages until the end of the voyage ; it was held, that he could not 
 maintain the indebitatus counts to recover his wages pro rata as 
 far as B., though he had been wrongfully dismissed at B. by the 
 defendant (i). 
 
 Where, however, the contract is rescinded by the original terms 
 of it, no act remaining to be done by the defendant, the plaintiff 
 is entitled to recover back his money (k). As where the plaintiff 
 had paid to the defendant ten guineas for a chaise, on condition 
 to be returned in case the plaintiff's wife did not approve of it, 
 paying 3s. 6d per diem for the time ; the plaintiff's wife not ap- 
 proving of the chaise, it was sent back at the expiration of three 
 days, and left on defendant's premises without any consent on his 
 part to receive it ; the hire of 3s. 6d. per diem was tendered at 
 the same time, which defendant refused, as well as to return the 
 money. An action for money had and received being brought for 
 the ten guineas, it was held, that it would well lie (I). So where 
 A. agreed to sell an estate to B., upon a deposit of a sum of 
 money, but was afterwards disabled from performing the agree- 
 ment; it was held, that B. might recover the deposit, although 
 the agreement for the sale was by deed (m). So where a contract 
 
 (g) Power v. Wells, Doug. 24, n. ; (k) Bristowe v. Needham, 9 M. & W. 
 
 Cowp. 818, S. C. 729. 
 
 ih) Weston V. Bownes, Doug. 23, re- (Z) Towers v. Barrett, 1 T. E. 133. See 
 
 cognized in Street v. Blay, 2 B. & Ad. Burst v. Orbell, 8 A. & E. 107. 
 
 462. (m) Ch-eville v. Da Costa, Penke's Add. 
 
 (i) Hulle T. Eeightman, 2 East, 145. Ca. 113. 
 
118 ASSUMPSIT. 
 
 is not carried into execution by reason of some negligence or de- 
 fault of one party, the other party, not having done any thing 
 which can be considered as an execution of the contract in part, 
 may abandon the contract and recover the money which he has 
 paid on such contract (m). But this rule holds only where the 
 contract can be rescinded m toto, so as to place both parties in the 
 same situation they were in before (o). 
 
 12. In an action for money had and received to the plaintiff's 
 use, the plaintiff cannot recover the money, unless it be against 
 conscience that the defendant should retain it (p). _ Hence, where 
 a forged bill of exchange was drawn upon the plaintiff, which he 
 accepted and paid to an innocent indorsee for value, and the 
 plaintiff, on discovering the forgery, brought an action against the 
 indorsee to recover back the money as money paid by mistake, it 
 was held, that the action would not lie : for it was not unconsci- 
 entious in the defendant to retain the money when he had once 
 received it, upon a bill for which he had given a fair and valuable 
 consideration, without the least privity or suspicion of any forgery, 
 and the plaintiff ought to have satisfied himself, whether the bill 
 was really drawn upon him by the person whose name was sub- 
 scribed to it {q). This decision appears to have been grounded on 
 the general principle, that an acceptor is bound to know the hand- 
 writing of the drawer, and that it is by his fault or negligence if 
 he pays on a forged signature ; or rather, on the ground that 
 the acceptor is estopped from disputing the authority of the 
 drawer, for, if this were not so, the negotiability of bills, especially 
 foreign ones where the drawer is generally a stranger, would be 
 seriously endangered (r). 
 
 But where the' plaintiff had discounted for the defendant a navy 
 bill, which turned out to be forged, he was held liable to refund 
 the money ; although both parties were, at the time, equally igno- 
 rant of the forgery (s). So in Bruce v. Bruce, 5 Taunt. 495, n., a 
 similar decision -was made on a victualling bill, which the victual- 
 ling office on which it was drawn had paid before the forgery was 
 discovered. So where a bill, pui-porting to be a foreign bill, but 
 which turned out to have been drawn in this country, and there- 
 fore being unstamped to be worthless, was sold, it was held the 
 purchaser might recover the sum paid from the seller {t). So 
 where bills of exchange, purporting among others to have the in- 
 dorsement of H. & Co. bankers of Manchester, were presented for 
 payment in London, where the acceptance directed them to be paid ; 
 
 (n) Giles V. Edwards, 7 T. E. 181. change." See also Barber v. Gingell, 3 
 
 (o) Sunt V. Silk, 5 East, 449 ; Seed Esp. 60. 
 
 V. Blandford, 2 Y. & J. 278. See Oooke (r) Sanderson v. Collman, 4 M. & G. 
 
 V. Munstone, 1 N. R. 351, and ante. 209. 
 
 (p) Aikin v. Short, 1 H. & N. 210. (s) Jones v. Eyde, 5 Tavmt. 488. 
 
 J^^ ^rfnn' c A"^l' ^o^""- ^^'^^ '• 1 (*) Gompertx v. Bartleti, 2 E. & B. 
 
 ■Wm. Bl. 390, S. C. See Smith v. Mercer, 849. 
 6 Tannt. 76, and post, tit. "Bills of Ex- 
 
ASSUMPSIT. 119 
 
 payment being refused, the notary who presented them took them 
 to the plaintiff, the London correspondent of H. & Co., who took up 
 the bills for their honour, and struck out the indorsements subse- 
 quent to that of H. & Co., and the money was paid over to the 
 defendants, the holders of the bills. The same morning it was dis- 
 covered that the bills were not genuine, and that the names of the 
 drawer, acceptor, and H. & Co. were forgeries ; plaintiff imme- 
 diately sent notice to the defendants, and demanded repayment. 
 This notice was given in time for the post, so that notice of the 
 dishonour could have been sent the same day to the indorsers. 
 It was held, that the plaintiff, having paid the money through a 
 mistake, was entitled to recover it back, the mistake having been 
 discovered before the defendant had lost his remedy against the 
 prior indorsers (x), and that the rights of the parties were not altered 
 by the erasure of the indorsements, that having been done by 
 mistake, and being capable of explanation by evidence {y). 
 
 13. The plaintiff, as assignee of a bankrupt, brought an action 
 to recover the proceeds of goods of the bankrupt, sold by the de- 
 fendants as sheriff, under a writ of fi. fa., the commission having 
 been issued upon an act of bankruptcy prior to the fi. fa^ The 
 defendants had not any notice of the bankruptcy until after the 
 levy, and they had paid over the proceeds to an execution credi- 
 tor under an indemnity. It was first objected, that the plaintiff, 
 fcy suing in form ex contractu, thereby treated the sheriff as his 
 agent and affirmed all his previous acts ; to which it was answered 
 and resolved, that the plaintiff did not do so ; he merely waived 
 his claim to damages for a wrong, and sought to recover only the 
 proceeds of the sale. Secondly, it was objected, that the action 
 was too late, after the sheriff had paid the money over in obedience 
 to the writ. But it was resolved, that money paid over on an in- 
 demnity might be considered as not having been paid over at all. 
 It was also objected, that the property had been changed by the 
 sale, to which it was answered, per Alderson, J., that although the 
 property was changed as between a- purchaser and the parties 
 against whom the execution had issued, yet it was not changed 
 against a party whose goods had been wrongfully taken (z). 
 
 14. In order to sustain this action, there must be a privity be- 
 tween the plaintiff and defendant (a). 
 
 If I give a sum of money to my servant to pay a tradesman, 
 the tradesman cannot maintain an action for money had and re- 
 ceived against the servant (6). So if a country client, a defendant 
 in a cause, employs a country attorney, who in his turn employs his 
 
 (x) Ace. CocJcs V. Mastermam, 9 B. & C. {z) Young v. Marshall, 8 Bing. 43 ; 
 
 902 ; SmiOt, v. Mercer, 6 Taunt. 76, per NotUy v. Buck, 8 B. & C. 160. 
 
 Gihhs, C. J. (a) Jones v. CarUr, 8 Q. B. 134. See 
 
 (y) Wilkinson v. JoJmson, 3 B. & C. Calland v. Lloyd, 6 M. & W. 26. 
 
 428. See Eolarts v. Tucker, 16 Q. B. (V) Per Parke, J., 4 B. & Ad. 612. 
 560. 
 
120 ASSUMPSIT. 
 
 town agent to conduct the cause, and the town agent in the course 
 of his business receives money the proceeds of the cause, the country 
 client cannot recover such sum in an action for money had and 
 received against the town agent, for there is no privity (c). So 
 where the solicitor to the assignees of a bankrupt had received from 
 them money to be applied in payment of the costs of the petition- 
 ing creditor, up to the time of the choice of assignees, and there- 
 upon the solicitor ofifered to pay the money, on condition that the 
 bill shall be subject to further taxation, which was refused. The 
 petitioning creditor sued the solicitor for money had and received. 
 There was not any proof that the commissioners had ascertained 
 the amount of the costs according to the statute ; this the judge 
 thought necessary, and nonsuited the plaintiff; and the court after- 
 wards, upon consideration, confirmed the nonsuit ; inasmuch as the 
 defendant had received the money as the agent of the assignees, 
 and not of the plaintiff ; he held it subject to their control and 
 directions, and would continue to be accountable to them, until 
 he entered into some binding engagement with the plaintiff to hold 
 it for his use (d). Where money, or something productive of 
 money, e.g., a bill of exchange or a cargo of goods, is remitted by 
 A. to B., with directions to pay it to C, C. cannot maintain an 
 action against B. for money had and received, without something 
 having been done by B. which amounts to a privity or assent (e), 
 independent of the mere receipt of the money, realisation of the 
 goods, &c. (/) ; but where such assent has been given, it becomes 
 an appropriation irrevocable (g), except by the consent of all the 
 parties Qi). 
 
 15. The consideration of this action must be moTiey. Hence 
 stock cannot be recovered in an action for money had and received, 
 stock being a new species of property, and not money (i). But 
 where, upon a wager of ten guineas to one, the stakeholder re- 
 ceived country bank-notes, and paid them over wrongfully to the 
 party who had lost the wager ; it was held, that an action for 
 money had and received would lie at the suit of the winner ; Lord 
 Ellenborough, C. J., observing, that provincial notes were certainly 
 not money : yet, if the defendant received them as money, and all 
 parties agreed to treat them as such, at the time, he should not be 
 
 (c) Cobb V. Becke, 6 Q. B. 931. (g) Hodgson v. Anderson, 3 B. & C. 
 
 (d) Baron v. Husband, 4 B. & Ad. 611 ; 842 ; YaUs v. Hoppe, 9 C. B. 441 ; 
 see Howdl v. Batt, 5 B. & Ad. 504. Hutchinson v. Heyworth, 9 A. & E. 404 ; 
 
 (e) Facts insufficient to constitute such Hamilton v. Spottiswoode, 4 Exoh. 200. 
 assent. Malcolm v. Scott, 5 Exch. 601 ; Seem, it seems, of a mere mandate to 
 Blackledge v. Ha/rmam, 1 M. & R. 346. pay; which is revocable. Dickinson x. 
 Facts sufficient. Bedford \. Perkins, 3 Marrow, 14 M. & W. 718 : sed qucere, 
 C. & P. 90 ; Lilly v. Hays, 5 A. & E. see cases supra. 
 
 549 ; jDe Bemales v. Fuller, 14 East, (h) Walker y. Rostron, 9 M. &"W. 411. 
 
 591, n. ; Fruhhng v. Shrteder, 2 Scott, See further on this position, pp. 62, 124. 
 135; itfoorev. £!tsMi, 27L. J.,Exch. 3. (i) Nightingale v. Devisms, 5 Buit. 
 
 (/) Williams v. Fverett, 14 East, 582 ; 2589. See also Jones v. Brinley, 1 East, 1, 
 
 Brind v. Hamj}shire, 1 M. & W. 365. pp. 62, 124. 
 
ASSUMPSIT. 121 
 
 permitted to say, that they were only paper, and not money. As 
 against him, it was so much money received by him {k). So where 
 an insurance broker having received credit in account with an 
 underwriter for a loss, upon a policy, whereupon the name of the 
 underwriter was erased from the policy ; it was held, that the 
 insured might maintain an action for money had and received 
 against the broker, although he had not actually received any 
 money from the underwriter ; for the broker having deprived the 
 plaintiff of his remedy against the underwriter, and having received 
 credit in account for the money, he was estopped from saying that 
 he had not the sum in his hands for the plaintiff's use (Z). But no 
 security or equivalent for money can form the subject-matter of 
 this action, unless the parties |jave treated it as money, or facts 
 exist sufficient to raise an inference, that it has been converted into 
 money (m). Hence this action will not lie to recover the value of 
 foreign securities paid to the defendant, where it appears, that he 
 had not any opportunity of converting such securities into British 
 money (to). 
 
 Payment to Agent. — It is a general rule, that in cases of pay- 
 ment to a known agent, the action for money had and received 
 ought to be brought against the principal (o) ; but where the payer 
 becomes entitled to recall the money, he may, if the agent refuse 
 to refund, sue him, provided he has not paid the money over to 
 his principal or allowed it in account under circumstances which 
 amount to payment (p). A., as receiver of W., received money for 
 quit rents due to W., and gave a receipt for them as such. An 
 action for money had and received having been brought against A., 
 to try W.'s right to the quit rents, it was held, that the action 
 would not lie, and that it ought to have been brought against W. ; 
 the court observing, that in cases of payment to a known agent, 
 the action ought to be brought against the principal, unless in 
 special cases, as under notice, or m.ald fide {q). An action for 
 money had and received does not lie against an excise officer to 
 recover duties voluntarily paid to him after the act imposing them 
 is repealed, if the officer has paid them over to his superior, and 
 so no action will lie against the receiver of excise who has received 
 and paid over duties illegally levied by an excise officer (?■). So 
 where a sum of money had been paid to a churchwarden for 
 burial dues, which he afterwards without notice paid over to the 
 treasurer of the trustee of the chapel, to which the burial ground 
 belonged ; it was held, that money had and received would not lie 
 
 (A) Pickard r. Bankes, 13 East, 20 ; 354 ; DuTce of Norfolk v. Worthy, 1 
 
 Spratt V. Itobhouse, i Bingh. 170 ; per Campb. 339 ; Bamford v. ShuttUworlh, 
 
 Best, C.J. 11 A. &E. 926. 
 
 (I) Andrew v. Bobinson, 3 Camp. 199. (p) Holland v. Eussell, 4 B. & S. 14. 
 
 (m) Powell V. Bees, 7 A. & E. 426. (?) Sadler v. Bvans, i Burr. 1984 ; 
 
 (n) M'LaoIilan v. Bvans, 1 Y. & J. Bull. N. P. 133, S. C. 
 
 380. {r) Greeiiway v. IJurd, 4 T. E. 553; 
 
 {0} Stephens v. Badcock, 3 B. & Ad. Attlee v. Backhouse, 3 11. & W. 648. 
 
123 ASSUMPSIT. 
 
 against the churchwarden (s). So where too large a sum had been 
 received for freight, through a mistake in measurement, by the 
 defendants, shipbrokers, and they had settled accounts with the 
 shipowner in the bond fide belief that the payment had been 
 rightly made, it was held that the money could not be recovered 
 back from them, although it might from the shipowner («) So 
 where the known agent of a foreign principal, before notice ot re- 
 pudiation of a contract of insurance on account of the non-commu- 
 nication of material facts, had paid over part, and credited in a 
 settled account the remainder of the amount paid by the under- 
 writers to him before they were aware of the facts, it was held that 
 the agent was not liable to refund (u). 
 
 So where money had been deposited by a bankrupt after he had 
 committed an act of bankruptcy, but before the fiat, in the hands of 
 an arbitrator, who was to decide to whom it belonged, and pay it 
 over, and he had so decided and paid it over without notice of the 
 act of bankruptcy, it, was held, that no action for moneyhad and 
 received would He against the arbitrator (x). _ Although if money 
 be paid by mistake to an agent, and conclusively allowed by him 
 in account with his principal, but not actually paid over, money 
 had and received will not lie against the agent ; still the mere pass- 
 ing such money in account, or making rest, without any new credit 
 given; fresh bills accepted or farther sums advanced for the princi- 
 pal, in consequence of it, so as to alter the agent's condition, is not 
 equivalent to a payment of it over (y). 
 
 To the general rule, that, in case of payment to a known agent, 
 the action for money had and received ought to be brought against 
 the principal, there is this exception : — where a person gets money 
 into his hands illegally, he cannot discharge himself by paying it 
 over to another. Thus, where an, action was brought to recover 
 back money paid to parish officers by the plaintiff, who had been 
 taken into custody as the putative father of a bastard child. The 
 money had been paid for the purpose of indemnifying the plaintiff 
 against all future charges which might accrue in respect of the 
 child. The child died before all the money was expended, and the 
 defendants, the overseers, had paid over the surplus to their suc- 
 cessors. It was held, that the contract was illegal, and therefore 
 that the plaintiff could recover the money from the defendants (z). 
 The plaintiff, being a prisoner in the Coldbath-fields Prison, of 
 which the defendant was governor, contracted with the defendant 
 for the purchase of an annuity, and paid him 7501. as a considera- 
 tion for it. This annuity was afterwards set aside, and the plaintiff 
 
 (s) Horsfall v. Hundley, 8 Taunt. 136. recognised in Cox v. Prentice, 3 M. & S. 
 
 (t) Shcmd r. Cframt, 15 C. B. 324. 344. But see HoUcmd v. Bussell, i B. 
 
 (m) Bollmd V. Russell, 4 B. & S. 14. & S. 14. 
 
 (x) Tope V. Hockin, 7 B. & C. 101. (z) Toimson v. Wilson, 1 Campb. 396; 
 
 («/) McCarthy v. CoMn, 9 A. & K ace. WatMns v. Sewlett, 1 B. &. B. 1 ; 
 
 607 ; Suller v. Harrison, Cowp. 566, Clarke v. JoJmson, 3 Bingh. 424. 
 
ASSUMPSIT. 123 
 
 called on defendant to refund. The defendant paid back 715?. 15s., 
 but insisted that he was entitled to the remainder as due to him 
 for the rent of a room, iat one guinea per week, which plaintiff had 
 been permitted to occupy during his residence in the prison. It 
 was objected that, by the regulations of the prison, the gaoler had 
 no authority to let any room upon such tenns. As an answer to 
 this, the prison books were produced, by which it appeared that the 
 governor charged himself with the guinea per week, and accounted 
 for it to the court ; and one of the visiting magistrates of the prison 
 was called, who said, he was aware that there were such rooms, and 
 that no objection had ever been made, and that the gaoler's book 
 had been regularly passed at the quarter sessions. Kenyan, C. J. 
 — " I think this action may b% maintained. I am aware it has 
 been holden, in the case of Sadler v. Evans, 4 Burr. 1984, that an 
 action cannot be brought against an agent for money had and 
 received for the use of his principal, but in that case there was 
 nothing corrupt in the foundation. This agreement is one of those 
 which the law will not allow. Besides, the county is not a corpo- 
 rate body, and, therefore, cannot be sued, except in those cases 
 where acts of parliament have made it expressly liable. I am of 
 opinion, therefore, that the plaintiff, notwithstanding this money 
 has been paid over to the county, is entitled to recover " (a). So, 
 if a revenue officer seize goods as forfeited which are not liable to 
 seizure, and take money of the owner to release them, the latter 
 may recover back the money in an action against the revenue 
 officer, and this whether he has paid the money over or not (&). So 
 a payment to A., expressly as the agent of B., for the pur- 
 pose of redeeming goods wrongfully detained by B., and a receipt 
 by A. expressly for B., would still give a right of action against 
 A. for money had and received (c) ; even although A. had paid 
 over the money {d). So where the plaintiff paid a sum of money 
 to a bailiff, who had exceeded his authority, under the terror 
 of process, for the purpose of redeeming his goods, and not with 
 an intent that the money should be delivered over to any one in 
 particular ; it was held, that the plaintiff might maintain an action 
 for money had and received against the bailiff, although the bailiff 
 had in fact paid the money over to the sheriff, and the sheriff to 
 the exchequer (e). So where the receipt of the money was wrongful, 
 as by an agent of the executor receiving the money of a testatrix, 
 and paying it over to the executor, neither being entitled to it, such 
 pajrment over will be no defence to an action for money had and 
 received by the rightful owner (/). So where the payment over of 
 
 (a) MilUr v. Aris, B. E. Middx. Sitt. (d) Oaies v. Hudson, 6 Exch. 346. 
 
 after M. T. 41 Geo. III. MS. (e) Snowdon v. Davis, 1 Taunt. 359. 
 
 (J) Irving v. Wilson, 4 T. R. 485 ; per (/) Tugman v. Hopkins, 4 M. & G. 
 
 Par&e, B., in Attlee v. Backhouse, 3 M. 389 ; ace. RoUns r. Heath, 11 Q. B. 248. 
 
 & "W. 648. That in such a case the action would»o< lie 
 
 (c) Per Cur. in Smith v. Skap, 12 M. against the agent if the receipt was right- 
 
 & "W. 588. fill ; seeBarlowy. Brownc,lQ M. ftW. 126. 
 
13.1 ASSUMPSIT. 
 
 the money was wrongful, as by an auctioneer of a deposit on a sale 
 of land before the sale was completed (g). 
 
 These cases must, however, be distinguished from those where 
 the money has been paid over to the defendant apparently as an 
 agent but in reality as a stakeholder. A dispute having arisen 
 between the plaintiff and a railway company, whether he was en- 
 titled to be registered as a shareholder for 200 shares in the 
 company, a deposit of 400?. on account of such shares was by 
 agi-eement deposited in the hands of the defendant, the secretary 
 of the company, which was to be returned if the plaintiff failed to 
 make out his claim to be registered. The memorandum of deposit, 
 embodying the above arrangement, was signed — " J. E. C, secre- 
 tary." The plaintiff paid the 400Z. to the defendant, and the 
 defendant paid it into a bank to his own private account, andsub- 
 sequently left the employment of the company. The plaintiff 
 never was registered as a shareholder, and applied to the defendant 
 for the money. On an action being brought to recover this money 
 from the defendant, Tindal, C. J., was of opinion that the money 
 had been deposited with the defendant in his individual character 
 as a stakeholder, and the court confirmed this decision (h). 
 
 J., an attorney, who was accustomed to receive dues for the 
 plaintiff his client, went from home, leaving B., his clerk, at the 
 office ; who, in his master's absence, received money on account of 
 the above dues, (which he was authorised to do,) and gave a receipt 
 signed " B. for Mr. J." B. afterwards refused to pay the money 
 over to the plaintiff, who thereupon brought an action for money 
 had and received against B. ; but it was held, that it would not lie ; 
 B. received the money as the agent or the servant of J., and must 
 have paid it over to him if he had returned : there was no privity 
 of contract between B. and the plaintiff, the privity of contract was 
 between B. and J., and between J. and the plaintiff (i). And the 
 court distinguished it from the case of Stead v. Thornton (k), where 
 a party had received money belonging to a bankrupt's estate in the 
 character of agent to the late assignee, and the question was, whe- 
 ther the present assignee could recover it in this action. It was 
 held, that as the late assignee was a lunatic when he received the 
 money, and could not have an agent, the money was received by 
 the defendant without authority, and the defendant held it as a 
 mere stranger. Ace. Bobbins v. Fennell, 11 Q. B. 248, where it was 
 held that if the town agent of a country attorney receive money, 
 the proceeds of an action, without authority, either from the coun- 
 try attorney or from the client of the country attorney, such client 
 
 (g) Gray v. Gutlendge, 1 M. & R. 11 A. & E. 926. 
 
 614 ; Edwards v. Sodding, 5 Taunt. (i) Stephens v. Badcoch, 3 B. & Ad. 
 
 ,,\ „ . , r, , S5i ; see Eamford V. SJivMleworlJi. 
 
 (K) Baird v. Sohertson, 1 M. & G. (k) 3B. &. Ad. 357 n, 
 
 9S1 ; and see Bamfm-d v. Shuttleiourth, ' 
 
ASSUMPSIT. 125 
 
 may recover it in an action for money had and received against the 
 town agent ; although generally there is not such a privity between 
 a client who employs a country attorney, who in his turn employs 
 the London attorney, as to enable the client to bring such an action 
 against the London agent (I). 
 
 An agent must account to his principal, and cannot set up the 
 jus tertii in an action by his principal against him (m). An agent 
 to receive for the use of another cannot, by a notice from a third 
 person, be converted into an implied trustee ; his possession is the 
 possession of the principal. Defendant, an auctioneer, was em- 
 ployed by C, a person in embarrassed circumstances, to sell his 
 property ; defendant sold, and paid the proceeds to C.'s order. C. 
 having shortly afterwards been%eclared insolvent, it was held, that 
 although the defendant was aware of C.'s embarrassment when he 
 sold the property, yet he was not liable to C.'s assignee (n). 
 
 But where the plaintiff's possession of the goods arises out of a 
 fraud concerted between him and the insolvent, the argument as to 
 the jus tertii does not arise. The defendant was employed by the 
 plaintiff to sell, as auctioneer, certain goods then in the plaintiff's 
 possession. Before the sale, notice was given to the defendant by 
 the assignees of the insolvent, that the goods were their property 
 as such assignees, and that they had been fraudulently removed by 
 collusion between the plaintiff and the insolvent. The defendant, 
 after that notice, sold the property, and rendered an account of the 
 sale of it to the plaintiff, but afterwards, on an indemnity being 
 given to him by the assignees, he refused to pay over to the plain- 
 tiff the money arising from the sale. An action for money had and 
 received being brought against him by the plaintiff, the defendant 
 set up the right of the assignees ; the jury found the fraud, and a 
 verdict for the defendant, which the court refused to set aside, on 
 the ground that if the insolvent had put the goods into the defend- 
 ant's hands, for sale, the assignees might have interposed and 
 claimed the produce from the defendant ; and that the insolvent 
 could not have maintained this action after such claim; and 
 that the plaintiff, who took the goods by a fraud between him and 
 the insolvent, could not be in a better situation than the insolvent 
 himself (o). 
 
 On an account stated. — The production by plaintiff of an 
 "I TJ" signed by the defendant, but without any address, is 
 primd facie evidence that it was given to the plaintiff by the de- 
 
 [l) Cobb V. Becke, 6 Q. B. 931. Bmjes, 18 C. B. 599 ; Scott v. Crawford, 
 
 (m) Myler v. FitzpatricTc, 6 Madd. 4 M. & G. 1031 ; Cheesvian v. Exall, 6 
 
 360 ; Bawes v. Watson, 2 B. & C. 640 ; Exch. 341. 
 
 Dixon V. Hamond, 2 B. & Aid. 310 ; (n) White v. BartUtt, 9 Bingh. 378. 
 
 Roberts v. Oqilby, 9 Price, 269 ; Gosling (o) Hardman v. Wilcodc, 9 Bing. 382, 
 
 V. Bimie, 7 Bing. 339. See Zee v. n. See Story on Agency, s. 217. 
 
126 ASSUMPSIT. 
 
 fendant, and of an account stated with him (p) ; and if the defend- 
 ant wishes to rebut the inference arising from its production by the 
 plaintiff, he should show that it had been in the hands of some 
 other party (q). 
 
 In an action upon an account stated, it is not necessary to prove 
 the items of the account, but only that an account was stated, for 
 that is the cause of action (r). The accounting, being the ground 
 of the promise, is traversable (s). A plea, therefore, that the de- 
 fendant did not account would (semUe) be good ; see schedule (B.) 
 to 15 & 16 Vict. c. 76. As, however, the issue is not simply 
 whether there was an account stated, but whether the defendant 
 was indebted on an account stated or not, the defendant may show, 
 under the general issue, that the accounts, the correctness of which 
 he has admitted, were in fact incorrect (Thomas v. Hawlces, 8 M. & 
 W. 140) ; the plea of " never indebted " is therefore the best form 
 to adopt. On an account stated, the plaintiff is not obliged to 
 prove the exact sum laid in the declaration (t). An acknowledg- 
 ment by the defendant of a debt (unless secured by deed (u) ), due 
 upon any account, is sufiScient to enable the plaintiff to recover 
 upon a count for an account stated (x). " I think Knowles y. 
 Michel is an authority to show, that though in form a count upon 
 an account stated is ' of and concerning divers sums of money,' yet 
 proof of one item is good to maintain such a count ; divers may 
 be supported by evidence of one." Per Lord Mlenhorough, G. J. (y). 
 " It has been held, that upon a count for goods sold and delivered, 
 the plaintiff may prove the sale of one article, and that will be . 
 well enough. The same rule applies to this count, which is ' of 
 and concerning divers sums,' as to the count for goods sold." Per 
 Hol/royd, J., S. C. 
 
 The acknowledgment must be of a subsisting debt. Where the 
 defendant verbally agreed to purchase of the plaintiff the lease 
 and goodwill of his premises, and on being asked for a deposit 
 gave an I U for 251, but afterwards refused to complete the 
 purchase, it was held that the production of the I U and the 
 proof of the circumstances were not sufficient evidence of an 
 account stated, as there was no debt due at the time the I O U 
 was given (z). Where a party examined before commissioners of 
 bankrupts merely admitted that he had received a sum of money 
 on account of the bankrupt after an act of bankruptcy ; it was 
 held, that this was not evidence sufficient to support a cou^t on an 
 account stated with the assignees, as there was no admission of a 
 
 (p) Not of money lent, goods sold, &c. {u) Middleditch v. Ellis, 2 Exch. 625 ; 
 
 Fesemnayer v. Adcock, 16 M. & W. 449. S. C. 17 L. J., Exch. 365. 
 
 (q) Cwrtis v. McJcards, 1 M. & G, 46. {x) Knowles v. Michel, 13 East, 249. 
 
 (r) BartUtt t. Emery, 1 T. E. 42, n. {y) Highmore v. Primrose, 6 M. & S. 
 
 (s) Dolby V. Cooke, Cro. Jac. 234, 67. 
 
 it) Thomson v. Spencer, Bull. N. P. (z) Lemerc v. EUiot, 6 H. & N. 656 ; 
 
 129. -30 L. J. 350, Ex. 
 
ASSUMPSIT. 127 
 
 subsisting debt (a). Secus, if a bankrupt under examination 
 admit that a certain sum is due to A. (6), subject of course to be 
 rebutted (c). So, where the defendant, who had indorsed a bill of 
 exchange to the plaintiff, told him, before the bill became due, 
 that he need not give him notice of dishonour ; that he knew the 
 bill would not be paid ; and that he would send the plaintiff the 
 money in part payment of the bill on a future day, it was held 
 that this was not an admission of a subsisting debt, but only a 
 strong expression of opinion that the bill would be dishonoured, 
 and a promise, if that event occurred, to pay the plaintiff {d). 
 
 The admission must be of a debt in fact due ; a mere promise 
 to pay a supposed debt will not support the count. Thus, where 
 executors applied 200?. in part up,yment of a legacy, and promised 
 payment of the remainder, but the legacy was in fact invalid 
 under the Wills Act, 1 Vict. c. 26, it was held, that an account 
 stated would not lie against the executors for payment of the 
 remainder (e). 
 
 The admission must be absolute and unqualified. Where the 
 plaintiff had done certain repairs to a house which he held of the 
 defendant, and the defendant, when applied to for payment, said, 
 "I cannot pay you now, but I will out of the next rent," this 
 was held an unqualified admission (/). But where the plaintiff 
 demanded 4:01. on an agreement by the defendant, an incoming 
 tenant, to pay for the growing crops, &c., on the farm, and the 
 defendant offered to pay 171., it was held to be no evidence of an 
 account stated, but only an offer to purchase peace, and escape an 
 action (g). So a promise to give a cheque or pay a sum of money, 
 on receiving an indemnity, is not sufficient (h). So where the 
 defendant said, " He would have paid the plaintiff if he had not 
 removed the grates " (i). So where the acceptor of a biU of 
 exchange, on being applied to for payment, objected, that his 
 acceptance had been altered by the substitution of a different 
 place for payment, and that he should in consequence take such 
 steps as the law would authorize. " He had been prepared for 
 payment, and the party might have his money by calling at 
 Bulbrook," it was held, that this was not an absolute admission, 
 but one conditioned on the other party doing something; viz., 
 coming to Bulbrook (k). So where the admission was made by 
 the defendant in her own right, but it turned out that the debt 
 was due from her as the executrix of her deceased husband (I). 
 
 The admission must be made to the plaintiff or his agent (m) ; 
 
 la) Tiicher v. Barrow, 7 B. & C. 623. (g) Wayman v. HilUard, 7 Bingli. 101. 
 
 (6) Eicke v. Nokes, 1 M. & R. 359. (h) Lubbock v. Tribe, 3 M. & "W. 607. 
 
 (c) See per Abinger, C. B., in Lubbock (i) Evans v. Verity, R. & M. 239. 
 
 V Tribe, 3 M. & W. 607. {k) Calvert v. Baker, 4 M. & W. 419. 
 
 ' id) Burgh v. Legge, 6 M. & "W. 418. ^ (.1) Fetch v. Lyon, 9 Q. B. 147. 
 
 (e) Gough v. Findon, 7 Exoh. 48. ' {m) Per Parke, B.,in Hughes v. Thorpe, 
 
 (/) Seago v. Deane, 4 Bingh. 459. 5 M. & W. 667. 
 
128 ASSUMPSIT. 
 
 an admission made to a third party will not suffice (n). It must 
 be stated with reference to former transactions between the 
 parties ; per Lyndhurst, C. B. (o), in a case in which it was held, 
 that an agreement by the assignees of an insolvent tenant (who— 
 i.e. the assignees— had not occupied the land) to pay the last 
 quarter's rent, in consideration of being allowed to remove the 
 fixtures, was not evidence of an account stated. And it must be 
 of a sum certain. Where the defendant wrote to the plaintiff as 
 follows: "Please debit me with the amount of the calls due; I 
 think it will be 500^., &c.," it was held to be no admission of a 
 sum certain being due {p). 
 
 Where an account, consisting of various items, was shown to the 
 defendant, and he objected to some of them, but made no remark 
 with respect to the rest, this was held to be evidence to go to the 
 jury of an account stated, with regard to those items to which no 
 objection was made {q). Where on the trial of an indictment 
 before the court of Quarter Sessions, the prosecutor said he should 
 press for judgment (the defendant not having pleaded in proper 
 time), unless the defendant agreed to pay the costs of the day, and 
 ultimately an agreement Avas come to, and the following memo- 
 randum was signed by the respective counsel : " Traversed to the 
 next sessions by consent, the defendant paying the costs of the day, 
 including counsel's fees, &c ; " and the prosecutor got his costs 
 taxed, and applied to the defendant for payment, and the defen- 
 dant objected to two items, which were abandoned ; and on a 
 subsequent application by the prosecutor's attorney, requested the 
 latter to apply to B., who received his (the defendant's) rents, 
 " who would arrange or pay," it was held, that this was evidence 
 to go to the jury of an account stated (r). 
 
 Although no action might lie on the original debt or contract, 
 from the deficiency of legal evidence to support it, e. g., for want of 
 its being in writing under the Statute of Frauds, yet it may on the 
 admission upon an account stated, if the defendant has received 
 the benefit of the contract, and has subsequently admitted his 
 liability (s). Secus, " where the original debt is absolutely void 
 from any illegal or immoral consideration, or where it is made void 
 by any statute, as by those against usury (t) or gaming" (u). In one 
 case (v) it was held, that an attorney's bill cannot be recovered on 
 an account stated, though the amount has been admitted, without 
 proof of a due deliveiy of the bill, in accordance with the 2 Geo. 
 
 (»i) Sreclcon v. Smith, 1 A. & E. 488. 235 ; Barker v. Sirt, 10 M & "W 61. 
 
 (o) Clarke y. Webb, 1 C, M. & R. 29 ; (s) Cocking v. Ward, 1 C. B. 868 ; 
 
 s V. Liddard v. Holmes, 2 C, M. & E. Lord Falmouth v. Thomas, 1 C. & M. 
 
 586. gg ' 
 
 (p) Hughes v. Thorpe, 5 M. & W. 667. \t) Eepealed, 17 & 18 Vict. c. 90. 
 
 iq) Chtsman y. Count, 2 M. & G. 307. («) Per Cur. in Cookmg v. Ward. 
 
 (r) Portenr v. Cooper, 1 C., M. & E. (v) mu y. Nokes, 1 M. & Eob. 359. 
 
 387, And Sep /uM v. Taylor, 2 ih.. 
 
ASSUMPSIT. 129 
 
 II. c. 23 {w). But it would seem, from later cases, that this de- 
 cision cannot be supported, as the defence cannot be set up under 
 the general issue (a;). 
 
 Whether the making of a note, as between the maker and the 
 payee ;^he accepting of a bill, as between the acceptor and the 
 payee, if he be also the drawer ; — the indorsement of a bill or 
 note, as between the indorser and his immediate indorsee, — is 
 evidence of an account stated, qwcBre. Semble, that it is (y). If 
 the maker, acceptor, or indorser, in such a case, on being shown 
 the bill or note, admit his liability to pay, only alleging his 
 inability, there is evidence of an account stated (z). The accept- 
 ance of a bill is not such evidence as between the payee and the 
 acceptor, if it be drawn by a tliird person (a). 
 
 III. Of the Declaration. 
 
 Venue. — The action of assumpsit, being founded on contract, is 
 transitory ; Debitum et contractus sunt nullius loci, 2 Inst. 230 ; 
 and consequently the venue may be laid in any county at the 
 election of the plaintiff. 
 
 By 1 PI. R. Hil. T. 1853, it is ordered, that several counts on 
 the same cause of action shall not be allowed (6) ; nor shall several 
 pleas, replications, or subsequent pleadings, or several avowries or 
 cognizances founded on the same ground of answer or defence. 
 
 Application may be made to the court or a judge to strike out 
 such counts, pleas, &c., upon terms as to costs, but if no such 
 order about costs has been made, and "on the trial there is more 
 than one count, plea, &c., on the record, founded on the same 
 cause of action or ground of answer or defence, and the judge or 
 presiding officer before whom the cause is tried shall at the trial 
 certify to that effect on the record, the party so pleading shall be 
 liable to the opposite party for all costs occasioned by such count, 
 plea, or other pleading in respect of which he has failed to estab- 
 lish a distinct cause of action or distinct ground of answer or 
 d&fence, including those of the evidence, as well as those of the 
 pleading." R. 3. 
 
 Where an action is brought in an inferior court, it must be 
 stated in the declaration, that the cause of action accrued within 
 
 (w) Repealed by 6 & 7 Vict. c. 73. See see Hatch v. Trayes, 11 A. & E. 702. 
 s. 37. And see Barher v. Birt, supra. (z) Highmore y. Primrose. 
 
 (x) BoUnson v. Roland, 6 Dowl. 271. (a) Early v. Bowman. 
 
 (y) Highmore v. Primrose, 5 M. & S. (V) See Bleadon v. Rupallo, 3 M. & G. 
 
 67 ; Priddey v. Hmirey, 1 B. & C. 674 ; 116 ; Deere v. Imy, 4 Q. B. 379. 
 Early v. Bowman, 1 B. & Ad. 889 ; and 
 
130 ASSUMPSIT. 
 
 the jurisdiction. Hence in assumpsit in an inferior court, not the 
 promise only, but the consideration also, on which such promise is 
 founded, must be laid within the jurisdiction (c) ; for the inferior 
 court cannot hold plea unless the whole matter is within their 
 jurisdiction {d) ; consequently, if a declaration for goods sold and 
 dehvered (e), or money had and received (/), or money paid {g), 
 do not state the sale and delivery of the goods, or the receipt or 
 payment of the money, to have been within the jurisdiction, it 
 will be error, even after verdict ; for in this case nothing shall be 
 intended to be within the jurisdiction, that is not expressly 
 averred to be so Qi). When, however, a suit commenced by 
 justicies in the Sheriff's Court, is removed to the superior court 
 by pone, the declaration in the superior court need not state the 
 cause of action to have. arisen withia the inferior jurisdiction (i). 
 Now, under most of the Small Debts Acts, the proceedings are by 
 plaint, and no pleadings are necessary. 
 
 Time and Place. — Time is not material in an action of assump- 
 sit (k), unless it be of the essence of the contract, and need not 
 therefore be stated in the declai'ation (I), except in actions on bills 
 of exchange or promissory notes (m). Nor is place material (n), 
 unless it be of the essence of the contract. By the Pleading Rules 
 of HU. Term, 1853 (E. 4), it is provided, "That the name of a 
 county shall in all cases be stated in the margin of a declaration, 
 and shall be taken to be the venue intended by the plaintiff, and 
 no venue shall be stated in the body of the declaration, &c. ; pro- 
 vided that in cases where local description is now required such 
 local description shall be given." 
 
 Manner of stating the contract. — The declaration must state 
 the contract on which the action is founded correctly; that is, 
 either in the terms in which it was made, or according to the legal 
 effect of those terms ; for a material variance between the contract 
 alleged and the contract proved will be fatal (o) ; unless an amend- 
 ment, "for the purpose of determining in the existing suit the 
 real controversy between the parties," be duly applied for and 
 made (»). As where the contract alleged was, to deliver good 
 " merchandizahle wheat" and the proof was to deliver good 
 "second sort" of wheat, the plaintiff was nonsuited for the 
 
 (c) R<m^m) V. Atkinson, 1 Lev. 50 j {k) CoU t. Hmikins, Str. 22. 
 
 Whitehead V. Brown, 1 Lev. 96. (V) 15 & 16 Vict. o. 76, s. 49. 
 
 rl ^ir J- -^T'' ^ I^^I- 104, 105. W Stafford v. Forcer, 10 Mod. 311, 
 
 (e)Waldock V. Oooper 2 Wils. 16. cited Str. 22 ; and see Arnold v. Arnold, 
 
 (/) Trevor v. Wall, 1 T. E. 151. 3 B. N C 84 
 
 ^X ^f^'°TT ^"■''^'^'Port, 11 Mod. 365. (») Bowddl y. Parsons, 10 East, 359 ; 
 
 W Wmford V. Powell, Lord Raym. 15 & 16 Vict. c. 76, s. 5l! 
 M^' IQV Sia-oggs, Js., 2 (o) Oooke v. Munstone, 1 N. R. 351. 
 
 W pLi v. Ansell, 3 M & U. 171. JfLtJ^^^sJl^:' ''' '^ ''' '' '' ^ 
 
ASSUMPSIT. 131 
 
 variance (q). So where the plaintiff declared upon a contract for 
 wages upon a certain voyage from London to Africa, and thence 
 to the West Indies ; but the proof was of a contract for a voyage 
 from London to Africa, and thence to the West Indies or America, 
 and afterwards to London, &c. ; the variance was held to be 
 fatal, though the captain in fact put an end to the voyage in the 
 West Indies, and discharged the crew there ; the contract proved 
 being for a different voyage than that declared on (r). So where 
 the declaration stated a specific contract for the sale of a dwelling- 
 house and fixtures, for the residue of a term of years, to commence 
 from a certain day, in proof of which, the following paper, signed 
 by the defendant, was given in evidence:— "I agree to sell the 
 house and fixtures. No. 163, Piccadilly, to commence from the 
 2nd January next, for 601." This was held to be a fatal variance, 
 as showing a sale of a fee simple, or at least leaving it uncertain, 
 what was the interest intended to be conveyed (s). But where a 
 bill of exchange was drawn in this form : " Pay to our order," &c., 
 and was signed in the name of two persons and Co., and accepted 
 by the defendant; it was held, that in an action against the 
 defendant as acceptor, it might be declared upon by the indorsees 
 as a bill drawn by an aggregate firm ; and although it was proved 
 that the firm consisted of one person only, it was held not to be 
 a variance, for the acceptor of a bill is estopped from denying the 
 handwriting, &c. of the drawer (t). 
 
 The Consideration. — Every part of the entire consideration for 
 any promise contained in the agreement must be stated in the 
 declaration (u). But in framing a declaration on an agreement, 
 which consists of several distinct parts and collateral provisions, it 
 is not necessary to state in the declaration every part of such 
 agreement-: — "It is sufficient to state so much of the agreement as 
 contains the entire consideration for the act, and the entire act 
 which is to be done, in virtue of such consideration. The rest of 
 the contract, which respects the liquidation of damages only, after 
 a right to them has accrued by a breach of the contract, is matter 
 proper to be given in evidence to the jury, but not necessary to 
 be shown to the court in the first instance, on the face of the 
 record " (x). In like manner, where the plaintiff states the whole 
 consideration truly, and then states those parts of the defendant's 
 promise, the breach of which he complains of, truly and correctly ; 
 that is sufficient, without stating other parts of the promise 
 
 {q) Anon., Lord Eaym. 736; aec. 569,570. " There are a great variety of 
 
 Anon., Bull. N". P. 145. agreements not under seal, containing 
 
 (/•) White V. Wilson, 2 B. & P. 116. detailed provisions regulating prices of 
 
 See also Penny v. Porter, 2 East, 2. labour, rates of hire, times and manner of 
 
 (s) Hughes v. Parker, 8 M. & "W. 244. performance, adjustments of differences, 
 
 (if) Sass V. Olive, 4 M. & S. 13. &c., which are every day declared upon 
 
 (m) FremMn v. Hamilton, 8 Exeh. 308. in the general form of a count for work 
 
 (x) Per Cur., Cla/rke v. Qray, 6 East, and labour." Per Cur., S. G. 
 
 K 2 
 
132 ASSUMPSIT. 
 
 irrelevant to the breach complained of {y). " It is enough to state 
 that part of the agreement truly which applies to the breach 
 complained of, if that which is omitted do not qualify that which 
 is stated " (z). 
 
 Idle and insufficient considerations do not form any essential 
 part of the contract ; consequently it is neither necessary to state 
 them in the declaration, nor, if stated, to prove them {a). By the 
 term " idle and insufficient considerations " must be understood 
 such considerations as, if they stood alone, would not support the 
 promise of the defendant. They are distinguisha,ble from illegal 
 considerations ; for if one of the considerations, where there are 
 two or more, is illegal, it will vitiate the whole contract, and the 
 action cannot be supported ; but an idle or insufficient considera- 
 tion may be rejected ; in truth, it is a nullity (h). 
 
 Executory considerations are traversable (c), and where the 
 promise of the defendant is founded on two or more executory 
 considerations, the performance of all must be expressly averred (cQ. 
 Where the consideration is executed, as in the indebitatus counts, 
 (in which case it is not traversable (e) ), and the promise to pay a 
 sum certain, or to do or forbear from doing some specific act, the 
 declaration proceeds at once from the statement of the contract to 
 the breach, without any intermediate averment. 
 
 Breach. — The breach may be co-extensive with the promise, but 
 must not be enlarged beyond it (/). If the promise is in the 
 disjunctive the breach should be so also. Thus, where, the 
 promise was that if the defendant did not return some horses to 
 the plaintiff by a day named in as good plight as they were at the 
 time of lending, the defendant would pay him so much per horse. 
 The breach assigned was, that one of the horses was detained so 
 many days beyond the time named, and that the other had not 
 been returned, at all. After verdict for the plaintiff, judgment was 
 arrested, because the breach was not laid according to the pro- 
 mise {g). It will be sufficient, however, if the breach pursue the 
 words of the promise Qi). 
 
 Notice. — Averment thereof.— Where the action does not he 
 without notice given to the defendant, an averment of such notice 
 
 iy) Miles v. Sheward, 8 East, 7. course, denied by the general issue, 
 
 (») Tempest v; Rawling, 13 East, 18. Raikes v. Todd, 8 A. & E. 854 ; and a 
 
 See also CotterUl v. Ouff, i Taunt. 285. traverse of an executed consideration in 
 
 Per Parke, B., in Smart y. Hyde, 8 M. terms, e.g., in an action for work and 
 
 & W. 728. labour "that the plaintiff did not per- 
 
 (a) Orisp v. Oamel, Cro. Jae. 127. form the work, &c.," would not, it seems, 
 
 (6) fones v. Waite, 5 B. N. C. 341. since the Common Law Procedure Acts, 
 
 (c) Sexton v. Miles, Salk. 22. he objectionahle. 
 
 (d) Leneret v. Mvett, Cro. Jac. 603. (/) Staynrode v. Locock, Cro. Jac. 115. 
 
 (e) 1 Roll. Eep. 43, 401 ; i. e., not (3) Wright v. Johnson, 1 Sid. 440. 
 traversable by itself, Hob. lOS ; the per- (A) Pilchard v. ICingdm, Cro. Car. 
 formauoe of the consideration is, of 202. 
 
ASSUMPSIT. 133 
 
 ought to be inserted in the declaration (i). The defendant bought 
 of the plaintiff a quantity of barley, and promised to pay him for 
 it as much as he could get from any other person. The plaintiff 
 averred in his declaration, that he afterwards sold the same 
 quantity to J. S. for such a sum, but did not aver that the 
 defendant had notice of the sum given by J. S. : for this omission 
 the judgment was arrested ; and this distinction was taken, that 
 if the agreement had been that the defendant should pay as much 
 as J. S. paid, in that case, quia constat de persond, and he is 
 indifferently named between them, the defendant at his peril 
 should inquire of him, and the plaintiff was not bound to give 
 notice ; but where the person was altogether uncertain, there the 
 plaintiff, to entitle himself to the action, ought to give notice {k). 
 Ace. Holmes v. Twist (in erro^. Hob. 51, where an averment of 
 notice was held necessary, on the ground that the matter rested in 
 the privity and knowledge of the plaintiff alone. But where the 
 conusance of the act to be done lies as well in the knowledge of 
 the defendant as of the plaintiff, an averment of notice is not 
 necessary ; as where the act is to be done by a stranger (I), i.e., a 
 stranger named and agreed upon between the parties, agreeably 
 to the distinction above mentioned. So, where an act is to be 
 done by the plaintiff to a stranger, as where the declaration 
 stated, that, in consideration that the plaintiff had agreed to 
 deliver up a bond, by which one H. M. was bound to him in a 
 certain sum of money, to the said H. M., the defendant promised 
 to pay, &c., and averred that he delivered up the bond, yet, &c. 
 An exception was taken, because it was not averred, that the 
 plaintiff gave the defendant notice of his having delivered up the 
 bond ; but it was overruled, because the defendant at his peril 
 ought to take notice of the obligation, as in a bond to stand to an 
 award (m) ; for in such a case he may inquire of the arbitrators. 
 Per Powell, J. (n). 
 
 Request. — When assumpsit is brought for a debt or mere duty, 
 it is not necessary to make an actual request before action brought, 
 and consequently an averment of such request in the declaration 
 is unnecessary ; for the bringing the action is a sufficient request (o). 
 As where in assumpsit upon a promissory note, payable four 
 months after date, it was objected in error, that the request to 
 pay the money on the note was laid upon the same day and year 
 that the note was dated, which was four months before it became 
 due ; to this it was answered and adjudged by the court, that 
 
 {i) It might, however, if omitted, he see Brice v. Carre, 1 Lev. 47. 
 
 suggested bv leave of the Com-t after (I) Powle v. Sagger, Cro. Jac. 492 ; 
 
 verdict ; 15 & 16 Vict. c. 76, s. 143. See Juxon v. ThomUll, Cro. Car. 132. 
 
 Fisher v. Bridges, 22 L. J., Q. B. 274. (m) Smith v. Goffe, Lord Kaym. 1126. 
 
 (Tc) Ball v. Hemminge, Cro. Jac. 432 ; {n) Smith v. Goffe. See also 8 Kep. 92, b. 
 
 3 Bulst. 85, 6, 7, .S'. C. ; per Holt, C.J., (o) Bartlett v. Bartlett, "Winch. 2 ; 
 
 Smith V. Goffe, Lord Kaym. 1127 ; and Vivian v. Shipping, Croi Car. 385 ; 
 
13d ASSUMPSIT. 
 
 there was not any occasion to lay any request : that the bringing- 
 the action was a request in law, and it appeared that the action 
 was not brought until above a year after the note was due {p). 
 Where, however, the defendant is chargeable upon a collateral 
 promise to pay money, do, or omit some act, upon request, and 
 not for a mere debt or duty, an actual request ought to be made 
 before action brought, and consequently, it ought to be aven-ed in 
 the declaration; for in such case the request is parcel of the 
 cause of action (g). The averment, "although requested," is 
 equivalent to an express averment, " the plaintiff, in fact, says," or 
 other similar words (r). 
 
 Of Conditions precedent— U A. promise to do, or to abstain 
 from doing, a certain act, in consideration of the antecedent per- 
 formance of some act or promise on the part of B., the promise of 
 A. is called a dependent promise ; because B.'s right of action for 
 a breach of such promise depends on the prior performance (or 
 thab which is equivalent to performance) of the act or promise on 
 the part of B. ; and the act or promise to be performed by B., 
 being in the nature of a condition precedent, is usually distin- 
 guished by this appellation, because the performance (or that 
 which is equivalent to performance) of such act or promise, pre- 
 cedes B.'s right of action to recover damages against A. for the 
 non-performance of his promise, and should be specially averred in 
 the declaration (s). 
 
 The plaintiff declared that the defendant was possessed of 17 
 tod of wool, and that there was a conversation between them for 
 16 tod of the 17 to he chosen hy the plaintiff; that the defendant, 
 in consideration of a sum of money to be paid on such a day, 
 promised to deliver to the plaintiff the aforesaid 1.5 tod of wool, 
 and averred that he was ready at the day to pay the defendant 
 the money, yet the defendant had not delivered the wool. After 
 a verdict for the plaintiff, an exception was taken in arrest of 
 judgment (t), because the plaintiff had not shown that he had 
 chosen 15 tod of the 17, which is quasi a condition precedent, and 
 an act to be first performed by the plaintiff before the defendant 
 is bound to do any thing ; which was assented to by the whole 
 court (u). It is sufficient, however, to aver such performance 
 generally (x), e. g., " that the plaintiff hath done all things, and all 
 
 V/allis V. 8coU, 1 Str. 88. Characterised p. 133, n. (i) ; iJetieT. Fare, 6 M. & S. 121. 
 
 by Austin as "a monstrous rule of the (r) ICirUyv. Lee, 3 Leon. 67; Bowdell 
 
 English law." Jurisprudence, vol. ii. v. Parsons, 10 East, 359. 
 
 p. 156. (s) See ante, p. 133, note (i). 
 
 (p) Frampton v. Coulson, 1 Wils. 33. (i) See now 15 & 16 Vict. c. 76, s. 143. 
 
 (q) Birks v. Trippet, 1 "Wms. Saund. (u) Raynay v. Alexander, Yelv. 76. 
 
 32, iUd. in notis ; Royal Mail Steam (x) 15 & 16 Vict. c. 76, s. 57; Kemlle 
 
 Packet Company v. Acraman, 2 Exch. v. Mills, 1 M. & 0. 767 ; Varley v. 
 
 569 ; Bach v. Owen, 5 T. E. 409 ; ante, Manten, 9 Bingh. 363. 
 
ASSUMPSIT. 135 
 
 things have happened, and all time has elapsed {y), necessary to 
 entitle him to a performance by the defendant of the said agree- 
 ment " (z), leaving the opposite party to specify the conditions 
 precedent, the performance of which he intends to contest. 
 
 The case of Thorpe v. Thorpe, Lord Eaym. 662, is a leading 
 case on this subject. The declaration stated; that the defendant 
 held of the plaintiff certain lands by way of mortgage, that the 
 plaintiff agreed to make a good and sufficient release of his equity 
 of redemption, vn conside.ration whereof the defendant promised to 
 pay to the plaintiff 71., yet, &c. It was resolved by the court, that, 
 if there had been a positive agreement that the plaintiff should 
 release the equity of redemption, and that the defendant should 
 pay the money, the plaintiff ^ight have maintained an action 
 before he had made such release : but here the promise was " in 
 consideration whereof," which made the release on the part of the 
 plaintiff to be a condition precedent. Holt, C. J., then entered 
 into the distinction between positive agreements and conditions 
 precedent, and observed, that in the case of conditions precedent, 
 an action could not be maintained before performance ; but in the 
 case of positive agreements it was otherwise : he then laid down 
 the following rules (a) : — 
 
 1. " If a day be appointed for payment of the money, and the 
 act for which the money is to be paid, cannot" (or may not (6) ) 
 " be done before the day appointed, then, though the agreement be 
 to pay the money for the doing of the thing, yet the action may be 
 brought for the money before the thing is done : because the agree- 
 ment is positive, that the money shall be paid at the day ap- 
 pointed : " and the promise of the plaintiff is a sufficient considera- 
 tion for that of the defendant (c). — Thus, where the plaintiff agreed 
 to sell land to the defendant, and to deliver an abstract of title 
 within one month from the date of the contract, or from being 
 required so to do, and the defendant agreed to pay the purchase- 
 money partly on the signing of the contract, and the remainder at 
 a fixed date subsequently ; it was held, that, as the day for the 
 payment of the remainder of the purchase-money might occur 
 before the day for the deliveiy of the abstract (e.g., if the vendee 
 never required it), such delivery was not a condition precedent to 
 an action for the price (d). And so it is if a certain day be fixed 
 for the pajrment of the money, or any part of it, and no ti/me is 
 fixed for the performance of the consideration ; as, where the 
 
 (y) Sta/vart v. Eastwood, 11 M. & "W. is no distinction between assumpsit and 
 
 197 ; 15 & 16 Vict. u. 76, Sched. B. covenant in this respect ; see per Holt, 
 
 Eorm 22. C. J., in Tliorpe v. Thorpe, supra; per 
 
 is) See Bentley v. Dawes, 8 Exch. Parke, B., in WiVcs v. Smith, 10 M. & 
 
 666 ; Phelps v. Prothero, 16 C. B. 396, "W. 355. 
 
 per Jervis, C. J. ; 24 L. J., C. P. 225, (J) Campbell v. Jones, 6 T. E. 670. 
 
 S. 0. (c) Wilks T. Smith, 10 M. & W. 355 ; 
 
 (a) See 1 Wms. Saund. 319 1. Post, md see Smith y. Woodhouse, 2 N.'R.iSS. 
 
 tit. "Covenant," and cases there. There (d) Dicker v. Jackson, 6 C. B. 103. 
 
136 ASSUMPSIT. 
 
 plaintiff agreed to sell land to the defendant, whicli was to be paid 
 for within four years, with interest at five per cent, till paid, but 
 no time was fixed for the conveyance of the land ; it was held, 
 that an action would lie within the four years for the arrears of 
 interest, and that readiness and willingness to convey on the part 
 of the plaintiff was not a condition precedent to his right to bring 
 such action (e). 
 
 2. " Though a day certain be appointed for payment of the 
 money, yet if the day is to occur after the time in which the con- 
 sideration ought to be performed, for which the money should be 
 paid, the performance of the consideration ought to be averred in 
 an action brought for the money." — Thus, where an action was 
 brought on an agreement by the plaintiffs to sell to the defen- 
 dants cable bars, " to be delivered forthwith to the defendants at 
 the works, the price to be paid by the defendants in cash in four- 
 teen days from the making of the contract;" it was held, that the 
 intention of the agreement was that the cable bars should be 
 delivered by the plaintiffs within the fourteen days, and, there- 
 fore, that a readiness on the plaintiffs' part to deliver the goods 
 was a condition precedent to an action for the recovery of the 
 price (/). 
 
 With respect to the reasonableness of the above rules, the Chief 
 Justice observed, — " That the bargain of every man ought to be 
 performed as he understood it ; and if a person will make such an 
 agreement as to pay his money before he has the things for which 
 he ought to pay, and will rely upon the remedy he has to recover 
 the said thing, he ought to perform his agreement. But, on the 
 other hand, if his agreement was otherwise, there is no reason that 
 he should be compelled to give credit where he did not intend it." 
 -—And this is now well established, that the intention of the parties 
 is the governing principle in determining whether a particular 
 stipulation is a condition precedent or not (gr). Thus; where an 
 action was brought on an agreement " to give yearly free to the 
 plaintiff during three years twenty tons of coals, to be put free on 
 board ship at Cardiff, for the use of the plaintiff;" it was held, 
 that the naming of a ship to receive the coals was a condition 
 precedent to the plaintiff's right to sue for their non-delivery. 
 Coleridge, J., said, " Where circumstances left uncertain by the 
 contract are of such a nature that one party cannot perform his 
 part of the contract until they are fixed, the other party insisting 
 on the contract ought to fix those particulars " Qi). ' And this 
 intention is to be collected partly from the terms of the contract 
 Itself, and partly from the circumstances under which it was made 
 
 (e) m-Zfo V. Smm, supra, and see (g) See post, p. 142, and ThorKton v. 
 
 Smith V. Woodhouse, supra. Jenyns, 1 M. & G. 166 
 
 (/) Staunton v. Wood, 16 Q. B. 638. (h) Armiiage v. Insole, 14 Q. B 728. 
 
ASSUMJ>SIT. 137 
 
 and the oBject of the parties in making it, which maybe shown by 
 pleading (i) or in evidence {k). 
 
 Where an agreement goes only to part of the consideration on 
 both sides, and may be compensated in damages, it is an indepen- 
 dent contract, and not a condition precedent. Where the de- 
 fendant covenanted to pay 5Q01. at certain specified times, in 
 consideration of the plaintiff teaching him a peculiar method 
 of bleaching linen, and permitting him to use his (the plaintiff 's) 
 patent ; it was held, that the instruction of the defendant by the 
 plaintiff in the method aforesaid was not a condition precedent to 
 his recovering the unpaid portion of the 500?., for the defendant 
 had received part of the consideration, viz., the permission to use 
 the patent (1). " The reason of ^he decision " (in these cases), said 
 Parke, B., in Graves v. Legg, " besides the inequality of damages, 
 seems to be, that where a person has received part of the consi- 
 deration for which he entered into the agreement, it would be 
 unjust, that, because he had not the whole, he should therefore be 
 permitted to enjoy that part without either payment or doing any 
 thing for it ;" — and after stating that such receipt might appear 
 either from the agreement itself, whereby a valuable right is con- 
 veyed, as in the above case, or by an averment in pleading, the 
 same learned judge said : — " When that appears it is no longer 
 competent to the defendant to insist upon the non-performance of 
 that which was originally a condition precedent, and this is more 
 correctly expressed than to say, it was not a condition precedent 
 at all " (m). 
 
 In cases of conditions precedent, as has been observed (ante, p. 
 133), performance must be averred in the declaration and proved, 
 as in the case cited by Lord Kenyan in Morton v. Lamb (n), where 
 a party was to pull down a wall, and then to be paid for it ; the 
 pulling down was a condition precedent to the right to enforce 
 payment ; and in such cases mere readiness and willingness is not 
 sufficient. As, where the defendant covenanted to expend 100?. in 
 improvements and additions to a dwelling-house, under the direc- 
 tion of a surveyor to he appointed by the plaintiff; it was held, 
 that the appointment of a surveyor was a condition precedent, 
 and that a mere readiness and willingness to appoint was not 
 sufficient (o). Indeed, in cases of conditions strictly precedent, i.e., 
 where something must be done by the plaintiff before he can 
 maintain the action (and these cases must be carefully distin- 
 guished from those of concurrent acts), mere readiness and wUl- 
 
 (i) Graves Y. Legg, 9 Excli. 709. 215. 
 
 (k) Simpson v. Henderson, M. & M. (n) 7 T. E. 125 ; and see Raynay r. 
 
 300 ; Meckelm v. Wallace, 7 A. & E. 54. Alexander, Yelv. 76; Armitage v. In- 
 
 (l) Campbell v. Jones, 6 T. E. 570 ; sole, 14 Q. B. 72K. 
 s. v., Glazebrooh v. Woodroio, 8 T. E. 366. (o) Coombe v. Green, 11' M. & W. 480 ; 
 
 (m) Graves v. Legg, 9 Exch. 709 ; and and see Bunt v. Bishop, 8 Exoh. 678 ; 
 
 see The London Gas Light Company v. ace. Thomas v. Cadwallader, Willes, 496t 
 The Vestry of Chelsea, 8 C. B. (S. S.) 
 
138 ASSUMPSIT. 
 
 ingness can never be sufficient ; for, either the act to be done is 
 wholly in the power of the plaintiff, and then, as wiU be seen from 
 the cases above cited (and see Smith v. Wilson, 8 East, 437), he 
 must perform it in order to maintain the action ; or, if it be m the 
 power of the defendant to prevent him from performing it (as in the 
 case of Raynay v. Aleannder, supra), still he must do aU he can 
 to perform it, and, if prevented, must show that as an excuse for 
 non-performance (p). By the terms of a contract certain works 
 were to be done for the defendants by the plaintiffs, according to 
 certain plans and specifications, and to be paid for by certaia in- 
 stalments, " on production by the contractors to the defendants, or 
 one of them, of the certificate of W. L. or other the surveyor for 
 the time of the defendants, that they (the contractors) had duly 
 and efficiently performed and completed such work to his satisfac- 
 tion." In an action upon this contract, the declaration averred 
 that all things necessary had been done by the plaintiffs to entitle 
 them to have the certificate of the surveyor, but that he had not 
 given such, certificate, but had wrongfully and improperly neglected 
 so to do. It was held that, in the absence of collusion, the plain- 
 tiffs were not entitled to recover without producing the surveyor's 
 certificate, and that the defendants were not responsible for his 
 refusal to give one (q). See post, p. 140. 
 
 Concurrent Acts. — Where it is agreed that two concuiTent acts 
 shall be performed, the one by A. and the other by B. at the same 
 time, as in the ordinary case of sales of real or personal property, 
 one party cannot maintain an action against the other without 
 averring and proving performance, or that which is equivalent to 
 performance, of his part of the agreement. " If two men agree, 
 one that the other should have his horse, and the other that he 
 will pay ten pounds for it, an action does not lie for the money 
 until the horse be dehvered." Per Holt, 0. J. (r). And it is the 
 
 (p) Considerable confusion and difB.- payment without proving that he was 
 culty arises in the books from the appli- ready to deliver them. In cases, however, 
 cation of the same term of "condition of conditions precedent properly so called, 
 precedent " both to cases of conditions although one party cannot bring the ac- 
 precedent properly so called, i. e., cases tiou without proving an actual perform- 
 where performance (or in certain cases an ance (or an excuse for non-perfqrmance), 
 excuse for non-performance) must be the other party may sue him without 
 proved, and cases of concurrent acts (and showing anything ; as in the above case 
 dependent acts are the same in this re- cited from Morton v. Lamb, an action 
 apect, Goodison v. Nunn, 4 T. R. 761), would lie for not puUing down the wall, 
 where a readiness to perform only is suf- without proving a readiness to pay the 
 ficient ; as, where A. agrees to sell goods money ; or, as in Coombe v. Green, for 
 to B. for a certain sum of money. In not appointing a surveyor, without aver- 
 the latter case it is obvious neither party ■ ring a readiness to repair : and this 
 can maintain an action against the other would seem the proper test whether any 
 without showing a readiness to perform condition is a precedent one strictly so 
 his own part of the agreement. B. can- called or not. 
 
 not sue A. for non-delivery of the goods (q) Clarke v. Waismi, 18 C. B. (K S.) 
 
 without showing that he was ready to 278, 34 L. J. 148 C. P. 
 pay for them ; nor can A. sue B. for non- (r) Thorpe v. Thorpe, Lord Eaym. 662. 
 
ASSUMPSIT. 139 
 
 same whether the two cotemporaneous acts are to be done at aa 
 indefinite time, or on a specified day. Per Parke, B. (s). 
 
 It is in general sufficient in such cases to show readiness and 
 willingness on the part of the plaintifi" to perform his ^art of the 
 agreement (f) ; though in some cases something more, e. g., a tender, 
 is requisite (w), In an action for the non-delivery of goods on 
 request, it is sufficient if the plaintiff was ready and willing to accept 
 them in accordance with the contract, and pay for them at the 
 stipulated pric6 (a;) ; and no tender or offer of the money is neces- 
 sary (2/), A readiness to receive only is not sufficient (2). So in an 
 action for the non-acceptance of stock, it is sufficient if the plaintiff 
 be ready and willing t6 deliver it, and a tender is not necessary (a). 
 In sales of real este.te, it is sufficient, in an action for the price, if 
 the vendor is ready and willing to execute a conveyance (&) ; for in 
 the absence of any express stipulation, it is the duty of the pur- 
 chaser to prepare it ; and therefore in an action by him for the 
 non-completion of the contract, a tender of a conveyance (or a dis- 
 charge from such tender (c)), must be shown. In cases between 
 lessor and lessee, it seems it is the lessor's duty to prepare the 
 lease (cf) ; but at all events, if there be an express stipulation that 
 the lease should be prepared " at the sole expense of the lessor," 
 it must, in the absence of any thing in the agreement to the- con- 
 trary, be intended to be his duty to prepare it ; and, therefore, in 
 an action by the lessee on such an agreement, mo tender need be 
 made (e). The rule that prevails between vendors and vendees of 
 land, viz., that the purchaser should prepare the conveyance, 
 applies to sales of railway shares ; the purchaser therefore in an 
 action for non-delivery, must prove a tender of a ti-ansfer deed (/). 
 So in the case of a sale of leasehold property, in which case a 
 readiness and willingness on the part of the vendor to assign, is 
 sufficient in an action for the non-payment of the price, and no 
 tender of an assignment need be made {g). 
 
 Readiness and willingness is proved by the demand made on 
 the defendant to fulfil his part of the agreement (A). The demand 
 must be made at the proper time. Thus, in an action for not accept- 
 ing s^tock, where the contract was to be performed on the 6th of 
 
 (s) Zaird v. Pirn, 7 M. & "W, 485, (a) HaivraUc r. Qoldner, 11 M. & "W. 
 
 («) Levy y. Lord Herbert, 7 Taunt. 314 ; 849. 
 
 per Parke, B., in Pickford v. Grand (b) Martin y. Smith, 6 East, 554 ; 
 
 Jumtion Railway Company, 8 M. & "W. Poole y. Hill, 6 M. & W. 835, 
 
 378 ; Phelps y. Prothero, 16 0. B, 370 ; (c) See post, p. 140. 
 
 Kemble y. Mills, 1 M. & G. 757. (d) Piatt on Leases, II. 639 ; Robinson 
 
 (u) Poole y. Hill, 6 M. & W. 835; and v. Harm,an, 1 Excli. 850. 
 
 see Fell y. Knight, 8 M. & W. 276 ; ipost, (e) Price v. Williams, 1 M. & W. 6. 
 
 p. 152. (/) Stephens v. Be Medina, 4 Q. B. 
 
 (x) Rawson y. Johnson, 1 East, 203 ; 422. 
 
 Waterhouse v. SJdnner, 2 B. & P. 447. (g) Ferry y. Williams, 8 Taunt. 62. 
 
 (2/) Jackson y. AUamay, 6 M. & G. 0,42. (A) WUks v. Atkinson, 1 Marsh. 412. 
 
 (») Mortony. Lamb, 7 T. E. 125. 
 
140 ASSUMPSIT. 
 
 May, but there was no proof of any application to the defendant 
 to accept the stock till several days afterwards, nor that the de- 
 fendant waited till the closing of the transfer books at the Bank 
 on that day, the verdict given for the plaintiff was set aside (i). 
 Where in an action for not paying 250?., the amount of a lien on 
 2,000 hats, which the defendant had agreed to pay to the plaintiff, 
 it was proved, in support of the plaintiff's allegation of a tender of 
 the hats, that the defendants were shown two closed casks, which 
 they were told contained the hats, but the persons who had charge 
 of them refused to allow the defendants to inspect their contents, 
 it was held, that the allegation of a tender was not proved (k). 
 Similar evidence would therefore be insufficient to show readiness 
 and willingness. An averment of readiness and willingiiess to 
 grant a lease, is equivalent to an averment of having title to 
 grant one; and a traverse of this averment puts in issue the 
 plaintiff's ability to perform the contract, for the words " ready 
 and willing " imply not only the disposition but the capacity to do 
 the act (I). 
 
 Where it is agreed that some act shall be performed by each of 
 two parties at the same time, he who was ready and offered to 
 perform his part, but was discharged (or prevented (m)) by the 
 other, may maintain an action against the other for not performing 
 his part of the agi-eement (n). " The party must show he was 
 jeady, but if the other stops him on the ground of an intention 
 not to perform his part, it is not necessary for the first to go 
 further and do a nugatory act " (o). 
 
 The above rule is subject to this limitation, that the person who 
 is ready and wilHng, and tenders to perform his part of the agree- 
 ment, must have the immediate power of performing it, and if 
 the act which the plaintiff is discharged or prevented from doing 
 would, if done, amount to an endeavour only to perform his' part 
 of the agreement, such discharge is insufficient to give a right of 
 action. This was decided by 8m,ith v. Wilson (p). In that case, 
 which was an action of covenant on a charter-party, it was held 
 that the performance of the voyage (from Great Britain to Monte 
 Video and back) was a contiition precedent to the recovery of the 
 freight. The vessel, before her arrival at M. V., was, without any 
 default on the part of her owner, the plaintiff, seized and brought 
 back to London, but ultimately she was restored to the plaintiff, 
 who then tendered the ship to the defendant for the performance 
 of the stipulated voyage, requesting instructions from the de- 
 
 (i) Bordenme v. Gregory, 5 East, 106. (m) Per Dallas, C. J., in Ferry v. Wil- 
 
 See Mernt v. Zane, Str. 458. Hams, 8 Taunt. 70 ; per Lord AUnger, 
 
 (Ic) Isherwood v. WhUmore, 11 M. & C. J., in FbUy. Knight, 8 M. ftW. 276. 
 
 W . 347 ; and see on the subject of readi- (n) Laird v. Pirn, 7 M. & W. 474. 
 
 ness and wiUmgness, tender, &c. , Startup (o) Per Lord Mansfield, C. J. , in Jmes 
 
 V. McDonald, 6 M. &0. 693. v. Barkley, Doug. 684 ; and see Jaclcson 
 
 {I) m Medina v. Norman, 9 M. & W. v. Jacol, 3 B. N C. 869. 
 
 820- (p) 8 East, 437. 
 
ASSUMPSIT. 141 
 
 fendant, offering to observe the same, &c., but the defendant 
 refused to give such instructions, and discharged the plaintiff from 
 prosecuting or completing the voyage. Lord Mlenborough, G. J., 
 in delivering the judgment of the court, said, — "Where a man by 
 doing a previous act would acquire a right to a debt or duty ; by 
 a tender to do the previous act {q), if the other party refuse to 
 permit him to do it, he acquires the right as completely as if it 
 had actually been done, but the question still occurs, whether by 
 actually doing the previous act tendered to be done in this case, 
 the plaintiff would have acquired a right to the freight and other 
 payments demanded. Here, if he had done all that he had offered to 
 do, and which the defendant discharged him from performing, still 
 it would have amounted, at most, only to an endeavour on his part 
 to prosecute and complete the voyage, which might still be frus- 
 trated by the act of God, dangers of the seas, &c. ;"■ — ^and after 
 referring to the case of Jones v. Barkley (r), the Lord Chief Justice 
 said, — " The difference between the two cases is this : in the one " 
 {Jones V. Barkley), " by doing an act in the power of the party to 
 have done, he would have acquired a full and instant right to the 
 duty demanded ; in the other, by doing the act tendered to the 
 full extent, to which the party tendering was able to perform it, he 
 would still have only taken certain steps of remote and uncertain 
 effect towards the attainment of the object and completion of the 
 event necessary to be attained and completed in order to vest a 
 right to the duty demanded in the party demanding it." 
 
 Independent Promises. — Where the mere promise, and not the 
 performance thereof,, is the consideration of the agreement, there 
 an action may be maintained by either party, without averring 
 performance of the agreement on his part (s). As where the 
 plaintiff agreed to sell land to the defendant, which the defendant 
 agreed to pay for within four years, with interest on the purchase- 
 money in the interval, but no time was fixed for the corhpletion of 
 the purchase, it was held, that the plaintiff might maintain an 
 action within the four years for arrears of the interest, without 
 showing a performance of the agreement on his part, by a con- 
 veyance or a readiness to convey the land. Parhe, B., said, " The 
 consideration for the defendant's paying the interest is the plain- 
 tiff's undertaking to sell the land, not the actual sale of it " (t). 
 " Whether one promise be the consideration of another, or whether 
 the performance, and not the mere promise, be the consideration, 
 must be gathered from, and depends entirely upon, the words and 
 nature of the agreement ; " per Lawrence, J. (u). 
 
 Having thus illustrated the nature of conditions precedent, con- 
 
 (qj Readiness and willingness to per- (r) Dougl, 684. 
 
 form is sufficient in most cases, as lias (s) Hob. 106. 
 
 been observed above, but that is obvi- (t) Wilks v. Smith, 10 M. & W. 365. 
 
 ouslybest evidenced by an actual offer {n) Qlazebrook v. Woodrow, 8 T. K. 
 
 or tender to perform. 373. 
 
142 ASSUMPSIT. 
 
 current acts and independent promises, it remains only to add, that 
 there are not any technical words by which any of these considera- 
 tions are constituted. The principal difficulty in the construction 
 of agreements consists in discovering whether the consideration 
 be a condition precedent, a concurrent act, or an independent 
 promise. This, however, must be collected from the apparent 
 intention of the parties to the agreement. The intention of the 
 parties is, or is assumed to be, the governing principle of all the 
 decisions (x). When the nature of the consideration is ascertained, 
 the rules before laid down before invariably hold. See further on 
 this subject, 1 Wms. Saund. 320, n. 4 ; ii. 352, n. 3 ; Willes, 157, in 
 notis, and post, tit " Covenant." 
 
 ly. Of the Plea. 
 
 1. In Abatement, p. 142. 
 
 2. Of the General Issue, and the Pleading Rules, p. 143. 
 
 3. Accord and Satisfaction, p. 147. 
 
 4. Infamey, p, 152. 
 
 5. Payment, p. 160. 
 
 6. Payment into Court, p, 165. 
 
 7. Release, p. 166. 
 
 6. Statutes of Limitations, ^. 168. 
 9. Set-oJ, p. 1«1. 
 10. Tender, p. 18S. 
 
 1. In AhaJlement. 
 
 1. In Ahatetnent-By 3 & 4 Will IV. c. 42, s. 8, "no plea in 
 abatement.for the nonjoinder of any person as a co-defendant shall 
 be allowed m any court of common law, unless it shall be stated 
 m such plea, that such person is resident within the jurisdiction of 
 the court, and unless the place of residence (y) of such person shall 
 be stated with convement certainty in an affidavit verifying such 
 plea. This plea cannot be pleaded, if one of the defendants not 
 sued be out of the junsdiction, though others be within it (z). 
 
 A plea inabatement of the coverture of the defendant is not a 
 plea of nonjomder within the meaning of the foregoing section, 
 which applies only to the case of co-contractors (a), but it is a 
 dilatory plea, requiring an affidavit of verification under the 4 
 Anne. c. 16. s. 11(6). It is an issuable plea(c), and must be 
 
 ax. iu ^u..s V. .^^/r^ti^: s^i s^.a.f .v.vi-^. 
 
 (y) Ma^hurie v. MuMe, 5 C. B. 283. ^"^ ^""'^ ^- ^''^' ^ ^"^ ^- ^' ««• 
 
ASSUMPSIT. 143 
 
 pleaded in person (d). The 9th, 10th, and 11th sections of the 3 
 & 4 Will. IV. c. 42, lay further restrictions on pleas in abatement ; 
 but subject to these, parties are still entitled to the benefit of such 
 pleas (e). 
 
 Before the Common Law Procedure Act, 1852, when a defendant 
 pleaded in abatement the nonjoinder of a co-defendant, the plain- 
 tiff, if he could not answer the plea, was obliged to commence a. 
 fresh action, unless the court set aside the plea, or allowed the 
 writ to be amended for the purpose of saving the Statute of Limi- 
 tations. The Court of Queen's Bench did not consider this a 
 sufficient ground for so doing (/) ; the Court of Exchequer did (g) ; 
 and the Court of Common Pleas, differing from both, held that 
 the question ought to be decided without reference to the Statute 
 of Limitations at all QC). The 15 & 16 Vict. c. 76, s. 38, however, 
 enacts, that — " In any action of contrciAA where the nonjoinder of 
 any person or persons as a co-defendant or co-defendants has been 
 pleaded in abatement, the plaintiff shall be at liberty, without any 
 order, to amend the writ of summons and the declaration by 
 adding the name or names of the person or persons named in such 
 plea in abatement as joint contractors, and to serve the amended 
 writ upon the person or persons so named in such plea in abate- 
 ment, and to proceed against the original defendant or defendants, 
 and the person or persons so named in such plea in abatement. 
 Provided that the date of such amendment shall, as between the 
 person or persons so named in such plea in ahatement and the 
 plavntiff, be considered for all purposes as the commencement of 
 the action." — The effect of this section is to render the Statute of 
 Limitations available to the ■ added defendant, but not to the 
 defendant originally sued, who cannot therefore now obtain any 
 advantage in this respect by such a plea; and to relieve the 
 plaintiff from the necessity of any application to the court, as in 
 the cases above cited. 
 
 2. Of the General Issue, and the Pleading Rules. 
 
 2. General Issue. — The general issue in this action is non 
 assumpsit, except to the indebitatus counts, when it is " never 
 indebted." " That the defendant did not warrant," " did not 
 agree," or any other appropriate denial, would be unobjection- 
 able. 15 & 16 Vict. c. 76, sched. B. If by mistake not guilty be 
 pleaded, instead of non assumpsit, such plea will not, it seems, be 
 bad (i). 
 
 {d) 2 "Wms. Saund. 209, a. 706. 
 
 (e) See EsdaiU v. Trustwell, 2 Exch. {h) Phillips v. Lewis, 1 L. M. & P. 
 
 312. 156. 
 
 (/) Roherts v. Bate, 6 A. & E. 778. (i) MarsJmm v. Oibbs, 2 Str. 1022. 
 Q) QoodcMld V. Leadham, 1 Exch. 
 
144 ASSUMPSIT. 
 
 By tte 6th PL E. Hi! T. 1853 (j) :— " In all actions on simple 
 contract, except on bills of exchange and promissory notes, the 
 plea of non assumpsit, or a plea traversing the contract or agree- 
 ment alleged in the declaration, shall operate only as a denial 
 in fact of the express contract, promise, or agreement alleged, or 
 of the matters of fact from which the contract, promise, or agree- 
 ment alleged may be implied by law. E. g. In an action on a 
 warranty, such pleas will operate as a denial of the fact of the sale 
 and warranty having been given, but not of the breach j and, in 
 an action on a policy of insurance, of the subscription to the 
 alleged policy by the defendant, but not of the interest, of the 
 commencement of the risk, of the loss, or of the alleged compliance 
 with warranties. In actions against carriers and other bailees, for 
 not delivering or not keeping goods safe, or not returning them on 
 request, and in actions against agents for not accounting, such 
 pleas will operate as a denial of any express or implied contract to 
 the effect alleged in the declaration, but not of the breach. To 
 causes of action to which the plea of 'never was indebted' is 
 apphcable as provided in schedule B. (36) of the Common Law 
 Procedure Act, 1852, and to those of a like nature," — i. e. the 
 generail indebitatus counts, — " the plea of non assumpsit shall be 
 inadmissible^ and the plea of ' never was indebted ' mil operate as 
 a denial of those matters of fact from which the liability of the 
 defendant arises; e. g. in actions for goods bargained and sold, or 
 sold and delivered, the plea will operate as a denial of the bargain 
 and sale, or sale and delivery in point of fact ; in the like action 
 for money had and received, it will operate as a denial both of the 
 receipt of money, a,nd the existence of those facts which make 
 such receipt by the defendant a receipt to the use of the plaintiff.'* 
 
 •" In all actions upon bills of exchange and promissory notes, the 
 plea of non assumpsit and ' never indebted ' shall be inadmissible. 
 In such actions, therefore, a plea in denial must traverse some 
 matter of fact ; e. g. the drawing, or making, or indorsing, or ac- 
 cepting, or presenting, or notice of dishonour of the bill or note." 
 E. 7. This rule is confined to cases where the action is only on 
 the note, and on the promise to pay contained in or implied by 
 law from it. Thus, where an action is brought by an executor on 
 a bdl or note payable to his testator, with an express promise to 
 him, non assumpsit may be pleaded (Je). The rule is to be read as 
 if It were worded thus :— " In all actions on bills of exchange and 
 promissory notes svmpliciter, without any other matter, &c." Per 
 Parke, B., 8. G. See post, tit. " Bills of Exchange," " Pleading." 
 
 " In every species of actions on contract, all matters in confession 
 and avoidance, including not only those by way of discharge, but 
 
 (j) These rules, with regard to actions 4 "Will IV 
 «,n simple contra-ct are substantially the (k) Timmis v. Piatt, 2 M. & W. 721. 
 
 fiame as the Pleading Eules of Hil. T. 
 
ASSUMPSIT. 145 
 
 those which show the transaction to be either void or voidable in 
 point of law, on the ground of fraud or otherwise, shall be specially 
 pleaded ; e. g. infancy, coverture, release, payment, performance, 
 illegality of consideration, either by statute or common law, draw- 
 ing, indorsing, accepting, &c. bills or notes by way of accommoda- 
 tion, set-ofif, mutual credit, unseaworthiness, misrepresentation, 
 concealment, deviation, and various other defences, must be 
 pleaded." E. 8. 
 
 A broad distinction is made in the first of these rules between 
 actions on express and actions on implied contracts : non assumpsit 
 in the former case putting in issue the fact only of the contract ; 
 but in the latter the matters of fact from which the contract may 
 be implied (I). The plea of x9>n assumpsit puts in issue the 
 making of the contract vnih the plaintiff. An action on a policy is 
 mentioned in the rules only as an example illustrating the general 
 rule, and in such an action the plea of non assumpsit denies that 
 the defendant ever contracted by such a pohcy with the plaintiff, 
 and consequently puts iu issue the fact that the plaintiff caused the 
 policy to be made (m). So a contract inconsistent with the one 
 declared on (jC), or facts which qualify the contract stated in the 
 declaration, and introduce a new stipulation into it (o), may be 
 shown under non assumpsit ; for in effect, as to the contract de- 
 clared on, the defendant denies the making of suck a promise {p). 
 But if a subsequent agreement be substituted for that declared 
 on (g), or an independent parol agreement be merged in a contract 
 by deed(r), such substitution or merger must be pleaded spe- 
 cially ; though it is otherwise if the previous parol agreement be 
 inchoate merely, e. g. the negotiations previous to a deed (s). 
 
 In Hem/mi/ng v. Trenery (f), which was an action on a guarantee, 
 to which the only plea was non assumpsit, it appeared at the trial 
 that the instrument had been interlined so as materially to alter 
 its effect, and the jury found that the interlineation was made after 
 the instrument was executed ; it was held, that the effect of the 
 alteration being only to discharge or modify the original contract, 
 it was a defence which required to be shown by confession and 
 avoidance, and could not be given in evidence under the general 
 issue. So an alteration in a bill of exchange after acceptance 
 cannot be given in evidence under a plea of non accepit (u). 
 
 (?) Per Tindal, C. J., in Martin v. (?) Taylor y. Hilwry, 1 C, M. & E. 
 
 Smith, i B. N. C. 436 ; and T(werner\. 743. 
 
 mtle, 5 ibid. 686. (r) Filmer v. Burnly, 2 M. & G. 529. 
 
 (m) Sutherland v. Pratt, 11 M. & W. («) Filmer v. JBurnby, and see Edwards 
 
 314. T. Bates, 7 M. &-G. 590. 
 
 (to) Morgan v. Pehrer, 3 B. K. C. 457. (t) 9 A. & E. 926. See Davidson v. 
 
 (o) Nash V. Breeze, 11 M. & W. 352. Cooper, 11 M. & W. 787. 
 
 (b) Per Tindal, C. J., in Filmer v. (at) Parry v. Nicholson, 13 M. & W. 
 
 Burnby, 2 M. & G. S45. 778. 
 
146 ASSUMPSIT. 
 
 Evidence of circumstances independent of the contract, the ob- 
 ject of which is to show that the consideration for the agreement 
 was in fact a nullity, is inadmissible under the general issue. In 
 Passenger v. Brookes {x), the evidence tendered was for the pur- 
 pose of showing that there was no consideration for the agreement 
 declared on by setting up a prior agreement between the plaintiff 
 and a third party ; this is collateral, and not a denial of the con- 
 sideration, but a sort of confession and avoidance {y). In an ac- 
 tion for goods sold and delivered, the defendant under the general 
 issue may show that they were sold on a credit not expired ; for if 
 the credit was not expired when the action was commenced, the 
 plaintiff proves a different contract from that which he has stated 
 in the declaration, viz., to pay on request {z) ; or that they were 
 worthless (a) ; and, in an action for work and labour, that it was 
 done for a certain purpose, e. g. to prevent a chimney smoking, and 
 that it was agreed that it should not be paid for, unless the purpose 
 was effected, which it had not been (6). Where a person is em- 
 ployed to do certain work for a certain sum, and part of the work 
 is afterwards done by the employer, the amount of the latter work 
 is matter not of set-off but deduction, and may ^be given in 
 evidence under the general issue, for it is in fact evidence jpro tanto 
 of a breach of contract on the part of the person employed to do 
 the work, and of how much less than the agreed sum he is entitled 
 to recover under a quantum meruit (c). 
 
 Illegality of consideration, whether at common law or by 
 statute, must be specially pleaded (d) ; and, not only where the ex- 
 press contract on which the plaintiff sues is illegal, but also where, 
 illegal services having been performed, no contract to pay for them 
 can be implied (e). A defendant cannot take advantage of an 
 illegality to avoid a contract without a special plea, although the 
 illegahty becomes apparent in the course of the plaintiff's case, and 
 without any evidence offered by the defendant (/) ; although, if the 
 illegality appear on the face of the declaration, judgment thereon 
 will be arrested {g). In cases of contracts within the Statute of 
 Frauds, the defendant may show under the general issue, that there 
 was no contract in writing Qi). But in an action for the price of a 
 copyright bargained and sold, it was held, that a defence on the 
 ground that the copyright was not assigned in writing must be 
 
 (x) 1 Soott, 660 (wrongly reported in (h) Mayselden v. Staff, 5 A. & K. 163. 
 
 1 B. K C. 587 ; s^e per Parka, B., H M. (c) Turner v. Diaper, 2 M. & G. 241 ; 
 
 & W. 355). Newton V. Forster, 12 M. & W. 241. 
 
 (y) Per Parke, B., in Bermiony. Da- (d) Martin v. Smith, 4 B. N. C. 436. 
 
 mson, 3 M. & W. 183. See Bingham v. (e) Potts v. Sparrow, 1 B. N. C. 694. 
 
 Stanley, 2 Q. B. 117. (/) Penwick v. LaycocJc, 1 Q. B. 414. 
 
 (2) BroomJkM v. Srmth, 1 M. & "W. (g) Daimtree v. Hutchinson, 10 M. & 
 
 542. W. 85. 
 
 (a) Coiidns v. Paddon, 2 C, M. & E. (h) Leafy. Tuton, 10 M. & "W. 393. 
 
 547. 
 
ASSUMPSIT. 147 
 
 specially pleaded (i). By section 32 of the Medical Act(k), "no 
 person shall be entitled to recover any charge in any court of law 
 for any medical or surgical advice, attendance, or for the perform- 
 ance of any operation, or for any medicine which he shall have 
 both prescribed and supplied (I), unless he shall prove upon the 
 trial that he is registered under this act" (m). The non-delivery 
 of a signed bill in an action on an attorney's bill is not available 
 under the general issue (n). "Where an act provides that the plain- 
 tiff shall not recover without giving notice of action, a want of such 
 notice must be specially pleaded (o). 
 
 3. Accord and Satisfaction. 
 
 3. Accord (p) and Satisfaction. — Accord with satisfaction is a 
 good plea in bar to this action (g), because damages only are reco- 
 verable ; and accord with satisfaction to one defendant is a bar to 
 all (r). This defence must be pleaded specially (s). An accord, to 
 make a good plea, must be perfect, complete, and executed (t) ; for 
 an accord executory is only substituting one cause of action for 
 another, which might go on to any extent. Hence a plea of accord 
 to do several things, with an averment of performance of some only, 
 and of an offer to perform the rest, is bad (it). " It appears by a 
 long train of authorities, commencing with that in Dyer, 356, that 
 a plea of accord, to be a good plea, must show an accord which is 
 
 (i) Barmtt v. Glossop, 1 B. N. C, 633 ; court of law reasonaUe charges for advice 
 tut see Johnson v. Dodgson, 2 M. & W. and medicines, provided that any college 
 653. In Hemming'Y. Treiwry, 9 A. & E. of physicians may pass a bye-law that no 
 935, Lord Dmman, C. J., in delivering one of their members shall be entitled to 
 the judgment of the court, observed, sue, which may bfe pleaded in bar. 
 "That upon defences which arise as to («) Rohinsonv. Roland, 6 Dowl. 271; 
 matters of law, a difference of opinion but see Eicke v. Nokes, 1 M. & Rob. 369. 
 seems to be entertained by different (o) Bavey v. Warne, 14 M. kW. 199. 
 judges, whether such defences may be (p) Accord is an agreement between 
 set up under the general issue, or must two or more persons when any one of 
 be specially pleaded." If there is any them is injured to satisfy him with some 
 doubt both pleas will be allowed. Smith recompense. Termes de la Ley. 
 V. Dixon, 4 Dowl. 571. (?) Andrew v. Boughey, Dyer, 75, b. 
 (S) 21 & 22 Vict. -c. 90. See as to accord and satisfaction by a 
 (I) i. e., an apothecary. stranger, if adopted by the party liable, 
 (to) By the 27th section a copy of per Cur., Jones v. Broadhwrst, 9 C. B. 
 the "Medical Register," printed and 173. In Lynn y. Bruce, 2 H. Bl. 317, 
 published under the direction of the it was held that an agreement to accept 
 Medical Council, is made evidence in all a composition in satisfaction of a debt 
 courts that the person whose name is was not a sufficient consideration to sup- 
 therein inserted is duly registered ; the port a promise by the debtor to pay the 
 omission of the name is primd facie evi- composition ; a mere accord not being a 
 dence to the contrary, which, however, sufficient consideration, 
 may be rectified by the production of a (r) Peytoe's case, 9 Rep. 79, b. 
 certified copy. See Pedgrifi v. Oheval- (s) Paramore v. Johnson, Lord Raym. 
 Her, 8.C. B. (N. S.) 246. By sect. 31, 666. 
 
 every person registered under the Act is (f) Peytoe's case, 9 Rep. 79, b. 
 
 entitled to practise and to recover in any (m) Shephard v. Lewis, T. Jones, 6. 
 
 L 2 
 
148 . ASSUMPSIT. 
 
 not executory at a future day, but which ought to be executed, 
 and has been executed, before action brought" (v). On the other 
 hand it is laid down in Com. Dig., that—" An accord, with mutual 
 promises to perform, is good, though the thing be "hot perfoiined 
 at the time of action, for the party has ^ remedy to compel the 
 performance," — and this was recognized by the Court of Queen's 
 Bench, in Gartwright v. Cooke (x). "This was a good accord 
 as between the parties to the instrument, and binds the plaintiff. 
 The promise of one was a consideration for that of the other. Each 
 had an immecUate remedy upon it against the other, and in this 
 respect it falls within the rule in Com. Dig. Accord, B. 4, &c." The 
 rational distinction on this subject is, it would seem, stated by 
 Mr. Smith in the notes to Cumber v. Wane (] Lead. Ca. 150), that 
 " if the promise be received in satisfaction, it is a good satisfaction; 
 but if the performance is intended to operate in satisfaction, there 
 shall be no satisfaction without performance." In such a case it is 
 " for the jury to decide whether the plaintiff agreed to accept the 
 agreement itself, not the performance of it, as a satisfaction for his 
 debt, so that if it was not performed, his .only remedy would be by 
 an action for the breach of it, and not a right to recur to the original 
 debt." Per Parke, B. {y). 
 
 Where to an action on a promissory note, the defendant pleaded 
 an agreement between himself and the plaintiff, with other credi- 
 tors, that they would accept a composition in satisfaction of their 
 respective debts, to be paid in a reasonable time, and then averred 
 a tender, and refusal on the part of the plaintiff, of the composi- 
 tion, the plea was held bad {z). But where a debtor being unable 
 to meet the demands of his creditors, they signed an agreement 
 (which was assented to by the debtor) to accept payment by his 
 covenanting to pay a third of his annual income to a trustee of 
 their nomination, and give a warrant of attorney as a collateral 
 security, and the debtor was willing to perform his part, but the 
 creditors did not appoint a trustee : it was held, that the agree- 
 ment, though not properly an accord and satisfaction, was a good 
 defence to an action by one of the creditors for his demand : inas- 
 much as it was " a consent by the parties signing the agreement to 
 forbear enforcing their demands, in consideration of their own 
 mutual engagement of forbearance ; and that each creditor was 
 bound, in consequence of the agreement of the rest " (a). 
 
 Acceptance of a negotiable security for a lesser sum may be 
 pleaded in satisfaction of a debt of a greater amount (6). And the 
 
 (v) Per Tindal, C. J., delivering judg- 24. 
 
 ment in BayUy v. Roman, 3 B. S. C. (a) Good v. Oheesman, 2 B. & Ad. 328. 
 
 520. See Bradley v. Gregory, 2 Camp. See Blacksiorie v. Wilson, 26 L. J., Exch. 
 
 383. 229. 
 
 {x) 3B. & Ad 703. (b) Sibree v. Tripp, 15 M. & W. 23, 
 
 (y) Evans y Poms, 1 Exoh. 607. overruling ^sembU) Cumber v. Wane, Str. 
 
 is) ffeathcote ¥. Crookshanka, 2 T. R. 426. 
 
ASSUMPSIT. 149 
 
 negotiability or otherwise of the security would seem to make no 
 difference, for the grounds of the decision in the above case were 
 twofold : firstly, that the satisfaction was " by giviag a different 
 thing having different properties, and not part of the sum itself;" 
 on which ground the acceptance of a chattel, however small its 
 value, has always been held a good accord and satisfaction (c) ; and, 
 2ndly, that the court cannot inquire into the reasonableness of the 
 satisfaction. It is sufficient if the parties have so agreed, and the 
 bill or note accepted may be of equal value to the debt for which 
 it is accepted. The first ground obviously applies alike to nego- 
 tiable and non-negotiable securities ; and, that even a non-nego- 
 tiable security (though for a smaller sum than the debt for which 
 it is accepted) may be more advantageous to the person accepting 
 it than the debt itself, seems clear from two considerations, first, 
 that in an action on the bill or note, the burthen of proof is thrown 
 on the defendant to disprove consideration ; whereas, in an action 
 for the debt, it would lie on the plaintiff; a,nd, secondly, that since 
 the 18 & 19 Vict. c. 67, the remedy upon bills or notes is rendered 
 in certain cases speedier and more certain than upon a simple con- 
 tract debt. The acceptance of a smaller sum hefore the larger sum 
 is due, is good in accord and satisfaction {d) ; and so of a smaller 
 sum in settlement of a doubtful claim of a larger amount, an action 
 being depending (e), or if the amount claimed be uncertain, as in 
 an action on a quantum Tneruit (/). 
 
 Payment of a smaller sum cannot, it seems, be pleaded in satis- 
 faction of a larger {g) ; at all events if the latter sum be fixed and 
 ascertained {h). In GumherY. Wane, Pratt, C. J., said, "It must 
 appear to the court to be a reasonable satisfaction, or at least the 
 contrary miist not appear." In Fitch v. Sutton (%), the defend- 
 ant produced a receipt signed by the plaintiff for a composition 
 of 7s. in the pound for his debt, which he acknowledged to be 
 in full of all demands, and it was contended that this receipt was 
 a discharge of the debt ; but Lord Ellenhorough, C. J., said, that it 
 could not be pretended that a receipt of part only, though ex- 
 pressed to be in fuU of aU demands, must have the same operation 
 as a release ; it was impossible to contend that an acceptance of 
 17?. 10s. Was an extinguishment of a debt of 50i. He added, that 
 there must be some consideration for the relinquishment of the 
 residue, — something collateral, to show a possibility of benefit to 
 the party relinquishing his further claim, otherwise the agree- 
 ment was nudum pactum,. In Thomas v. Heaihorn (j), Bayley, 
 J., says, " It is perfectly clear, that in point of law, payment 
 
 (c) Litt. s. 344. W. 641, and no action is depending, 
 
 (d) Pmel's case, 5 Rep. 117. S^nith v. Monteith, 13 M. & "W. 427. 
 
 (e) Longridge y. Dorville, 5 B. & Aid. (.g) Down v. Hatcher, 10 A. & E. 121. 
 117. {h) Per Parke, B., Cooper y. Parker, 
 
 (/) Wilkinson v. Byers, 1 A. & K 15 C. B. 822. 
 106 ; secus, if the liability to any debt is (i) 5 East, 230. 
 
 disputed, EcLwards v. Bwagh, 11 M. & (/) 2 B. & C. 481. 
 
150 ASSUMPSIT. 
 
 of a smaller sum cannot be pleaded as a satisfaction for a larger." 
 In Down v. Hatcher, which was an action for the use and occupa- 
 tion of a farm, agistment of cattle and money due on an account 
 stated, such a plea was held bad after verdict. In Sibree v. Tripp (k), 
 Parke, B., said, "It is clear that, if the claim be a liquidated 
 and ascertained sum, payment of part cannot be satisfaction of 
 the whole, although it may under certain circumstances be evi- 
 dence of a gift of the remainder." The doctrine, however, upon 
 which all the above cases rest, viz., that it is the province of the 
 court to inquire into the adequacy of the satisfaction, has been 
 much questioned in later cases {I). In Cooper ir. Parker (m), the 
 case of Down v. Hatcher was strongly commented on. To the 
 argument of counsel, that a good cause of action for a pecuniary 
 demand cannot be satisfied by any money payment short of the 
 full amount, Parke, B., said, "That doctrine applies only to a 
 certain ascertained debt. In Down v. Hatcher, the distinction 
 between an ascertained and liquidated demand, and one which is 
 unliquidated, did not attract attention. It has always seemed to 
 me that the case was questionable on that account ;" and the same 
 learned judge, in delivering judgment, said, " Whenever the ques- 
 tion may arise whether Down v. Hatcher is good law, I should have 
 a great deal to say against it." It has been held, that a bond 
 cannot be pleaded in satisfaction of another bond (n). 
 
 B. and C. being jointly indebted to A., A. sued B. alone, who 
 compromised the action by a payment of a portion of the claim, 
 and A. gave a receipt for debt and costs in the action. A. then 
 commenced an action against C. for the balance. It was contended, 
 that the debt was ah-eady discharged ; but the court were of a dif- 
 ferent opinion, observing, that the payment was not made in dis- 
 .charge of A.'s right against C. ; and the result of the whole was, 
 that it did not operate as a release or matter .which could have 
 been pleaded as an accord and satisfaction, but amounted merely 
 to an engagement not to sue B., which could only be pleaded by 
 himself (o). If an action be brought on a quantum meruit, and 
 the defendant agree to pay a less sum than the demand in full, 
 that is a good consideration for a promise by the plaintiff to pay 
 his own costs and proceed no further (p). 
 
 The defendant may plead that he was the payee of a promissory 
 note, and that he indorsed it to the plaintiff " for and on account 
 of" the debt sued for (g) ; for this is a sort of qualified or condi- 
 tional payment (r), and operates as an absolute payment during 
 the currency of the bill or note (s). If this were not so, the de- 
 
 (k) 15 M. & W. 23. ace. Meld v. Sohitis, 8 A. & E. 90. 
 
 (I) See notes to Cmnher v. Wane-, {p) Wilkmson v. Byers, 1 A. & E. 106. 
 
 Smith's L. C. f6th ed.) (g) ^Searslahe v. Morgan, 5 T. R. 613. 
 
 (m) 15 C. B. 822 (Exch. Cham.) (r) Per Polloelc, C. B., Gnffiths v. 
 
 (n) Manhood v. Criclc, Cro. Eliz. 716. Oioen, 13 M. &. W. 58. 
 
 See per Parke, J., 6 B. & Ad. 750. (s) Belskaw v. Bush, 11 C. B. 191. 
 
 (o) Watters v. Smith, 2 B. & Ad. 889 ; 
 
ASSUMPSIT. 151 
 
 fendant might be forced to pay the debt first, and the bill after- 
 wards, and so pay the debt twice over. On the dishonour, &c., of 
 the bill or note, the plaintiff's original demand revives (t) ; which 
 distinguishes the case of a bill, &c., taken "on account of" a debt 
 from one taken in satisfaction and discharge, for in the latter case 
 the remedy is extinguished (u), in the former it is only sus- 
 pended (v). In Kear slake v. Morgan, the security was given for 
 the whole debt ; and this seems necessary to entitle the party to 
 plead it in bar ; for where a debtor had compounded with his credi- 
 tors, given them the security of a third person for payment oijpart 
 of the stipulated dividend, it was held, that he was not discharged 
 upon payment of that only, the residue continuing unpaid (w). 
 
 Although if a creditor simply agrees to accept less from his 
 debtor than his just demand, that will not bind him (a;); yet if, 
 upon the faith of such an agi-eement, a third person be induced to 
 become surety for any part of the debts, on the ground that the 
 party will be thereby discharged, or if the other creditors be in- 
 duced to relinquish their further demands upon the same supposi- 
 tion, the agreement, though not under seal, will be binding : and 
 a creditor, after the security given has been paid, cannot sue for 
 the residue of his demand ; for that would be a fraud on the surety 
 and the other creditors {y). Note. — It did not appear, in this case, 
 that the plaintiff had induced any of the other creditors or the 
 surety to sign the agreement {z). But where the plaintiff and other 
 creditors of the defendants, subscribed to resolutions for entering 
 into a composition deed with the defendants, upon their property 
 being assigned to trustees for the payment of their creditors : the 
 defendants and their trustees having refused to allow the plaintiff 
 to come in as a creditor under the deed ; it was held, that the 
 plaintiff, although he had subscribed the resolutions, might, not- 
 withstanding, sue the defendants for the amount of his demand (a). 
 If the creditors sign an agreement to give the debtor time for the 
 payment of their respective demands, and to take his promissory 
 notes for the amount, they cannot sue for the original cause of 
 action, without proving that the agreement has been broken on 
 the part of the debtor (b) ; i. e., provided the perfoTTna/nce of the 
 agreement was what was agreed to be taken in satisfaction, and not 
 the agreement only; per Parke, B. (c). In such cases the strict 
 performance by the debtor of the stipulations of the agreement is 
 necessary; and, therefore, in Crawley v. Hilary (d), where the de- 
 
 (f) Stedmcm v. Gooch, 1 Esp. 3, per See Bradley v. Gregory, 2 Campb. 383. 
 Lord Kenyan, C. J. («) See Boyd v. Hind, 1 H. & N. 938 
 
 (u) Sard v. Rhodes, 1 M. & W. 153. (Exch. Chamb.) 
 
 {v) Price v. Price, 4 D. & L. 627. (a) Garrard v. Woollier, 8 Bingh. 258. 
 
 (w) Walker Y. Seaborne, 1 Taunt. 526. (6) Boothbeyv. Sowden, 3 Campb. 175. 
 
 (x) Eeay v. Michardsen, 2 C, M. & E. (c) Evans v. Powis, 1 Exch. 607. 
 
 422. (d) 2 M. & S. 122. 
 
 (y) Steinman v. Magiiits, 11 East, 390. 
 
152 ASSUMPSIT. 
 
 fendant had not tendered the prcmiissory notes to the plaintiff, 
 in accordance with the terras of the agreement although it was 
 proved that the plaintiff might have had them if he had applied, 
 it was held, that the plaintiff might resort to his original demand ; 
 Lord Mlenborough, C. J., saying, " The rule is that the party to 
 be discharged is bound to do the act which is to discharge him, 
 and not the other party." Ace. Evans v. Poms, where the agree- 
 ment was to accept a composition of 10s. in the pound, payable % 
 instalments on ceHavn days, and a plea, which did not state that 
 the instalments were paid, or a tender of them made at the stipu- 
 lated times, although it did state a general readiness and wdlmg- 
 ness to pay the total amount of the composition, was held bad 
 after verdict. A tender of the instalments would have been suf- 
 ficient (e); and such a tender maybe dispensed with by the de- 
 fendant (/). 
 
 i. Infamy. 
 
 4. Infancy. — The defendant may plead that he was an infant at 
 the time of making the promise (gr). This privilege of avoiding 
 contracts, which the law confers on such as enter into them during 
 their minority, i. e. (by the law of England) within the age of 
 21 years, is a personal privilege, the benefit of which must be 
 claimed by the infant, and which cannot be exercised for him by 
 any other person Qi). The plea of infancy ought not to be pleaded 
 by attorney, but by guardian ; for an infant cannot appoint an 
 attorney (i). In cases where the contract declared on by the plain- 
 tiff has been made with the infant for necessaries suitable to his 
 ■estate and degree, the plea of infancy will not operate as a bar to 
 the plaintiff's demand ; for the law permits an infant to bind him- 
 self, either by simple contract or single biU (^'), for necessaries (A;), 
 {viz}) necessary meat, drink, apparel, physic, instruction, and the 
 like ; and an infant is capable of entering into a contract not 
 merely for necessaries for ready money, but into any reasonable 
 contract for necessaries, although he may have an income allowed 
 to him sufiicient to supply him with necessaries (J). Hence it 
 frequently becomes a question what are necessaries. 
 
 In an action for goods sold and delivered, it appeared that the 
 goods in question were a livery for a servant of the defendant, who 
 
 (e) Bradley v. Gregory, 2 Camp. 283. no contracts are binding on infants, ex- 
 
 (f) Rewjfy. JFfa'fe, 1 C. & M. 748. ix^t sach. as concern their person." Per 
 
 (g) Payment of money into court -will Eaughton, J., 2 Roll. R. 2H. 
 
 not preclude a defendant from availing (i) Bird v. Pegg, 5 B. & Aid. 428. 
 
 himselfof his infancy, because the money See Morgan v. Thome, 9 Dowl. 228. 
 
 may have been paid into court for neces- (j) Russell v. Lee, 1 Lev. 86, 87, Such 
 
 saries. Eitchcock v. Tyson, 2 Esp. 481, n. an instrument, which was very rare in 
 
 (h) Per Eyre, C. J., in Eeane v. Boycott, 1808, is now obsolete. See note to Wil- 
 
 2 H. Bl. 515. " If an infant is the owner liamson v. Watts, 1 Campb. 553. 
 
 of houses, it is necessary to have them (fc) 1 Inst. 172, a. 
 
 kept in repair, and yet the contract to \l) Burghart v. Eall, 4 M. & "W. 727. 
 repair them will not bind the infant ; for 
 
ASSUMPSIT. 153 
 
 was a captain in the army, and cockades for some of the soldiers 
 belonging to his company. The defendant relied on his infancy, 
 insisting that the goods in question were not within the description 
 of necessaries. On a motion for a new trial, Lord Kenyan, C. J., 
 said, that the cockades could not be considered as necessai-ies for 
 the defendant, and ought not to have been included in the damages; 
 but with respect to the livery, he could not say that it was not 
 necessary for a person in the situation of defendant to have a 
 servant ; and if it was proper for him to have one, it was necessary 
 that the servant should have a livery. The Chief Justice added, 
 that, however inclined he was in general to protect infants against 
 improvident contracts, yet he thought this case fell within the fair 
 liability which the law imposeii on infants, of being bound for 
 necessaries, which was a relative term, according to their sta- 
 tion in life (ni). So in another case (to), the same learned judge 
 said, that the question of necessaries was a relative fact to be 
 governed by the fortune or circumstances of the infant, and that 
 proof of these circumstances lay on the plaintiff. " All such articles 
 as are purely ornamental are not necessary, and are to be rejected, 
 because they cannot be requisite for any one, and for such matters 
 an infant cannot therefore be made responsible. But if they are 
 not strictly of this description ; then the question arises, whether 
 they were bought for the necessary use of the party, in order to 
 support himself properly in the degree, state and station of life in 
 which he moved ; if they were, for such articles an infant may be 
 responsible : and it is for the jury to decide whether the articles 
 are of such a description or not " (o). 
 
 Evidence is admissible to show that the infant was already 
 supplied with the articles in question (p). Dinners, confectionary, 
 or fruit, supplied to an infant, an under-graduate in the university, 
 having lodgings in the town, without any explanation of the cir- 
 cumstances under which they were supplied, have been held not to 
 be necessaries (g). And so of the hire of horses, gigs, &c., to an 
 infant under similar circumstances (r). Infancy is a good defence 
 to an action on the warranty of a horse (s). A copyhold estate 
 devolved on the defendant, when he was an infant of six years of 
 age, whereupon he was admitted, and a fine duly assessed. Two 
 years after the defendant (who had continued in possession from 
 the time of his admission) came of age, an action was brought for 
 the fine, and verdict for the plaintiff. A question was made for 
 the opinion of the court, whether this action would lie against the 
 defendant, he being a minor at the time of the fine being assessed. 
 
 (m) Hands y. Slwney, 8 T. E. 678. (p) Steedmam v. Rose, C. & Marsh. 
 
 (m) FordY. Fothergill, 1 Esp. 212. 422; post, p. 167. 
 
 . (o) Per Parke, B., in Peters v. Flem- (q) Brooker v. Scott, 11 M. & "W. 67 ; 
 
 ing, 6 M. & W. 47, where the plaintiff Wha/rton v. Mackenzie, 6 Q. B. 606. 
 
 recovered in an action for a watch, (r) Harrison v. Fane, 1 M. & G. 550.. 
 
 watch-chain, &c., the defendant being (s) HowUtt v. Haswell, 4 Camp. 118.- 
 an under-graduate of Cambridge. 
 
]54 ASSUMPSIT. 
 
 The court were of opinion, that the action would well lie ; and 
 Yates, J., said, that if assumpsit had been brought against the 
 infant during his minority, he should have thought it maintainable ; 
 that an infant might contract for necessaries, d fortiori, therefore, 
 for a fine which was due on admission, without which the infant 
 could not have received the rents and profits (t). But in this case 
 it was clear beyond doubt, for the defendant had confirmed the 
 contract by his enjoyment of the estate two years after he came of 
 age (u). 
 
 An infant widow is liable upon a contract by her, for her de- 
 ceased husband's funeral expenses, as such a contract may be 
 considered as made for her personal benefit ; the ground of the 
 decision in this case arises out of the infant's previous contract of 
 marriage ; it will not therefore follow, that an infant child, or more 
 distant relation, would be responsible upon a contract for the burial 
 of his parent or relative (v). On the same ground, viz., that man 
 and wife are " personce conjundce," necessaries for an infant's wife 
 are necessaries for him ; but if provided in order for the marriage, 
 he is not chargeable, though she uses them {w). So if an infant 
 contract for the nursing of his lawful child, this contract is good, 
 and shall not be avoided by infancy, no more than if he had con- 
 tracted for his own aliment or erudition. Bacon, Max. 18. 
 
 If goods, not necessaries, are delivered to an infant, who after 
 full age ratifies the contract by a promise to pay, he is bound (x) ; 
 but such a ratification cannot, it seems, be made by his execu- 
 tor (y) ; for the simple contract of an infant, not being for neces- 
 saries, is void, and consequently, a promise by his executor to 
 pay in consequence of forbearance is nudwm pactum. By saying 
 that the contract of an infant was void, the court must have 
 meant void under the circumstances of that case, the infant 
 having died before any ratification of it ; just as primd facie evi- 
 dence is conclusive e\idence, if not rebutted ; for it is clear that 
 the contract of an infant is not void but voidable only (z). " A 
 security given by an infant, which is only voidable, may be revived 
 by a promise after he comes of age. In such ease he is bound in 
 equity and conscience to discharge the debt, though the law could 
 not compel him to do so ; but he may waive the privilege of infancy 
 which the law gives him for the purpose of securing him against 
 the iinpositions of designing persons ; and, if he choose to waive 
 his privilege, the subsequent promise will operate upon the pre- 
 
 Jt) Ace. per TindcU, C. J., 1 M. & G. J., Exoh. 286 ; 13 M. & W. 252. 
 
 ,\ ip 7 /1T.-I. . or, ,» ^ {w) Turner r. Trisby, 1 StT. 168. 
 
 (m) £velytiY. Chichester, 3 Burr. 1717. (a) Scmthertony. Whitlock, Str. 690. 
 
 In the report of this case m Bull. N. P. (y) stone v. WytUpoll, Gro. Eliz. 126. 
 
 154, It IS stated that the defendant was (2) Per Abbott, G. J., in R. v. ChUles- 
 
 ^v^l f WM,''°T'?r'"^ "L^^^-. ^'^ ^^ ^'°- ^"^' 4 B. & G. 100 ; Warwick y. Bruce, 
 IV & 1 Will. IV^ c. 65, s. 6 2 M. & S. 205 ; Willianis v. Moore, 11 
 
 {v) Per Cur., Chappie v. Cooper, 13 L. M. & W. 256. 
 
ASSUMPSIT. 155 
 
 ceding consideration" (a). But if a bond be given by an infant 
 during his minority, for the amount of a simple contract debt, not 
 for necessaries, the giving of the specialty will so extinguish the 
 simple contract debt as not to leave a sufficient consideration for 
 an express promise after full age to operate upon, and consequently 
 an action upon the original simple contract cannot be main- 
 tained (&). 
 
 By 9 Geo. IV. c. 14, s. 5 (commonly called Lord Tenterden's Act) 
 — " No action shall be maintained, whereby to charge any person 
 upon any promise made after full age to pay any debt contracted 
 during infancy, or upon any ratification after full age of any promise 
 or simple contract made during infancy, unless such promise or 
 ratification shall be made by sorfte writing signed by the party to 
 be charged therewith." The above section, it will be observed, 
 makes a distinction between a new " promise," and a " ratification," 
 (see infra). " Any written instrument signed by the party, which, 
 in the case of adults, would have amounted to the adoption of the 
 act of a party acting as agent, will, in the case of an infant who has 
 attained his majority, amount to a ratification" (c). A promise or 
 ratification made by an agent would not be (semhle) sufficient (d). 
 A written promise by an infant after he comes to full age is suf- 
 ficient under the above section, although it neither contains the 
 name of the creditor, the amount due, nor the date, and parol evi- 
 dence is admissible to supply those particulars (e). 
 
 A replication in a general form, that the articles provided were 
 necessaries, without stating how, or in what manner, they were 
 necessaries, will be sufficient to bar the plea of infancy (/). It 
 should however appear on the face of the rephcation, that they 
 were necessaries /or the infant [g). 
 
 A party may, after he attains his age of twenty-one years, ratify 
 and so make himself liable on contracts made during infancy ; and 
 this may be done on a contract arising on an account stated as well 
 as on any other contract Qi). 
 
 If the defendant takes issue on a replication that he confirmed 
 the promise, after he came of age, it is sufficient for the plaintiff to 
 prove the promise, and the defendant must prove infancy if he 
 means to take advantage of it, because it will be presumed, that a 
 person who contracts is of a proper age to contract, until the con- 
 trary be shown (i). A replication of a new promise, after the de- 
 fa) Per Aehwrst, J., in OocJcshott v. (e) Hartley v. Wharton, 11 A. & E. 
 Sennett, 2 T. E. 766; ace. Gibbs v. 934. 
 Merrill, 3 Taunt. 312. (/) Suggms v. Wiseman, Garth. 110. 
 
 (5) Capper r. Davenant, Bull. IS. P. {g) Clowes v. Brooke, Str. 1101. 
 
 155. See Baylis v. Dmeley, 3 M. & S. {h) WilUawis v. Moor, 11 M. & "W. 
 
 476. 256. 
 
 (c) Per Cur. Harris v. Wall, 1 Exoli. (i) Borthwich v. Carrutkers, 1 T. R. 
 122. See Mawson v. Blane, 10 ibid. 208. 649 ; Hartley v. Wharton, 11 A. & E. 
 
 (d) Hyde v. Johnson, 2 B. N. C, 776. 934, 
 
156 ASSUMPSIT. 
 
 fendant came of age, must be supported by evidence of au express 
 promise (e); (and in writing, signed by the party to be charged 
 therewith; 9 Geo. IV. c. 14, s. 5, supra); but evidence which is 
 not sufficient to support a new promise may amount to ratification 
 of the old one (/). Payment of part of the plaintiff's demand, 
 though evidenced by writing, would not, it seems, be sufficient evi- 
 dence of a new promise to pay the remainder, as it is to take a case 
 out of the statute of limitations (g). The promise also must be 
 voluntary, and not extorted from the party under the terror of an 
 arrest, or given in ignorance of the protection the law afforded 
 him {h). 
 
 Contracts entered iuto by infants for the maintenance of their 
 trade are not binding on them. This rule has been established for 
 the protection of infants against improvident acts, and that they 
 may not incur losses by trading. Assumpsit for goods sold : plea 
 infancy; replication, that the defendant bought the goods pro 
 necessario victu et apparatu et ad inanutentionem faTnilice sucb; 
 rejoinder, that the defendant kept a mercer's shop, and bought the 
 goods in question to sell again. On demurrer, the court were of 
 opinion, that this buying by the infant, though for the maintenance 
 of his trade, by which he gained his living, should not bind him (i). 
 So (j), it was ruled by Lee, C. J., that tobacco sent to the defendant, 
 who had set up a shop in the country, could not be recovered for 
 as necessaries, the defendant appearing to be an infant ; for the 
 law would not suffer him to trade, which might be his undoing. 
 So where in an action for work and labour, to which the defendant 
 pleaded infancy, it appeared that the plantiff was a writing painter, 
 and the defendant a painter and glazier, and the work done by the 
 plaintiff was painting and gilding letters for the defendant's cus- 
 tomers ; Lord Kenyan, C. J., said, the law would not allow an in- 
 fant to trade, therefore an action could not be maintained against 
 him for work done in the course of it (k). 
 
 But there is no distinction between contracts by infants for the, 
 purposes of trade and other contracts, hot for necessaries ; they are 
 voidable only, and may be ratified after the infants come to full 
 age {l). Where the plaintiff declared against the defendants, being 
 merchants, upon a bill of exchange drawn by the defendants ; one 
 of the defendants pleaded infancy. On demun-er, the plea was 
 held good, for the infant was a trader, and the bill was drawn in 
 the course of trade, and not for any necessaries (m). It has been 
 
 (e) Thrvy>p v. Fielder, 2 Esp. 628. (?) Per Pa/rke, B., Williams v. Moor, 
 
 (/) Harris v. Wall, 1 Exch. 130. 11 M. & "W. 258; Warwick v. Bi-uM 2, 
 
 (g) Thrupp v. Fielder. M; & S. 205. 
 
 (A) Manner v. Killing, 5 Esp. 102. (m) Williams v. Harrison, Carth. 160. 
 
 (i) Whitiingham v. Hill, Gro. Jac. Before the Common Law Procedure Act, 
 
 494' 1852, if an action was brought against 
 
 ij) Whywall v. Champion, Sir. 1083. partners, or joint contractors, and one of 
 
 (?c) Dilk V. EeighUy, 2 Esp. 480 ; but them pleaded infancy, the plaintiff was 
 
 see^Boa., Bull. N. P. \5i. obliged to discontinue the first action. 
 
ASSUMPSIT. 157 
 
 held, that an infant cannot bind himself even for necessaries by his 
 acceptance of a biU of exchange (to). 
 
 If an infant is living under the roof of his parent, who provides 
 every thing which in his judgment appears to be proper, the infant 
 cannot bind himself to a stranger, even for such articles as might 
 under other circumstances be deemed necessaries (o). And in one 
 case; where an infant during his residence at a coffee-house con- 
 tracted a debt with a tailor for wearing apparel. Lord Kenyan 
 expressed an opinion that it was the duty of the tradesman to in- 
 quire into the situation of the infant, and to learn from the parent 
 whether the infant was in want of the articles ordei-ed, or not ; and 
 unless the tradesman could show that he had made such inquiry, 
 he was not entitled to recover (p^ 
 
 But although it is prudent in a tradesman to make such an 
 inquiry, he is -not bound to make it by any inflexible rule of 
 law, nor is it a condition precedent to his right to recover (g), 
 and the party who orders the goods may give such an appearance 
 to things as to render inquiry unnecessary (r). Thus, where an 
 infant drove to the plaintiff's shop accompanied by her mother, 
 who waited in the carriage while the daughter purchased some 
 goods, some of which she took home in the carriage, and others 
 were delivered at the hotel where the mother and daughter 
 resided ; it was held, that the jury might fairly infer that the 
 whole had' come under the mother's inspection, and that it was not 
 necessary that the shopman should ask the mother whether she 
 sanctioned by her words what she sanctioned by her conduct (s). 
 In an action for goods sold to an infant, the issue being neces- 
 saries, if any part of the articles proved to have been furnished to 
 the defendant may fall within the description of necessaries, the 
 evidence ought to be left to the jury (t). 
 
 Infancy is a good bar to an action for money lent, although the 
 infant has expended the money in the purchase of necessaries. In 
 debt upon a single bill, the defendant pleaded his infancy ; plaintiff 
 replied, that it was for necessaries, viz., partly for clothes and 
 partly for money lent for necessary support at the university. 
 Rejoinder, that the money was lent to the defendant to spend at 
 .pleasure. Issue thereon, and judgment for plaintiff, which was 
 
 and proceed de novo against the others. QrevilU, Somerset Sum. Ass. 1810, MS. ; 
 
 Jaffray v. Pairiain, 5 Esp. 47. See Deale v. Leave, C. B. London Sittings 
 
 notes to Salmon v. Smith, 1 Wms. Sannd. after H. T. 51 Geo. III. Sir /. Mansfield, 
 
 206. Under the 37th section of that act, C. J., S. P., MS. ; owife, p. 153. 
 however, such a misjoinder is amendable {p) Ford v. PothergiU, Peake's N. P. 
 
 at or before the trial ; Greaves v. ffum- C. 229 ; 1 Esp. 211, S. O. 
 phreys, 4 E. & B. 851 ; not afterwards, (?) BrayshawY. Eaton, 5 B. N. C. 231. 
 
 Bobsrni V. Doyle, 3 ibid. 396. (r) Per Tindal, C. J., in Dalton v. Gib, 
 
 (n) WiUiamson v. Watts, 1 Campb. 5 B. K C. 199. 
 552. (s) Dalton v. Gib, 5 B. N. C. 199. 
 
 (o) Bainbridge v. PicTcering, 2 Bl. E. (i!) Macldox v. Miller, 1 M. & S. 738. 
 
 1325 ; per Bay ley, 3., Borrvusale v. 
 
158 ■ ASSUMPSIT. 
 
 reversed on error, Parker, C. J., saying, that an infant might buy 
 necessaries, but he could not borrow money to buy, for he might 
 misapply the money, and therefore the law would not trust him but 
 at the peril of the lender, who must lay it out for him, or see it 
 laid out, and then it was his providing and his laying out so much 
 money in necessaries for him (%). So(v), where a question was 
 made, whether, in the case of money lent to an infant, who em- 
 ploys it in paying for necessaries, the infant was liable. Holt, C. J., 
 was of opinion that he was not ; for it was upon the leading that 
 the contract must arise, and after that time there could not be 
 any contract raised to bind the infant, because after that he might 
 waste the money; and the infant's applying it afterwards for ne- 
 cessaries would not by matter ex post facto entitle the plaintiff to 
 an action ; for, as was observed by the court in Uarle v. Peale (w), 
 " the law knows of no contracts except such as are good or bad 
 at the time of the contract made, and not to be one or other ac- 
 cording to a subsequent contingency. So (x), where, to an action 
 for money lent, the defence was infancy ; Buller, J., would not 
 permit the plaintiff to give in evidence, that the money lent was 
 laid out in the purchase of necessaries." 
 
 But it is otherwise in .equity ; for if one lends money to an 
 infant to pay a debt for necessaries, and in consequence thereof 
 the infant does pay the debt, in equity the infant is liable, for 
 there the lender of the money stands in the place of the person 
 paid, viz, the creditor for necessaries, and shall recover in equity 
 as the other should have done at law {y). The same rule of equity 
 holds with respect to money lent to a feme covert, and afterwards 
 applied to her use for necessaries. See post, tit. " Baron and 
 Feme," s. 4. 
 
 If the action against an infant be gi'ounded on a contract, the 
 plaintiff cannot convert it into a tort, so as to charge the infant. 
 " If one deliver goods to an infant, on a contract, knowing him to 
 be an infant, the infant shall not be charged for them in trover 
 and conversion " (s) ; for the law will not permit a plaintiff by 
 changing the form of action, to vary the liability of the infant. 
 Hence, whatever be the form of the action which is commenced, 
 if the act done by the infant is substantially founded on a contract, 
 the plea of infancy will be a good bar : as where an infant hired 
 a mare of the plaintiff to go a journey, in the course of which the 
 mare was strained; the plaintiff having declared against the infant 
 for this injury in tort, he pleaded infancy, which on demuiTer was 
 held a good ploa ; and Lord Kenyon, C. J., said, that " if it were 
 in the power of a plaintiff to convert that which arises out of a 
 
 (m) Earle Y. Peale, Salk. 386. (y) Per Ciw., Marlow v. PitfieU, 1 P. 
 
 (/!)) Darby v. Boucher, Salk. 279. "Wms. 558. 
 
 (w) 10 Mod. 67. (s) Manly v. Seott, ISid. 129; ace. 
 
 (x) Prdbart v. Knouth, 2 Esp. 472, n. Qreen v. GreenhanJc, 2 Marsh. 485. 
 
ASSUMPSIT. 159 
 
 contract into a tort, there would be an end of that protection 
 which the law affords to infants. Lord Mansfield, indeed, fre- 
 quently said, that this protection was to be used as a shield, and 
 not as a sword ; therefore, if an infant commit an assault or utter 
 slander, God forbid that he should not be answerable for it in a 
 court of justice. But where an infant has made an improvident 
 contract with a person, who has been wicked enough to contract 
 with him, such person cannot resort to a court of law to enforce 
 such contract ; and the words ' wrongfully, injuriously, and mali- 
 ciously,' introduced into the declaration, cannot vary the case." 
 But, where an infant upon hiring a horse was expressly told 
 that it was not to be used for jumping, and he, notwithstanding, 
 lent the horse to a friend who, in endeavouring to make it jump 
 a fence staked it, the court belt? that it was an actionable offence 
 for which the infant was liable, independently of the question 
 whether the hiring was a contract for necessaries (z). 
 
 As in the cases of contract where the law has protected the 
 infant against his liability, he cannot be prejudiced by the form of 
 action in which he is sued ; so in the cases ex delicto, where he is 
 responsible {a), he cannot derive any advantage from it. In 
 Bt'istdw V. Eastman (b), Lord Kenyan, C. J., was of opinion, that 
 money had and received would lie 'against the defendant, to 
 recover money which he had embezzled, notwithstanding the 
 infancy of the defendant, on the ground that infants were liable to 
 actions ex delicto, though not ex contractu; and though the action 
 for money had and received was in form an action ex contractu, 
 yet in this case it was in substance an action ex delicto ; that if 
 trover had been brought for the property embezzled, infancy 
 would not have been a defence ; and as the object of the action for 
 money had and received was the same, he thought the same rule 
 of law ought to apply, and therefore that infancy ought not to be a 
 bar. 
 
 j^ single bill given by an infant for the amount of necessaries is 
 binding on him (c), and so is a bond without a penalty, but a bond 
 in double the amount is not (d). So an account stated of monies 
 due for necessaries will not lie against an infant, the law not giving 
 an infant credit for accurate comJ)utation, nor can he agree to any 
 such account (e). But an account stated by an infant not being 
 absolutely void, but voidable only, may be ratified by him on 
 attaining his full age ; and, if so ratified, an action may be main* 
 tained thereon (/). A warrant of attorney given by an infant is 
 absolutely void, and the court will not confirm it, though the 
 
 (z) Burnard, app. T. Eaggis, 14 C. B. (d) Ayliffy. ArcMaU, Cro. EUz. 920. 
 
 (N. S.) 45 ; 32 L. J. 189, C. P. See also 1 Inst. 172, a,. 
 
 (a) In detinue, for instance. Mills v. (e) Trmman v. Hurst, 1 T. R. 40. See 
 Oraham, 1 N. R. 140. IngUdew v. Douglas, 2 Stark. 36. 
 
 (b) 1 Esp. 172. (/) Williams v. Moor, 11 M. & W. 
 
 (c) Bicssell y. Lee, 1 Lev. 86, 87. 256. 
 
160 ASSUMPSIT. 
 
 infant appear to have given it (knowing that it was not valid) for 
 the purpose of collusion; for such acts of an infant as are only 
 voidable are allowed in equity to be confirmed, but not such as are 
 actually void (g). An infant cannot be bound by a submission to 
 arbitration (h). 
 
 5. Payment. 
 
 5. Payment — To an action of simple contract, the defendant 
 may plead matter of discharge ex post facto, as payment before 
 action brought. This defence must be specially pleaded ; PI. R 
 8 of Hil. T. 1853 ; and a form is given in schedule B. to the 15 & 
 16 Vict. c. 76, viz., "That before action he" (the defendant) 
 " satisfied and discharged the plaintiff's claim by payment." By 
 R. 14, — "payment shall not, in any case, be allowed to be given in 
 evidence in reduction of damages or debt, but shall be pleaded in 
 bar." — Thus, where to an action on a bill of exchange, the defend- 
 ant paid into court a sum sufiicient to cover the amount of the bill 
 and interest, except for one year, it was held, that evidence to 
 show that the bill had been paid some time previously, so that the 
 one year's interest had never in fact accrued (under which cir- 
 cumstances the sum paid into court would have covered the whole 
 amount due), was inadmissible, there being no plea of payment (i). 
 
 By R. 13, — "In any case in which the plaintiff (in order to 
 avoid the expense of the plea of payment or set-off) shall have 
 given credit in the particulars of his demand for any sum or 
 sums of money therein admitted to have been paid to the plaintiff, 
 or which the plaintiff admits the defendant is entitled to set off, 
 it shall not be necessary for the defendant to plead the payment 
 of such sum or suras of money. But this rule is not to apply 
 to cases where the plaintiff, after stating the amount of his 
 demand, states that he seeks to recover a certain balance without 
 giving credit for any particular sum or sums (Jc), or to cases of set- 
 off, 'where the plaintiff does not state the particulars of such 
 set-off" 
 
 Where a plaintiff credits a sum in his particulars of demand 
 generally, e. g., " Cr. by bills 1,500?." he admits the sum to have 
 been paid hy the defendant (I). Where the plaintiff's claim in- 
 cluded a sum of 84il., the price of a chattel which had been 
 returned by the defendant, it was held, that he might credit that 
 sum in his particulars, as money padd by the defendant (m). 
 Where a bill of exchange was credited in the particulars of de- 
 mand as having been indorsed by the defendant to the plaintiff, 
 but the amount of the bill was also debited to the defendant in 
 
 ig) Samiderson v. Marr, 1 H. Bl. 75. (1) Smethurst v. Taylor, 12 M. & "W. 
 
 ih) Anon., B. R. B.R. 55 Geo. III. 545. 
 
 ii) Adams v. Palk, 3 Q. B. 2. (m) Lamb v.. Mickktkwaite, 1 Q. B. 
 
 (k) See Morris v.- Jones, 1 Q. B. 397. 400. 
 
ASSUMPSIT. 161 
 
 the particulars as having been dishonoured, it was held, that the 
 two items destroyed each other, and that the case was the same as if 
 "the bill had not been mentioned in the particulars at all ; and that 
 in such a case payment must be pleaded to admit evidence that 
 the bill had in fact operated as payment on account of the laches 
 of the plaintiff {n). 
 
 Where a plaintiff gives credit in his particulars of demand for 
 payments, whether made before action brought, or after, and goes 
 only for the balance, a plea of payment is to be taken as pleaded 
 to snch balance ; and if the defendant proves payments to that 
 amount, independently of the sums credited in the particulars, he 
 is entitled to a verdict (o). And it is the same whether the pay- 
 ment be credited in the particulars of demand, or be admitted on 
 the record. Thus where in an action for \0l. 18s., the balance of 
 a debt of lOOZ., the plaintiff averred, that, although 89?. 2s. had 
 been paid, yet that he had not been paid the sum of 101. 18s., and 
 the defendant pleaded nunquam indebitatus, it was held, that 
 the plea was pleaded to the balance claimed, and therefore that 
 the plaintiff, in order to recover, must prove a debt exceeding the 
 sum of 89/!. 2s. (_p). 
 
 Where, however, the plaintiff does not give credit in his par- 
 ticulars of demand for any specific sum received on account, but 
 
 merely states that the " action is brought to recover £ , being 
 
 the balance of the following account, &c.," a plea of payment or 
 set-off is to be taken as pleaded to the whole claim, and it is a 
 question for the jury whether the balance claimed be mclusive or 
 exclusive of the amount proved to have been paid or set off (g). 
 Where payments are admitted in the plaintiff's particulars, he can 
 recover only for the amount by which the claims proved by his 
 witnesses exceed such payments (r). 
 
 Where a defendant pleads payment of a sum, he may, upon affi- 
 davit by the plaintiff that he cannot safely go to trial without the 
 particulars of the payment, be compelled to furnish them (s). 
 
 A person who is indebted to another on several accounts, may, 
 at the tiifne of payment, apply the money to whichever account he 
 thinks proper ; and his election so to do may be either expressed 
 or may be inferred from the circumstances of the transaction (t) ; 
 but if the party paying does not make such election, the receiver 
 may apply it as he pleases {u). The defendant owed money on 
 two bonds, and paid money on account, but gave no directions to 
 
 (m) Oreen v. Smythies, 1 Q. B. 796. 716. 
 
 (o) Eastwick v. Barman, 6 M. & W. (i) Peters v. Anderson, 5 Taunt. 596 ; 
 
 13. Shaw V. Pieton, 4 B. & C. 715. 
 
 (p) Price V. JRees, 11 M. & "W. 577. (u) Bowes v. Lucas, B. E. M. 11 
 
 (q) Townson v. Jackson, 13 M. & W. Geo. II. Andr. 65. See 2 Vem. 607, 
 
 374, per Lord Cowper, Ch. ; Peters y. Aiider- 
 
 (r) Rowland v, BlaksUy, 1 Q. B. 403. son, 5 Taunt. 596. 
 
 (s) Ireland v. Thompson, 4 B. N. G. 
 
162 ASSUMPSIT. 
 
 which he would have it applied ; and upon a case reserved, it was 
 determined, that the plaintifif had the election (a;). The better 
 opinion seems to be, that the application may be made by the 
 receiver at any time{y). A creditor receiving money, without 
 any specific appropriation by the debtor, will be permitted m a 
 court of law to ascribe the receipt to the discharge of a prior and 
 purely equitable debt, and sue him at law for a subsequent legal 
 debt (z). But where one demand arises out of a lawful contract, 
 and another out of an unlawful contract, the law will appropriate 
 a payment not specifically appropriated to the lawful contract (a). 
 A party, however, to whom two sums are due, the one for 
 spirituous liquors supplied in quantities not amounting to 20s. at 
 a time, the other for meat, &c., may apply payments, made gene- 
 rally, to the account for spirituous liquors (6). 
 
 "It seems most consistent with reason, that where payments 
 are made upon one entire account, such payments should be con- 
 sidered in discharge of the earlier items." Per Bailey, J. (c). 
 Although, however, " the payment of money on account generally, 
 without making a specific appropriation, would, in many cases, go 
 to discharge the first part of an account, yet that rule cannot be 
 taken to be conclusive ; it is evidence of an appropriation merely, 
 and other evidence may be adduced which may vary the applica- 
 tion of the rule (d). " In the case of a banking account, there is 
 no room for any other appropriation than that which arises from 
 the order in which the receipts and payments take place, and are 
 carried into account. Presumably it is the first sum paid in, that 
 is drawn out. It is the first item on the debit side of the account, 
 which is discharged by the first item on the credit side. The 
 appropriation is made by the very act of setting the two items 
 against each other "(e). Per Sir W. Orant, M. R. (/). 
 
 There can be no appropriation of money by the receiver, where 
 the debtor has not had the means or opportunity of exercising any 
 election as to its application ; as where money was paid to an at- 
 torney, without the knowledge of his client, for damages recovered 
 in an action conducted by him for such client (g). 
 
 (x) Moss V. Cutting, cited in 2 Str. Ad. 767 ; cux. per Tindal, C. J., Field -r. 
 
 1194. Carr, 5 Bingh. 16 ; per Alderson, B., 
 
 {y) Mills V. FowJces, 5 B. N. C. 455. Bell v. Buckley, 11 Exch. 636 ; Taylor 
 
 See Devaynes v. Nohle, 1 Meriv. 606. v. Kymer, 3 B. & Ad. 333. 
 
 (ts) Bosanqwet v. Wray, 6 Taunt. 597. (e) As inthe ordinarycaseof a banker's 
 
 See Arnold Y. Mayor of Poole, iM.. &,G. passbook; secMS, of entries made by 
 
 897 ; Biggs v. Dwight, 1 M. & Ry. 308 ; bankers or others in books kept for their 
 
 s. v., per Bayley, 3., QoddardY, Hodges, own private purposes, and before any 
 
 1 C. & M. 36 ; Lamprell v. Billericay communication made to the other party. 
 
 Unix)n, 3 Exoh. 283. Simpson v. Ingham, 2 B. & C. 65. 
 
 (a) Wright v. Laing, 3 B. & C. 165. (/) Clayton's case, 1 Mer. 572. See 
 
 (6) CmicJcshanJcs v. Hose, 1 M. & Rob. further on this subject, Toulmin v. Cop- 
 
 100 ; Philpotl V. Jones, 2 A. & E. 41. land, 2 CI. & Fin. 681 ; WUliams v. 
 
 (c) Bodenham v. Purchas, 2 B. & Aid. Griffith, 5 M. & "W. 300. 
 
 45. (g) Waller v. Zacy, 1 M. & G. 70. 
 
 (£«) Per Our., Wilson v. ffirst, 4 B. & 
 
ASSUMPSIT. 163 
 
 Security having been given by a surety for goods to be subse- 
 quently supplied to his principal, and not in respect of a debt 
 which then existed, goods were accordingly supplied, and pay- 
 ments were from time to time made by the principal : these 
 payments corresponded exactly with the amounts of goods sup- 
 plied since the security was given, and on those payments made 
 before the usual trade credit had expired, discount had been 
 allowed ; it was held, that these facts created a strong inference 
 that the payments were intended in liquidation of the latter 
 account, and therefore that the surety was relieved Qi). 
 
 The mere production of a biU of exchange from the custody of 
 the acceptor is not presumptive evidence of payment, unless it be 
 shown that the bill was once in* circulation after being accepted. 
 Nor is payment to be presumed from a receipt indorsed on the bill, 
 unless it be shown that the receipt is in the handwriting of a 
 person entitled to demand payment (i). Where, the defendant 
 being indebted to the plaintiffs for goods sold, and C. being in- 
 debted to the defendant, the plaintiffs, with consent of the defend- 
 ant, drew a bill on G. payable at two months, which C. accepted, 
 but afterwards dishonoured ; it was held, that the defendant was 
 not entitled to notice of the dishonour, his name not being on the 
 bill, and that the bill was not to be esteemed a complete payment 
 of the debt, under 3 & 4 Anne, c. 9, s. 7 (]c). In this case the 
 person insisting on the want of presentment was not a party to 
 the bill. 
 
 In an action for the price of goods, it appeared that the goods 
 were sold in the morning of Saturday, the 10th December, 1825, 
 at York, and on the same day, at three o'clock in the afternoon, 
 the vendee delivered to the vendor, in payment of the price, pro- 
 missory notes of the bank of D. & Co. at Huddersfield, payable to 
 bearer on demand. D. & Co. had stopped payment on the same 
 day at eleven o'clock in the morning, and never afterwards resumed 
 their payments ; but neither of the parties knew of the stoppage, 
 or of the insolvency of D. & Co. The vendor never circulated the 
 notes, or presented them to the bankers for payment ; but on Satur- 
 day, the 17th December, he required the vendee to take back the 
 notes, and to pay him the amount, which the vendee refused. It 
 was held, that the vendor was guilty of laches in not giving notice 
 to the vendee of the non-payment of the notes and insolvency of 
 the bankers within a reasonable time ; and consequently that the 
 notes operated as a satisfaction of the debt (l). " The rule as to 
 all negotiable instruments is, that if they are taken in payment of 
 
 (h) Marryatts v. White, 2 Stark. 101. 122. 
 
 A surety can have no control over the (i) Pfid v. YanbaUnUrg, 2 Camp. 439. 
 
 way in which the principal shaU make (k) Swinyard v. Bowes, 5 M. & S. 62. 
 
 his payments, unless by distinct agree- '" " " - " » „ t, ._ ^ 
 
 ment." Williamsr. RawUnson, 3 Bingh. 
 '71 ; and see Pease v. Hirst, 10 B. & C. 
 
 his payments, unless by distinct agree- {I) Camidge v. Alhnby, 6 B. & C. 373. 
 
 ment." WiUiamsv. RawUnson, 3 Bingh. See Rogers v. Langford, 1 C. & M. 637. 
 
 M 2 
 
164 ASSUMPSIT. 
 
 a pre-existing debt, they operate as a discharge of that debt, unless 
 the party who holds the instruments does all that the law requires 
 to be done in order to obtain payment of them" (m). "It is per- 
 fectly clear, that a bill of exchange will operate as a satisfaction of 
 a precedent debt, if the holder makes it his own by laches, as by 
 not presenting it for payment when due " (n). So where the vendor 
 of goods, having been paid for them by a bill drawn by the vendee 
 on a third person, after the bill had been accepted, altered it in a 
 material part, viz. the time of payment ; it was held, that the ven- 
 dor thereby made the bill his own as against the vendee, and caused 
 it to operate as a satisfaction of the debt for which it was originally 
 given (o). An order on a banker to give credit on a future day is 
 not payment until the day arrives {p). 
 
 Where the holder of a bill of exchange, upon its being dis- 
 honoured, received part payment, and for the residue another bill 
 of exchange drawn and accepted by persons not parties to the 
 original bill, and afterwards sued the drawer and acceptor upon the 
 original bill : it was held, that it was sufficient for him to prove 
 presentment of the substituted bill to the acceptor for payment, 
 and that it was dishonoured, without proving that he gave notice 
 of the dishonour to the drawer of substituted bill (g). 
 
 " If a creditor refer a third person to his debtor for payment, 
 intending the third person to take payment in money, and the third 
 person, instead of taking payment in money, takes payment in any 
 other way, he does it at his peril " (r). Although a creditor has a 
 right to insist on payment to himself or his appointee, yet having 
 once given an order for the payment of his debt to a third person, 
 he has no right to revoke that order, provided there be a pledge by 
 the person to whom the authority is given that he will pay the debt 
 according to the authority (s). 
 
 Where to a declaration on a guarantee by the defendant for the 
 payment of goods to be supplied to S., with an averment that 
 plaintiff supplied S. with goods to the amount of 781., that S. did 
 not pay, nor did defendant, after notice, it was pleaded, that S. 
 did pay the sum in the declaration mentioned, in full satisfaction 
 and discharge, &c., and that plaintiff received the same: and plaintiff 
 replied, that S. did not pay, nor did plaintiff receive the said sum 
 in the declaration mentioned, in full satisfaction and discharge ; it 
 
 (m) Per Bayley, J., in Oamidge v. (p) Pedder v. Watt, B. E. H. 36 
 
 AOenby, 6 B. & C. 382. See PlimUy v. Geo. Ill,, L. P. B; 98, Dampier, MSS., 
 
 WestUy, 2 B. K. C. 249. L. I. L. 
 
 (n) Per Lord Tenterden, C. J., 3 B. & (q) Bishop v. Howe, 3 M. & S. 362. 
 
 ■A-d- 6^3- <r) Per Bayley, J., in Smith v. Fer- 
 
 (o) Alderson v. Langdale, 3 B. & Ad. rand, 7 B. & C. 24. SeeBaillie v. Moore, 
 
 560. . Seeus, if the vendor draws, and the 8 Q. B. 489. 
 
 vendee acoepta, a bUl of .exchange in pay- (s) Hodgson v. Anderson, 3 B. & C. 
 
 ment for go.oda, which bill IS subsequently 842; and see Crowfoot Y. Ourney, 9 
 
 altered by the drawer in a material part. Bingh. 872 ; ffamilton v. SpoUiswoode, 
 
 ^t/cinson v. HawAon, 2 A. cSc E. 628. 4 Exch. 200. 
 
ASSUMPSIT. 165 
 
 •was held, that the pleadings did not confine the plaintiff in his 
 proof to the 78Z. ; but that after proof by defendant, that S. had 
 paid 781., plaintiff might, "without having new assigned, give 
 evidence of a balance unpaid beyond the *78l. (t). 
 
 When the defendant pleads that he paid, and the plaintiff ac- 
 cepted monies in full satisfaction, a replication alleging that the 
 plaintiff did not accept the monies in full satisfaction, (or, a joinder 
 of issue under s. 79 of the Comm. Law Proc. Act, 1852,) puts the 
 payment as well as the acceptance in issue (u). 
 
 6. Payment into Court. 
 
 6. Payment into Court.~Bj ?5 & 16 Vict. c. 76, s. 70, " It shaU 
 be lawful for the defendant in all personal actions, (except actions 
 for assault and battery (x), false imprisonment, libel, slander, mali- 
 cious arrest or prosecution, criminal conversation {y), or debauching 
 of the plaintiff's daughter or servant,) and, by leave of the court 
 or judge, upon such terms as they or he may think fit, for one or 
 more of several defendants, to pay into court a sum of money by 
 way of compensation or amends." 
 
 The above section applies only " whei-e the money is paid in 
 satisfaction of the cause of action "(0). It cannot therefore be 
 pleaded to an .action on a bond, alleging breaches, under the 8 & 9 
 Will. III. c. 11 (a). The whole penalty, however, may be paid 
 into court (6). If the defendant usurps the privilege of paying 
 money into court, when not entitled to do so, the plaintiff's remedy 
 is by an application to the court or a judge (c). 
 
 By s. 71, " When money is paid into court, such payment shall 
 be pleaded in all cases, and, as near as may be, in the following 
 
 form, mutatis Tnutandis : — ' The defendant, by his attorney, 
 
 [or, in person, &c.] [if pleaded to part, say, ' as to £ , parcel of 
 
 the money claimed'], brings into court the sum of £— — , and 
 says, that the said sum is enough to satisfy the claim of the plaintiff 
 in respect of the matter herein pleaded to.' " The above form is 
 to be adopted in all cases (c), and the words " as near as may be," 
 " mutatis mutandis," " only authorize such alteration as may be 
 necessary in order to adapt the plea to the names of the parties, 
 to the form of action, to the sum paid, and the like " (d). 
 
 (t) Moses V. Levy, 4 Q. B. 213. (z) Per Parke, B., Bishop of London 
 
 (u) Ridley V. Tindall, 7 A. & E. 134. v. M'Neil, 23 L. J., Exch. Ill ; 9 Exch. 
 
 (x) This does not include actions by a 490, S. C. 
 
 father for the battery of his son, per quod (ft) 8. C. 
 
 serv. amisit, in which case money maybe (b) Brangwin v. Perrot, 2 W. Bl. 1190. 
 
 paid into court. Newton v. Holford, 6 (c) Thompson r. Sheppard, 4 E. & B. 
 
 Q. B. 921. 53. 
 
 (y) Abolished by 20 & 21 Vict. c. 85, (d) Per Cur., Aston v-. Perlces, 15 M. 
 
 s. 59, See s. 33. & W. 390, 
 
166 ASSUMPSIT. 
 
 When money is paid into court, undei- the general indebitatus 
 counts, such payment operates only as an admission that the 
 plaintiff is entitled to recover, in respect of some contract, to the 
 extent of the money so paid in (e) : but where the plaintiff declares 
 on a special contract, a payment into court admits the contract as 
 declared on, i. e. the material parts of it (/). Hence, where in an 
 action against two, money is paid into court by both defendants. 
 Tinder the above section, the plaintiff, in order to recover damages 
 beyond the sum paid in, must show, not only that his demand, in 
 respect of which the money is paid into court, exceeds the amount 
 paid in, but that the defendants are joint contractors {g). Debt for 
 rent on a demise for years, with an indebitatus count for fixtures 
 sold ; the plaintiff claimed by his particulars ol. 5s. for rent, and 
 121. for fixtures. The defendant paid 111. 5s. into court, on the 
 whole declaration, and pleaded nunqua/m indeb. ultra. It was 
 held to be no admission of the defendant's liability in respect of 
 fixtures, to a greater amount than had been paid into court (h). 
 
 By s. 73, " The plaintiff, after delivery of a plea of payment of 
 money into court, shall be at liberty to reply to the same by ac- 
 cepting the sum so paid into court in full satisfaction and discharge 
 of the cause of action in respect of which it has been paid in ; 
 and he shall be at liberty, in that case, to tax his costs of suit, and 
 in case of non-payment thereof within forty-eight hours, to sign 
 judgment for his costs of suit so taxed ; or the plaintiff may reply, 
 that the sum paid into court is not enough to satisfy the claim of 
 the plaintiff in respect of the matter to which the plea is pleaded ; 
 and, in the event of an issue thereon being found for the defendant, 
 the defendant shall be entitled to judgment and his costs of suit." 
 
 Under the above section, where money paid into court is taken 
 out in satisfaction of part only of the plaintiff's demand, there 
 being other issues upon which the parties are proceeding to trial, 
 the plaintiff is not entitled to tax his costs {i). Where money was 
 taken out of court by mistake, and the plaintiff's costs taxed and 
 paid, an application subsequently made by the plaintiff for leave 
 to set aside the replication and all subsequent proceedings, to 
 amend his declaration and particulars, on payment of costs and 
 refimding the money already received, with liberty to the defendant 
 to plead de novo, was granted and confirmed by the court (k), 
 
 7. Release. 
 
 7. Release. — Defendant may plead a release after promise, and 
 before action brought {I). The usual replication to a plea of release 
 
 (e) Steavenson v. Corporation of Ber- (h) Ooffy. Harris, 5 M. & G. 573. 
 
 wick, 1 Q. B. 154. (i) Cauty v. Qyll, 4 M. & G. 907 ; 12 
 
 (/) Cooper V. Blide, 2 Q. B. 915 ; and Pr. R. Hil. T. 1853. 
 
 nee Attwood v. Taylor, 1 M. & G. 279. -(h) Emery v. Webster, 9 Exch. 242. 
 
 (g) Archer v. English, 1 M & G. 873. (I) See the form, Sched. B. to 15 & 16 
 
ASSUMPSIT. 167 
 
 is non est factum. A release, upon performance of the promise 
 in part quoad hoc, will not discharge the promise for the residue (m). 
 If after the last continuance the plaintiff give the defendant a 
 release, he may plead it in bar (n). A plea that before breach the 
 plaintiff exoneravit the defendant of the said promise, was held 
 good on demurrer, on the ground that a promise by words might 
 be discharged by words before breach, " eodem mode quo oritur, 
 eodem modo absolvitur." Langden v. Stokes, Cro. Car. 383 ; and 
 this decision was recognized in King v. Gillett, 7 M. & W. 55 ; in 
 which case, to a declaration for a breach of promise of marriage, 
 the defendant pleaded that after the promise, and before any breach 
 thereof, the plaintiff exonerated and discharged him from his 
 promise, and on demurrer, the plea was held good (o). 
 
 The 15 & 16 Vict. c. 76, s. 69, enacts, that in cases hx which a plea 
 puis darrein continuance has heretofore been pleadable in Banc, 
 or at Nisi Prius, the same defence may be pleaded with an allega- 
 tion, that the matter arose after the last pleading, and such plea 
 may, when necessary, be pleaded at Nisi Prius between the 10th 
 of August and 24th of October ; but no such plea shall be allowed 
 unless accompanied by an affidavit that the matter thereof arose 
 within eight days next before the pleading of such plea, or unless 
 the court or a judge shall otherwise order." 
 
 A plea puis darrein continuance must in all cases be accepted 
 by a judge at Nisi Prius, even after the jury are sworn, provided 
 it be tendered in due form and accompanied with the usual affi- 
 davit that the subject-matter of it arose within eight days of the 
 time of its being pleaded ; but it would seem that such affidavit is 
 unnecessary where the subject-matter of the plea arose at the trial 
 in the presence of the judge {p). A defendant who, after issue 
 joined, obtained his discharge under the Insolvent Debtors Act, was 
 allowed to plead such discharge puis darrein continuance without 
 an affidavit, it being shown that the omission to plead within the 
 prescribed time had not arisen from any culpable neglect on his 
 part, and had occasioned no disadvantage to the plaintiff {q). Such 
 a plea operates as a waiver of all pleas then remaining to be tried, 
 but if there be an issue remaining to be tried, such a plea may be 
 pleaded, although there be other issues on which the plaintiff has 
 already obtained judgment (r). 
 
 Vict. c. 76, " That after tlie alleged (o) And see Dodson v. Mspie, 2 H. & 
 
 claim accrued and before this snit the N. 79. 
 
 plaintiff by deed released the defendant (p) Todd v. Eml^/, 9 M. & W. 606. 
 
 therefrom." (?) Dunn v. Loftus, 8 G. B. 76. 
 
 (m) 2 Eoll. Abr. 413 (H.) 1. 2, (/) Wagmr v. Imbrie, S Exch. 380. 
 
 (n) Bull. N. P. 309. 
 
168 ASSUMPSIT. 
 
 8. Statute of Limitations. 
 
 8. Statute of Lvmitations.—Bj 21 Jac. I. c. 16, s. 3,— All actions 
 upon the case (of which the action on simple contract is one), 
 (other than slander), shall be commenced and sued within six years 
 next after the cause of such action or suit, aiid not after. _ Advan- 
 tage must be taken of this statute by pleading it, although it should 
 appear on the face of the declaration that the cause of action did 
 not arise within six years before the commencement of the action ; 
 and the defendant will not be permitted to give it in evidence on 
 the general issue (s). The form given by schedule B. to 15 & 16 
 Vict. c. 76, is, " Tliat the alleged cause of action did not accrue 
 within six years hefffre this suit " (t). 
 
 It is a general rule, that the time limited by the statute does not 
 begin to run until there be a complete cause of action which in 
 actions on simple contract takes place on the breach thereof Where 
 A., under a contract to deliver spring wheat, had delivered to B. 
 winter wheat, and B. having resold the same as spring wheat, had 
 in consequence been compelled, after a suit in Scotland, which 
 lasted many years, to pay damages to his vendee, and afterwards 
 B. brought an action against A. for his breach of contract,, alleging 
 as special damage, the damages so recovered ; it was held, that 
 although such special damage had occurred within six years before 
 the commencement of the action by B. against A., yet that the 
 breach of contract, which was the gist of the action, having occurred 
 and become known to B. more than six years before that period, 
 A. might properly plead the statute (w). And whether the breach 
 were known or not makes no difference (x) ; except perhaps if it be 
 fraudulently concealed by the defendant from the plaintiff (y), in 
 which case it should, at all events, be specially replied (z). 
 
 In a contract to indemnify against costs, the statute begins to 
 run from the time when they were paid (a) ; and so in the case of 
 an implied contract by the drawer of an accommodation bill to 
 indemnify the acceptor, the statute runs from the damnification of 
 the acceptor by the payment of the bill (h), and this is so even 
 although the bill be not paid until long after it is due, and upon the 
 acceptor being sued (c). If goods are consigned to a factor for 
 
 (s) Pudcle V. Moore, 1 Vent. 191 ; Zee (y) Per AbhoU, C.3., Granger v. George, 
 
 V. Sogm-s,! Ley. 110. 5 B. & C. 152 ; per Patteson and CoU- 
 
 (t) bee Gould v. Johnson, Ld. Eaym. ridge, JJ., Philpot v. Kelly, 3 A. & E. 
 
 ®^*\ „ .., ^ „ ^ ll"' 11''; ^iit see £rownr. Howard, % 
 
 {u) Batlley v. Faulkner, 3 B. & Aid. B. & B 73 
 
 288 ; Violett-^. Sympson, 27 L. J., Q. B. '(2;) Clark v. ffougham, 2 B. & C. 149. 
 
 138, Bcc. IhatB. might have recovered (a) Collinge v. Beywood, 9 A. & E. 
 
 the damages to which he was liable, 641. 
 
 though they might never be claimed, (b) Reynolds v. Doyle, 1 M. & G. 753. 
 
 see Bandall v. Roper, 27 L. J., Q. B. See Colvin v. BuclcU, 8 M. & W. 680. 
 
 ^^^\ m , i>j^A ,1 o T5 .L -,, ^('^) Angrove\.Tippett,\\L.T.C!S.^.) 
 (x) Short V. M'Arthy, 3 B. & Aid. 708, Q B \ ' 
 
 626 ; Howell v. Young, 5 B. & C. 259 
 
ASSUMPSIT. 1*6? 
 
 sale on coramission, no action lies against him for not accounting 
 till after demand ; the statute, therefore, in such a case runs from 
 the time of demand made (d). But in the case of a note payable 
 on demand, the statute runs from the date of the note (e) ; aeciis, 
 however, if it be payable after a certain specified time, — e. g., 24? 
 months — after demand (/), or, " after sight " (g). In the case of a 
 note payable " at sight," no action lies till presentment (h). On a 
 sale of goods on credit, the statute runs from the time when the 
 credit expires (i). In cases of principal and surety, the statute 
 runs from the payment by the surety of the debt, or any part of it 
 toties quoties (h). 
 
 In an action for money had and received, to recover the con- 
 sideration of an annuity, void oft the ground of a defect in the 
 memorial, but which had been treated by the grantor as a subsisting 
 annuity for several years, and then set aside; it was held, that the 
 Statute of Limitations did not begin to run until the grantor had 
 made his election to avail himself of the defect in the memorial (I) ; 
 and this although six years have in fact elapsed since the last pay- 
 ment of the annuity (m). Where a sum of money is payable by 
 instalments, and there is an agreement between the debtor and 
 creditor, that on nonpayment of any one of such instalments 
 the whole shall become due, the statute runs from the first 
 default (n). 
 
 The statute does not begin to run till there be a person in exist- 
 ence capable of suing thereon (o) ; but when Once it has begun to 
 run nothing afterwards stops its course (p). Thus a direction for 
 the payment of debts in a will of personal estate will not stop the 
 running of the Statute of Limitations, for such a direction is merely 
 inoperative so far as the personal estate is concerned. If time has 
 once begun to run against a debt in the debtor's lifetime, it does 
 not afterwards cease to run during the period which may elapse 
 between his death and the time at which a personal representative 
 to him is constituted {q). 
 
 The statute bars the remedy only, not the debt (r). It may be 
 pleaded to an action brought on a bill of exchange, because it is 
 not a specialty (s) : and to an action brought by an attorney for his 
 
 ^d) Topham v. BraddicJc, 1 Taunt. 572. (T) Cowper v. Oodmond, 9 Bingh. 748. 
 
 («> Norton v. Ellam, 2 M. & W. 461. (m) ffuggins v. Coaf£s, 5 Q. B. 432. 
 
 (/) Thorpe v. Booth, 1 R. & M. 388. (») Semp v. Garland, 4 Q. B. 519. 
 
 (g) Hohiws V. Kerrison, 2 Taunt. 322. (o) Mv/rray v. East India Oompcmy, 5 
 
 \h) Dixon v. Nuttall, 1 C, M. & R. B. & Aid. 204 ;• Douglas v. Forrest, 4 
 
 807. Bingh. 686. 
 
 (i) Selps V. Winterlottom, 2 B. & Ad. (p) Rhodes v. Smethurst, 6 M. & "W". 
 
 43]. 351. 
 
 (k) Da/oies v. Humphreys, 6 M. & "W. (q) FreaJee v. Oranefeldl, 3 My. & Cr. 
 
 153. As to accounts with hankers, see 499, Oottenham, C. 
 
 Pott v. CUgg, 16 M. & "W. 324 ; Foley v. (r) Eiggins v. Scott, 2 B. & Aid. 413. 
 
 Sill, 2 H. L. C. 28, (s) Renew v. Axtou, Garth. 3. 
 
irb ASSUMPSIT. 
 
 fees, because the fees are not of record (Q. It is a good defence to 
 an action by a landlord for rent, against one who had once been 
 his tenant from year to year, but who had not, within the last six 
 years, occupied the premises, paid' rent, or done any act from which 
 a tenancy could be inferred, although the tenancy had not been 
 determined by a notice to quit (u). 
 
 The plaintiff may reply, that defendant did promise within six 
 years, or join issue under s. 79 of the Common Law Procedure 
 Act, 1852, and this issue will be supported _ by evidence of an 
 express promise made by the defendant within six years before 
 action brought (x) ; for it has been held, that the statute does not 
 extinguish the plaintiff's right of action, but suspends the remedy 
 only, and that this suspension is capable of being removed by a 
 subsequent promise on the part of the defendant within the limited 
 time. And not only an express promise, but a mere acknowledg- 
 ment of the debt, as existing, will be sufficient to support this 
 issue ; but it must be an acknowledgment whence a promise to 
 pay may be inferred. See post, pp. 172, 173, 
 
 By 9 Geo. IV. c. 14, s. 1, it is enacted, " that in actions of debt, 
 or upon the case, grounded upon any simple contract, no acknow- 
 ledgment or promise by words only shall be deemed sufficient 
 evidence of a new or continuing contract, whereby to take any 
 case out of the operation of (the Statute of Limitations), or to 
 deprive any party of the benefit thereof, unless such acknowledg- 
 ment or promise shall be made or contained by or in some 
 wnting (y), to be signed by the party chargeable thereby (or an 
 ■agent of the party duly authoi'ized to make such acknowledgment 
 or promise (z) ) ; and that where there shall be two or more joint 
 contractors, or executors or administrators of any contractor, no 
 such joint contractor, &c., shall lose the benefit of (the statute), so 
 as to be chargeable in respect or by reason only of any written 
 acknowledgment or promise made and signed by any other or 
 others of them : 
 
 "Provided always, that nothing herein contained shall alter or 
 take away or lessen the effect of any payment of any principal, or 
 interest made by any person whatsoever (a) : 
 
 . (t) Oliver v. Thomas, 3 Lev. 367. See may 'be shown by extriasie evidence ; 
 
 Phillips T. Broadley, 9 Q. B. 744 ; Smith v. Thompson, 8 C. B. 44 ; as ifi 
 
 Whiteheads. Lord, 7 Exch. 691. the case of words used in a mercantile 
 
 (u) Leigh v. Thornton, 1 B. & Aid. sense ; Hutchinson y. BowJcer, 5 M. & 
 
 ,\ T^• , m W. 635; they are for the consideration 
 
 (a ^ickson v. Thomson, 2 Show. 126. of the jnry. And see per Parke, B., in 
 
 iy) The construction of a doahtful Neilsony. Harford, S,M &"W 823. 
 
 document given m evidence to defeat (a) 19 k 20 Vict, c 97 s 13 
 
 the Statute of Limitations, is for the (a) This provision is still in force with 
 
 court, and not for the jury. If the docu- respect to the party paying, to revive his 
 
 ment itself be explained by extrinsic individual liabiUty, but part payment 
 
 facts ; MorrellY. FrUh, 3 M. & W. 402 ; will no longer revive, the liability of a m- 
 
 or the terms of it are ambiguous, which contractor or co-debtor, post, p. 175. 
 
ASSUMPSIT. 171 
 
 " Provided also, that in actions to be commenced against two 
 or more such joint contractors, &c., if it shall appear at the trial or 
 otherwise, that the plaintiff, though barred by (the Statute of 
 Limitations) or this act, as to one or more of such joint con- 
 tractors, &c., shall nevertheless be entitled to recover against any 
 other or others of the defendants, by virtue of a new acknowledg- 
 ment or promise, or otherwise, judgment may be given and costs 
 allowed for the plaintiff as to such defendant or defendants against 
 whom he shall recover, and for the other defendant or defendants 
 against the plaintiff." ■ 
 
 By sect. 2, it is enacted, 
 
 " That if any defendant or defendants in any action on any 
 simple contract shall plead any Atter in abatement, to the effect 
 that any other person or persons ought to be jointly sued, and issue 
 be joined on such plea, and it shall appear at the trial that the 
 action could not, by reason of the said (Statute of Limitations) or 
 this act or of either of them, be maintained against the other person 
 or persons named in such plea, or any of them, the issue joined on 
 such plea shall be found against the party pleading the same." 
 
 By sect. 3, it is provided, 
 
 " That no endorsement or memorandum of any pajrment written 
 or made after the time appointed for this act to take effect (1st of 
 Jan., 1829), upon any promissory note, bill of exchange, or other 
 writing, by or on behalf of the party to whom such payment shall 
 be made (6), shall be deemed sufficient proof of such payment, so 
 as to take the case out of the operation of (the statute)." And by 
 sect. 4 it is further provided, — " That (the Statute of Limitations) 
 and this act shall be deemed and taken to apply to the case of any 
 debt on simple contract alleged by way of set-off on the part of 
 any defendant, either by plea or otherwise." 
 
 " This statue did not intend to make any alteration in the legal 
 construction to be put upon acknowledgments or promises made 
 by defendants, but merely to require a different mode of proof, 
 substituting the certain evidence of a writing signed by the party 
 chargeable (or his agent), instead of the insecure and precarious 
 testimony to be derived from the memory of witnesses. To inquire, 
 therefore, whether in a given case the written documents amount 
 to an acknowledgment or promise, is no other inquiry than whether 
 the same words, if proved before the statute to have been spoken 
 by the defendant, would have had a similar operation and 
 effect " (c). 
 
 Where, in an action for money due on an accountable receipt, 
 the plaintiff, in order to take the case out of the Statute of Limita- 
 
 (b) That if made by i/je ■party paying it (c) Per Tindal, C. J., Haydon v. Wil- 
 
 would be sufficient ; see Purdon v. Pur- Hams, 7 Bingh. 163, 
 don, 10 M. & W. 562. 
 
172 ASSUMPSIT. 
 
 tions, called a witness, who proved that he called on defendant, 
 and showed him the receipt, and. asked him if he knew anything 
 of it, to which defendant answered that he knew all about it ; 
 witness then asked him for the amount, to which he answered, it 
 was not worth a penny; he should never pay it ; that it was his 
 signature, hut that he never had and never would pay it, " and 
 besides," he added, " it is out of date, and no law shall make me 
 pay it ;" it was held, that this evidence was insufficient to charge 
 the defendant with it, for there was not any acknowledgment, but 
 the contrary, that the debt ever existed (d). Where the acknow- 
 ledgment proved was, " I cannot pay the debt at present, but I'll 
 pay it as soon as I can," it was held, that such an acknowledg- 
 ment, without proof of any ability, would not take the case out of 
 the statute (e). So where the fair import of a letter was that the 
 defendant was not certain whether the debt was due, but would 
 have it inquired into, though expressing a regret that it had been 
 so long unpaid (/). 
 
 But where the defendant wrote as follows : — " I have received 
 your bill. It does not specify sufficiently to which cottages the 
 work is done ; for instance, as to some of the items, I do not know 
 where all this is done. I shall feel obliged if you will more parti- 
 cularly explain. It is my wish to settle your account immediately, 
 but being at a distance I wish everything very explicit and coiTect. 
 I have asked H. to mark the agreements, and send them to me, 
 and I wiU return them by the first post, with instructions to pay, 
 if correct," — this was held sufficient (g). " The question in these 
 cases is, whether the statements as to the time of payment are 
 merely excuses for not paying, or whether they are conditions on 
 which payment is to be made " (h). ' 
 
 "All the cases proceed upon the principle, that, under the 
 ordinary issue on the Statute of Limitations an acknowledgnaent is 
 only evidence of a promise to pay ; and unless it is conformable 
 to and maintains the promises in the declaration, though it may 
 show to demonstration that the debt has never been paid, and 
 is still subsisting, it has no effect. The question then comes to 
 this : is there any promise in this case (see supra) which will 
 support the promises in the declaration ? The promises in the 
 declaration are absolute and unconditional, to pay when thereunto 
 afterwards requested ; the promise proved here was ' I'll pay as 
 soon as I can ' (i) ; and there was no evidence of ability to pay, so 
 as to raise that which in its terms was a qualified promise, into one 
 that was absolute and unqualified. Upon a general acknowledg- 
 
 (d) Bowcroft V. Lomas, 4 M. & S. 457. (h) Per Pollock, C. B., CoUis v. Stack, 
 
 (e) Tanner v. Smart, infra. 1 H. & N". 607. 
 
 (/) CoUimon v. Margesson, 27 L. J., (i) Ace.' Hackham r. Marriott, 2 H. & 
 
 Exch. 30.'). N. 196. 
 
 ig) Sidwell v. Mason, 2 H. & N. 306. 
 
ASSUMPSIT. 173 
 
 ment, where nothing is said to prevent it, a general promise to pay- 
 may and ought to be implied ; but where the party guards his 
 acknowledgment, and accompanies it with an express declaration, 
 to prevent any such implication, why shall not the rule expressuTn 
 cessare facit taciturn apply (k) ? " Since this case, many of the 
 older cases on this subject cannot be sustained (j) ; Linsell v. 
 Bonsor, where it was held, that it was properly left to the jury to 
 consider whether the acknowledgment was one from which a pro- 
 mise to pay could be implied (m). When such ability to pay as is 
 mentioned in Tanner v. Smart is proved, the promise becomes 
 sufficient, and the statute runs from the time of such ability (n). 
 
 Defendant, by a deed, reciting that he was indebted to plaintiff 
 and others, assigned his propei-ty*to plaintiff and others in trust to 
 pay all such creditors as should sign the schedule of debts annexed, 
 with a proviso, that if all the creditors whose debts amounted to a 
 certain sum did not sign by a fixed day, the deed should be void ; 
 the plaintiff never executed the deed, nor was the amount of his 
 debt anywhere stated ; this was held not to be a sufiicient acknow- 
 ledgment (o) ; but it has since been held, that the acknowledgment 
 need aot specify the amount of the debt, which may be shown by 
 extrinsic evidence (p). Hence a general promise in writing, not 
 specifying the amount, but which can be made certain as to the 
 amount by extrinsic evidence, is sufficient (g) ; but a promissory 
 note improperly stamped is not (r). There must be an absolute 
 acknowledgment that some debt is due (s) ; and this acknowledg- 
 ment must be before action brought {t). 
 
 Where two parties meet and go through an account in which 
 there are items on both sides and strike a balance, this is evidence 
 of an agreement that the items of one account should be set off 
 against the earlier items of the other (converting the set-offs into 
 payments), whence arises a new consideration for the payment of 
 the balance, and the case is taken out of the operation of the 
 Statute of Limitations (w). So to constitute a payment of interest 
 sufficient to take a debt out of the operation of the statute, it is 
 not essential that money should actually pass (x). 
 
 Where the fair import of the writing is not to render the party 
 signing chargeable, but only refers to others by whom the debt is 
 
 (k) Tanner v. Smart, 6 B. & C. 603. 626 ; Waller v. Lacy, 1 M. & G. 54. 
 See Irving v. VeitcTi, 3 M. & "W. 90. (?) Bird v. Gammon, 3 B. K C. 883 ; 
 
 (I) Per Tindal, C. J., 2 B. N. C. 244, Gardner v. M'Mahon, 3 Q. B. 561. 
 245. (r) Jones v. Ryder, 4 M. & "W". S2. 
 
 (m) The case of Tanner v. Smart has (s) Spong v. Wright, 9 M. & "W. 629. 
 
 been frequently confirmed. See Smithy. {t) Bateman v. Finder, 3 Q. B. 574. 
 
 Thome, 18 Q. B. 134. (a) Ashby v. James, 11 M. & W. 542. 
 
 {n) IIarn,mond v. Smith, 33 Beav. 452. See Worthington v. Grimsditch, 7 Q. B. 
 
 (o) Kennett v. Milbank, 8 Bingh. 38. 481. 
 
 Ip) Lechmere t. Fletcher, 1 C. & M. (x) Mabe v. Mabe, 2 L. R. 153, Ex. 
 
174 ASSUMPSIT. 
 
 to be paid, it is not sufficient to bring the case within this 
 act {y). 
 
 Since this statute it has been held, that where the written pro- 
 mise has been lost, oral evidence may be given of its contents (2). 
 So a verbal acknowledgment of part payment of a debt is suffi- 
 cient to take the case out of the statute (a). So evidence of oral 
 declarations may be received to corroborate other proofs of that 
 fact, as the appropriation of the sum paid to a particular debt (6). 
 
 It would seem that it is sufficient if the acknowledgment is 
 made to a third person (c). 
 
 Part payment. — Delivery of goods by agreement between debtor 
 and creditor in reduction of demand, operates as payment within 
 this statute (c?). The mere fact of part payment does not neces- 
 sarily take the case out of the statute ; it is only evidence to go to 
 the jury of a promise to pay the residue (e) ; and if made under 
 such circumstances as to negative any inference to that effect is 
 not sufficient. Thus, the payment of a dividend on a promissory 
 note by order of the Insolvent Court has been held not sufficient (/). 
 So to a declaration alleging that the defendant delivered his pro- 
 missory note payable on demand with interest to the plaintiff, but 
 neglected to pay, except interest, which he paid up to a day within 
 six years, a plea that the cause of action did not accrue within six 
 years was held sufficient, for the 'allegation that interest had been 
 paid is only evidence to take the case out of the statute, but is not 
 conclusive (gr). The circumstance that the defendant is a surety 
 only makes no difference (A) ; or that the payment is made for 
 interest only (i). It is immaterial that the payment be made 
 more than six years after the original debt becomes due, provided 
 it be made within six years before action brought (k) ; or that the 
 party paying is about to be a bankrupt, and the jury find that he 
 made the payment in fraud of his partners, in expectation of im- 
 mediate bankruptcy, and in concert with the plaintiffs (I). Gene- 
 rally speaking, where there are two separate debts, if a payment is 
 shown, it is a question for the jury whether it was not applicable 
 to all the debts (m). But a payment clearly appropriated to a 
 
 I 
 
 (y) Whippy v. Hillary, 3 B. & Ad. (e) Wainman v. Kynman, 1 Exch. 
 
 399 ; EoutUdge v. Ramsay, 8 A. & E. 118. See Ridd v. Moggridqe, 2 H. & If . 
 
 224. 567. 
 
 (s) Eaydon v. WUliams, 7 Bingh. 163. (/) Davus v. Edwards, 7 Exch. 22. 
 
 (a) Cleave v. Jones (m error), 6 Exch. See Brandram v. Wharton, 1 B. & Aid. 
 
 £73. See Trentham v. Deverill, 3 B. N. 463. 
 
 ^Vm^'c /i.T.- or. D ». {g)Hollisv. Palmer, 2 B.y(. ens. 
 
 (6) Bevanr. Oethm, 3 Q. B. 740. (h) Perlmm v. Raynal, 2 Biugh. 306. 
 
 (c) Halliday v._ Ward, 3 Campb. 32 ; (i) Bealey v. Oreenslade, 2 C. & J. 61. 
 perPaiteson, J., m Gale v. Capern, 1 A. (h) Channell v. IHtchbunt, 5 M. & W. 
 & E. 104 ; but see Cripps v. Bavies, 12 494. 
 
 ^- * "^^ 15^- „, ^ , . , ^ . (^') Goddard V. Ingram, 3 Q. B. 839. 
 
 (d) Hooper v. Stephens, 4 A. & E. )}\. (m) WaXker v. Butler, 6 E. & B. 506. 
 
ASSUMPSIT. 175 
 
 specific debt, where more than one exists, has no operation on the 
 other {n) ; and where a payment is made, but it is left in doubt as 
 to which of one or more specific debts it is applicable, it seems it 
 will not take either out of the statute (o). 
 
 Many of the above cases, in addition to the question whether 
 the part payment was sufficient as against the party paying, 
 decided also, that the payment by one contractor revived the 
 liability of his co-contractor, and this was well established law (p), 
 except, perhaps, in the case of the co-executors of a single con- 
 tractor (g) ; but now by 19 & 20 Vict. c. 97 (The Mercantile Law 
 Amendment Act), it is provided, that, " in reference to the provi- 
 sions of the 21 Jac. I. c. 16, s. 3, and of the 3 & 4 Will. IV. c. 42, 
 s. 3, and of the 16 & 17 Vict. c. il3, s. 20, when there shall be 
 two or more co-contractors or co-debtors, whether bound or liable 
 jointly only or jointly and severally, or executors or administrators 
 of any contractor, no such contractor or co-debtor, executor or ad- 
 ministrator, shall lose the benefit of the said enactments or any of 
 them, so as to be chargeable in respect or by reason only of pay- 
 ment of any principal, interest or other money by any other or 
 others of such co-contractors or co-debtors, executors or adminis- 
 trators." (Sect. 14.) This section is not retrospective (r). 
 
 Since the passing of 9 Geo. IV. c. 14, the existence of items in 
 an open account within six years will not operate to take the pre- 
 vious portion of the account out of the Statute of Limitations (s). 
 In Cotes V. Harris, Bull. N. P. 149, Denison, J., held, that where 
 all the items are on one side, as in an account between a tradesman 
 and his customer, the last item which happens to be within six 
 years shall not draw after it those that are of a longer standing. 
 
 The exception as to merchants' accounts (see Inglis v. Haigh, 8 
 M. & W. 781) originally contained in the 21 Jac. I. c. 16, s. 3, and 
 continued by the above statute, has been repealed by the Mercan- 
 tile Law Amendment Act, 19 & 20 Vict. c. 97, s. 9. 
 
 A party suing, and seeking to avail himself of the law of a par- 
 ticular country, must take the law as he finds it (i^). Hence, where 
 in an action of debt it was averred, that the plaintiffs carried on 
 business in Scotland, and that one A. B. and the defendant were 
 resident and domiciled therein ; and that by a certain obligation 
 
 (to) Burn v. BouUon, 2 C. B. 476. the 'proceckLre, to which the law of pre- 
 
 (o) Ibid. scription belongs, not as regards the 
 
 (p) See Whitcorrib v. Whiting, Dougl. rights and merits of the oontraet, which 
 
 652 • Wyatt v. Hodson, 8 Bingh. 309. are determined by the law of the country 
 
 (a) Scholey v. Walton, 12 M. & W. where the contract is made. Per Tindal, 
 
 510. C. J., Huber v. Steimr, 2 B. N. C. 210. 
 
 (r) Jackson v. Woolley, 6 W. E. 686, The same rule applies to contracts made 
 
 Exch. Ch, abroad, .invalid here by the Statute of 
 
 Is) Cottam V. Partridge, 4 M. & G. Frauds. Leroux v. Brown, 12 C. B. 
 
 271. 801. 
 
 (<) As regards the remedy only, i. e.. 
 
176 ASSUMPSIT. 
 
 the said A. B. and the defendant became bound, jointly and 
 severally, to pay to the plaintiffs a sum of money ; and that, by 
 the law of Scotland, the time for suing thereon had not yet 
 elapsed ; that is, by the said law the plaintiffs had the right of 
 suing thereon at any time within forty years from the making 
 thereof, a plea, that the cause of action did not accrue within 
 six years, was held, on demurrer, to be a sufficient answer to the 
 action (w). 
 
 The issue on a plea of the Statute of Limitations is, when the 
 cause of action accrued ; and, therefore, where in an action by an 
 executor th« defendant pleaded the statute, and the plaintiff replied 
 that within six years before suit letters testamentary were granted 
 to him, the replication was held bad ; the court observing, that the 
 time of limitation must be computed from the time when the action 
 first accrued to the testator, and not from the time of proving the 
 ■wiU ; that the proving the wUl did not give any new cause of action, 
 and consequently the time when it was done was immaterial (a;). 
 So where, to an action brought by the assignee of a bankrupt, the 
 defendant pleaded the Statute of Limitations ; the plaintiff replied 
 the bankruptcy and assignment, and that the cause of action arose 
 within six years next before the assignment ; the replication was 
 held bad ; the court observing, that the statute would be defeated 
 as to all simple contracts if an assignment, at the end of five years 
 and a half, was to set all at large again (3/). See ante, p. 168. 
 
 By 21 Jac. I. c. 16, s. 4, it is enacted, " That if judgment be 
 given for the plaintiff and reversed by error, or the judgment be 
 aiTested, or if the defendant be outlawed, and the outlawry re- 
 versed; the plaintiff, his heirs, executors, or administrators, may 
 commence a new action or suit from time to time imthi/n a year 
 after such judgment given or outlawry reversed" {z). 
 
 Within the equity of the preceding section, the courts permitted 
 an executor or administrator, within a year or withiu a reasonable 
 time after the death of the testator or intestate, to renew a suit 
 commenced by the testator or intestate, and vice versd (a). But 
 now by the 15 & 16 Vict. c. 76, it is enacted (s, 13.5), that "the 
 death of a plaintiff or defendant shall not cause the action to 
 abate, butthat the surviving plaintiff (if the cause of action sur- 
 vives to him) may proceed, on entering a suggestion of the death 
 of his co-plaintiff on the record," (s. 136), or " in case of the death 
 of a sole plaintiff or sole surviving plaintiff, the legal representa- 
 tive of such plaintiff may, by leave of the court or a judge, enter 
 a suggestion of the death, and that he is such legal representative, 
 
 (h) The British Linen Company v. c. 42 s 6 
 
 Drummond, 10 B. & C 903 („) s'ee Kaner v. James, Willos, 1H5 ; 
 
 (x) mchmanv. Walker If iWes, 27. Willeox v. Huggins, Str. 907 : Fitzg. 
 
 (y) Gray -v. Mendez, 1 Str. 556. 170, S. C. ; Curleiais v. Lord Morning- 
 
 (z) A similar provision as to actions on ton,, 7 E. & B 283 
 specialties is enacted by 3 & 4 Will. IV. 
 
ASSUMPSIT. 177 
 
 and the action shall thereupon proceed ; and if such suggestion be 
 made before the trial, the truth of the suggestion shall be tried 
 thereat, together with the title of deceased plaintiff, and such judg- 
 ment shall follow upon the verdict in favour of or against the person 
 making such suggestion, as if such person were originally the 
 plaintiff" (s. 137). If the death of the plaintiff takes place after 
 interlocutory and before final judgment, the executor, if he might 
 originally have maintained the action, is entitled ■ to a writ of 
 revivor according to a form given in the schedule to the act (s. 140). 
 If the plaintiff die after verdict and before judgment, judgment 
 may be entered within two terms after such verdict (s. 139). The 
 138th section provides for the action proceeding, in case of the 
 death of the defendant, against Ms personal representative. 
 
 By the Common Law Procedure Act, 1854, it is provided, that — 
 
 " It shall be lawful for the defendant (or plaintiff in replevin), 
 in any cause, &c. in which if judgment were obtained he would be 
 entitled to relief against such judgment on equitable grounds, to 
 plead the facts which entitle him to such relief by way of defence, 
 and the said courts are hereby empowered to receive such defence 
 by way of plea, provided that such plea shall be given with the 
 words ' for defence on equitable grounds,' or words to the like 
 effect " (s. 83). 
 
 By s. 84, " Any such matter which if it arose before or during 
 the time for pleading would be an answer to the action by way of 
 plea, may, if it arise after the lapse of the period during which it 
 could be pleaded, be set up by way of audita querela." 
 
 By s. 85, " The plaintiff may reply in answer to any plea of the 
 defendant facts which would avoid such plea upon equitable 
 grounds, provided that such replication shall begin with the words 
 'for replication on equitable grounds,' or words to the like 
 effect" (6). 
 
 Under the last-mentioned section, facts which in equity would 
 prevent the Statute of Limitations from running, e. g., a trust 
 created by will for payment of debts (c), do not constitute a good 
 answer to a plea of the statute. Pollock, C. B., said, " The 85th 
 section of the Common Law Procedure Act, 1854, cannot alter the 
 effect of the Statute of Limitations in courts of law " (d). 
 
 Exceptions. — By the 7th section of 21 Jac. I. c. 16, " If any 
 person or persons that is or shall be entitled to any such action of 
 trespass, detinue, action sur trover, replevin, actions of account, 
 actions of debt, actions of trespass for, assault, menace, battery, 
 wounding, or imprisonment, actions upon the case for words, be or 
 
 (J) By s. 85, power is given to the do justice between the parties." 
 court or a judge to strike out such plea (c) See Burke v. Jones, 1 V. & B. 275. 
 
 or replication upon terms, if "it cannot (d) QuUiver v. ■Gulliver, 1 H. & N. 
 
 be dealt with by a court of law so as to 174. 
 
178 ASSUMPSIT. 
 
 shall be, at the time of any such cause of action given or accrued, 
 fallen or come, within the age of twenty-one years, feme, covert, 
 non compos mentis, imprisoned, or beyond the seas (e), then such 
 person or persons shall be at liberty to bring the same actions, so 
 as they take the same within such times as are before hmited after 
 their coming to or being of full age, discovert (/), of sane memory, 
 at large, or returned from beyond the seas, as other persons having 
 no such impediment should have done." By 3 & 4 Will. IV. c. 42, 
 s. 7, " No part of the United Kingdom of Great Britain and Ire- 
 land, nor the Islands of Man, Guernsey, Jersey, Aldemey,-and 
 Sark, nor any islands adjacent to any of them, being part of the 
 dominions of his Majesty, shall be deemed to be beyond the seas 
 within the meaning of this act or the act (of 21 Jac. I. c. 16 "). 
 
 By th« omission to mention the 4 & 5 Ann. c. 16 (s. 19), in the 
 above section, Ireland was, notwithstanding the act of Union, 
 held to be "beyond seas," within the meaning of the statute of 
 Anne (g), but now, by the Mercantile Law Amendment Act, 19 & 
 20 Vict. c. 97, s. 12, "No part of the United Kingdom of Great 
 Britain and Ireland, nor the Islands of Man, &c. (as in the above 
 section) shall be deemed to be beyond seas within the m£aning of 
 the 4 (& 5 AnTie, e. 16, or of this act." 
 
 An action of simple contract, although it is not expressly men- 
 tioned, is within the equity of the preceding clause of the statute 
 ' «f James (A,). The exceptions therein contained are confined to 
 the persons enumerated, and do not extend to persons impeded by 
 the obstruction of justice, or otherwise (i). So it is not any answer 
 to a plea of the statute, that after the cause of action accrued, and 
 the statute had begun to run, the debtor died, and that (by reason 
 of Utigation as to the right of probate) an executor of his will was 
 not appointed until after the expiration of the six years, and that the 
 plaintiff sued such executor within a reasonable time after probate 
 granted (/e). If the plaintiff be in England when the cause of 
 action accrues, the time of limitation begins to run, and a subse- 
 quent departure from the kingdom and going beyond the seas will 
 not entitle the plaintiff or his representative to maintain an action 
 after the expiration of the limited time (I). When the disability 
 is once removed, and the statute has begun to run, no subsequent 
 disability will stop the running (m). 
 
 (e) These words in such cases as India, 120 ; BocMsehilt y. Leiiman, 2 Str. 836, 
 
 where a debtor may be practically abroad, and Fitz. 81. 
 
 though not literally "beyond seas," e.^r., (i) Benyon v. Evelyn, Bridgman's 
 
 if he be in Persia, Cabul, &c., are con- Judgments from Hargraye's MSS., by 
 
 struedto mean "out of the territories of Bannister, p. 324 ; where see as to the 
 
 the East India Company." Huchmaboye inconveniences which would arise from 
 
 V. MoUidmnd,, 5 Moo. Ind. App. (P. C.) an equitable construction of the statute. 
 
 23i- .(h) Mhodnsv. Smethurst, (Exoh. Cham.) 
 
 (/) See Bidiwrds v. Richards, 2 B. & 6 M. & W. 351. 
 
 ■A-d- 447. (Z) Smith v. Hill, 1 Wils. 134 
 
 (g) Lane v. Bennett, 1 M. & W. 70. (m) See the opinion of Lord Kenyan, 
 
 (A) Chandler y. VU&tt, 2 Wms. Saund, C. J., in Doe v. Jones, 4 T. R. 311, where 
 
ASSUMPSIT. 179 
 
 The exception in the 7th section of the 21 Jac. I. c. 16, as to 
 persons being beyond the seas, extended only to the case oi plairh- 
 tiffs, and not to that of defendants (n). But by 4 Ann. c. 16, s. 19, 
 it is enacted, that " If any person or persons against whom there 
 is or shall be any cause of action upon the case (o), or any of them, 
 be or shall be, at the time of any such cause of suit or action given 
 or accrued, fallen or come beyond the" seas, then such person or 
 persons who is or shall be entitled to any such suit or action shall 
 be at liberty to bring the said actions against such person or persons 
 after their return from beyond the seas, so as they take the same 
 within such times as are respectively limited for the bringing of 
 the said actions, before by this act and by the said other act made 
 in the 21 Jac. I." • " 
 
 Under the above section, it is a sufficient reply to a plea of the 
 statute, that the defendant was in the East Indies at the time of 
 the cause of action accrued, and that the plaintiff commenced his 
 suit against the defendant within six years after his return to this 
 kingdom ; and it is no answer to this to say, that when the cause 
 of action accrued, both the plaintiff and defendant were resident 
 in India, within the jurisdiction of the same court, and that the 
 defendant, after the cause of action accrued, remained more than 
 six years in India, within the said jurisdiction (p). But a defendant 
 who was beyond seas at the time of the cause of action accruing, 
 and still is so, may be sued during his continuance abroad, as well 
 as after his return (g). A return to this country for a few days 
 only, and without any animus revertendi, as by a ship touching 
 at a port in this country, is, it seems, sufficient to set the statute 
 running (r). 
 
 The exceptions created by the preceding section of the statute 
 of James were five in number, viz., infancy, coverture, insanity, 
 imprisonment, and absence beyond seas. The effect of the two 
 latter exceptions, however, has been much limited by the Mercan- 
 tile Law Amendment Act, 19 & 20 Viet. c. 97, which, by s. 10, 
 enacts that — 
 
 " No .person or persons who shall be entitled to any action or 
 suit, with respect to which the period of limitation within which 
 the same shall be brought is fixed by the " 21 Jac. I. c. 16, s. 3 ; 
 4 Ann. c. 16, s. 17 ; 53 Geo. III. c. 127, s. 5 ; 3 & 4 Will. IV. c. 27, 
 ss. 40, 41, 42; 3 & 4 Will. IV. c. 42, s. 3 ; 16 & 17 Vict, c. 113, 
 s. 20 ; " shall be entitled to any time within which to commence 
 and sue such action or suit, beyond the period so fixed for the same 
 by the enactments aforesaid, by reason only of such person, or some 
 
 that learned judge speaks of the imiform (p) Williams t. Jones, 13 East, 439. 
 
 construction ot all the statutes of limita- {q) Forbes v. Smith, 11 Exch. 161. 
 
 tion in this lespect ; and see ante, p. 161. (r) Gregory v. Eurrill, 5 B. & C. 341. 
 
 (ji) Hall V. Wyioiirn, Carth. 136. See the facts fuJler stated, 1 Bing. 328, 
 
 (o) Several other actions besides as- 333, S. C 
 sumpsit are mentioned in this statute. 
 
 ^ N 2 
 
180 ASSUMPSIT. 
 
 one or more of such persons, being at the time of such cause of 
 action or suit accrued heyond the seas, or in the cases in which, by- 
 virtue of any of the aforesaid enactments, imprisonment is now a 
 disability by reason of such person, or some one or more of such 
 persons, beiTig imprisoned at the time of such cause of action or 
 suit accrued." 
 
 The above section woul'd, it seems, apply to foreigners as well 
 as to English subjects (s) ; but only to plaintiffs, and not to defend- 
 ants (t). It has introduced no change with regard to joint plain- 
 tiffs, where one or more of them only are beyond seas (or in prison) 
 at the time of the cause of action accruing, for before the above 
 statute it was held, that where there were several partners, some of 
 whom were in England and others beyond seas, when the cause 
 of action accrued, the action must nevertheless have been brought 
 within six years next after the cause of action accruing, notwith- 
 standing the absence of the others beyond seas (u) ; but now a sole 
 plaintiff, or joint plaintiffs (whether foreigners or not), all or any 
 of whom are beyond seas, or in prison, at the time of the cause of 
 action accruing, must sue within the six years. This section is 
 retrospective, and applies to persons in prison at the passing of the 
 act (29th January, 1856) (x). 
 
 By the 11th section of the last-mentioned act, it is enacted, 
 that " Where such cause of action or suit, with respect to which 
 the period of limitation is fixed by the enactments aforesaid, or 
 any of them, lies against two or more joint debtors, the person or 
 persons who shall be entitled to the same shall not be entitled to 
 any time within which to commence and sue any such action or 
 suit against any one or more of such joint debtors who shall not 
 be beyond the seas at the time such cause of action or suit accrued, 
 by reason only that some other one or more of such joint debtors 
 was or were at the time such cause of action accrued beyond the 
 seas, — and — Such person or persons so entitled as aforesaid shall 
 not be barred from commencing and suing any action or suit 
 against the joint debtor or joint debtors who was or were beyond 
 seas at the time of the cause of action or suit accrued, after his or 
 their return from beyond seas, by reason only that judgment was 
 already recovered against any one or more of such joint debtors 
 who was not or were not beyond seas at the time aforesaid." 
 
 The above section, it will be observed, only .applies to .cases of 
 joint defenda,nts ; in which case it was held, previously to the above 
 statute, that if one of two or more joint defendants were beyond 
 seas at the time when the cause of action accrued, the statute did 
 not begin to run against any of them till' all were returned, or 
 those beyond s6as dead (y) ; because the defendants remaining in 
 
 (s) Le Veuxv. Berheley, 2 D. & L. 31. {x) Cornill v. Bxidson, 27 L. J., Q. 
 
 (<) Hall V. Wybotirn, Carth. 136. B. 8. 
 
 (u) Perry v. Jackson, i T. E. 516. \y) Towns v. Mead, 16 C. B. 123. 
 
ASSUMPSIT. 181 
 
 this countiy, who could alone be brought before the courts here, 
 might be insolvent (0) ; and a judgment against one or more of 
 them would be a bar to any action against those who were abroad 
 on their return home (a). The latter difficulty is met by the 
 second part of the above section ; the former by the provisions of 
 the Common Law Procedure Act, 1852, with respect to suing de- 
 fendants, whether British subjects or foreigners, resident without 
 the jurisdiction of the superior courts. 
 
 The principle of the foUpwing cases, decided before the late sta- 
 tute, on " absence beyond seas," would still be applicable to cases 
 of infancy, coverture and insanity, some or one of them. 
 
 If the plaintiff, whether Englishman or foreigner, is (beyond sea) 
 at the time when the cause of ac^on accrues, he still has six years 
 after (his return) in which to bring the action, however long he 
 may have continued (abroad), and if he never (comes to England), 
 his right of action is not barred either against himself or his ex- 
 ecutors or administrators, after his death, who have six years at all 
 events to bring the action in (6). If a plaintiff be (beyond seas) 
 at the time the cause of action accrued, he Tnay sue at any time 
 before (his return), as well within the time limited as after (c). 
 
 9. Set-off. 
 
 9, Set-off. — At common law, if the plaintiff was indebted to the 
 defendant, inasmuch or even more than the defendant owed to 
 him, yet the defendant had not any method of setting off such debt 
 in the action brought by the plaintiff for the recovery of his debt, 
 and consequently the defendant was driven to a cross action. To 
 obviate this inconvenience, and to prevent circuity of action, or a 
 bill in equity, it was enacted by 2 Geo. II. c. 22, s. 13 (made per- 
 petual by 8 Geo. II. c. 24, s. 4) that : — " Where there are mutual 
 debts between the plaintiff and defendant, or if either party sue or 
 be sued as executor or administrator, where there are mutual debts 
 between the testator or intestate, and either party, one debt may 
 set against the other." 
 
 And by 8 Geo. II. c. 24, s. 5, it was enacted and declared, 
 that : — " By virtue of the (preceding clause), mutual debts may be 
 set against each other — notwithstanding that such debts are deemed 
 in law to be of a different nature ; unless in cases where either 
 of the said debts shall accrue by reason of a penalty contained 
 in any bond or specialty ; and in all cases where either the debt 
 for which the action had been or shall be brought, or the debt 
 
 (z) See Fannin v. Anderson, 7 Q. B. six years. 
 
 811. (c) ie VeiKB v. BerMey, i Q. B. 836 ; 
 
 (a) King v. Boare, 13 M. & "W. 494. Pigott v. Rush, 4 A. & E. 912, tlie latter 
 
 (J) Tovmsend v. Deacon, 3 Exch. 706, a case of a plaintiff in prison. And see 
 
 where -Parfe, B., expressed a doubt whe- Sturt v. Mellish, 2 Atk. 613; Perry \, 
 
 ther executors or administrators in such Jaekson, ante, p. 165.. 
 
 a case are boiiad to sue even within the 
 
183 ASSUMPSIT. 
 
 intended to be set against the same, hath accrued or shall accrue 
 by reason of any such penalty, the debt intended to be set off 
 shall be pleaded in bar, in which plea shall be shown how much 
 is truly and justly due on either side ; and in case the plaintiff 
 shall recover in any such action or suit, judgment shall be entered 
 for no more than shall appear to be truly and justly due to the 
 plaintiff, after one debt being set against the other as aforesaid." 
 
 1 . The set-off must be for a debt, such as an action of indebitatus 
 assumpsit will lie for {d). A claim therefore merely sounding in 
 damages, and not capable of being liquidated at the time of plead-- 
 ing, e. g. a contract to indemnify A. from all such sums as he 
 should advance to B., cannot be set off (e). See pest, tit. '' Debt on 
 Bond," '■ Set-off" 
 
 2. The debts sued for, and the debts intended to be set oS, must 
 be Tnutual, and due in the same right (/). Hence a joint debt 
 cannot be set against a separate demand {g) ; nor a separate debt 
 against a joint demand Qi). But a debt due to the defendant, as 
 surviving partner, may be set against a demand on defendant in 
 his own right (i) ; and e converso, a debt due from the plaintiff, 
 as surviving partner, may be set against a debt due from defendant 
 to the plaintiff in his own right (k). If a plaintiff sue a single 
 defendant on what is in fact a joint debt from the defendant and 
 A., the defendant may set off a debt due from the plaintiff to him 
 and A., without pleading the non-joinder in abatement {I). The 
 corporation of P. (who were also managers of the pubhc baths and 
 wash-houses, and the local board of health) kept three separate 
 accounts at their bankers, viz., 1. The corporation account. 2. 
 The baths and wash-houses account. 3. The local board account. 
 Upon the first account they were indebted to the bank, and upon 
 the other two the bank was indebted to them in an equal amount. 
 In an action brought by the banker to recover the balance due to 
 him on account No. 1, it was held that the corporation were en-, 
 titled to set off the debts due to them on the other two accounts, 
 as they were debtors and creditors of the bank in the same 
 right (m). 
 
 A defendant, sued as executor or administrator, cannot set off 
 a debt due to himself personally, nor can a person who is sued 
 for his own debt set off what is due to him as executor or admi- 
 nistrator. " The Stat. 2 Geo. II. c. 22, s. 13, says, ' or if either 
 party sues or is sued as executor or administrator, where there are 
 mutual debts between the testator or intestate and either party, 
 one debt may be set against the other;' so that it is confined by 
 
 (d) Per Ashwrst, J., HowUtt v. Sirick- See Gordon t. Ellis, 2 C. B 821 
 land Oowp. 56. , „ ^^ „ ,„ « Slipper v. Siidstone, 5 T. E. 493. 
 
 (e) Morey y Ingl-^ ^^^l^- ^S- (*) I'reneh y. Andrade, 6 T. R. 582. 
 /) Galey iMitrell, 1 Y. & J. 180. (?) Staekwood v. Dunn, 3 Q. B. 822. 
 
 {g) Arnolds. Bwinhrigge,^ Exch. 153. (m) Pedder y. The Mayor and Cor- 
 
 W Pra/im v. WhiU, 6 B. ¥. C. 33. poration of Preston, 12 C. B (N S)5Z5 
 
ASSUMPSIT. 183 
 
 tlie statute expressly to cases where tlie suit is as executor or ad- 
 ministrator " (n). Hence where an executor sues for a cause of 
 action arising after the death of the testator, the defendant cannot 
 set off a debt due to him from the testator (o), for to allow this 
 would be to alter the course of distribution (j)) ; A. having been 
 appointed by B., his attorney, to receive his rents, did, after B.'s 
 death, receive rent due to B. in his lifetime ; the executrix of B. 
 brought an action against A. for the money m her own name ; the 
 defendant gave notice to set off a debt due to him from the 
 testator, which was not allowed at the trial, because the suit not 
 being as executor, the case was not within the statute. The court 
 of C. P., on a case made, concurred in opinion with the judge who 
 tried the cause {q). The same rule holds where the plaintiff de- 
 clares as executor, if the cause oi action arose after the death of the 
 testator. In an action by the plaintiff, as executor (r), for goods 
 sold and delivered to the defendant by the plaintiff, as executor, the 
 defendant pleaded a set-off for a debt due from the testator to the 
 defendant. On demurrer, the court held the plea bad : for to allow a 
 set-off in this case would be altering the course of distribution (s). 
 
 So if the cause of action arises partly in the time of the testator 
 and partly in the time of the executor, although the plaintiff de- 
 clares as executor, yet the defendant cannot set off a debt due 
 from the testator to him. In covenant by the plaintiffs as exe- 
 cutors, for rent arrear in the lifetime of the testator, and also since 
 his death, the defendant, at the trial before Lord Mansfield, C. J., 
 set off a debt due from the testator to him ; and the plaintiffs 
 were nonsuited. Erskine moved for a new trial, on the ground 
 that this debt could not be set off in this case, and Lord Mans- 
 field, C. J., said that he was satisfied on the point on the authority 
 of Kilvington v. Stevenson, and made the rule absolute {t). If 
 the executor be defendant, sued for a debt which accrued to the 
 plaintiff from the testator in his lifetime, the executor cannot set 
 off a debt due to him as such, since the testator's decease (w). But 
 if he be sued on an account stated by him as such since the testa- 
 tor's decease^ he may set off a debt due from the plaintiff to the 
 testator in his lifetime (aj) ; for an account stated by an executor as 
 such must be taken to show a debt due from his testator to the 
 other party, and against this it is clear that a debt due from that 
 other party to the testator may be set off {y). 
 
 3. A debt barred by the Statute of Limitations cannot be set 
 
 (n) Per Fortescue, B., in SMpman v. (t) Teggetmeyerv. IiumUy,cited'Wiiles, 
 
 Thompson, infra. 264, in notd. 
 
 (o) Houston V. Robertson, 4 Campb. {u) Mardall v. Thellusson, 6 E. & B. 
 
 342. 976. 
 
 (p) Bull. N. P. 180, n. (J). (x) BlakesUy v. SmaUwood, 8 Q. B. 
 
 (g") SKipman\.Thompson,'W\!i\es,V)^. 538. 
 
 \r) Kilmngtonv.SteveTison, oite<PN\i\eSy {y) Rees v. Watts, 11 Exchi 416, per 
 
 264. Cur. 
 
 (sy DuriifOTd's note, Willes, 264. 
 
184 ASSUMPSIT. 
 
 oS(z) "for the remedy by way of set-off was inteiided to super- 
 sede the necessity of a cross action, and a debt barred by the statute 
 cannot be recovered by action." K such, debt be pleaded m bar to 
 the action, the plaintiff may reply the Statute of Limitations (a) ; 
 if the six years have expired at the commencement of the 
 action (h) but a debt of a legatee to the testator, though barred by 
 the statute, may be set off against a legacy (c). An attorney may set 
 off his bill, though he could not have recovered upon it, not having 
 delivered it duly signed a month before action, but in such a case 
 he must deliver it in time to have it taxed before trial (d). 
 
 4 Where either of the debts accrues by reason of a penalty, the 
 plea of set-off must show what is "truly and justly due on either 
 side " (e) ; and the averment has been held to be traversable (/). 
 
 6. The court, under the statutes of set-off, could take notice of an 
 interest at law only (g) ; and as it had been determined that' any 
 defence good against a plaintiff on the record, who was suing as a 
 trustee merely, was good against the. cetteux que trusts who were 
 using his name (h), the fact that the plaintiff was suing as a trustee, 
 was no answer to a plea of set-off. But by the Common Law 
 Procedure Act, 1854, equitable pleadings are in some cases al- 
 lowed {ante, p. 162). Hence, an equitable replication setting out 
 these facts would, it would seem, now be a good answer to such a 
 plea (i). And as it is the established rule of equity with reference 
 to set-off to look upon the beneficial owner as real owner, and by 
 injunction to compel other courts to disregard the legal title of the 
 trustee, a defendant may plead a set-off for debts due by plaintiff 
 to his trustee as such ( j), and so conversely a defendant may set 
 off against a trustee's claim as such a debt due to him from the 
 cestui que trust (k). Where in an action against executors for work 
 done, money lent, &c., to the testator, the defendants pleaded a 
 set-off for money due from the plaintiff to the testator for the use 
 and occupation of premises, money lent, &c., and the plaintiff re- 
 plied " on equitable grounds," that the testator bequeathed to him 
 and his children certain sums, and declared by his will that the 
 money and other effects already delivered by him to the plaintiff 
 and his children should be deemed advancements, and that they 
 should not be required to account for the same, the Court of 
 Exchequer held the replication bad on demurrer (Q. 
 
 (2) Per WiUes, C. J., Hutchinson v. E. 65. 
 
 Sturges, Willes, 262. (/) Grimwood v. Barrit, 6 T. E. 460. 
 
 (a) Remington v. Stevens, Str. 1271. (g) Per Littledale, J., in Tucker v. 
 
 (b) Walter r. Olements, 15 Q. B. 1046. Tucker, 4 B, & Ad. 751. 
 
 (c) Coates v. Coates, 33 Beav. 249. (h) Gibson v. Winter, 5 B. & Ad. 96. 
 
 (d) Mooperv. Till, 1 Dougl. 199, in (i) SePolhonierv.De Mattos.2B.&'E. 
 liotis. . (j) Cochrane v. Green, 9 C. B. (N. S.) 
 
 (e) 8 Geo. II. c. 24, s. 5 ; Attwooll v. 448 ; 30 L. J. 97 C. P. 
 
 Attwooll, 2 E. & B. 23. A misstatement (4) Agra and Masterman's Panic v. 
 
 in this respect would {seniMe) be matter Leighlon, 2 L. R. 66 Ex. 
 
 of form only {per Campbell, C. J., S. C.) (I) Gulliver v. Gulliver, 1 H. & K, 
 
 and amendable. Symmonsy.Knox, 3T. 174. 
 
ASSUMPSIT. 185 
 
 Under the operation of the 8 PI. K. Hil. T. 1853, a set-off must 
 be pleaded specially (unless the plaintiff has admitted it in his 
 particulars of demand, 13 PI. R. Hil. T. 1853), and cannot, as 
 formerly, be given in evidence under a notice of set-off (m). A 
 form is given in schedule B. to the Common Law Procedure Act, 
 1852, " That the plaintiff at the commencement of this suit was, 
 and still is, indebted to the defendant in an amount equal to the 
 plaintiff's claim for [state the cause of set-off as in a declaratioTi], 
 which amount the defendant is willing to set off against the plain- 
 tiff's claim." 
 
 By 19 Pr. R. Hil. T. 1853, particulars of set-off (which must be 
 delivered with every plea of set-off, " containing claims of a similar 
 nature as those in which a plaintiff is required to deliver or file 
 particulars ") shall be annexed }>f the plaintiff's attorney to the 
 record at the time it is entered with the proper officer. 
 
 Independently of any statute, however, there may be a set-off, 
 and that either by express agreement, as where the master of a 
 barge agreed with the owner, a carrier, that any loss or damage 
 sustained by the goods conveyed in his barge should be deducted 
 from his wages (n) ; or by implied agreement, as where by the cus- 
 tom of the hat trade, the injury sustained by the hats in the process 
 of dyeing, was deducted from the charge for dyeing (o) ; so where 
 by the usage at Lloyd's, as between insurance, brokers and the un- 
 derwriters, a particular loss is settled for the assured by the under- 
 writer setting off his general balance for premiums due from the 
 broker, against the sum due to the assured on the pohcy (p). 
 
 Semble, that set-off is a matter of procedure and therefore 
 governed by the lex fori (q). 
 
 Replication. — The form of the replication to a plea of set-off is 
 " that the plaintiff was not nor is indebted as alleged," or a joinder 
 of issue under the 79th section of the Common Law Procedure Act, 
 1852, under which evidence of payment of the sum set off may be 
 given, which it could not be under a replication of "never in- 
 debted " (r). Under a replication of nil debet to a plea of set-off 
 the plaintiff may show that the debt sought to be set off is due 
 from himself and a third party (s). " What the defefidant (under 
 a plea of set-off) undertakes to prove is that his cross demand in 
 its integrity equals the plaintiff's whole claim when proved " (t). 
 " In order to make the defence available, it should be equally true 
 at the time of trial as at the time of pleading " (u). A replication 
 
 (m) Gmham v. Partridge, 1 M. & W. S. 783. 
 
 395. (r) Stociiridge v. Sussams, 3 Q B. 
 
 (n) Cleworth t. Fickford, 7 M. & "W. 239. 
 
 314. (s) Arnold v. Baiiibrigge, 9 Exch. 153. 
 
 (o) Bamford v. Harris, 1 Stark. 343 ; (t) Per Alderson, B., in Mead v. Bash- 
 
 and see Burchell v. Salter, 1 Q. B'. 197. ford, 5 Exch. 336. 
 
 (p) Stewart y. Aberdein, 4M. & W. (ii) Per Parke, B., in Briscoe v. Billy 
 
 211. 10 M. & W. 735. 
 
 {q) Macfarlane T. Macfarlaiie, 2 B. & 
 
186 ASSUMPSIT. 
 
 of payment to a plea of set-off is therefore good (■y); and ec(m- 
 verso where a set-off proved was less than the plaintiff's claim at 
 the commencement of the action, but (in consequence of payment 
 by defendant after action) more at the time of trial, it was held 
 that the plaintiff was still entitled to a verdict (with nominal 
 damages) on the plea of set-off {x). 
 
 10. Tender, 
 
 10. Tender. — " The principle of a plea of tender is this, that 
 the defendant has always been ready at all times to pay upon 
 request, and upon a particular occasion offered the money " [y). 
 To an action of simple contract the defendant may plead the 
 general issue as to part of the plaintiff's demand, and a tender 
 before the commencement of the suit as to the* rest ; but the 
 defendant will not be permitted to plead the general issue to the 
 whole- declaration, and a tender as to part ; because, if the general 
 issue should be found for the defendant, it would then appear on 
 the record, that nothing was due, although the defendant by his 
 plea of tender had admitted something to be due {z). A tender 
 may be pleaded to a quantum Tneruit (a). 
 
 What a good tender. — " A tender must be of a specific sum on 
 a specific account, and if it be upon a condition which the creditor 
 has a right to object to, it is not a good tender" (6). Thus an offer 
 to pay a sum of money with a condition that it shall be accepted 
 as the whole balance due,^ when a larger sum. is claimed, does not 
 amount to a legal tender of the sum offered to be paid (e). But 
 where the words used in making the tender were, " I am come 
 with the amount of your bill," and the plaintiff refused the money,, 
 sajang, " I shall not take that — it is not my bill ; " it was held, 
 that the tender was sufficient, "for a defendant who makes a 
 tender always means that the amount tendered, though less than 
 the plaintiff's bill, is all he is entitled to demand in ' respect of 
 it"(c^). "The person making a tender has a right to exclude 
 presumptions against himself by saying, ' I pay this as the whole 
 that is due,' but if he requires the other party to accept it as all 
 that is due, that is imposing a condition, and when the offer is so 
 made1.he creditor may refuse to consider it as a tender " (e).. 
 
 («) Eyton V. LittledaU, i Exeh. 159. Anon., C. B. M. 40 Geo. III. MSS. ;■ 
 
 (aj) Spradbery v. Gillam, 2 L., M. & MacUllcm v. Howard, 4T. E. 194. 
 
 P. 366. As to the replication in set-off (a) Johnson v. LancasUr, Str. 576: 
 
 when part of the money attempted to be (6) Per Maule, B., in Bevams v. Sees, 
 
 set off has been subsequently to plea paid 5 M. & W. 306. 
 
 into court by the plaintiff in a cross ao- (c) Hvans v, 'judkins, 4 Campb. 155-; 
 
 tion by the defendant against him, see ace. Strong v. Hwney, 3 Bingh. 304 ; 
 
 Briscoe v. mil, 10 M. & W. 735. Foord v. Noll, 2 D if S 617 
 
 (y)PerParlce, B., ffesketh v. Fawcelt, (d) Ilenwood v. buver,'l Q.'Bi 409. 
 
 ■7\ /> n ■ n ' o-.,.., ,- {e) Per Erie, J., Bowen V. Owen, n 
 
 (s) Dowgall v. Bowmcm, 3 Wils.- 145 ; Q. B. 130^ 
 
ASSUMPSIT. 187 
 
 In order to sustain a plea of tender, it is not necessary in all 
 cases to prove the actual production of money, in monies num- 
 bered ; it will be sufl&cient to show that the defendant was in a 
 present condition to substantiate his offer, and that the plaintiff 
 dispensed with the production of the money; but there must 
 be either an actual offer of the money produced, or the pro- 
 duction of it must be dispensed with by the express declara- 
 tion or equivalent act of the creditor (/) ; and whether there 
 has been such dispensation or not is a question for the jury (g). 
 " Where there is a dispute as to the amount of the demand, 
 the plaintiff, by objecting to the quantum, may dispense with a 
 tender of the actual or of any specific sum ; there should, how- 
 ever, be an offer to pay by producing the money, unless the 
 plaintiff dispenses with the tefider expressly, by saying, that 
 the defendant need not produce the money, as he would not 
 accept it ; for though the plaintiff might refuse the money at 
 first, yet if he saw it produced, he might be induced to accept 
 of it "(A). 
 
 If a man tender more than he ought to pay, it is good, for omoie 
 majus continet in se minus, and the other ought to accept so 
 much of it as is due to him (i). Hence, a proof of a tender of 
 20?. 9s. 6d. in bank notes and silver was held sufficient to support 
 a plea of tender of Wl. (k). " If a debtor tenders a larger sum 
 than is due, and asks for change, this will be a good tender, if the 
 creditor does not object to it on that account, but only demands a 
 larger sum. — There is not any occasion to produQO the money, if 
 the creditor refuses to receiv'e it on the ground of more being 
 due " (?). A tender of part of an entire demand is inoperative, 
 and if the demand be entire that fact may be replied to a plea of 
 tender (m). Where money is refused on account of more being 
 due, the plaintiff cannot afterwards object to the tender on the 
 ground that a receipt was demanded (n). Where defendant, being 
 indebted to the plaintiff in 31. 10s., produced to him a 51. banJe 
 note, and desired him to take 31. 10s. out of that, it was held that,^ 
 it was not a good tender ; for, " if I tender a man twenty guineas 
 in the current coin of the realm, this may be a very good tender 
 for fifteen, for he has only to select so much, and restore me the 
 residue. But a tender in bank notes is quite different. In that 
 case the tender may be made in such a way that it is physically 
 impossible for the creditor to take what is due and restore the 
 difference. If 3Z. 10s. could be tendered by a note for 61^ so it 
 
 (/) Thomm v. Evmis, 10 East, 101. (h) Sean v. James, 4 B. & Ad. 547. 
 
 (g) Douglas v. Patj-ick, 3 T. R. 683 ; {I) Per Kenyan, C. J., in Black v. 
 
 FiTich V. Brook, 1 B. N. 0. 253. Smith, Peake's N. P. C. 88. 
 
 '{h) Per Kenyan, C. J., 4 Esp: 68. See (m) Dixon v. Clark, 6 G. B. 365. 
 
 Finch Y. Brook, 1 B. W. C. 253. (») Richardson v. Jackson, 8 M. & W. 
 
 (i) Wade's case, 5 Itep. 115, a ; Bcvans 298, and, qimre, whether he could object 
 
 V. Rees, 5 M. & W. 306.- on sueh a ground at all. S. C. 
 
188 ASSUMPSIT. 
 
 might by a note for 50,000^." (o). But if not objected to mi tJiat 
 account, such a tender would seem to be good (p). 
 
 The defendant pleaded a tender of lOl. ; the evidence was, that 
 the defendant, having been employed as attorney for the plaintiff, 
 had in that character received for his use J 01. in part payment, and 
 in going from home for a time, left the lOl. with his clerk there. 
 Some time afterwards the plaintiff called and demanded 1 6^. 8s. lid., 
 which he said he supposed Evans had received, when the clerk told 
 him that Evans was gone from home, and had left with him lOZ. to 
 give to the plaintiff when he called. The plaintiff said he would 
 not receive the lOL, nor anything less than his whole demand. 
 The clerk did not offer the lOl. The court were of opinion that 
 the evidence was insufficient : Lord Ellenborough, C.J., observing, 
 " It is expressly stated, that the clerk did not offer the IQl. He 
 only talked about having had 101. left with him to give to the 
 plaintiff when he called, without making any offer of it, which is 
 not a tender in law" (cj). 
 
 If A., B. and C. have a joint demand on D., and C. has a sepa- 
 rate demand on D., and D. offer A. to pay both the debts, which A. 
 refuses, without objecting to the form of the tender on account of 
 his being entitled only to the joint demand ; D. may plead this 
 tender in bar of an action on the joint demand ; but it ought to 
 be pleaded as a tender to A., B. and C. (r). A tender of foreign 
 money, made current by royal proclamation, is equivalent to a 
 tender of lawful money of England (s). 
 
 A tender of money to an agent authorized to receive payment, 
 is a good tender to the creditor himself {b). It must be made either 
 to the creditor himself, or to an agent authorized to give a receipt 
 for the debt {u). A plea of tender to a special count admits the 
 contract as laid in the declaration {x), secus, in the case of the inde- 
 bitatus counts {y). 
 
 By 56 Geo. III. c. 68, ss. 11 & 12, it is declared, that gold coin, 
 of the weight and fineness prescribed by the Mint indenture, shall 
 be the only legal tender for payments of any sum exceeding forty 
 shillings, and that no tender of payment in silver coin beyond that 
 sum shall be legal. By 3 & 4 Will. IV. c. 98, s. 6 {z), a tender of 
 Bank of England notes payable to bearer on demand is made a 
 legal tender to the amount expressed in such notes, and is to be 
 "taken to be valid as a tender to such amount, for all sums above 
 five pounds, on all occasions on which any tender of money may 
 
 (o) Per Le Blwnc, J., in Betterbee v. («) Ooodland v. Blcwitt, 1 Camp. 477. 
 
 Davis, 3 Campb. 70. See also Bobinson See also Moffat v. Parsons, 5 Taunt. 307. 
 V. Cook, 6 Taunt. 336. (n) Per Parke, B., Kirton v. Braiih- 
 
 ip) Per BuUer, J., m Wright v. Reed, waiie, 1 M. & W. 313. . 
 
 ^T\\P*' T, ,. {x) Cox V. Brain, 3 Tsamt 95. 
 
 (q) Thomas v. Evans, 10 East, 101. {y) Bulmer v. Home, 4 B. & Ad 132. 
 
 (r) Dovrjlas v. Patrick, 3 T. R. 683. («) See 7 & & Vict. e. 32. 
 (s) Wade's case, 5 Eep; 114, b. 
 
ASSUMPSIT. 189 
 
 be legally made, so long as the Bank of England shall continue to 
 pay on demand their said notes in legal coin,"— provided, that no 
 such notes shall be a legal tender by the Bank of England, or any 
 branch bank thereof; but the Bank are not to be required to pay 
 at any branch bank any notes not made specially payable at such 
 branch bank ; but the Bajik of England shall satisfy at the bank 
 in London all notes of the bank or of any branch thereof. 
 
 At common law, independently of the above statute, a tender of 
 Bank of England notes (a) or country bank notes is good, if the 
 creditor only objects to the quantum and not to the quality of the 
 tender (h) ; and so of a cheque (c). 
 
 By 16 & 17 Vict. c. 102, no tender of payment in money in any 
 gold, &c., defaced, shall be a legartender. 
 
 By 29 & 30 Vict. c. 65, s. 1, power is given to her Majesty to 
 proclaim gold coins made at the colonial branch mints a legal 
 tender in the United Kingdom and the colonies. 
 
 Where a tender of goods is alleged, it is necessary to show a 
 delivery under such circumstances that the defendants had an 
 opportunity of seeing that the articles delivered to them were such 
 as they had stipulated for (d) ; unless the contract of sale is in- 
 consistent with such a condition, as where goods are sold by auction, 
 having been open to public inspection two days previously (e). 
 
 At what Time the Tender "may be made. — The tender must be 
 made before the commencement of the suit. The line being drawn 
 at the commencement of the suit, steps taken by the plaintiff, in 
 contemplation only of an action, will not deprive the defendant of 
 the benefit of his tender, if such tender was made before the actual 
 commencement of suit. Hence it is not any answer to a plea of 
 tender before the exhibition of the plaintiff's bill (/), that the 
 plaintiff had before such tender retained an attorney, and in- 
 structed him to sue out a latitat (g) against the defendant, and 
 that the attorney had accordingly applied for such writ, before the 
 tender, which writ was afterwards sued out (A). 
 
 Where money is payable on a particular day, a tender made so 
 late on that day that there would not be time to count the money, 
 would (semhle) be bad (i). Where goods (10 tons of oil) were, by 
 the terms of the contract, to be delivered within 14 days, and on 
 
 (a) Per Bwller, J., Wright v. B&ed, 3 15 & 16 Vict. c. 76 ; 1 & 2 Vict. c. 110, 
 
 T. R. 554. s. 2. 
 
 (J) Polglassv. Oliver, 2 C. & J. 15. (gr) A writ of process iu the Queen's 
 
 (c) Jones V. Arthur, 8 Dowl. 442. Bench to bring the defendant into Court ; 
 
 (d) Isherwood v. Whitmore, 11 M. & Tidd's Pi-. (8th ed.) 143; abolished in 
 "W 347. eifect by the Uniformity of Process Act, 
 
 (e) Pettit V. Mitchell, 4 M. & G. 819. 2 "Will. IV. c. 39. 
 
 (/) The writ of summons is now the (h) Briggs v. Oalverly, 8 T. R. 629. 
 
 commencement of personal actions. See {i) Tinlder v. Prentice, 4 Taunt. 549. 
 
190 ASSUMPSIT. 
 
 the 14th day, at 8.S0 p.m., the vendor tendered the oil to the 
 vendee, and the jury, on a special verdict, found that the said time 
 was by reason of its lateness an unreasonable and improper time 
 of day for the said tender, but also that there was sufficient time 
 before midnight for the vendor to deliver, and for the vendee to 
 receive, examine, and weigh the oil, it was held, that such tender 
 was sufficient ; but that it would have been otherwise if by reason 
 of the lateness of the hour the vendee had left his warehouse {Jc). 
 
 Of the Form in which a Tender must be pleaded. — Where the 
 money is by the agreement payable immediately^ the party pleading 
 a tender must show that he was " always ready," from the time 
 when the cause of action accrued (T). Hence to an action of irb- 
 debitatus assumpsit, where the defendant pleaded that before the 
 .action, viz. on such a day, he tendered a certain sum of money, 
 .and that he was always afterwards ready, &c. ; on demuiTer the 
 plea was held bad ; for per Cur., " It is not enough that he was 
 always ready since the tender ; the money was due before, and the 
 neglect of payment was a delay, a breach of contract, and a cause 
 of action " (m). " Where the agi'eement is to pay at a certain 
 time, tender at that time, ' and always ready,' is a good plea." Per 
 Holt, GJ., in Giles v. Hartis, Salk. 622. Both the above condi- 
 tions are necessary. Thus where, to an action on a bill of exchange, 
 the defendant pleaded, that after the expiration of the time ap- 
 pointed for the payment of the bill, and before action brought, he 
 tendered the whole money then due upon the bill, with interest, 
 &c. ; and that he always, from the tim£ of the tender, had been 
 ready, &c. j on demurrer, the plea was held bad : Lord Ellenborough, 
 C.J., observing, that in Giles v. Hartis, it was expressly decided, 
 that, an averment of tout temps prist was necessary in the plea of 
 tender, and that it was one of those landmarks in pleading which 
 ought not to be departed from {n). So (o) where the plea alleged 
 that after the hill became d/ue, and before suit, the defendant 
 tendered, &c., and that he was always, from the time the bill beeame 
 due, ready, &c., the plea was held bad (p) ; and per Farke, B., 
 " Nothing can discharge a covenant " (or contract) " to pay on a 
 certain day but actual paymeait or tender on that day, although if 
 the party afterwards chooses to receive the money, that maybe 
 pleaded by way of accord and satisfaction." A plea that the de- 
 fendant is ready, and has always been ready, with a profert in 
 curia, but not averring a tender, will be bad on general demun-er (g). 
 
 (k) ataHup T. MacdmaXd (in error), 6 76, s. 51. Although, however, such a 
 
 M. k G. 693. plea might perhaps be held good on de- 
 
 (l) Giles V. Hartis, Ld. Eaym. 254. murrer since that act, the defendant 
 
 (m) Sweatland v. Squire, Salk. 623. woiM still be bound under it to prove 
 
 (n) Eume v. Peploe, 8 East, 168. at the trial a tender on the day the bUl 
 
 (o) PooU V. Tunbridge, 2 M. & W. became due. See Sigqers v. Letids, 1 C, 
 
 223. M. &R. 370. 
 
 ip) On special demurrer, and these (q) French. r. Watson, 2 Wils. 74: ace. 
 
 .are now aboUshed by 16 & 16 Yict. c. Haldmie v. Johnson, 8 Exch. 689. 
 
ASSUMPSIT. 191 
 
 Of the Replication. — To a plea of tender the plaintiff may reply 
 a demand and refusal, either prior or subsequent to the tender (pro- 
 vided the demand be made after the cause of action accrued), for 
 this negatives the fact that the defendant was " always " ready to 
 pay(r). Under this issue, if the contract be divisible, as in an, 
 action for goods sold, work and labour, &c. (s), and the tender be 
 to part, it will be incumbent on the plaintiff to prove that he de- 
 manded the precise sum tendered (t) ; but proof of a demand of a 
 larger sum than that which was tendered will support the issue if 
 the contract be entire and indivisible, (as on a promissory note (u),) 
 for in such a case a tender" of part is inoperative (x). The demand 
 ought to be made by some person authorized to give the debtor a 
 discharge. Hence, where the den^nd had been made by the clerk 
 to the plaintiff's attorney, who had never seen the defendant before 
 going upon this errand, Lord JEUenborough held the demand in- 
 sufi&cient ; admitting, however, that the demand by the attorney 
 himself might have done (y) ; but the fact of sending a person to 
 make the demand, would (semble) imply authority to give a 
 discharge (z). 
 
 V. Damages, — JudgTnent. 
 
 Where an action is brought for not delivering goods upon a 
 given day, the true measure of damages is the difference between 
 the price agreed for, and that which goods of a similar quality and 
 description bore on or about the day when the goods ought to 
 have been delivered (a). So in the case of non-delivery of rail- 
 way shares (&) ; " for the plaintiff has the money in his own posses- 
 sion, and might have gone into the market and bought other shares 
 (or goods) as soon as the contract was broken," per Parke, B., 
 S. C. So, e eonverso, in an action for not accepting and paying for 
 goods, the proper measure of damages is the difference between 
 the price contracted for and the market price at the time when the 
 contract ought to have been completed (e), for the vendor may im- 
 mediately after breach take his goods into .the market and sell 
 them. Whei-e A. contracted for the purchase of wheat " to be 
 delivered at B. as soon as vessels could be obtained for the carriage 
 thereof," and subsequently (the market having fallen) A. gave the 
 
 (r) Per Parke B., Poole v. Tunlridge, (y) CeUs v. Bell, 1 Campb. 478, n. 
 
 2 M. & W. 226 ; Rivers v. Griffiths, 5 B. {z) See per Parlce, B., in Kirton v. 
 
 & Aid. 630. Braithwaite, 1 M. & W. 313. 
 
 Is) Eeslefh v. Fawcett, 11 M. & W. (a) Gamsford v. Carroll, 2 B. & C. 
 
 356. 624 ; Yalpy v. OaUey, 16 Q. B. 935. 
 
 (i) Brandon, t. Newlngton., 3 Q. B. (b) Shaw v. Holland, 15 M. & "W. 
 
 915. 136. 
 
 (M) Cotton V. Godviin, 7 M. & "W. 147. {c) Boerman v. Nash, 9 B. & C. 145. 
 
 (x) Dixon V. Clark, 5 C. B. 365. 
 
193 ASSUMPSIT. 
 
 seller notice that he would not accept it, if it were delivered (d), 
 the wheat being then on its transit to B. ; it was held in an action 
 against A. for not accepting the wheat, that the proper measure of 
 damages was the diiference between the contract price and the 
 market price on the day when the wheat was tendered to A. for 
 acceptance at B., and refused ; and not on the day when the notice 
 was received by the seller (e). 
 
 But where the defendant holds in his hands the money or goods 
 of the plaintiff, thereby preventing him from using it, the rule is 
 different. Therefore in an action for not replacing stock, or not 
 delivering shares lent (/), the highest value as it stood either 
 when it ought to have been replaced^ or returned, or at the time of 
 trial, at the option of the plaintiff, is to be taken (g), but not any 
 higher price to which the stock may have risen at any intermediate 
 time (h). 
 
 In an action for not accepting railway shares, it was held, that 
 the proper measure for damages is the difference between the con- 
 tract price, and the price to be obtained within a reasonable time 
 after breach {i). Where by the terms of a contract goods were 
 to be delivered at stated periods, but they were not all delivered at 
 the respective times, the purchasers not countermanding them, but 
 requesting from time to time that the supply migbt be delayed, 
 and ultimately the purchasers refused to accept any more ; it was 
 held, that the jury were justified in taking into their calculation in 
 assessing the damages the whole quantity which remained to be 
 delivered; though consisting in part of quantities which, without 
 being actually countermanded, had, by the desire of the purchasers, 
 been kept back at the times appointed for delivery (/c). 
 
 If there be a count on a special contract, and a common count 
 for work, labour and materials, and the plaintiff fails to recover 
 on the special contract, the plaintiff can recover, on the common 
 count, only so much as the work and materials are worth {l) ; 
 subject to a reduction for damages (other than mere consequential 
 damages), in respect of any breach of contract on his part (m). In 
 Thornton v. Place, however. Park, J., said, — " when a party 
 engages to do certain work on certain specified terms, and in a 
 certain specified manner, but in fact does not perform the work so 
 as to correspond with the specification, he is not of course entitled 
 to recover the price agreed upon in the specification, nor can he 
 
 (d) That such an act is a hreach, see Taunt. 257 ; but see Sedgwick on Da- 
 
 Hochster v. Be la Tour, 2 E. & B. 678 ; mages (3rd ed.), 276, et seg. 
 
 ». e., if the vendor elects to treat it as (i) Stewart v. Cauty, 8 M. & W. 160. 
 
 such. Leigh y. Paterson, 8 Taunt. 540. (k) Cort v. Ambergate Railway Corn- 
 ice) Phillpotts V. Evans, 5 M. & W. pany, 17 Q. B. 127. 
 
 ^''?- , „ „ , (0 Chappell V. Hickes, 2 C. & M. 
 
 (/) Owen V. South, li C. B. 491. 214. 
 
 See Tempest v. Kilner, 3 iUd. 263. (m) Mondell v. Steel, 8 M. & "W. 858. 
 
 (gr) Shepherd v. Johnson, 2 East, 211. See Turner v. Diaper, 2 M. & a 241, 
 (A) M' Arthur v. Lord Seaforth, 2 
 
ASSUMPSIT. 193 
 
 recover according to the actual value of the work, as if there had 
 been no special contract. What the plaintiff is entitled to recover 
 is the price agreed upon in the specification, subject to a deduction, 
 and the measure of that deduction is the sum which it would take 
 to alter the work, so as to make it correspond with the specifi- 
 cation " (n). And this principle would seem the more correct one 
 where it is applicable, otherwise th^ plaintiff might, in spite of his 
 breach of contract, recover more under a quantum meruit, than 
 he was entitled to under the special contract. 
 
 Where an agreement contains several stipulations, some of them 
 of great importance and value to the parties and others of little or 
 no importance, a sum agreed to be paid generally (o), by way of 
 damages for the breach of any of them, shall be construed as a 
 penalty, and not as liquidated damages, even though the parties 
 have in express terms stated the contrary (p). But if the breaches 
 against which the agreement is directed be all oiuncertai/n amount, 
 or the stipulated sum be confined to such breaches, the sum agreed 
 to be paid will be considered as liquidated damages, and not as a 
 penalty (q) ; for " there is nothing illegal and unreasonable in parties 
 by their mutual agreement settling the amount of damages uncer- 
 tain in their nature at any sum upon which they may agree " (r). 
 
 Where the contract was for about 300 quarters (more or less) of 
 foreign rye, shipped on board a particular vessel coming from 
 Hamburgh ; the vessel brought 345 quarters, and the sellers re- 
 fused to deliver any part, unless the purchasers would accept the 
 whole : it was held, that they were not bound to accept the whole : 
 Lord Tenterden, C. J., and Littledale, J., being of opinion, that by 
 the words " about," and " more or less," the parties could not have 
 contemplated so large an excess as 45 over 300 quarters ; and 
 ParJce and Patteson, JJ., that it lay on the sellers to show that 
 such an excess was contemplated ; and if from the obscurity of the 
 contract they were unable to do so, their defence failed. Little- 
 dale, J., said, "When land is described in conveyances, it is 
 often mentioned as containing so many acres and roods, ' be the 
 same more or less,' but it is always understood that the excess 
 bears a very small proportion to the quantity named, a much 
 smaller proportion than that of 45 to 300 quarters " (s). Where 
 
 (n) 1 M. & Rob. 218. Ace. Boisonv. not be considered as settled. See Atiins 
 
 Godfrey, Holt, 236 ; Ellis v. Hainlyn, 3 t. Kinnier, Beynolds v. Bridge. 
 
 Taunt. 62. {p) Kemble v. Farren, 6 Bingh. 141 ; 
 
 (o) iSecus {seinhle), if the agreed sum is . Jones v. Green, 3 Y. & J. 304 ; Atldms v. 
 
 expressly directed to be paid upon each Kinnier, i Exch. 776. 
 
 and every breach. Ooldsworlhy v. Strult, (q) Beynolds v. Bridge, 6 E. & B, 
 
 1 Exch. 659. This substantially involves 528. 
 
 the question whether for a single breach, (r) Per Tindal, C. J., Kemhle v. Far- 
 
 the damage sustained by which is capable ren. 
 
 of being measured by a precise sum, a (s) Cross v. Eglin, 2 B. & Ad. 106. 
 
 larger sum can be agreed upon as liqui- In this case evidence was received that 
 
 dated damages. There seems nothing in the words "more or less," in a contract 
 
 reason against it, but the question can- for grain, according to the custom of 
 
 VOL. I. 
 
 o 
 
194 
 
 ASSUMPSIT. 
 
 the words were " about 500 tons," it was held that they meant 600 
 tons at least, and that the contract was not fulfilled by the delivery 
 of a smaller amount (t). 
 
 JudgTnent. — ^Although it is a rule that the court will look to the 
 whole record, and give judgment according to the truth there dis- 
 closed, however irregular the mode of pleading may be (u) ; yet 
 the court cannot pick out of various parts of the record a different 
 cause of action from that for which the plaintiff proceeds (x). ■ 
 
 merchants, do not require a purchaser to 
 accept so large an excess, ZiUledale, J., 
 duiitante. Evidence was received to show 
 that 1,000 rabbits meant 1,200 rabbits, 
 in Smith v. Wilson, 3 B. & Ad. 728 ; that 
 a bale of cotton meant a compressed bale, 
 not a bag, in Taylor v. Briggs, 2 C. & P. 
 525 ; that a sale of pockets of hops at 
 100a meant a sale at 51. per cwt., though 
 it was proved that a pocket of hops con- 
 tained more, in Spicer v. Cooper, 1 Q. B. 
 424 ; that "Lady-day" meant " old Lady- 
 day," in Boe v. Benson, 4 B. & Aid. 
 688 ; that mess-pork of Scott & Co. meant 
 messpork inwimfactwred by Scott & Co., 
 
 in Powell v. Horton, 2 B. N. C. 668 ; and 
 to explain the terms "level," "deeper 
 than," "below," in Clayton v. Gregson, 
 5 A. & E. 302 ; to show the distinction 
 between " good " and " fine " barley, in 
 Hutchinson v. Boviker, 5 M. & W. 635 ; 
 and to show that a " bale " of gambler 
 meant a package of a particular descrip- 
 tion, in Gorrissen v. Perrin, 2 0. B. K.' 
 S. 681. 
 
 (t) Bourne Y. Seymour, 24 L. J. (C. P.), 
 202. 
 
 (m) f,e Bret v. PapUlon, 4 East, 502 ; 
 Chamley v. Winstanley, 5 East, 266. 
 
 {x) Head v, Baldrey, 6 A. & E. 469. 
 
195 
 
 CHAPTER VI. 
 ATTORNEY. 
 
 I'ACJE 
 
 Of Actions hy, for the Recovery of Fees . . . .195 
 
 Of the6&7 Vict. c. 73 195 
 
 Liability of for Negligence 209 
 
 Evidence . . . . • 211 
 
 Attoenies and solicitors (a) may maintaia an action of simple 
 contract, for the recovery of their fees (h), against their client, or 
 the solicitor or agent employing them (c). To such an action the 
 defendant may plead the Statute of Limitations {d). 
 
 The 6 & 7 Vict. c. 73, s. 2, enacts, that " No person shall act as 
 an attorney or sohcitor, or as such attorney or solicitor sue out any 
 writ or process, or commence, carry on, solicit or defend any action, 
 suit or other proceeding, in the name of any other person, or in his 
 own name, in Her Majesty's High Court of Chancery, or Courts 
 of Queen's Bench, Common Pleas, or Exchequer " — or court of 
 the Duchy of Lancaster and Durham — " or in the Court of Bank- 
 ruptcy, or in the Court for the Relief of Insolvent Debtors, or in 
 any county court, or in any court of civil or criminal jurisdiction, 
 or in any other court of law or equity, in that part of the United 
 Kingdom of Great Britain and Ireland called England and Wales, 
 or act as an attorney or solicitor in any cause, matter or suit, civil 
 or criminal, to be heard, tried or determined before any justice of 
 assize, of oyer and terminer, or gaol delivery, or at any general or 
 quarter sessions of the peace for any county, riding, division, 
 liberty, city, borough or place, or before any justice or justices, or 
 before any Commissioners of Her Majesty's revenue, unless such 
 person shall have been previously to the passing of this act " (22nd 
 Aug., 1843) " admitted and enrolled and otherwise duly qualified 
 
 (a) See E. G. H. T. 1853, regulations & 21 Vict. c. 39. In reference to prao' 
 
 approved by the judges with regard to tising in Probate, Matrimonial, and Ad' 
 
 the examination of attornies ; 13 C. B. miralty Courts, see 20 & 21 Vict. c. 77, 
 
 112 ; and 6 & 7 Vict. o. 73, ss. 17 and ss. 43, 44, 45 ; 21 & 22 Vict. u. 108, s. 
 
 18, as to the examination of solicitors 13, and 22 & 23 Vict. c. 6, s. 1. Soli- 
 
 of Court of Chancery, and the orders citors' and Attorney's Act (Ireland), 29 
 
 made by the Master of the EoUs in pur- & 30 Vict. c. 84. 
 
 suanee thereof, 5 Beav. 13. As to exa- (i) Bradford v. Woodhovse, Cro, Jac. 
 
 mination before article, and generally in 520. 
 
 relation to admission, 23 & 24 Vict. c. (c) Samds v. Trevilian, Cro. Car. 194. 
 
 127. As to the admission of colonial [d) Oliver V. Thomas, Ld. Eaym. 2. 
 attornies to practise in England, see 20 
 
196 ATTOENE^r. 
 
 to act as an attorney or solicitor under or by virtue of tlie laws 
 now in force, or unless such person shall after the passing ot this 
 act be admitted and enrolled and otherwise duly qualified to act as 
 an attorney or solicitor, pursuant to the directions and regulations 
 > of this act, and unless such person shall continue to be so duly 
 qualified and on the roll at the time of ^his acting m the capacity 
 of an attorney or solicitor as aforesaid." 
 
 The above section includes two distinct disabilities : 1, want of 
 admission and enrolment, which (semble) are one and the same 
 thing ; and, 2, want of due qualification ; e. g., if the attorney be 
 . in prison (e) (see section 81, infra). An attorney could not before 
 this act, unless duly enrolled in the court in which the action was 
 brought, maintain an action against his client for his fees or 
 against the opposite party for costs, although in other respects he 
 were duly qualified (/) ; but the admission of one partner was 
 held to be sufiicient in an action for fees brought by the partner- 
 ship (^). An unqualified person acting as an attorney may be 
 indicted under this section, in addition to his incapacity to recover 
 his fees under section 35, and to his liability for a contempt of 
 court under section 36 (h). If the attorney be duly admitted, &c., 
 and qualified at the time the work was done, a subsequent dis- 
 qualification will not, it seems, affect his right to recover (i). If a 
 person act in a suit as attorney, who is not really so, the court will 
 either stay the proceedings till a proper attorney be appointed (k), 
 or set them aside (Z). 
 
 By section 26, it is enacted, that — "No person who as an 
 attorney or solicitor shall sue, prosecute, defend, or carry on, any 
 action or suit or any proceedings in any of the courts aforesaid, 
 without having previously obtained a stamped certificate which 
 shall be then in force, shall be capable of maintaining any action 
 or suit at law or in equity for the recovery of any fee, reward, or 
 disbursement, for or in respect of any business, matter, or thing, 
 done by him as an attorney or solicitor as aforesaid, whilst he shall 
 have been without such certificate as last aforesaid." 
 
 The above section only disables an uncertificated attorney from 
 suing for business done by him in some suit or proceeding in 
 court, and not for business which has no reference to any suit (m). 
 
 By section 31 — "No attorney or solicitor .who shall be a pri- 
 soner in any gaol or prison, or within the limits, rules, or liberties 
 of any gaol or prison, shall or may during his confinement in any 
 gaol or prison, or within the limits, rules or liberties of any gaol or 
 prison, as an attorney or solicitor, in his own name or in the name 
 
 (e) Williams v. Jones, 2 Q. B. 276. {i) Williams v. Jones, 2 Q. B. 276. 
 
 (/) Humphreys v. Harvey, 1 B. N. C. (k) Bayley v. Tlwmpson, 2 Dowl. 655. 
 
 62. (I) Hawkins v. Edwards, i Moo. 603. 
 
 (g) Arden v. Tucker, 4 B. & Ad. 815. (m) Richards v. Suffield, 2 Exch. 616. 
 (A) R. y. liuchaimn, 8 Q. B, 883. 
 
ATTOENEY. 197 
 
 of any other attorney or solicitor, sue out any writ or process, or 
 commence or prosecute or defend any action or suit in any courts 
 of law or equity or matter in bankruptcy, and such attorney or 
 solicitor so commencing, prosecuting or defending any action or 
 suit as aforesaid, and any attorney or solicitor permitting or em- 
 powering any such attorney or solicitor as aforesaid to commence, 
 prosecute or defend any action or suit in his name, shall be 
 deemed to be guilty of a contempt of the court in which any such 
 action or suit shall have been commenced or prosecuted, and 
 punishable by the said courts accordingly, upon the application of 
 any person complaining thereof; and such attorney or solicitor so 
 commencing, prosecuting or defending any action or suit as afore- 
 said, shall be incapable of maintaining any action or suit at law or 
 in equity for the recovery of an;^fee, reward or disbursement for 
 or in respect of any business, matter or thing done by him whilst 
 such prisoner as aforesaid in his own name or in the name of any 
 other attorney or solicitor." 
 
 The above section does not, it seems, apply to an attorney in 
 prison suing as plaintiff (n) ; nor to cases where the attorney is im- 
 prisoned subsequently to the commencement of the suit, and only 
 continued the suit while in prison (o). An attorney who had been 
 imprisoned subsequently to the commencement of the suit, and 
 while in prison continued the proceedings and brought them to a 
 successful issue, was held entitled to recover, his client having 
 been in constant communication with him (p). But where the 
 imprisonment prevents this, it seems the attorney cannot re- 
 cover at common law, and independently of the above section, for 
 the client is entitled to the benefit of the attorney's judgment 
 and assistance (q). 
 
 By section 35 — " In case any person shall in his own name, or 
 in the name of any other person, sue out any writ or process, or 
 commence, prosecute or defend any action or suit, or any proceed- 
 ings in any court of law or equity, without being admitted and 
 enrolled as aforesaid, or being himself the plaintiff or defendant in 
 such proceedings respectively, every such person shall be and is 
 hereby made incapable to maintain or prosecute any action or suit 
 in any court of law or equity, for any fee, reward or disbursements 
 on account of prosecuting, cairying on or defending any such 
 action, suit or proceeding, or otherwise in relation thereto, and 
 such offence shall be deemed a contempt of the court in which 
 such action, suit, or proceeding shall have been prosecuted, caiiied 
 on, or defended, and shall and may be punished accordingly." 
 
 The above section would not, it seems, apply to an attorney 
 practising without a certificate (ante, p. 196) if duly admitted and 
 
 (k) Kaye v. Denew, 7 T. B. 671. (p) Noel v. Hart, S 0. & P. 230. 
 
 (0) Longmore v. Sogers, "VVilles, 288, n, {3) ffopUnson v. Smith, 1 Bingh. 13, 
 
198 ATTORNEY. 
 
 enrolled (r) ; nor to a country attorney conducting a suit through 
 his town agent (s). And it has been decided that the section does 
 not include the case of an attorney transacting business in a court 
 in which he is not admitted, by an agent who is (t). 
 
 The 91st section of the 9 & 10 Vict. c. 95, enacts, that "No 
 person not being an attorney admitted to one of her Majesty's 
 superior courts of record shall be entitled to have or recover 
 any sum of money for appearing or acting on behalf of any 
 other person in the said court, and no iattorney shall be entitled 
 to have or recover therefore any sum of money unless the debt 
 or damage claimed shall be more than 40s., or to have or recover 
 more than 10s. for his fees and costs, unless the debt or damage 
 claimed shall be more than 51., or more than 15s. in any case 
 within the summary jurisdiction given by this act, &c." — The word 
 "therefore," in the above section, applies only to the preceding 
 words "for appearing or acting on behalf of any other person 
 in the said court ; " the section, therefore, does not prevent an 
 attorney from recovering from his client remuneration beyond 
 the amounts therein mentioned, for services rendered by him 
 out of court in respect of the subject-matter of the plaint, and 
 before its commencement (y). But now, by the 18 & 19 Vict. 
 c. 108, s. 36, an attorney cannot, in suits where the claim is within 
 20^,, recover any further costs than those mentioned above, unless 
 upon taxation of costs the registrar be satisfied by writing under 
 the hand of the client that he has agreed to pay further costs or 
 charges, and in such case the registrar may allow any costs or charges 
 not exceeding the amount which may have been so agreed to be 
 paid. 
 
 By s. 37 of the 6 & 7 Vict. c. 73 — " No attorney or solicitor, nor 
 any executor, administrator or assignee of any attorney or solici- 
 tor (0), shall commence or maintain any action or suit for the 
 recovery of any fees, charges or disburseinents for any business 
 done by such attorney or solicitor, until the expiration of one 
 month after such attorney or solicitor, or executor, administrator 
 or assignee of such attorney or solicitor, shall have delivered unto 
 the party to be charged therewith, or sent by the post to or left 
 for him at his counting-house, office of business, dwelling-house, or 
 last known place of abode, a bill of such fefes, charges and dis- 
 bursements, and which bill shall either be subscribed with the 
 proper hand of such attorney or solicitor (or, in the case of a part- 
 nership, by any of the partners, either with his own name, or with 
 
 (r) Eodghmson v. Mayer, 6 A. & E. J. (Q. B.) 310. 
 19*- (») Previous to this act it was not 
 
 (s) Jones y. Jones, 5 Dowl. 474. necessary for an executor (Williams v. 
 
 it) Hulls V. Lea, 10 Q. B. 940. And Griffith, 10 M. & W. 125), or an assignee 
 
 see Humphreys Y. Haney, 1 B. ¥. C. 62. of an attorney (Lester v. Lazarus, 2 C, 
 
 (y) KeigUey T. Goodmam, 1 L., M- & M. & E. 665), to deliver a bill before 
 
 P. 204. See Clutterluch v. Hulls, 15 L. action. 
 
ATTOENEY. 199 
 
 the name or style of such partnership (a), or of the executor, 
 administrator, or assignee of such attorney or solicitor, or be 
 enclosed in or accompanied by a letter subscribed in like manner 
 refen-ing to such bill," &c. 
 
 This act, so far as it relates to the delivery and taxation of an 
 attorney's bill, ought to be construed liberally for the client, and 
 strictly for the attorney, for the latter knows the law and the 
 former does not (&). The act is retrospective in its operation, 
 and applies to bills outstanding on the passing of the act, 22nd 
 August, 1843, of which, therefore, a bill must be delivered in 
 accordance with the above section (c). It extends only to actions 
 for fees, &c. ; an attorney, therefore, may bring an action on a pro- 
 missory note given on account of his fees, &c., without delivering 
 any signed bill, even although such note includes future disburse- 
 ments (c?). But if at the' trial he fails on the count for work and 
 labour, because no signed bill has been delivered, he cannot resort 
 to the count on an account stated to recover, although he prove 
 that his charges were assented to by the client, the plea of " no 
 signed biR " being pleaded to both counts (e). 
 
 No delivery is necessary to enable an attorney to set off his 
 bUl (f); but he should in such a case deliver his bill in time to 
 get it taxed before trial (g). Where the defendant under a plea of 
 set-off to an action on an attorney's bill put in an account 
 rendered to him by the plaintiff, by which the plaintiff credited 
 him with certain sums on the one hand, and on the other side 
 of the account debited the defendant with his bill of costs, for 
 ' which no signed bill had been delivered, leaving, however, on the 
 whole account a balance due to the plaintiff, it was held that the 
 plaintiff might avail himself of the bill of costs contained in the 
 account, to defeat the defendant's plea of set-off^ "for the neglect 
 to deliver such a bill merely prevents an attorney from recovering 
 the amount by action, but does not bar the debt " (h). The 
 " month " is by the interpretation clause, s. 48, a calendar 
 month ( i), and in the computation of the time the days on which 
 the biU was delivered, and on which the writ was issued, are to be 
 excluded (k). 
 
 Money paid by an attorney for costs which his client is adjudged 
 to pay is a " disbursement " (I) ; but not money paid " by the 
 
 • (a) This was so previously. Owen v. sion of bankruptcy. Hicie v. Nohes, M. 
 
 Scales, 10 M. & W. 657. & M. 303. 
 
 (6) Per Alderson, B., UngUheaH v. (g) Martin y. Winder, ani see JBulman 
 
 Moore, 15 M. & W. 548. v. Mrhett, 1 Esp. 449. 
 
 (c) Scadding v. Eylea, 9 Q. B. 858. (h) JBwrrison v. Turner, 10 Q. B. 482. 
 
 \d) Jeffreys v. Evtms, S D. & L. 52. (i) See Parker y. Gill, 5 D. ,& L. 21. 
 
 (e> Sroolcs v. Brockett, 9 Q. B. 847. (i) Blunt y. Haslop, 9 Dowl. 982 ; 
 
 (/) Martin v. Winder, Dougl. 199, Ex parte Zey, 13 L. T. 262. 
 
 n. ; Broim v. Tilhitts, 11 C. B. 856 Q) Crowder v. Shee, 1 Campb. 436 ; 
 
 (S. S.) ; or to prove it uuder a commis- but see Sparrow v. Johns, 6 Dowl. 554. 
 
SOO ATTOENEY, 
 
 client to the attorney to make some specific payment over the 
 amount of which the attorney was to have no discretion, and 
 merely acted as a conduit pipe.— If the client's money come gene- 
 rally to the hands of the attorney without any specific direction as 
 to the mode of applying it, and he use it for the client's purposes, 
 although the proportions in which he shall use it are not deter- 
 mined by his discretion, such use must constitute a disbursement 
 within the meaning of the act of parliament " (m). So a charge 
 for attending at a loct-up house, and obtaining defendant's release 
 and filling up the bail bond, is a disbursement _(%). But money 
 lent is not (o) ; nor money paid by an attorney in consequence of 
 his undertaking to pay the debt and costs in an action in which 
 he is not concerned (p). 
 
 The above section says, " for any business done by such attorney 
 or solicitor." — " This does not mean for every description of busi- 
 ness which a person, being an attorney or solicitor, does for another, 
 but for such professional business as he is employed to do as an 
 attorney or solicitor, that is, by reason of his character as an attor- 
 ney or solicitor (g). Hence the fees, &c., of the steward of a manor, 
 a sohcitor, are not taxable (r). So a clerk to commissioners, who 
 is an attorney, and who is paid by a fiscal salary, need not deliver 
 a signed bill of costs for business done by him as such clerk (s) ; 
 but the bill of one solicitor against another for agency business is 
 taxable (t) ; such a bill, therefore, must now, it seems, be delivered 
 in accordance with the above section ; though this was not necessary 
 previously (u). 
 
 The bill must be delivered to the party chargeable, i. e. to him 
 personally or to a person who may be considered as his agent to 
 receive (x). A delivery at the dwelling-house of the defendant, to 
 his servant, is evidence for the jury of a delivery to the defendant (y). 
 So where the plaintiff delivered his bill to the solicitor of a railway 
 company provisionally registered, and proved that the bill was sub- 
 sequently in the hands of the defendant, a member of the provi- 
 sional committee, who looked it over and said he had seen that bill 
 before, that the charges were high, but that it was not intended to 
 dispute them, and subsequently added that inquiry should be made 
 of the solicitor as to the state of the funds, and an answer sent ; it 
 was held, that there was evidence to go to the jury of a delivery 
 to the defendant himself (2). But the delivery to the solicitor of 
 
 4 
 {m) Per Coleridge, J., Barrism v. (t) Smith v. IHmes, .4 Ex. 32, 19 L.* 
 
 Ward, A Do^l. 39. J. 60, Ex. But see Re Simons, 3 D. & 
 (n) Fearne v. Wilson, 6 B. & C. 86. • L. 156. 
 
 ifi) Hemming v. WilUm, 4 C. & P. 318. (u) Hill v. Sydmy, 7 A. & E. 956. 
 (p) Prothero v. Thomas, 6 Taunt. 196. \x) Per SayUy, J., Vincent v. Slay- 
 ing) Per Cur., Smith v. Dimes, 4 Exch. maker, 12 East, 372. 
 
 32, (y) M'Oregor y.Keily, 18 L. J., Exch. 
 
 (r) Allen v. Aldridge, 5 Beav. 405. 391. 
 ■ (s) Bush V. Martin, 2 H. & C. 811 ; (s) Phipps v. Daulney (in error), 16 Q. 
 
 S3 L. J. 17 Ex. B. 514. 
 
ATTOENEY. 201 
 
 tlie- party to be charged, without showing anything further, has 
 been held not to be a sufficient deliveiy (a), although, under the 
 old act, where the words were the same, in an action against the 
 executors of a client, a delivery to the client in his lifetime would 
 seem to have been sufficient (6) ; and, where a party in a cause 
 having changed his attorney in the progress of it, a judge's order 
 was afterwards obtained by the second attorney for the delivery to 
 him of a bill signed by the first attorney, which delivery was 
 accordingly made : this was held to be a sufficient delivery to 
 enable the first attorney to bring an action against the client for 
 the amount of such bill (c). 
 
 To constitute a delivery, the bill must be left with the party 
 charged ; for in a case where the ftlaintiff had delivered his bill to 
 the defendant in due time, who acknowledged his debt, and said 
 that he would pay it, but that he did not know what to do with 
 the bill, upon which the plaintiff took it back again, it was held, 
 that the bill ought to have been left with the defendant : for the 
 intention of the statute was, that the client should have due time 
 to examine the charges made by the attorney, and take advice 
 upon them, if necessary (d). In like manner it has been held, 
 that although an attorney shows his client a copy of his bill, ex- 
 plaining the different charges to him, in the reasonableness of 
 which the client acquiesces, the attorney is notwithstanding bound 
 -to leave a copy of the bill with him (e). 
 
 Where several are jointly liable to an attorney for business done, 
 the delivery of a copy of a bill to one of them, from whom the 
 attorney has received his instructions, is sufficient (/). But where 
 in an action against a provisional committee-man, the bill was de- 
 livered to another member of the committee, at his place of busi- 
 ness, it was held, that no sufficient delivery had been made to 
 charge the defendant ; that the ordinary rule with reference to a 
 delivery to one of two partners or joint contractors could not be 
 held to apply to such a case as this, and that the bill should have 
 been delivered either at the place of business of the company, or 
 to some person who might reasonably be supposed to represent the 
 provisional committee (g). 
 
 It must be delivered to the party " to be charged therewith," 
 and the bill or letter accompanying the bill must not leave this in 
 doubt. Where, therefore, an attorney had transacted some business 
 for the defendant's niece, a Mrs. H., while staying in the defendant's 
 house, and subsequently to her departure therefrom sent in his bill 
 
 (a) Me AUott, i L. T. 676, Ch. (/) Firwhett v. Sow, 2 Campb. 277. 
 
 (6) Reynolds v. Caswell, i Taunt. 193, (g) Edwards v. Lawless, 5 Rail. Ca. 
 
 per Mansfield, C. J. 357 ; and see Egginton v. Cumherledge, 1 
 
 (c) Vincent v. Slaymaker, 12 East, S7?. Kxoh. 271. See Tate v. HitcUns, 7 C. 
 
 (d) Brooks v. Mason, 1 H. Bl. 290. B. 875. 
 .(e) Crowder t. SAee, 1 Campb. 437. 
 
203 ATTOENEY. 
 
 to the defendant, headed—" In the matter of Mr. and Mrs. H., 
 Mr. G.'s" (the attorney's) "costs and charges"— and enclosed m 
 the following letter, addressed to the defendant :—" As I under- 
 stand Mrs. H. is no longer residing under your care, and presuming, 
 therefore, that you may not he remaining longer in town, I beg to 
 hand you my account, in the hope that it will be found satisfec- 
 tory," &c. ; it was held, that this was not a delivery to the party 
 " to be charged," for that it was uncertain who really, was meant 
 to be charged, and whether the delivery was meant to charge the 
 defendant, or whether it was merely delivered to him as the friend 
 of the real client, Mrs. H. Qi). Where, however, in an action 
 against a provisional committee-man, a bill was sent in headed 
 " Northampton, Lincoln, and Hull Eailway, to E. H. D. (the 
 attorney) debtor;" it was held, that such a heading was sufficient 
 to charge all the persons who were responsible on the part of the 
 railway company, including, therefore, the defendant (i). It is 
 sufficient if the party to be charged can be collected from the bill 
 and letter accompanying taken together (Jc). 
 
 " Or sent by post." — Where the letter in which the bill was 
 enclosed, was placed by the plaintiff's clerk in a box in the office, 
 and the clerk proved that the postman invariably called every day 
 and took the letters out of that box, it was held, that there was 
 evidence for the jury of a sending by post within the above words (1). 
 " Or left, &c. at his counting-house, office of business, dwelUng:- 
 house, or last known place of abode." A person who had no place 
 of business of his own, directed communications to be addressed 
 and sent to him at his attorney's office, where he occasionally called 
 ajud wrote letters. An attorney's bill of costs was addressed to and 
 left there for him more than a month before action brought, but 
 he did not actually receive it till a fortnight before action, it was 
 held that there was evidence for the jury to find that there was a 
 proper delivery (m). — The provisional committee of a railway com- 
 pany, amongst whom was the defendant, took offices in Moorgate 
 Street, London, and put up a brass plate with the name of the 
 company engraved on it. In January, 1846, the scheme was 
 abandoned, and the defendant never afterwards a,ttended at the 
 office in Moorgate Street, or interfered in the affairs of the com- 
 pany. A sub-committee was however appointed, for the purpose 
 of ascertaining and settling the claims on the committee-men, and 
 the brass plate continued on the door in Moorgate Street. In Sep- 
 tember, 1846, the plaintiff delivered his biU at the office in Moorgate 
 Street, to a person there who seemed to be a clerk, addressed to 
 " The Provisional Committee of the Company." The Court of 
 Common Pleas were equally divided as to whether there was a 
 
 (h) Oridley v. Austin, 16 Q. B. 504. (k) Taylor v. Hodgson, 3 D. & L. 115. 
 
 (i) PMpps V. Daubney (in error), 16 (I) SJdlbecky. Gm-bett, 7 Q. B. 846. 
 
 Q- B- 514. (m) Spier V. Bernard, 8 L. T. 396, Ex. 
 
ATTOENEY. 203 
 
 sufficient delivery at the defendant's " office of business," within 
 the meaning of the act (n). The defendant may show, that at the 
 time of the delivery of the bill, the place at which it was deUvered 
 was not his last known place of abode (o). 
 
 The plea that no signed bill was delivered, must be pleaded 
 specially,' and cannot be given in evidence under the general 
 issue (p). The " month " mentioned is, by the interpretation clause, 
 s. 48, a calendar month, and should be so pleaded (q). The plea 
 should negative any sending by post (r). In a separate plea by 
 one of two partners or joint contractors, it is not necessary to allege 
 that no signed bill was delivered to either of them ; it is sufficient 
 to state in the words of the statute, that no signed bill had been 
 delivered to the defendant, or left, &c. at 7iis counting-house, and 
 on that issue, if the delivery to one defendant enured as a delivery 
 in law to the other, the verdict would be for the plaintiff, otherwise 
 for the defendant (s). 
 
 By the same section (the S7th), the court or a judge are, " upon 
 the application of the party chargeable with such bill within such 
 month," required to refer it to the proper officer for taxation, " and 
 the court or judge making such reference shall restrain such attor- 
 ney or solicitor, or executor, administrator or assignee of such at- 
 torney or solicitor, from commencing any action or suit touching 
 such demand pending such reference " (t). If no application be 
 made by the party chargeable within such month, then it shall be 
 lawful to make such reference on the application of the attorney 
 himself, his executor, administrator or assignee, or of the party 
 chargeable " with such directions, and subject to such conditions 
 as the court or judge making such reference shall think proper ; 
 and such court or judge may restrain such attorney or solicitor, or 
 the executor, administrator or assignee of such attorney or solicitor, 
 from commencing or prosecuting any action or suit touching such 
 demand pending such reference, upon such terms as shall be thought 
 proper : provided always, that no such reference as aforesaid shall 
 be directed upon an application made by the party chargeable with 
 such bill after a verdict shaU have been obtained, or a writ of in- 
 quiry executed in any action for the recovery of the demand of 
 sxich attorney or solicitor, or executor, administrator or assignee of 
 such attorney or solicitor, or after the expiration of twelve months 
 after such bill shall have been delivered, sent or left as aforesaid. 
 
 («) Slandy v. De Burgh, 6 C. B. 623. presented a petition to the Vice-Chani 
 
 {o) Wadeson v. Smith, 1 Sta. 324. cellor to allow the cost's of taxation, and 
 
 ip) SoMnsonr. Boland, 6 Dowl. 271. pending this proceeding the attorney 
 
 (q) Parker r. Gill, 5 D. & L. 21. brotght an action for the residue of the 
 
 {r), Flower r. Newton, 11 Jur. 875. bill, it was held that the action was well 
 
 (s) Tate.y. HUchins, 7 C. B.. 87.'). brought, and that the above provision did 
 
 (t) "Where, more than a sixth having not apply. Hewitt v. Bellott, 2 B. & Aid. 
 
 been taken off on taxation, the defendant 745. 
 
204 ATTOENEY. 
 
 except under special circumstances (u), to be proved to the satis* 
 faction of the court or judge to whom the application for such 
 reference shall be made, &c." (x). 
 
 Provided also, " that it shall not in any case be necessary in the 
 first instance for such attorney or solicitor, or the executor, admi- 
 nistrator or assignee of such attorney or solicitor, m proving a 
 compliance with this act, to prove the contents of the bill he may 
 have delivered, sent or left, but it shall be sufficient to prove that 
 a bill of fees, charges or disbursements, subscribed in the manner 
 aforesaid,' or enclosed in or accompanied by such letter as afore- 
 said, was delivered, sent or left, in manner aforesaid ; but never- 
 theless it shallbe competent for the other party to show that the 
 bill so delivered, sent or left, was not such a bill as constituted a 
 bond fide compliance with this act. Provided also, that it. shall 
 be lawful for any judge of the superior courts of law or equity to 
 authorize an attorney or solicitor to commence an action or suit for 
 the recovery of his fees, charges or disbursements against the party 
 chargeable therewith, although one month shall not have expired 
 from the delivery of a bill as aforesaid, on proof to the satisfaction 
 of the said judge that there is probable cause for believing that 
 such party is about to quit England." 
 
 An attorney's bill, generally speaking, ought to give a history of 
 the suit, so as to enable the officer to judge of the propriety of the 
 various items of which it is composed {y) ; and although the statute 
 does not in terms require the name of the court and cause (if the 
 business be done in court) to be stated, the courts have held that 
 to give due effect to the above section, such information is neces- 
 s^Tj [z). It will, however, be sufficient if it can be collected by 
 reasonable intendment, and it is not necessary to specify the par- 
 ticular common law court in which the business was done, the 
 scale of taxation being now uniform in all (a). The delivery of a 
 bill in which a gross sum is stated to be charged as per agreement, 
 without giving the specific items, so as to enable the master to 
 tax, is not the delivery of a bill within s. 37 (6). A billcontaining 
 amongst other items (for which the jury found the defendant liable) 
 extra costs, but omitting the taxed costs, was held by the Court of 
 Exchequer bad, even although the jury found that the plaintiff had 
 no claim for extra costs on the ground that a bill which is bad in 
 part is bad altogether (c), but the Court of Queen's Bench {d), 
 
 {u) See Birmsy. Hey, 13 L. J., Q. B. 706. 
 28 ; 1 D. & L. 661. Overcharges con- (a) Cook v. Oillwrd, 1 E. & B. 26 ; 
 
 stitute " special circumstances." Re Cozem v. Qraham, 16 Jnr. C. P. 952 ; 
 
 Hook, 3 Giff. 372. So also large and but see Immey \. Marks, 15 M. & W. 
 
 unusual charges requiring explanation to 548. 
 justify them. Be Sobinson, 3 L. R. Ex. 4. (6) Philby v. ffazle, 29 L. J. 370, 
 
 {x) See per Lord Langdale, M. E., lie C. P. ; 8 C. B. (N. S.) 647. 
 Dowries, 6 Beav. 428. (c) PigoU v. Cadman, 1 H. & N. 837 ; 
 
 . (y) Waller y. Lacy, 1 M. & G. 54. but see Haigh v. Ousey, 7 E. & B. 578. • 
 
 («) Martindale v. Falkmr, 2 C. B. ((?) Haigh v. Ousey, 7 E. & B. 678; 
 
ATTOENEY. 205 
 
 adopting the views of the Common Pleas (e), has dissented from 
 the doctrine, and held that if the bill consists of several items, all 
 ■within the statute, with regard to some of which the provisions of 
 the statute have been complied with, and with regard to others, 
 not, the items as to which the statute has been complied with may 
 be recovered. . The bill may contain usual and intelligible abbrevia- 
 tions (/), and mistakes in dates, &c., not calculated to mislead, 
 will not vitiate it (g). 
 
 The bill having been delivered a month before the commence- 
 ment of the action, and the party charged not having made any 
 application to have it taxed during that interval, he will not be 
 permitted to question the reasonableness of the items before a 
 jury (h) ; althoiigh particular heafls or items of charge may be dis- 
 allowed in toto, as not being authorised (i). Delivery of the bill is 
 conclusive evidence against an increase of charge in a subsequent 
 bill of any of the items contained in it, and strong presumptive 
 evidence against any additional items (Jfc). 
 
 By s. 4<3 — " The certificate of the officer by whom such bill 
 shall be taxed shall (unless set aside or altered 'by order, decree, 
 or rule of court) be final and conclusive as to the amount 
 thereof, and payment of the amount certified to be due and 
 directed to be paid, may be enforced according to the course of the 
 court in which such reference shall be made ; and in case such re- 
 ference shall be made in any court of common law, it shall be law- 
 ful for such court, or any judge thereof, to order judgment to be 
 entered up for such amount, with costs, unless the retainer shall 
 be disputed, or to make such other order thereon as such court or 
 judge shall deem proper." 
 
 If the client has paid the attorney more than is afterwards 
 allowed on taxation, he cannot recover the surplus by action 
 against the attorney, or set it off (l). His remedy is, it seems, by 
 an application to the court (m). A judge's order under this 
 section has the same effect as a rule of court for the payment 
 of money under 1 & 2 Vict. c. 110, s. 18 ; if, therefore, an action 
 be brought on this order, the costs of the writ, &c., wiU not be 
 allowed {n). 
 
 An attorney, who has several demands against his client, some 
 of which are barred by the Statute of Limitations, cannot appro- 
 priate, in payment of the demand so bai-red, a sum received by 
 
 giuBre, whether in such a case an attorney (k) Loveridge v. Botham, IB. & P. 49. 
 
 can split his demand, and deliver several See Ex parte Semming, 28 L. T., C. P. 
 
 hills • Pigott v. Oadinan, i Ex. 32, 19 Hi. 
 
 L. J. Ex. 60, 1 H. & N. 837. ' {I) PMlUps v. Broadley, 16 L. J., Q. 
 
 (e) Waller v. Laey, 1 M. & G. 64. B. 72. 
 
 (/) Reynolds v. Caswell, 4 Taunt. 193. (m) Tower v. Popkins, 2 Sta. 85, per 
 
 (g) WilHarns v. Barber, i Taunt. 805. Lord ElUnborough, C. J. 
 
 (h) Williams v. Frith, Dougl. 198. (n) Griffiths v. Hughes, 16 M. & W. 
 
 (i) Dwnn V. Hales, 1 Fost. & Finl. 174. 809. 
 
306 ATTOENEY. 
 
 him on account of his client for damages recovered in an action (6). 
 Where, after action brought, the bill is referred to taxation at the 
 request of the defendant, the attorney should make it a condition 
 of the taxation, that the defendant should allow the master to tax 
 interest also, if the attorney wishes to avail himself of a previous 
 notice of a claim of interest, under 3 & 4 Will. IV. c. 42, s. 28 {p). 
 
 By the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), 
 s. 7, " Every attorney whose name shall be indorsed on any writ 
 issued by authority of this act, shall, on demand in WTiting, made 
 by or on behalf of any defendant, declare forthwith, whether sucli 
 writ has been issued by him, or with his authority or privity ; and 
 if he shall answer in the affirmative, then he shall also, in case the 
 court or a judge shall so order and direct, declare in writing, within 
 a time to be allowed by such court or judge, the profession, occu- 
 pation or quality, and place of abode of the plaintiff (g), on pain 
 of being guilty of a contempt of the court from which such writ 
 shall appear to have been issued (r), and if such attorney shall 
 declare that the writ was not issued by him, or with his authority 
 or privity, all proceedings upon the same shall be stayed, and no 
 further proceedings shall be taken thereupon, without leave of the 
 court or a judge " (s). 
 
 It is clearly established that negligence cannot be set up as a 
 defence to an action on an attorney's bill : for the plaintiff does not 
 come prepared to prove anything more than the business done, and 
 is not in a situation to meet a charge of negligence (t). " I do 
 not go to the length of saying that in no case can negligence in the 
 party suing be used as a defence to the action, though I think it 
 can only be used where the negligence has been such, that the 
 party for whom the business was done has thereby lost all pos- 
 sibility pf benefit from such business ;" per Sir J. Marisfield, 0. J., 
 S. C. " No principle of law is more clearly established than this, 
 that a party cannot enforce a charge for doing business which is 
 useless to Ms employer;" p&v Tindalj C.J. (w). If, theref6re, 
 
 48 
 
 jo) WalW V. Lacy,l^. & G 5i. same. There is, however this (Jifference, 
 
 (p) Bernngtm v. PJiMzps, 1 M. & W. that an attorney's claim i notlliaUe to be, 
 
 , , , , . , reduced pro icmto in conseduenoe of neg- 
 
 fe) A mere temporary residence, as at ligence on' his part, hy wiich the worl 
 
 t '^«™wrff>nwTV7".®°'™*- ^°'^""' ^"""^ '' i-endereipaWnselessj Sfuiw v. 
 
 MA^t^M ^f- ,.1 1, ^rden, per ParJccB-jMorikilr. Steel, 
 
 (r) A false statement would he equally 8 M. & "W. 871. (See Cox v. Leach, 
 
 a contempt. Strnthv. £md, 11 M.. &,yf. post.) i. ^ <«'<', 
 
 i\ rm,- ■ 1, 4. i- 11 "^^8 ™ls ■'^tli regard to other actions 
 
 of^9W,nf 'tTp ."^^''^r'™"'''"*'"'''* ^^^ "-^"^ l"*! -i"™ ^y I^^i ^^■'^- 
 
 /l m 7 ji<; ,; „ ^^ borough, C. J., in FarimoorthY. Garrard, 
 
 ft) Templar v. M'Zachlan, 2 ^. K 1 Camph. 38! which; wa^ an actionW 
 
 /\ m . , ^ ■„. a builder's bill. " The late Mr. Justice 
 
 (u) Shim ^'- Ardm, 9 Bing. 290. -Bt.He^ thought (and I, in deference to so 
 
 In this respect the rule with regard great an authority, hive at tmTs ruled 
 
 to actions by attormes, and ordinary the same way), that in cases of tMs kM? 
 
 actions for work and labour, &o, is the a cross action for the ne^igence wa^ 
 
ATTOENEY. 
 
 207 
 
 the business, which the attorney undertakes, wholly fails from his 
 gross ignorance or negligence ; as where an attorney was employed 
 to prosecute an appeal at the quarter sessions, and, owing to his 
 gross ignorance, the case was so conducted that the sessions refused 
 to hear the appeal ; it was held, that the attorney could not re- 
 cover (x). So where an , attorney commenced actions in the 
 Lord Mayor's Court, whence he knew that a commission to examine 
 witnesses abroad could not issue without great expense, and from 
 the ' nature of the actions — against underwriters for particular 
 average loss on a policy of goods which had been shipped to and 
 sold at Calcutta — that he could not go to trial without one ; 
 and the actions were in consequence discontinued (y). But an 
 attorney may recover, although th^re has been error in the execu- 
 tion of his duty ; if the error be such as a cautious man might fall 
 into (z). 
 
 Entire items for useless work may be discarded by a jury (a) ; 
 but in the case of an entire item for work partly useful, the jury 
 are precluded from reducing that item, in an action to recover the 
 amount of the bill, and the client must resort to a cross action (b). 
 
 necessary ; but that, if the work be done, 
 the plaintiff must recover for it. I have 
 since had a conference with the judges on 
 the subject ; and I now consider this as 
 the correct rule (see Denew v. Daverell, 3 
 Campb. 451 ; Suncwn v. Blwndell, 3 
 Sta. 6), that if there has been no bene- 
 ficial service, there shall be no pay ; but 
 if smne benefit has been derived, though 
 not to the extent expected, this shall go 
 to the amount of the plaintiff's demand, 
 leaving the defendant to his action for 
 negligence. The claim shall be co-ex- 
 tensive with the benefit. " See further on 
 this subject, Fisher v. Sarrmda, IjCampb. 
 190, where Lord EUenborough expressed 
 an opinion, that where an action has been 
 brought for the value of goods furnished 
 at a stipulated price, and the purchaser 
 does not, either ia bar of the action, or to 
 reduce the damages, object to the quality 
 of the goods, but allows the seller to re- 
 cover a verdict for the fall price agreed 
 upon, he cannot afterwards maintain a 
 cross action, on the ground of the goods 
 being of a bad quality, and unfit for the 
 purpose for which they were ordered ; 
 and this opinion was fully^ confirmed by 
 the Court of Exchequer in MmiMll v. 
 Steele, with this distinction, that the 
 purchaser may stUl sue for any conse- 
 quential damages caused by the breach of 
 contract, which he could wit have given 
 in evidence in reduction of damages in 
 the former action for the price. 
 
 There is a distinction, however, in this 
 respect, between a coniroci and a scmirity; 
 
 for in an action on a bUl of exchange, a 
 partial failure of consideration is no de- 
 fence ; as where a biU had been accepted 
 for the price of some hams, which turned 
 out so bad that they were almost unmar- 
 ketable ; this was held to be no defence, 
 but the defendant must seek his remedy 
 by a cross action ; Morgan v. Richard- 
 son, 1 Campb. 40, n. ; Tye v. Gwynne, 2 
 Campb. 346 ; Wells v. BopUm, 5 M. & 
 "W". 8, 9. See also Obhard v. Betham, 1 
 M. & M. 483 ; Mann v. Lent, 10 B. & C. 
 877. In Morgan v. Richardson, money 
 had been paid into court, but Lord Ellen- 
 iorough said, that that circumstance 
 formed no ingredient in the opinion he 
 then expressed. A. and B. entered into 
 an agreement for the sale of the lease of 
 a house ; B. was let into possession, and 
 accepted a bill for the purchase-money ; 
 in an action brought by A. against B. for 
 non-payment of the bUl, it was held, 
 that B. could not defend the action by 
 proving that A. had refused to execute 
 an assignment of the lease, he having 
 actually occupied the premises for some 
 time, but that B. must bring a cross ac- 
 tion, or go into equity for a specific per- 
 formance. Moggridge v. Jones, 3 Campb. 
 38. 
 
 (a) Suntley v. Bulwer, 6 B. N. C. 
 111. 
 
 (y) Cox V. Leech, 1 C. B., N. S. 617. 
 
 (z) Montriouy.'r'Jefferys, 2 C. & P. 113. 
 
 {a) Hill V. Featherstonhaugh, 7 Bingh. 
 569. 
 
 (6) ShaiD V. Arden, 9 Bingh. 287. 
 
208 ATTOENEY." 
 
 The -work becomes useless through the plaintiff's fault, if, in eon- 
 sequence of his misconduct at some particular point, the whole is 
 made ineffectual (c). But in Cox v. Leech, it was held that the 
 plaintiff might recover for letters written by him to the under- 
 writers before commencing the proceedings in the Lord Mayor's 
 Court, although by his subsequent negligence the whole proceed- 
 ings were rendered nugatory. Such failure of the work is admis- 
 sible in evidence under the general issue {d). 
 
 Where a debt is paid before action brought, the plaintiff 
 cannot recover the costs of his attorney's application (e). An 
 attorney who has attended on a subpoena, as a witness in a 
 civil suit, cannot maintain an action against the party who sub- 
 poenaed him, for compensation for loss oi time ; for it is a duty 
 imposed on all persons to attend on a subpoena, and a promise to 
 pay money for the performance of a duty is a promise without 
 consideration (/). An attorney is not, in the absence of an express 
 contract, and of circumstances from which a special contract may 
 be inferred, personally liable to a witness, whom he subpoenas for 
 his expenses of attendance {g). But he is to a bailiff whom he. 
 employs to issue execution for his fees (A.). The solicitor under 
 a commission of bankruptcy is not liable in the first instance to 
 the messenger, whom he nominates, for his bill of fees ; but if the 
 solicitor agree with the petitioning creditor to work a commission 
 for a sum certain, and receive a great part of that sum, he will be 
 liable to such messenger (i). 
 
 An attorney who has commenced an action for his client has a 
 right to refuse to go on without an advance of money on account, 
 provided he gives his client reasonable notice of his intention {h). 
 The contract of an attorney or solicitor retained to conduct or de- 
 fend a suit is entire and continuing, viz. to carry it on to its termi- 
 nation, and can only be determined by the attorney upon reason- 
 able notice {I) ; till which time the Statute of Limitations does not 
 begin to run, although more than six years have elapsed since the 
 last step in the cause (m). But this rule does not, it seems, extend 
 to other business upon which an attorney is employed. There- 
 fore, where an attorney was employed by his client in procuring 
 money to pay off a mortgage, and, after several ineffectual attempts 
 to procure the money, some of which were more than six years 
 before suit, and others within six years, it was ultimately obtained ; 
 it was held, that such employment was not continuous, and that 
 the attorney could not recover for the items which were trans- 
 
 , (c) Per Lord Denman, C. J., in Bracmj (h) MaiU v. Mwnn, 2 Exch. 608. 
 
 T. Carter, 12 A. & E. 376. (i) jjartop v. Jwckes, 2 M. & S. 438. 
 
 {d) Bracey v. Carter, supra. (k) Lawrervce v. Potts, 6 C. & P. 428 ; 
 
 (<■) Caine v. Coulsm, 32 L. J. 97, Ex. Wadsworth v. Marshall, 2 C. & J. 665. 
 {/) Colhns V. Godefroy, 1 B. & Ad. (I) Harris v. Osbourn, 2 C. & M. 629. 
 
 ^^?\„i- „ -J „,^,,„ (m) M'hUeheadx. Lord, T&xc\x. 6^1. 
 
 (g) Bobms v. Bridge, 3 M. & W. 114. 
 
ATTOENEY. 209 
 
 acted beyond the six years (n). An attorney, however, is not 
 compelled to proceed to the end of a suit, in order to be entitled 
 to his costs, but may, for satisfactory cause and upon reasonable 
 notice (which it lies on him to show (o)), abandon the conduct of 
 the suit, and in such case may recover his costs for the period 
 during which he was employed (p). So if the client repudiates 
 his retainer (q). 
 
 The attorney of a defendant has no such interest in the suit as 
 to prevent the parties from compromising it without his consent (r). 
 The lien of an attorney on a judgment is merely a claim to the 
 equitable interference of the court, to have the judgment held as a 
 security for his costs, but he has no authority over the execution 
 of a writ of ca. sa., so as to carry^it into effect against the order of 
 the plaintiff, even though the plaintiff and defendant should collude 
 to deprive him of his lien (s). The retainer of an attorney is 
 determined by the death of the client {t). 
 
 Liability of Attornies. — An action on the case may be main- 
 tained by a client against his attorney for negligence or unskilful- 
 ness in the discharge of his professional duty. As where an attor- 
 ney neglected to charge a defendant (a prisoner) in execution 
 within the time allowed by the practice of the court, by reason of 
 which neglect the defendant was discharged ; it was held, that the 
 action was maintainable against the attorney for negligence, but 
 that as it sounded in damages, it was competent to the jury to 
 find what damages they thought fit, and that they were not con- 
 strained to find the amount of the whole debt, in a case where it 
 appeared that the debtor was not totally insolvent, and that the 
 creditor might probably in time obtain some part of his debt by 
 execution against his goods (u). A., a complainant in Chancery, 
 employed B. as his solicitoi-, during whose emplojonent an irre- 
 gular order to dismiss the bill on a certain day, unless publication 
 passed, was obtained ; before that day arrived, C. was appointed 
 the solicitor of A, and the bill having been dismissed because no 
 step was taken by C, it was held that an action would lie against 
 C. for negligence, because he should have conformed to the order, 
 or should within the time have moved to vacate it (x). 
 
 So where the attorney in a case stated for the opinion of counsel 
 took upon himself to draw conclusions from certain important 
 deeds, which he accordingly omitted to lay before counsel (y). 
 
 (n) Phillips V. BroadUy, 9 Q. B. Hi. 441. 
 
 (o) Wilson V. Nicholls, 11 M. & W. (<) Whitehead v. Lord, supra. 
 
 106. M Sussell V. Palmer, 2 Wils. 325. 
 
 (p) Vansandau v. Browne, 9 Bingh. See Pitt v. Yalden, i Burr. 2060. 
 402. W Frankland v. Cole, 2 C. & J. 590. 
 
 (ff) HawTcesY. Cottrell, 27 L. J., Exch. (y) Jreson v. Pearman, 3 B. & C. 799. 
 
 389 See per Tindal, C. J., Godefroy v. Dalton, 
 
 (r) Quested v. Callis, 10 M. & W. 18. 6 Bingh. 469 ; Andrews Y.Hawley, 26 L. 
 
 (s) Barker v. St. Quintin, 12 M. 4;"W. J., Exoh. 323. 
 A^OIi. I. I" 
 
210 ATTORNEY. 
 
 So where the attorney in laying, out his client's money on the 
 security of a legacy relied upon an extract of the will, and omitted 
 to consult the original (z). So where the attorney does not give 
 reasonable notice to his client of his intention to abandon the 
 cause, unless he is supplied with funds {a). So where an attorney 
 commenced an action on a foreign bill of exchange without ascer- 
 taining whether there was an indorsement to the plaintiffs, as 
 required by the law of France (h). " The cases," said Tindal, 
 C. J., (c), " appear to establish in general that an attorney is Uable 
 for the consequences of ignorance or non-observance of the rules 
 of practice of this court, for the want of care in the preparation 
 of the cause for trial or of attendance thereon with his witnesses, 
 and for the mismanagement of so much of the conduct of a cause 
 as is usually and ordinarily allotted to his department of the pro- 
 fession. Whilst on the other hand he is not liable for error in 
 judgment upon points of new occurrence, or of nice or doubtful 
 construction, or of such as are usually entrusted to men in the 
 higher branch of the profession of the law." 
 
 If attomies, employed by a vendor to settle, on his part, the 
 assignment of a term, allow him to execute an imusual covenant, 
 without explaining the liability thereby incurred, they are respon- 
 sible to him for the consequent loss, notwithstanding the vendor 
 is himself, at the time of his assignment, aware of the fact, in 
 respect of which he afterwards incurs liability on his covenant (c^. 
 The question of negligence is, it seems, for the jury (e). 
 
 But it is not every neglect that will subject an attorney to such 
 an action : for an attorney is only bound to use reasonable care 
 and skill in managing the business of his client. He is only 
 liable for crassa negligentia. " That cannot be considered as gross 
 negligence, concerning which persons of competent skill may enter- 
 tain a doubt" (/). Hence an action cannot be maintained against 
 an attorney for negligence in not discovering a defect in the memo- 
 rial of an annuity, which was subsequently held to be a defect 
 upon a doubtful construction of the statute (g). So, where an 
 action had been brought on a bond given by R to secure lOOOZ., 
 and R. admitted his liability, and offered to pay a certain sum, 
 but the attorney for the plaintiff made no application for a compul- 
 sory arbitration under sect. 3 of the Common Law Procedure Act, 
 1854, and ultimately the cause went to trial, where a verdict was 
 taken by consent, subject to a reference to the master to settle the 
 amount due, but in the meantime R had become bankrupt, and 
 nothmg was recovered ; it was held, that such an omission by the 
 
 (z) Wilson ^.TucUr 3 Sta 154. (c) BunUr v. CaUwdl, 10 Qi B.! 69. 
 
 a) Hoby^. Built Z-&.hk6.. 350. (/) Per Crmwdl, J., in BuVmr v. 
 
 (6) Lm^y. Ors%, 18 C. B. 610. Oilman^ i M. & G. 125. 
 
 (c) Godefroyj. Daltmt 6 Bingh. 469. (g) Baikie v. Chcmdless, 3 Caiiipb. 17. 
 
 (d) Stmnwrd v. Ulltthome, 10 Bmgh. See Elkmgtm v. Hollamd, 9 M. & W. 
 ^91- 659. 
 
ATTORNEY. 211 
 
 attorney was not actionable, it being doubtful whether the judge 
 would certainly have referred the cause under the above 
 section (A). 
 
 Defendant, an attorney, being employed to raise money on 
 mortgage for the plaintiff, disclosed to the proposed lender defects 
 in the title of the plaintiff, by reason whereof the plaintiff was 
 subjected to actions at the suit of the lender, was delayed in ob- 
 taining the money he wanted, and compelled to give a higher rate 
 of interest ; it was held, that this was a breach of duty, for which 
 an action lay against defendant, notwithstanding he had been 
 the attorney of the proposed lender before his 'retainer by the 
 plaintiff (t). 
 
 Where an attorney was sued forlegligence in allowing judgment 
 to go by default, in an action which the plaintiff had retained him 
 to defend, the negligence having been proved, it was held that it 
 lay upon the attorney to show that the plaintiff was not damnified 
 by the judgment by default, and not upon the plaintiff to establish 
 that he had been in fact damnified Qc). The Court of Chancery 
 has no jurisdiction to make a soUcitor responsible for negligence 
 in the conduct of a suit Q). An attorney has a general authority 
 to compromise an action on behalf of his cHent, provided he act bond 
 fide and reasonably, and not in defiance of the direct and positive 
 instructions of the client (m). Where the misconduct or negligence 
 of the attorney constitutes the cause of action, the statute of limi- 
 tations begins to run from the time of the misconduct (n). 
 
 Evidence. — ^The regular proof of a person being an attorney, is 
 either by the production of the original roll, signed by the party 
 on his admission, together with proof of his signature, as evidence 
 of identity ; or by an examined copy of the roll, together with the 
 admission (o). But in an action by an attorney for his bill, it is 
 sufficient for him to prove that he has acted as an attorney in the 
 court of which he is alleged to be an attorney, and it lies on the 
 defendant to show the contrary (p). And now, by the 23 & 24 
 Vict. c. 127, s. 22, the "Law List" is prima facie evidence that a 
 person is or is not a certificated attorney. 
 
 In an action brought by an attorney for slandering him in his 
 profession, it appeared that the defendant had charged him with 
 swindling his client, adding a threat that he would have him (the 
 attorney) struck off the roll ; it was held, that this threat imported 
 that the plaintiff was an attorney, and superseded the necessity of 
 
 (h\ Chapman v. Van Toll, 27 L. J., (m) Prestwich v. Foley, 18 C. B. 
 
 0. B. 1. (^- S.) 806 ; 34 L. J. C. P. 189. 
 
 235. 
 
 (i) Tavlor t. Blacklow, 3 B. N. C. (n.) Howell v. Young, 5 B. & C. 259. 
 
 ;^.^ ^ (o) 2 Phillips' Evid. p. 159, 5th ed. 
 
 (ic) God^rmj v. Jay, 1 Bingh. 413. (p) Feara v. Whale, 5 B. & C. 38. 
 
 (?) PranMand v. Lucas, 4 Sim. 586. 
 
 V 2 
 
212 ATTOENEY. 
 
 other proof (r). But if the gist of the slander were that the plain- 
 tiff was not in fact entitled to practise as an attorney, such evi- 
 dence would seem to be insufficient (s). 
 
 A copy of an attorney's bill, although not signed (the original 
 having been proved to have been delivered to the defendant), will 
 be received in evidence, without proof of notice to produce the 
 original, because the bill delivered is itself in the nature of a 
 notice (f). 
 
 (r) Berryman v. Wise, 4 T. E. 366. written notice of the dishonour of a hill 
 
 (s) Collins V. Carnegie, 1 A. & E. 695, of exchange, without any notice having 
 
 (<) Colling v. Treweek, 6 B. & C. 394. been given to produce it. Swain v. 
 
 So secondary evidence may be given of a Lewis, 2 C. M. & K. 261. 
 
213 
 
 CHAPTER VTI. 
 AUCTION. 
 
 I'AGE 
 
 Of Agreements relating to the Sale of Lands and Goods hy 
 
 Auction . ' . . . • 213 
 
 Liability of Auctioneer 215 
 
 Recovery of Deposit and Interest on Defect of Title . .216 
 
 A SALE by auction of lands is within the 4th section, and a like sale 
 of goods [a) is within the I7th section of the Statute of Frauds (29 
 Car. II. c. 3) ; and to make it binding, the solemnities required 
 by that statute must be observed (b) ; the auctioneer is exclusively 
 the agent of the vendor until the hammer is down, when he also 
 becomes the agent of the purchaser to complete the purchase (c), 
 and a note or memorandum in writing of the agreement or bar- 
 gain, made and signed by him, wiU be sufficient to give validity 
 to the contract (d). But when the sale by auction is at an end, 
 such agency ceases, and the auctioneer's signature to a contract 
 afterwards entered into will not be sufficient (e). If any money is 
 paid as a deposit, though short of the sum stipulated by the con- 
 ditions of sale, and accepted as such by the auctioneer, it will 
 bind the bargain quoad the auctioneer (/). 
 
 A bidding at an auction may be retracted before the hammer is 
 down, because the assent of the seller is not signified till that takes 
 
 (a) Kenworthy v. Schojkld, 2 B. & C. buyer shall accept part of the goods so 
 
 945. sold, and actually receive the same, or 
 
 (6) Walkers. OonslabU, 1 Bos. & Pul. give something in earnest to bind, the 
 306. By sect. 4, "No action shall be bargain, or in part of payment, or that 
 brought whereby to charge a defendant some note or memorandum in writing of 
 upon any contract or sale of lands, tene- the same bargain be made and signed by 
 ments, or hereditaments, or any interest the parties to be charged by such con- 
 in or concerning them, unless the agree- tract, or their agents thereunto lawfully 
 ment upon which such action shall be authorized." 
 
 brought, or some memorandum or note (c) Warloio v. Harrison, 1 E. & E. 309. 
 
 thereof, shall be in writing, and signed (d) KeineysY. Proctor, 3Ves. &Beames, 
 
 by the party to be charged therewith, or 57 ; Simon v. Metivier, 1 Bl. E. 599. 
 
 some other person thereunto by him law- See BartUtt v. Purnell, i Ad. & E. 792. 
 
 fully authorized." By sect, 17, "No (e) MewsY. Carr, 26 L. J., Exch. 39. 
 
 contract for the sale of any goods, wares, (/) Hanson v. Hoberdeau, Peake's N. 
 
 and merchandizes, for the price of 101. P. C. 163. 
 or upwards, shall be good, except the 
 
314 AUCTION. 
 
 place ig), and the vendor may, before that is done, revoke the 
 auctioneer's authority (although at his peril). Therefore, if regard- 
 less of a statement that there is to be no reserve, a bidding be 
 made by or on the part of the owner, and the lot is knocked down 
 to the bidder, the last hovA fide bidder cannot claim the lot, for 
 his offer has never been accepted Qi). Usually the auctioneer 
 signs a memorandum of the sale in a book which contains or refers 
 to the printed catalogue and conditions of sale. _ In such a case, 
 his verbal declarations, superadding any term to {%), or contrary Qe) 
 to, the printed conditions of sale, are not admissible in evidence. 
 But if the contract be not thus reduced into writing, such decla- 
 rations are admissible in evidence (i). The printed particulars 
 cannot be varied (m) by such verbal statements of the auctio- 
 neer, either as to the parcels or quality {n) of the subject-matter 
 of sale. 
 
 An auctioneer has a special property in goods, which he is 
 employed to sell, and may maintain an action for the price against 
 a buyer (o) ; but not in a case where the right of a third person 
 intervenes and is established {p). " The rule of law is, that the 
 agent who makes the contract may bring an action on the contract 
 in respect of his privity, and the principal in respect of his inte- 
 rest (q). The general authority of an auctioneer as to receiving 
 payment of purchase money, is to take cash. Therefore, where a 
 purchaser at a sale gave a bill of exchange to the auctioneer, but 
 before it was due the auctioneer's authority to receive payment 
 was revoked, it was held that the delivery of the bill was no 
 defence to an action by vendor for purchase money (r). 
 
 If the owner of an estate put up to sale by auction, employ 
 puffers, or even a single puffer, to bid for him, it is a fraud on the 
 real bidders, and the highest bidder cannot be compelled to com- 
 plete the contract (s). Upon a sale of land by auction under 
 the ordinary conditions, without any stipulation, the courts of 
 equity used to allow one puffer, i.e., they allowed a reserve bidding 
 without notice ; but now, by the recent statute of 30 & 31. Vict. 
 c. 48, sales of land that would be invalid in law are also to be 
 invalid in equity (s. 4). By section 5 of this statute it is enacted, 
 " that the particulars or conditions of sale by auction of any land 
 shall state whether such land will be sold without reserve, or 
 
 (g) Payne v. Cave, 3 T. E. 148. (q) Lord Alinger, C. B., on WilUams 
 
 (h) Lord St. Leonards' Hand Book, p. t. MilUngton being cited in Sylces v. 
 
 3S, and Warlow v. Marrison. Giles, 5 M. & "W. 650. 
 
 (i) Powell T. Edmmids, 12 East, 6. (r) Williams v. Evans, 13 L. T. (K S.) 
 
 (k) Gwmis v. Erhart, 1 H. Bl. 289. 753, Q B 
 
 (Z) Eden v. £lake, 13 M. & W. 614. (s) ffoward v. CasOe, 6 T. E." 642 ; 
 
 (to) Shelton v. Uviiis, 2 Cr. & J. 411. Thomett v. Raines, 13 M. & "W. 367, 372. 
 
 {n) Jones V. Edney, 3 Campb. 285. Per Parke, B., Sobinson v. Wall, 11 Jur. 
 
 (a) Williams v. MilUngton, 1 H. Bl. 577, 678, per Cottenham, C. ; Mortimer 
 
 , . „. , „ , . „ . ^- ■^«"' 1 ^- ^- Ch. App. 10; 35 L. J. 
 
 ip) Dickenson v. Naul, 4 B, & Ad. 25 Ch. ; Green v. Eaverstock, 14 C. B. 
 *3». (N. S.) 204 ; 32 L. J. 181, C. P. 
 
AUCTION. S15 
 
 subject to a reserved price, or whether a right to bid is reserved ; 
 if it is stated that such land will be sold without reserve, or to that 
 efiPect, then it shall not be lawful for the seller to employ any person 
 to bid at such sale, or for the auctioneer to take knowingly any 
 bidding from any such person." 
 
 An action will not lie against an auctioneer for selling a horse at 
 the highest price bid for him contrary to the owner's express direc- 
 tions not to let him go under a larger sum, for such an arrangement 
 would be a fraud upon the public. If the owner does not wish to 
 sell his goods under a certain price, he should put them up at that 
 price, or state it in the conditions of sale, and he mayxiot privately 
 bid for his own goods. The auctioneer may bid for a third person, 
 bub not for the owner {f). 
 
 It was held by Gurney, B., that a " knock out," i.e., an agree- 
 ment among brokers that only one of them shall bid at an auction 
 in order that the goods may be knocked down at less than their 
 fair value, and that they may a,fterwards resell the goods and 
 divide the profits, is an indictable conspiracy [v). But a contract 
 between two persons not to bid against each other, with no further 
 stipulation, has been held in equity not to be illegal (a;). 
 
 Liability of Auctioneer. — Where an estate is sold by auction, 
 if a good title is not made out according to the conditions of sale, 
 an action against the auctioneer for the recovery of the deposit, 
 may be maintained, the deposit not appearing to have been paid 
 over to the principal. An auctioneer is personally liable for the 
 noncompletion of the contract where he does not name his prin- 
 cipal. Per Kenyan, C. J. [y). He is liable, as- in other cases, for 
 the consequences of his own misstatement {z) ; but as his authority 
 may be revoked at any time before the sale has actually taken 
 place [a), he is not liable for not selling, or for not selling on the 
 terms announced by him, if his authority be so revoked by his 
 principal (6) ; at all events, he is not liable under such circum- 
 stances if he has all along named his principal, or described him 
 and names his agent (c). So where the defendant was both 
 auctioneer and attorney for the sellers, although he paid over the 
 deposit to the sellei's before demand, yet he was held liable, on the 
 ground that he was not authorized to part with the deposit, when 
 he must, from his employment as attorney for the sellers, have 
 known long before he paid it over that the title was disput- 
 able, and consequently that he had paid the money over in his 
 
 (t) Bexwell y. Christie, Cowp. 395. (a) Manser v. Beck, 6 Hare, 443. 
 
 (m) Levi T. Levi, 6 C. & P. 239. (6) Per Lord St. Leonard's Handy 
 
 (x) Oalton T. Emuss, 8 Jnr. 507. Book, p. 25, 7tli ed. 
 
 {y) Hanson v. Boherdeau, Peake'a N. (c) Mainprice v. Westley, supra; see, 
 
 P. C. 163 ; FrwrikVifn v. Lcumond, i C. also, Warlow v. Harrison, 1 E. & E. 
 B. 644. ' 309 ; 28 L, J. Q. B. 18 ; 29 L. J. Q. B. iu 
 
 . (z) Mainprice v. Westley, 34 L. J.Q. B. error, 14. 
 229 ; 6 B. & S. 420., 
 
316 AUCTION. 
 
 own wrong (d). Heath, J., added, that it was admitted that if 
 express notice had been given to defendant not to pay over the 
 money, the action would lie, and he considered the defendant's 
 knowledge, as seller's attorney, of doubts as to the title, as equiva- 
 lent to express notice (e). And in a more recent case, it was 
 determined, that where an auctioneer sells an estate by public 
 auction and receives a deposit, it is his duty, as the agent of both 
 vendor and purchaser, to retain the deposit until the sale is com- 
 plete, and it is ascertained to whom the money belongs (/). Thus 
 where an auctioneer sold an estate by public auction, and received 
 the deposit, and signed an agreement stating that he acknowledged 
 to have sold the estate, and that he agreed to complete the sale ; 
 and the sale was not completed on account of a defect of title ; it 
 was held, that the purchaser might recover the deposit in an 
 action for money had and received against the auctioneer, though 
 the latter had paid it over to the vendor, without any notice from 
 the purchaser not to do so, and before the defect of title was 
 ascertained (g). In strict law, the auctioneer, being a stakeholder, 
 is not entitled to notice of the contract having been rescinded (A.). 
 When the purchaser refuses to complete the contract, the question 
 whether the deposit is forfeited, if not expressly provided for, 
 depends on the construction of the whole agreement ; if not for- 
 feited, it is recoverable when the vendor has incapacitated himself 
 from conveying, not before (i). 
 
 Recovery of Deposit cmd Interest on Defect of Title. — When the 
 vendor was the owner of the estate, and an objection having been 
 made to the title, he ofifered to convey the estate with such title 
 as he had, or to return the purchase money with interest ; it was 
 held, that further damages for the supposed goodness of the bar- 
 gain could not be recovered (k). But where a person who had 
 contracted for the purchase of an estate, but had not obtained a 
 conveyance, put up the estate for sale in lots by auction, and en- 
 gaged to make a good title by a certain day, which he was unable 
 to do, as his vendor never made a conveyance to him ; it was held, 
 that a purchaser of certain lots might, in an action for not making 
 a good title, recover not only the expenses which he had incurred, 
 but also damages for the loss which he sustained by not having the 
 contract carried into effect (l). In the foregoing case the defendant 
 had sold property as his own, which was not so ; and the court 
 was of opinion, that the defendant being in fault by representing 
 himself as the owner of the property, the plaintiff's right was not 
 
 (d) Edwards v. ffoddmg, S Taunt. (h) Duncan y. Cafe, 2 M. & W. 244. 
 
 ^^?\ „ , „, . . „ («■) Palmer v. TempU, 9 A. & E. 520. 
 
 614. 
 
 (e)£wmighv.Slcvimer, 5 Hum 2839. (k) Flureau v. ThomUll, 2 Bl. Kep. 
 
 (/) Gray t. GuUeridge, 1 M. & R. 1078. 
 
 *■, „., [l) ITopUns V. Grazehrook, 6 B. &C. 
 
 (?) liiii- 31. 
 
AUCTION. S17 
 
 restrained to nominal damages (m). But where premises for which 
 a party had contracted were by him offered for resale before he had 
 examined the abstract with the original deeds, although the title 
 proved afterwards defective, it was held, that the damage, if any, 
 resulting from such offer, arose from his own premature act, and 
 not from any fault of the vendor, and consequently that the 
 vendor was only liable for the expenses incurred in the investi- 
 gation of the title and nominal damages for the breach of the 
 contract (%). "A man who takes possession of land, and is impru- 
 dent enough to incur expenses without satisfying himself as to 
 the title, does it at his own risk, and must bear the loss. In 
 common prudence he ought to investigate the title in the first 
 instance" (o). 
 
 Where the purchaser, upon failure of the vendor to deduce a 
 title, had recovered back the deposit in an action against the auc- 
 tioneer, it was held, that he might recover interest on the deposit, 
 in an action against the vendor for not completing his contract, 
 under an averment for special damage {p). The expenses incurred 
 in investigating the title, including the amount of the purchaser's 
 unpaid attorney's bill, may be recovered under the general aver- 
 ment that the plaintiff was put to expense in investigating the 
 title {q), and also damages for loss incurred after the time limited 
 for completing the purchase, upon a declaration framed accor- 
 dingly (r). Upon an abandonment of an unwritten contract 
 for the sale of land on defect of title, the expenses of investigating 
 the title cannot be recovered, nor interest upon the deposit (s). 
 
 An auctioneer is not liable for interest on the deposit ; it was 
 formerly considered that to make the auctioneer liable for interest, 
 it must appear, 1st, that the contract on failure of condition had 
 been rescinded ; 2ndly, that a demand of deposit had been made, 
 and refusal to return it {t), and, according to Burrough, J. (u), it 
 must have been proved that the auctioneer had made interest of 
 the money. But it has now been solemnly decided that an 
 auctioneer, pending the time which elapses between the payment 
 of deposit and completion of title, is a mere stakeholder, and not 
 liable for interest to the vendor, although the vendor (without the 
 concurrence of the vendee), gave the auctioneer notice to invest 
 the money in government securities, and although interest may 
 have been made {x). As the auctioneer is entitled to retain the 
 
 (m) See JtoiiTiscmv. Hardman, 1 Exoh. C. 268 ; Richardson v. Chason, 10 Q. B. 
 
 860. 756. 
 
 (») Walker v. Moore, 10 B. & C. 416. (r) Metcalfv. FowUr, 6 M. & W. 830. 
 
 (o) Per CoUman, J., in Worthingion v. (s) Gosbell v. Archer, 2 A. & E. 500. 
 
 Warrington, 18 L. J., C. P. 350 ; S. C, [t) Per Burrough, J., Lee v. Munn, 8 
 
 8 C. B. 134. Taunt. 55. 
 
 (p) Parqubhar v. Parley, 1 Taunt. 692 ; (m) Curling v. ShuUlewm-th, 6 Bing. 134. 
 
 Cornfield v. Gilbert, 4 Esp. 221. (x) Harington v. Boggart, 1 B. & Ad, 
 
 ' (j) Richards v. Barton, 1 Esp. N. P. 577. 
 
218 AUCTION. 
 
 deposit until the contract is completed, without paying interest 
 for it, where the amount of the deposit is large, it may be advis- 
 able to stipulate that, pending the investigation of the title, the 
 deposit should be invested in exchequer bills. 
 
 Where leasehold premises are sold by auction, and the lease con- 
 taining the usual covenant to repair is produced and read to the 
 bidders, if a part of the buildings, e.g., a summer-house, demised 
 and described in the lease, has been pulled down before the sale, the 
 purchaser is not bound to complete the purchase, and may recover 
 his deposit. Note.-^Th.e summer-house was not described in the 
 particulars of sale {y). 
 
 An action for money had and received (z) was brought to recover 
 the deposit money by plaintiff, who was the purchaser of an 
 annuity sold by defendant (an auctioneer) at a public auction. One 
 of the conditions of sale was, that a good title should be made Out 
 by the 10th of July. In the beginning of July the plaintiff called 
 on the seller of the annuity to show him the title deeds, but he, 
 not having them in possession, gave him an abstract of the title, 
 which did not mention any of the deeds. On behalf of the defen- 
 dant, it was suggested that application ought to have been made 
 to the vendor at an earlier period, in order to enable him to pro- 
 cure the title deeds by the 10th of July. Kenyan, C. J. " A 
 seller of an estate ought to be prepared to produce his title deeds 
 at the particular day. A court of equity will, under particular 
 circumstances, enlarge the time (a), but then the circumstances 
 entitling him to such indulgence must clearly appear, which is not 
 the case in this instance. It is objected, that the plaintiff had no 
 right to the possession of the deeds : but though he had no right 
 to keep them, he had a right to inspect. A court of equity would 
 have obliged the vendor to give attested copies of the deeds at his 
 own expense, with an undertaking to produce them thereafter at 
 the vendee's expense for the suppprt of his title. As the seller 
 has here failed in completing his engagement, plaintiff, is entitled 
 to a return of the deposit." Verdict for plaintiff 280?., amount 
 of deposit. The day fpr the completion of the purchase of an 
 interest in land, inserted in a written contract, cannot be waived 
 by a parol agreement, and another day substituted, so as to bind 
 the parties (6). 
 
 An action for money had and received was brought to recover 
 the amount of a deposit paid by the plaintiff to the defendant, on 
 an agreement for the purchase of an estate, the defendant having 
 failed to make out a good title on the day when the purchase was 
 
 {y) Qranger r. Worms, i Campb. 83. 398. 
 
 (z) Berry y. Young, 2 Esp. K P. C. (b) Per Tindal, C. J., deliTering judg- 
 
 /\ 7- ^j n-.. n T. i,T ^„ ^<iiit oi the comtmStowellY. Robinson, 
 
 {a) Langfordy. Pitt,'! 7, Wms 630. 3 B. N. C. 937, 938, recognizing Ooss y. 
 
 See Boberis v. Serry, 22 L. J., Chanc. Zord Nugent, 5 B. & Ad. 58. 
 
AUCTION. 219 
 
 to be completed. The abstract of tbe title delivered to the plain- 
 tiff began in the year 1793, and after reciting that the deeds 
 relating to the estate had been lost, stated a fine and non-claim. 
 Upon inquiry it was found that the fact of the deeds having been 
 lost was not ti-ue. The counsel for the defendant said, they were 
 ready to make out a good title. Kenyan, C. J. : — " As to the 
 sentiments which I have long entertained relative to the purchase 
 of real estates, I find no reason for receding from them. They 
 have been confirmed by conversing with those whose authority is 
 much greater than mine. The vendor must be prepared to make 
 out a good title on the day when a purchase is to be completed* 
 Indulgence, I am aware, is often given for the purpose of pro- 
 curing probates of *ills, letters of administration, and acts of 
 parliament. But this indulgenc? is voluntary on the part of the 
 intended purchaser; it is the duty of the seller to be ready to 
 verify his abstract at the day on which it was agreed that the 
 purchase should be completed. If the seller deliver an abstract, 
 setting forth a defective title, the plaintiff may object to it. No 
 man was ever induced to take a title like the present. A fine and 
 non-claim are good splices to another title, but they will not do 
 alone. There are many exceptions in the statute in favour of 
 infants, fymes covert," &c. Erslci/ne, for the defendant : " Do I 
 understand your Lordship to say, that though the defendant can 
 now make out a good title, yet as that title did not form a part of 
 the abstract, the plaintiff may avail himself of that circumstance ? " 
 Kenyan, C. J. : " He certainly may, and avoid the contract. 
 When the abstract is delivered by the seller, he must be able to 
 verify it by the title deeds in his possession. As a good title was 
 not made out at the day fixed, I shall direct the jury to find a 
 verdict for the deposit, with interest up to that day." The jury 
 found a verdict for the plaintiff accordingly (c). 
 
 If a precise day is not fiixed by which it is incumbent on the 
 vendor to deduce a good title, the law implies that he shall have 
 a reasonable time (d). 
 
 A contract to make a good title means a title good both at law 
 and in equity. Therefore in an action to recover back the deposit 
 on a purchase, upon the vendor's failure to make a good title, a 
 court of law will collaterally inquire whether the title be good in 
 equity (e). And where upon a sale there is such a doubt upon the 
 vendor's title as to render it probable that the purchaser's right 
 may become a matter of investigation, the court will not compel 
 the purchaser to complete the purchase (/). But in assumpsit to 
 
 (c) Cornish v. Rowley, B. R. Middlesex 1 Marsh. 258. See WilUlt v. Clarke, 10 
 Sittings after M. T. 40 Geo. III. MSS. Price, 207. 
 
 See Banslip y. Padwiek, 5 Excli. 615-^ (/) Curling v. ShMitleworth, 6 Bingh. 
 
 62S per Aldersm, B. ■ 121, stated hj Alderson, J., in Boy man 
 
 (d) Sansom v. Ehodes, 6 B. ST. C. 261. v. Gutch, 7 Bingh. 390, to , have been 
 
 (e) Moiberley v. JRobins, 5 Taunt, 625 ; questioned in K. B. 
 
230 AUCTION. 
 
 recover a deposit upon the purchase, upon an allegation that the 
 defendant had failed to make proper title, the Court of C. B. held, 
 that they would not consider, whether the title was of a doubtful 
 description, such as a court of equity would not compel an un- 
 willing purchaser^ to take, but simply whether the defendant had 
 or had not a legal title to convey (g). " We are not to consider 
 ourselves as a court of equity, where the seller is seeking to 
 enforce the purchase by a bill for a specific performance, in which 
 case that court frequently refuses the aid of its authority to 
 enforce a performance, where the title is of an unmarketable or 
 even doubtful description ; leaving the party to his action at law 
 for damages ; but we are called upon to answer the simple ques- 
 tion on this record, whether, on the construction of a deed, the 
 defendant has or has not a legal title to convey to a purchaser : 
 and although the deed appears to be inartificially framed, we 
 think, upon the proper construction of it, the defendant has, and 
 at the time of the exposure to sale had, good right and title to sell 
 and assign to the plaintiff, and consequently that the present action, 
 grounded on that breach of contract, cannot be maintained (h). 
 
 In every contract for the sale of an existing lease, there is an 
 implied undertaking by a vendor (if the contrary be not stipulated 
 in express terms) to make out the lessor's title to demise; and 
 from the short residue of the term, the small value of the property, 
 and the absence of any premium for the lease, it cannot be in- 
 ferred, that the vendee intended to waive his right to call for the 
 production of the lessor's title (i). 
 
 Auctioneers who take upon themselves to describe in their par- 
 ticulars the property to be sold, should truly describe it (k) ; for 
 the buyers act on the faith of those descriptions. Hence, where 
 leasehold houses were described in the particulars ^id conditions 
 of sale as a well-secured rental with reversionary interest, and as 
 an eligible investment, and no notice was given that, by the pro- 
 visions of a local act power was given to a market company to 
 purchase and take the property for the purposes of the act, it was 
 held, that the purchaser was entitled to rescind the contract (Q. 
 A lessee of lands subject to a covenant against certain ob- 
 noxious trades, with a proviso for re-entry, granted under-leases 
 
 (g) Boyman v. Outch, 7 Bingh. 379. sufficient to establish a legal title only. 
 
 (A) PCTTimireZ, C. J., delivering judg- Boyman v. GhUcIi does not, however, 
 
 ment of court m Boymcmv. Gutch, ubi seem to have been cited in Jeakes v. 
 
 sup. But see /eate V. W^AiZe, 6 Exch. White. See Simmons v. Heseliine, 28 L. 
 
 873, m which case Alderson, B., and J. 129 C. P. 
 
 Piatt, B., held that by a "good title" (i) Soutcr'y. Brake, 5 B. & Ad. 992 ■ 
 
 was to be understood such a title as a ffall v. Betty, 4 M. & Gr 413 
 court of equity would adopt as a sufBoi- (k) CoverUy v. ' Burrell 5 B & A 
 
 ent ground for compelling specific per- 257. 
 
 formance, and such a title as would he a (f) Ballard v Way 1 M & "W 520 • 
 
 good answer to an ejectment by a claim- and see LacUan v. Reynolds, 23 L. J.,' 
 
 ant ; but Man-tin, B.^ held that it was Chan. 8. s > ^ ■< 
 
AUCTION. 221 
 
 of houses erected on tlie land, not containing a similar covenant 
 and proviso : it was held, that a purchaser by auction of houses on 
 the same land, and of the improved ground-rents of the houses so 
 underlet, might recover his deposit, this omission in the under- 
 leases not having been mentioned in the conditions of sale (m). 
 When certain goods were put up for sale, and each lot was 
 described as being of so many yards, and the goods were open to 
 public inspection for two days before the sale, and by the printed 
 conditions of sale the purchaser of any lot was to pay down a 
 deposit : the lots to be taken away with all faults, imperfections, 
 or errors of description, on a day specified, and the remainder of 
 the purchase-money to be paid on delivery, the biddings at the 
 sale being at so much per yard^ it was held, that in such a sale 
 no condition is implied, that a purchaser may inspect and measure 
 the lots before paying the remainder of the purchase-money ; and 
 that payment before delivery meant delivery for any purpose (n). 
 
 A written paper, delivered by an auctioneer to a bidder to 
 whom lands were let by auction, containing the description of the 
 lands, the terms for which they were let to the bidder, and the 
 rent paya;ble, does not require a stamp, unless it be signed by 
 some of the parties or by the auctioneer ; nor is it such a writing 
 as will exclude parol evidence (o) : but if signed by the auctioneer, 
 and delivered to the bidder, it ought to be stamped (p). 
 
 Where, by the conditions, the only authority given to the auc- 
 tioneer is to receive the deposit money, and no agent is named for 
 the purpose of receiving the remainder of the purchase money, the 
 payment of such remainder ought to be made to the vendor or his 
 general agent, which the auctioneer is not. At all events, the 
 auctioneer, under such conditions, has no authority to receive the 
 purchase money by means of a bill of exchange (g). 
 
 In an action against the vendor of an estate to recover the 
 deposit on a contract for the purchase, if the defendant, on notice, 
 produce the contract, the plaintiff need not prove its execution ; 
 for an instrument produced on notice by a party claiming an 
 interest under it, does not require to be so proved (r). A sale by 
 public auction at a horse repository, out of the city of London, is 
 not a sale in market overt (s). 
 
 One of the conditions of a sale by auction was : — " If the pur- 
 chaser shall fail to comply with the conditions, the deposit shall be 
 
 (m) Wariiig v. Boggart, 1 Ey. & M. 277. 
 
 39. ( p) Samsbotiom v. Morfley, 2 M. & S. 
 
 \n) Pettitt V. MilcUll, 4 M. & G. 819 ; 445. 
 
 5 Scott's K E. 721, distinguishing the (q) Syhes v. Giles, 5 M. & "W. 645. 
 
 cases of Howe v. Palmer, 3 B. & Aid. {r) Bradshaw v. Bennett, 1 M. & Eob. 
 
 321 ; and Lorymer v. Smith, 1 B. & C. 1. 143 ; Doe v. Wainwright, 5 A. & E. 520, 
 
 (o) Bamsbottom v. Tunbridge, 2 M. & 628. ■ 
 
 S. 434 ; Ingram v. Lea, 2 Campb. 521 ; (s) Lee v. Bayes, 18 C. B. 599 ; 25 L. 
 
 Adams v. Fairbain, 2 Stark. N. P. C. J., C. P. 249. 
 
233 , AUCTION. 
 
 actually forfeited to the vendor, who shall be at liberty to resellj 
 and any deficiency upon resale, together with the expenses, ^haU 
 be made good by the defaulter, and, on non-payment, shaU be 
 recoverable as liquidated damages ; but any increase of price at 
 the second sale shall belong to the vendor." Default having been 
 made by a purchaser at the auction, and the property resold at a 
 reduced price, it was held, that the vendor could recover from the 
 defaulter, in addition to the deposit, only so much of the difference 
 between the two prices and of the expenses of resale as the 
 deposit did not cover (t). 
 
 (t) Oclcendenv. SenUy, 27 L. J., Q. B. 361. 
 
 [For Chapter on " Bankruptcy," see end of Vol. II.] 
 
333 
 
 CHAPTER VIII. 
 BAEOlSr AND FEME. 
 
 t 
 
 PAGE 
 
 I. Of the Liability of the Husband 223 
 
 1. In respect of Contracts made ly the Wife before 
 
 Coverture . .* . . . . . . 223 
 
 2. In respect of Contracts made ly the Wife during 
 
 Coverture ........ 224 
 
 3. In respect of the Children of the Wife by a former 
 
 Husband ........ 237 
 
 II. In what Cases a Feme Covert inay be considered as a 
 
 Feme Sole 237 
 
 III. Of Actions by Husband and Wife .... 243 
 
 1. Where the Husband and Wife m/ust join . . . 243 
 
 2. Where the Husband must sue alone . ._ . . 245 
 
 3. Where the Husband and Wife may join, or the Hus- 
 
 band may sue alone, at his election . . . . 246 
 
 IV. Of Actions against Husband and Wife . . . 251 
 
 I. Of the Liability of the Husband. 
 
 1. In respect of Contracts made by the Wife before Coverture, p. 223. 
 
 2. In respect of Contracts made by the Wife during Coverture, p. 224. 
 
 3. In respect of the Children of the Wife by a former Husband, p. 237. 
 
 1. In respect of Contracts made by the Wife before Coverture. — 
 The iiusbaiid is liable to the debts of his wife, contracted by her 
 before the coverture (a) ; and in actions for the recovery of such 
 debts, husband and wife must be joined (&). But if these debts are 
 not recovered against the husband and wife, in the lifetime of the 
 wife, the husband cannot be charged for them either at law or in 
 equity after the death of the wife'(c). If the wife survive the 
 husband, an action may be maintained against her for the recovery 
 of these debts {d) ; unless during the coverture the husband has 
 been discharged under the Insolvent Debtors' Act, in which case 
 the wife is discharged for ever (e) ; and such discharge is also a good 
 
 (a) F. 'S. B. 120, F. {d) Woodman v. Chapnan, 1 Campb. 
 
 h) 1 T. E. 348. 189, Lord ElUnlorough, C. J. 
 
 (c) F. N. B. 121, C. ; 1 Eol, Abr. 351, (e) Lochaood y. Salter, 5 B. & Ad. 
 
 (G.) pL 2. 303. 
 
294 BAEON AND FEME. 
 
 defence to an action brought against the husband and wife jointly, 
 for a debt due by the wife (Zum sola (/). 
 
 The defendant's wife, before marriage, gave a promissory note for 
 50?. to the plaintiff, and afterwards married the defendant, who 
 had with her personal estate to the amount of 700Z., part whereof 
 consisted of choses in action. Th6 plaintiff did not during the 
 coverture recover judgment upon the note against the husband 
 and wife. The wife died about a year after the maniage. The 
 defendant on her death took out letters of administration. Some 
 of the choses in action had been received by the defendant as 
 husband in the lifetime of the wife ; the rest he took as her admi- 
 nistrator. The plaintiff, finding that the choses in action were not 
 sufficient to satisfy his demand, filed a bill against the defendant, 
 prajring that the " defendant should be made liable to answer 
 his the plaintiff's demand, for so much as he had received out of 
 the clear personal estate of the wife upon his mai-riage : Lord 
 Talbot, Gh., said, that as on, the one hand the husband was by law 
 liable, during the coverture, to all debts contracted by his wife dum 
 soZa, whatever their amount might be, although she did not bring 
 him a portion of one shilling ; so, on "the olher hand, it was certain, 
 that if such debts were not recovered during the coverture, the 
 husband, as such, was not chargeable, let the fortune he received 
 with his wife be ever so great. He added, that the wife's choses in 
 action were assets, and thereupon decreed an account of what the 
 husband had received since his wife's death as her administrator, 
 and that he should be liable for so much only ; but, as to any fur- 
 ther demand against him, dismissed the bill (g). 
 
 2. In respect of Contracts made by the Wife during Coverture. 
 — AU the personal estate of which the wife is possessed in her own 
 right, is by the marriage vested absolutely in the husband (h). The 
 marriage is an absolute gift of all chattels personal in possession of 
 her own right, whether the husband survive the wife or not ; even 
 the wearing apparel of a married woman, bought by her out of an 
 income settled in the hands of trustees to her sole- and separate 
 use, belongs to her husband, and may be taken in execution for his 
 debts (i). But with respect to choses in action, as debts by obliga- 
 tion, contract, or otherwise, the husband shall not have them unless 
 he and his wife recover them. And of personal goods en autre 
 droit, as executrix or administratrix, &c., the marriage is no gift of 
 them to the husband although he survive his wife (/c). 
 
 (/) Sherrington v. Taies, 12 M. & W. (i) Oarne v. Brice, 7 M. & "W. 183, 
 
 855, 864. cited by Tindal, 0. J., in Tugrmn v. 
 
 ig) Heard v. Stamford, 3 P. Wms. BoiMns, 4 M. & G. 401. 
 
 409 ; Ca. Temp. Talb. 173. (h) 1 Inst. 351, \ cited ^^cj- Tenierdm, 
 
 (A) 1 Inst. 351, \ recognized in dwo- C. J., delivering iudgment in Rwhards 
 
 chi V. Powell, 6 B. & C. 253. v. Sichards, 2 B. & Ad. 453. 
 
BAEON AND FEME. 225 
 
 Notwithstanding the law thus divests the wife of all her personal 
 property, she cannot bind her husband by any contracts, even for 
 necessaries suitable to her degree and estate, without the assent 
 of her husband, either express or implied. " A feme covert gene- 
 rally cannot bind or charge her husband by any contract made by 
 her without the authority or assent of her husband, precedent oj: 
 subsequent, express or implied " {l). 
 
 During cohabitation the law will, from that circumstance, pre- 
 sume the assent of the husband to all contracts made by the wife 
 for necessaries suitable to his degree and estate, and the misconduct 
 or even the adultery of the wife, during that period, wiU not destroy 
 this presumption. The same law i», where the husband deserts his 
 wife, or turns her away without any reasonable ground, or compels 
 her, by ill-usage or severity, to leave him ; in all which cases he 
 gives the wife a general credit (m). " If the husband turns his 
 wife out of doors," said Lord Kenyon, " though he advertises her 
 and cautions all, persons not to trust her, or if he gave particular 
 notice to individuals not to give her credit, still he would be 
 liable for necessaries furnished to her ; for the law has said that 
 where a man has turned his wife out of doors, he sends with her 
 credit for her reasonable expenses " (ii). This principle, which tends 
 to procure credit to the wife for necessaries suitable to the degree 
 and estate of her husband, is anxiously adopted by the law on every 
 possible occasion ; and although in conformity with the ancient 
 rule respecting dower, it has been decided, that where the wife 
 elopes with an adulterer, the husband's assent to her contracts 
 during the term of elopement cannot be implied ; yet by analogy 
 to the same rule, as soon as he receives her again, the presumption 
 of law revives, and attaches upon the contracts made by her after 
 the reconciliation (o). But as cohabitation is presumptive evidence 
 only of such assent, it may be rebutted by contrary evidence {p). 
 In like manner, evidence that the articles purchased were con- 
 sumed in the family of the husband, is only presumptive and not 
 conclusive evidence of the husband's assent (q). This presumption 
 from cohabitation applies only where a woman is living with a man 
 as his wife, although not in fact married to him, and will continue 
 after such cohabitation has ceased, if the creditor has not been 
 informed of the separation (r). 
 
 Where the wife is not living with the husband, there is no pre- 
 sumption that she has authority to bind him for necessaries, but 
 
 {I) Mr. J. Hyde's argument in Manly P. C. 42. 
 
 V. Scott, 1 Mod. 125. (p) Mcmhy v. Scott, 1 Bac. Abr. 296 ; 
 
 (?n) Per Lord Kenyan, C. J. , in Hodges 2 Smith's L. C. 
 
 V. Hodges, 1 Esp. N. P. C. 441. (q) 1 Sid. 121, 126, 5. C. 
 
 {n) Harris v. Morris, i Esp. N. P. C. (r) Ryan v. Sams, 12 Q. B. 400 ; 17 
 
 42, L, J., Q. B. 271 ; and snepost, p. 236 
 
 (o) Per Lord Kenyan-, C. J., 4 Esp. 'S. 
 
 vol,. I, <J 
 
S2G BARON AND FEME. 
 
 the plaintiff may show that the circumstances of the separation 
 were such that the law wUl imply that she had such authority (s). ■ 
 Having thus laid down the general positions respecting contracts 
 made by the wife, I shall proceed to establish them by authorities; 
 premising that the relation of husband and wife is, in respect of the 
 Tfrife's contract binding the husband, analogous to the relation of 
 master and servant. • Indeed, in contemplation of law, the wife is 
 the servant of the husband. In F. N. B. 120 G. it is thus laid 
 down : A man shall be charged in debt for the contract of his bailiff 
 or serva,nt, where he giveth authority unto his bailiff or servant to 
 buy and sell for him ; omd so for the contract of the wife, if he give 
 such authority to his wife, otherwise not. From this passage it 
 appears, that the husband- is not liable to his wife's contracts, unless 
 he has given his authority or assent ; it is incumbent, therefore, on 
 a creditor who brings an action against a husband upon a contract 
 made by his wife, to show that the husband has given such assent, 
 or to lay before a jury such circumstances as will enable them 
 to presume that such an assent has been given (^t) ; and, in the 
 latter case, if such presumption is not rebutted by contrary evidence, 
 the jury may find against the husband, but not otherwise ; for the 
 wife has not any power originally to charge the husband, but is 
 absolutely under his power and government, and must be content 
 with what the husband provides ; and if he does not provide neces- 
 saries for her, her only remedy is in the spiritual court (tt). A per- 
 son who contracts with an ordinary agent, contracts with one 
 capable of contracting in his own name ; but he who contracts 
 with a married woman, knows that she is in general incapable of 
 making any contract by which she is personally bound (f ). In 
 an action for goods sold and delivered, the evidence to charge 
 the defendant was, that the defendant's wife bought the good^ 
 to make her clothes, and that they cohabited. On the other 
 side it was proved, that she was not in want of any clothes when 
 she purchased these, and that the defendant, the last time that 
 he paid the plaintiff, warned the plaintiff's servant not to trust 
 her any more, and to give his master notice of it. Holt, G.J., 
 said, that during cohabitation the husband shall answer all con- 
 tracts of the wife for necessaries, for his assent shall be presumed 
 to all such contracts upon the account of cohabiting, unless, the 
 contrary appear. But if the contrary appear, as by the warning 
 in this case, there is not any room for such presumption ; and 
 he held, that the notice to the servant usually employed by 
 the plaintiff in his trade was sufficient notice to the master (w). 
 
 (s) Mainwanng\. Leslie, 1 M. & Malk. & W. 21. 
 
 18 ; perAhhott, 0. J. (m) Mtherington v. Parrot, Salk. 118, 
 
 (t) 1 Sid. 127. and Eaym. 1006. This case was agreed, 
 
 (u) Per Holt, C. J., m MJiermgton v. per Cur, to be good law in Boulton v. 
 
 Parrot, Lord Eaym. 1006. Prentice, M. T. 18 Geo. 11., Ford's MSS. 
 
 (k) Per Alderson, B., deKvering judg- post, p. 233. 
 ment of court iu Smout v. llbery, 10 M. 
 
BAEON AND FEME. g27 
 
 "Where a husband, not separated from his wife, makes aa allowance 
 for the supply of herself and family with necessaries during his 
 temporary absence, and a tradesman with notice of this supplies 
 her with goods, the husband is not liable for the debt {y). So if 
 the husband makes his wife a sufficient allowance for dress, he is 
 not liable for dresses supplied to her without his knowledge, and 
 the fact of the wife having within a particular period purchased 
 various articles of dress of different tradesmen is admissible in 
 evidence to rebut the presumption arising from cohabitation (z). 
 The question to be left to the jury in all these cases is, whether, 
 from all the circumstances proved, they are of Opinion that the 
 wife had authority, either express or implied, to bind her husband 
 by the contract sued upon, and ^ot merely whether they were 
 necessaries for the wife in her station of life (a). The case of 
 Jolly V. Rees (b) would seem to determine that when husband and 
 wife are living together, and the former has given the latter an 
 express injunction not to incur debts, the husband will not be 
 liable under any circumstances, or at any rate under any circum- 
 stances short of absolute cruelty, for goods supplied to his wife 
 without his knowledge. In this case a husband forbade his wife, 
 who was living with him, to incur debts for clothing herself and 
 daughters, but agreed to make her an allowance for the purpose. 
 The allowance promised was sufficient, but only an insufficient 
 part was actually paid. The plaintiff, who had no knowledge of 
 the arrangement, supplied the wife with articles of dress for herself 
 and daughters. The defendant was unaware of the circumstances 
 under which the goods had been supplied. In an action for goods 
 sold and delivered the Court of Common Pleas (Erie, C.J., Wil- 
 liams and Willes, JJ., Byles, J., dissentient), held that the plaintiff 
 could not recover. 
 
 If the wife elope from her husband, and live in adultery, the 
 husband cannot be charged by her contracts. In an action for 
 meat, &c., provided for defendant's wife, the defendant proved, that 
 she went away from him with an adulterer ; Raymond, C. J., held, 
 that the husband should not be charged, though the plaintiff had 
 not any notice ; and he said Holt, C.J., always ruled it so (c). 
 And although the husband has been the aggressor, hj living in 
 adultery with another woman, and although he turned his wife out 
 of doors at the time when there was not any imputation on her 
 conduct, yet if she afterwards commit adultery, the husband is not 
 bound to receive or support her after that time, nor is he liable for 
 necessaries which may have been provided for her after that 
 
 {y) HoUy. Brien, 4 B. & A. 262. (J) 15 0. B, (N. S.) 628; 33 L. J., 
 
 (z) Senaux v. TeaMe, 8 Exch. 380 ; C. P. 177. 
 22 L. J., Exch. 241. (c) Morris v. Martin, Str. 647. See, 
 
 (a) Mead v. Teakle, 13 C. B. 627 ; also, Mainwaring v. Sarnds, Str. 706, 
 
 22 L. J., C. P. 161. See, also, Jewsbury S. P. 
 V, Newbold, 26 L. J., Exch. 247. 
 
 < Q 2 
 
228 BARON AND FEME. 
 
 time (d) So where the husband turns his wife out of doors, on 
 account of her having committed adultery under his roof, he is not 
 liable for necessaries furnished to her after the expulsion (e). So if 
 a woman elopes from her husband, though she does not go away 
 with an adulterer, or in an adulterous manner, the tradesman trusts 
 her at his peril, and the husband is not bound (/). A person can- 
 not recover against a husband for the price of goods furnished to 
 his wife, when she is living separate from her husband agamst his 
 wish and contrary to his intreaties, and when he was willing to have 
 received and provided for her in his own house (g). 
 
 If the wife, with the consent of her husband, lives apart from 
 him, and has a separate maintenance, and contracts debts for neces- 
 saries during the separation, the law will presume that she is trusted 
 on her own credit, although the tradesman had not any notice of 
 the separation at the time of the contract ; if it were the general 
 reputation of the place where the husband lived, that he and his 
 wife were living apart. The plaintiff brought an action against the 
 defendant, a clergyman, who resided in the country, for medicines 
 provided for the wife of the defendant during her residence in 
 London. It appeared, that the defendant and his wife, having dis- 
 aoreed, had separated by consent for five years, and that upon the 
 separation the defendant had signed an agreement with certain 
 trustees, by which he obliged himself to allow his wife twenty 
 pounds a year, which he had done accordingly. The plaintiff did 
 not know at the time when he furnished the wife with the medi- 
 cines that she was a married woman. It was ruled by Holt, C.J., 
 that the defendant was not liable ; for though the plaintiff had not 
 any personal notice of the separation, and though it was not the 
 general reputation in London where the plaintiff lived, that the 
 defendant and his wife were separated, yet, since it was the general 
 reputation in the place where the defendant lived, and that for five 
 years past, it was enough to prevent the wife from charging the 
 husband, even for necessaries : plaintiff nonsuited Qi). 
 
 Lord Eldon, C.J., is reported to have said, that " if the husband 
 gives express notice to a tradesman not to trust his wife, he shall 
 not be charged ; and if a tradesman has notice of a separate main- 
 tenance being allowed to the wife, that, according to Holt, C.J., 
 shall be notice of dissent on the part of the husband, and he shall 
 not be charged ; but where the demand is for necessaries, it is 
 incumbent on the husband to show that the tradesman had notice 
 of the separate maintenance " (i). But the accuracy of the 
 report of Lord Eldon's ruling as to the necessity of notice, is 
 
 (d) Govier v. EancocTc, 6 T. E. 603. {g) Bindley v. Marquis of Westmeath, 
 
 («) Ham V. Toovey, Middlesex Sittings, 6 B. & C. 200. 
 
 June 24, 47 Geo. III. C. B. Sp. J., Sir (A) Todd v. Stokes, Lord Kaym. 444, 
 
 James Mansfield, C. J., MSS. and Salk. 116. 
 
 (/) Child V. Hardyman, Str. 875, per (i) Rawlyns v. Vandyke, 3 Esp. N. P. 
 
 Lord Raymond, C. J. C, 250, 
 
BARON AND FEMEl. ^23 
 
 doubted by Alderson, B. ; in a case in which it was held, that 
 where a husband, living apart from his wife, allowed and paid her 
 a sufficient maintenance, he is not liable for necessaries supplied 
 to her, and that notice to the tradesman of that allowance is imma- 
 terial (Ic). Assumpsit for the board and lodging of the plaintiff's 
 wife ; plea, non assumpsit. Lord Mansfield, in his charge to the 
 jury, laid it down as clear law, that " when husband and wife live 
 separate, the person who gives credit to the wife is to be considered 
 as standing in her place, inasmuch as the husband is bound to 
 maintain her ; and the spiritual court, or a court of equity, will 
 compel him to grant her an adequate alimony ; but if she elope 
 from her husband, and live in adultery ; or if, upon separation, the 
 husband agrees to make her a sufficient allowance, and pays it ; 
 in either of those cases the husband is not liable ; because in the 
 former case, she forfeits all title to alimony, and, in the latter, has 
 no further demands on her husband. And as, in all cases, the 
 creditor is to be considered as standing in the wife's place, it 
 imports him, when the wife lives apart from her husband, to 
 make strict inquiry as to the terms of separation ; for in such 
 cases he must trust her at his peril (1). In the present case, the 
 defendant and his wife had separated, and he had agreed to make 
 her an allowance, but had never paid it ; the jury, therefore, under 
 his lordship's directions, found a verdict for the plaintiff. Note. — In 
 a similar case of Turner v. Winter, his lordship nonsuited the 
 plaintiff, because on separation the defendant had agreed to make 
 an allowance to his wife, and had regularly paid it; notwith- 
 standing the plaintiff had no notice of the transaction. 
 
 Where there is no agreement as to the amount, the allowance 
 must be sufficient according to the degree and circumstances of 
 the husband ; and it has been held in many cases that the 
 adequacy of the allowance is a question of fact for the jury (m) ; 
 but in a very recent case, where the amount of the allowance 
 paid was undisputed, as also that of the husband's income, and 
 the judge at the trial, considering that such allowance was not in- 
 adequate, nonsuited the plaintiff, the Court of Exchequer ruled, 
 " That it was for the plaintiff to show that the allowance was 
 insufficient, and that not having been done, the nonsuit was 
 right" {n). " It seems to us," said Pollock, C.B., in delivering the 
 judgment of the court, " that the burden of proof is on the person 
 who has trusted the wife, and that when the husband and wife are 
 living apart, the wife's authority is not shown, when it is proved 
 that she is living apart from her husband by mutual consent, with 
 
 {k) Mimi V. Pick, 3 M. & W. 481. 70 ; per Lori Ellmborough, C. J., Lidd- 
 See, also, Atkins v. Pearce, 26 L. J., C. low v. Wilmoi, 2 Stark. N. P. C. 86 ; 
 p. 252. li'mmett v. Norton, 8 C. & P. 506. 
 
 (l) Omrd V. Darnford, B. E, Middle 
 sex Sittings after M. T. 20 G. HI., MSS. 311 
 (to) Hodgkinson v. PUlchcr, 4 C'iiinii!i, 
 
 (n) Johnsony. Sumner, 27 L. J., Exch 
 
230 BAEON AND FEME. 
 
 an agreement as between him and her that she is not to pledge 
 his credit, and with an allowance not shown to be inconsistent 
 with that being the real intention and agreement and meaning 
 of the parties." And in a subsequent case, the Court of Exche- 
 quer held that where a husband consents to his wife living apart 
 from him, on the terms that she shall accept an allowance from 
 him, and which is paid, she has no authority to bind him for 
 necessaries, although the allowance is inadequate (o). 
 
 A mere agreement for a separate allowance, without payment, is 
 not sufficient to exempt the husband from this liability. Husband 
 and wife having agreed to separate, a deed of separation was 
 executed (between the husband on the first part, his wife on the 
 second part, and a trustee, the sister of the wife, on the third part), 
 wherein the husband covenanted with the trustee to pay the wife, 
 . during the separation, a weekly allowance ; which she agreed to 
 accept, in full satisfaction of her maintenance, provided that if the 
 husband should pay any debt which his wife, during the separation 
 and payment of the annuity, should contract, it should be lawful 
 for him to withhold payment of the weekly allowance, until he 
 should be reimbursed : the wife, upon the separation, went to hve 
 with the trustee, who supplied her with necessaries ; the husband 
 having failed to pay the weekly allowance, the trustee brought an 
 action of indebitatus assuynpsit against him for the amount of the 
 necessaries : it was held by Chambre, ItooJce, and Heath, Js., that, 
 although the trustee had another remedy, and might have brought 
 an action on the deed, yet assumpsit was maintainable, on the 
 ground that there was a common law obligation on the husband tO 
 provide necessaries for his wife, although she lived apart from him ; 
 that where the law imposed a duty, it raised a promise on the part 
 of the person on whom it was imposed to discharge it ; and that 
 the mere covenant, without payment, was not sufficient to exempt 
 the husband from this liability. Sir J. Mansfield, C.J., expressed 
 an elaborate opinion to the contrary, observing that a general pro- 
 vision for the separate maintenance of the wife, whether the hus- 
 band paid it or not, deprived the wife of the advantage of the 
 common law, and prevented the husband from being sued either in 
 assumpsit or debt for necessaries furnished to his wife {p). But 
 if the separate allowance be paid, it is sufficient, although the 
 separation be not by deed or writing (g) ; and the husband is 
 not liable, although no part of the separate maintenance be sup- 
 plied by him, provided it is sufficient (r). But M'here a husband 
 by his cruelty compels his wife to live apart from him, he is liable 
 upon contracts made by her for necessaries, notwithstanding she 
 in part receives from him an allowance, but which is found by the 
 
 (o) Biffim V. Bi^Tiell, 7 H. & N. 877. 70, per Lord BlUriborough, C. J. 
 (p) l^urse r. Craig, 2 B. & P. N. E. (r) Per Lord Tenterden, C. J., Clifford 
 
 1^8. V. Laton, M. & Malk. 101. 
 (q) Juodgkmson v. Fletcher, i Campb. 
 
BAEON AND FEME. 231 
 
 jury to be insufficient (s). The husband, however, cannot avail 
 himself of the wife's receipt as evidence of the payment of the 
 allowaiice (t). A divorce a mensd et thoro for adultery on the part 
 of the husband, with a decree for alimony to the wife, will not dis- 
 charge the husband from his liability to pay for necessaries sup- 
 plied to the wife, if the alimony be not paid (u). So now in the 
 event of a judicial separation where " alimony has been decreed or 
 ordered to be paid to the wife, and the same shall not be diily paid 
 by the husband, he" shall be liable for necessaries supplied for her 
 use " (x). 
 
 By deed of three parts, between husband, wife, and trustee, 
 reciting that differences existed, and that the husband and wife 
 had agreed to live separate,, th^ husband covenanted to pay an 
 annuity to the wife, during so much of her life as he should live, 
 and the trustee covenanted to indemnify the husband against the 
 wife's debts, and that she should release all claim of jointure, 
 dower, and thirds. It was held that this deed was legal and 
 binding, and that a plea by the husband, that the wife sued in the 
 Ecclesiastical Court for restitution of conjugal rights, and thait he 
 put in an allegation and exhibits, charging her with adultery, and 
 that a decree of divorce a mensd et thoro was in that cause pro- 
 nounced, was not a sufficient answer to an action by, the trustee 
 for arrears of the annuity {y). " There are some deeds of sepa>- 
 ration which are legal ; some which are illegal ; illegality is not 
 to be presumed, and unless we necessarily see that a transac- 
 tion is illegal, we are not to put an iinfavourable construction 
 upon it" (z). 
 
 " If a husband improperly compels his wife to leave his houses he 
 thereby gives her power to pledge his credit for necessaries ; but if 
 she goes away without his consent, and against his will, I- am of 
 opinion that a tradesman giving her credit, does so at his peril. If, 
 under such circumstances, a deed is executed by • the husband, 
 securing a pi-ovision to the wife, I think that he cannot be sued by 
 any person who may supply goods to his wife, but he is only liable 
 to the trustees for the money which he has covenanted to pay the 
 trustees, which was the form of action adopted in Jee v. Thurlow." 
 Per Bayley, J. (a). Where, in pursuance of articles of separation, 
 a wife quits her husband's house against his wishes, and continues 
 
 (s) Baher v. Sampson, 14 C. B. (N. S.) (») Per Bosanquet, J., Waite v. Jones, 
 
 383. ' ' 1 BingH. W. C. 664, 5 ; 1 Scott, 730, 
 
 , (t) S. C. affirmed on error in Exch. Ch., Lords 
 
 (m) Hunt V. De Blaquiere, 5 Bingli. iJejimamaijd.^ftjreg'er dissenjiing, 5 Bingh. 
 
 550. N. C. 341 ; 7 Scott, 317, affirmed ii^ 
 
 (x) 20 & 2-1 Vict. u. 85; s. 26. See House of Lords, 4 M. & Gr. 1104 ; 5 
 
 post, p. 242. Scotf s N". E. .951 ; and see Clough v. 
 
 (y) Jee v. Thurlow, 2 B. & C. 547 ; Lamhert, 10 Sim. 174 ; Frampton v. 
 
 Baynon v. Batley, 8 Bingli. 256, S. P. Frampton, 4 Beav. 287. See further on 
 
 See, also, Wilson v. Mushett, 3 B. & Ad. this subject, post, tit. " Covenant." 
 743 ; and Eandle v. Gould, 27 L. J., Q. (a) Bindley v. Marquis of WestmeatJi^ 
 
 B. 57. 6 B. & C. 213. 
 
233 BAEON AND FEME. 
 
 to live apart from him, although he is willing and wishes to receive 
 her back, and provide for her in his own house ; semble, that he is 
 not liable to be sued by tradesmen for debts contracted by her, 
 even for necessaries (b). If a husband, living separate from his 
 wife, and allowing her a maintenance, uses such violence towards 
 her that she is obliged to exhibit articles of the peace against him, 
 she may employ an attorney for that purpose at his expense (c). 
 Where the wife, whilst living apart and in adultery, acquired and 
 invested money in trust for herself and her illegitimate issue, and she 
 was afterwards convicted of murder and executed, and the tnistees 
 expended a considerable part of the fund in her defence : it was 
 held, that the husband was entitled to such funds, and that the 
 tinastees could not retain out of the funds the sum so expended, 
 and further that they must bear their costs occasioned by the 
 interpleading rule to try the right (d). 
 
 A husband, who allowed his wife a separate maintenance, pro 
 mised to pay the amount of a debt, which she had contracted 
 during the separation ; it was held, that he was bound by such pro- 
 mise, and that he could not recede from it, on the ground that the 
 plaintiff knew that he allowed his wife a separate maintenance, and 
 that he had made the promise under a misapprehension of law (e). 
 
 Where a husband, by bringing another woman under his roof, 
 renders his house unfit for the residence of his wife, who thereupon 
 removes and lives apart from him, the husband is bound to provide 
 the wife with necessaries ; e. g. medicines in sickness, during the 
 separation (/). So where a wife leaves her husband under such 
 apprehension of personal violence, as the jury shall think to have 
 been reasonable, her husband is liable for necessaries (g). If the 
 husband causelessly turns away his wife Qi), or if the wife, having 
 been absent from home, returns, and he shuts his doors against 
 her (i), and afterwards she contracts debts for necessaries, the hus- 
 band will be liable ; for he sends with her credit for her reasonable 
 expenses, and if the wife be turned out of doors with violence, she 
 carries along with her credit for whatever her preservation and 
 safety require ; e. g. the charge of an attorney's bill for assisting 
 her to exhibit articles of the peace against her husband (/c). 
 " Where a wife's situation in her husband's house is rendered un- 
 safe from his cruelty or ill-treatment, I shall rule it to be equiva- 
 
 (J) EvndUy v. Marquis of Westmeath, (g) Houlistm v. Smyth, 2 C. & P. 22 : 
 
 6 B. & C. 200. 3 Bingh. 127. 
 
 (c) Twmer v. Bookes, 10 A. & E. 47. {h) Lungworthy y. Hockmore, per Bolt, 
 
 (d) Agar v. Blethyn, 2 Cr. M. & R. C. J., I.ord Eayni. 444 ; and per Bolt, 
 699 ; 1 Tyrw. and Gr. 160. C. J., in Eiherington v. Parrott, Salk. 
 
 (e) Burnbuckle v. Bornbii/ry, 2 Stark. 118. 
 
 177, Lord. Ellenborough, C. J. Butseenote (i) Thompson r. Bervey, 4 Burr. 2177. 
 in Smith's L.C. vol. 2, p. 389, 3rd ed. (4) Shepherd, Gent., &c., v. Maehoul, 
 if) Aldis V. Chapman.'M.iMx. Sittings 3 Campb. 326, cited in Orindell v. God- 
 after Trin. T. 50 Geo. III. Lord Ullen- mond, 5 A. & E. 765. 
 borough, C. J. 
 
BARON AND FEMS. 233 
 
 lent to a turning her out of the house, and that the husband shall 
 be liable for necessaries furnished to her under those circum- 
 stances" (T). So it has been held that a wife has authority to 
 pledge her husband's credit for the costs of a divorce suit, where 
 there are reasonable, as well as where there are absolute grounds 
 for instituting the suit (m). But if the husband turns away his 
 wife on account of her having committed adultery, then he will 
 not be liable (n). 
 
 The following note of Boulton v. Prentice (o), which was ex- 
 tracted by the late Mr. Ford from his father's MSS. at the request 
 of the compiler, may be acceptable to the reader. Assumpsit for 
 goods sold and delivered to defendant's wife. Verdict for plaintiff. 
 On motion for a new trial, it appeared that defendant and his wife 
 had formerly lodged at plaintiff's house, during which time the 
 defendant had given plaintiff express notice not to trust defendant's 
 wife. Afterwards defendant and his wife went to lodge at another 
 place, where defendant used his wife ill, after which they separated, 
 and defendant refused to receive her again ; she desired him to 
 maintain her, and offered to return and cohabit with him, which he 
 refused, and struck her ; and declared that if any person trusted 
 her, or gave her credit, he would not pay them : she had not any 
 clothes, and was wholly destitute of necessaries. The goods fur- 
 nished to her by plaintiff were necessaries, and suitable to the con- 
 dition of the wife. On the part of the defendant it was proved, 
 that defendant's wife used to pawn her clothes, and was addicted 
 to drinking ; that plaintiff had assisted her in pawning her watch ; 
 and that defendant, a year before they parted, had expressly for- 
 bidden plaintiff from trusting defendant's wife. The foundation 
 of moving for a new trial was, that the verdict was contrary to law, 
 as the credit given to the wife is in law gi-ounded on the supposed 
 assent of the husband, which assent cannot be supposed where, as 
 in this case, there is an express prohibition. But it was answered, 
 and so resolved by the court, that, although the prohibition took 
 effect and continued in force during the cohabitation, yet such pro- 
 hibition could not, after the cohabitation ceased, either extinguish 
 or lessen the credit to which the wife was by law entitled, after the 
 husband had turned her away and refused to maintain her ; for the 
 husband, by such conduct, gave his wife such a general credit as 
 amounted to a revocation of the prohibition. If the husband, in a 
 case of this kind, could prohibit one person from trusting his wife, 
 he might pari ratione prohibit many ; and this might be extended 
 so far as to deprive the wife from obtaining any credit whatsoever, 
 so that particular prohibitions might amount to a total prohibition. 
 If a wife leaves her husband, he is not in that case answerable for 
 
 (1) Per Lord Kenyan, C. J., in Hodges (n) Ham v. Toovey, ante, p. 228. 
 
 V. Hodges, 1 Esp. W. P. C. 441. (o) Boulton v. Prentice, from Mr. Ford's 
 
 (m) Brown v. Ackroyd, 5 E. & B. 819 ; MS. Note, S. 0. shortly reported in Str, 
 
 25 L. J., Q. B. 193. 1214. 
 
234 BARON AND FEME. 
 
 her contracts; it is the cohabitation which is considered as the 
 evidence of the husband's assent to the. contracts made by his wife 
 for necessaries ; but if the husband during the cohabitation declares 
 his dissent, by forbidding any person to trust his wife, all persons 
 who have notice of such dissent trust the wife at their peril. The 
 husband is only liable on account of. the implied assent to the 
 contracts of the wife, of which assent the cohabitation afterwards 
 induces a presumption, and when he declares the contrary, there is 
 not any longer room for such presumption. But if a husband turns 
 away his wife, he gives her credit wherever she goes, and must pay 
 for necessaries which have been provided for her. Another leading 
 case on this subject is the case of Manby v. Scott (ji) : there the 
 wife of the defendant went away from him against his will, and 
 continued absent many years. Afterwards, and before action brought, 
 or the sale of the goods, she desired to cohabit with her husband, 
 which he refused. During the separation, the husband, who did 
 not allow the wife any maintenance, expressly forbade the plaintiff 
 to deliver any goods to his wife, notwithstaading which, the plaintiff 
 sold to the wife silks and velvets, and then brought an action against 
 the husband for the value of the goods. At the trial, the jury found 
 that the goods were necessary for her, and suitable to the degree of 
 the husband. After three arguments in the Court of King's Bench, 
 the judges were divided, whereupon the case was adjourned into 
 the Exchequer Chamber, where nine of the judges (among whom 
 was Hale, Chief Baron,) were of opinion that the husband was not 
 chargeable. But where the defendant's wife voluntarily left his 
 house and resided for many years at her brother's until her death, 
 when her brother, without any communication with the husbandj 
 buried her in a suitable manner, it was held that the brother was 
 entitled to sue the husband for the expenses of the funeral (q). 
 
 What is necessary, and what is suitable to the degree of the 
 husband, is to be tried by the jury. The rule as to necessaries 
 does not include a counterpart of a deed of separation (r). But 
 the husband is liable to an action, at the suit of the wife's solicitor, 
 for costs necessarily incuiTed by her in filing a petition in the 
 Divorce Court for a judicial separation on the ground of cruelty 
 and adultery, although the petition is not proceeded with, and the 
 course prescribed by the practice of the Divorce Court for obtaining 
 the wife's costs has not been pursued (s). It is also a question of 
 fact, whether a tradesman who furnishes goods to a wife gives 
 credit to her or her husband : if, the credit is given to her, the 
 husband is not liable, though the wife lives with him, and he sees 
 
 (p) Manty v. Scott, 1 Lev. 4 ; and 1 found in p. 229. See, also, the report of 
 
 Sid. 109, S. 0. pnnted from a copy of Sir this case, 2 Smith's L C 
 
 Orla,ndo Bridgman's MS., forming part (q) Bradshaw v. Beard, 12 C. B. 
 
 of the late Mr. Hargrave's MSS. in the (N. S.) 344. 
 
 British Museum, and published by S. (r) Laddv. Lyrm, 2 M. & "W. 266. 
 
 Bannister, in 8to. 1823. The judgment, (s) Eice y.Shepherd, 12 C. B. (N. S. ) 332. 
 
 as given by Sir 0. Bndgman, wiU be i \ / . 
 
BAEON AND FEME. 235 
 
 her in possession of some of the goods (t). In SaJcer v. Baber, 
 MSS. Gundry, J. — F. 4, Keniston v. Ooodall was cited, where 
 Holt, C. J., held a husband not liable for costly apparel furnished 
 to his wife and worn by her in a clandestine manner without his 
 privity. In assumpsit for goods sold, the plaintiff, a jeweller, 
 had, in the course of two months, delivered articles of jewellery 
 to the wife of the defendant, amounting in value to 83?. It 
 appeared that the defendant was a certificated special pleader, 
 and living in a ready furnished house, of which the annual rent 
 was 200Z. ; that he kept no man servant ; that his wife's fortune 
 upon her marriage was less than 4,000?. ; that she had, at the time 
 of her marriage, jewellery suitable to her condition, and that she 
 had never worn in her husband's presence any articles furnished 
 her by the plaintiff: it appeared bUso that the plaintiff, when he 
 went to the defendant's house to ask for payment, always inquired 
 for the wife and not for the defendant. It was held, that the goods 
 so furnished were not necessaries, and that, as there was no evi- 
 dence to go to the jury of any assent of the husband to the con- 
 tract made by his wife, the action could not be maintained («). So 
 in Seaton v. Benedict (v), where the husband was living with his 
 wife and supplied her with necessaries suitable to her degree : it 
 was held, that the husband was not liable for debts contracted by 
 the wife for expensive articles of dress without the husband's 
 knowledge. 
 
 . A defendant treated his wife with great cruelty, and took 
 another woman into the house, with whom he cohabited ; he con- 
 fined his wife in her chamber, under pretence of insanity ; she 
 escaped, and the plaintiff brought an action against the defendant 
 for the value of necessaries furnished to the wife after her depar- 
 ture; Lawrence, J., thought that, as the wife might have had 
 necessaries if she had remained, the action could not be supported. 
 And Mansfield, C. J., thought that nothing short of actual terror 
 and violence would support the action (x). 
 
 The liability of the husband for necessaries supplied to the wife 
 when separated from him continues, although he becomes in- 
 sane (2/). 
 
 If a maa cohabits with a woman, to whom he is not married, 
 and permits her to assume his name, and appear to the world as 
 his wife, and in that character to contract debts for necessaries, he 
 will become liable, although the creditor be acquainted with her 
 real situation ; for here a like assent will be implied, as in the case 
 of husband and wife (z). But this rule only holds during cohabi- 
 tation; for when they have separated, the man is no longer 
 
 (t) BentUy v. Griffin, 5 .Taunt 356. But see HouUston v. Smyth, 3 Bingh. 
 
 (m) Montague v. Benedict, 3 B. & C. 127; ante, p. 232. 
 
 631. {y) Read v. Legard, 6 Exch. 636. 
 
 (v) 5 Bingh. 28. (s) Watson v. Threlkeld, 2 lEsp. N. P, 
 
 (x) Earmod v. Eeffer, 3 Taunt. 421. C. 637, Kenyan, C. J. 
 
2.36 BAEON AND FEME. 
 
 liable (a), unless the person supplying the goods has no tiotic6, and 
 is unaware of the separation (b). A man who had for some years 
 cohabited with a woman who passed for his wife, went abroad, 
 leaving her and his family at his residence in this country, and 
 died abroad ; it was held by three judges, absente Tenterden, C. J., 
 that the executor was not bound to pay for goods which had been 
 supplied to her after the mans death, although before information 
 of his death had been received (c). 
 
 Where a man who had been in the habit of dealing with the 
 plaintiff for meat supplied to his house, went abroad, leaving his 
 wife and family resident in this country, and died abroad, it was 
 held, that the wife was not liable for goods supplied to her after 
 his death, but before information of his death had been received (d). 
 Alderson, B., delivering the judgment of the court, ob^rved, that 
 " here the agent had full authority to contract, and did contract in 
 the name of the principal : there was no ground for saying that in 
 representing his authority as continuing, she did any wrong — there 
 was not any mala fides on her part, or want of due diligence in 
 acquiring knowledge of the revocation — no omission to state any 
 fact within her knowledge relating to it, and the revocation was by 
 the act of God. The continuance of the life of the principal was 
 a fact equally within the knowledge of both contracting parties. 
 It had been, indeed, decided in Blades v. Free (e), that in such a 
 case the executors of the husband were not liable ; and consequently 
 no one would be liable. That might be so, — yet it was only as it 
 was in the ordinary case of a wife, who made a contraict in her 
 husband's lifetime, foi' which the husband was not liable. There, 
 as here, no one was liable." In an action for the use and occupa- 
 tion of apartments by the defendant's wife, it appeared that the 
 apartments had been occupied by a lady, who went by the defend- 
 ant's name, and who had actually been married to him. The defence 
 attempted to be set up was, that the defendant had a former wife 
 then, and still living. But Lord Mlenborough, C. J., said, that there 
 was not any evidence to fix the plaintiff with a knowledge of the 
 celebration of the first marriage, and that the defendant was 
 estopped to set up bigamy as a bar to the action. He had given the 
 woman who lodged with the plaintiff every appearance of being his 
 wife. By his misconduct in marrying a second wife, while his first 
 was still alive, he had done what he could to .confer the rights of 
 marriage upon both, and had incurred a civil as well as a criminal 
 responsibility (/). 
 
 An infant widow is liable for the funeral expenses of her hus- 
 band, upon the ground that they are necessaries (g). 
 
 (as) MuTWO V. Di (Mcmant, i Camp. 9 B. & C. 167. 
 215. {d) Smout T. llbery, 10 M. & W. 1. 
 
 (b) Ryan v. Sams, 12 Q. B. 400 ; 17 (c) 9 B. & C. 167. 
 
 L. J., Q. B. 271. (/) Robinson v. Nahon, 1 Camp. 245. 
 
 (c) Blades v. Free, Executor of Clark. {g} Chappie y, Cooper, 13 M. &W. 252, 
 
BAEON AND FEME. 
 
 237 
 
 3. In respect of Children of the Wife by a former Husband. — If 
 a man marries a woman having children by a former husband, he is 
 not boimd Qi) by the act of marriage to maintain such children (i) ; 
 but if he holds them out to the world as part of his family, he will 
 be considered as standing in loco parentis, and liable even on a con- 
 tract made by his wife during his absence abroad, for the mainte- 
 nance and education of such children Qc). Maintenance by the 
 second husband of the children of the wife by a former husband, is 
 a good consideration for a promise by such children, when they 
 come of age, to repay the expense of their maintenance (J). The 
 father of a bastard child is liable for its nui-sing and board, if he 
 adopts it as his own, although an order of filiation has not been 
 made on him (m). 
 
 II. In what Cases a Feme Covert may he considered as a 
 Feme Sole («). 
 
 It is now clearly established, notwithstanding former deci- 
 
 (h) But see stat. 4 & 5 Will. IV. c. 
 76, s. 57, Poor Law Act. 
 
 (i) Tubb V. Harrison, i T. K. 118, re- 
 cognized in Cooper v. Martin, 4 East, 76. 
 
 (k) Stone v. Carr, 3 Esp. K P. C. 1, 
 Kenyan, C. J. 
 
 (l) Cooper V. Martin, 4 East, 76. See 
 Bawlins v. Vandyke, 3 Esp. N. P. C. 
 252, Lord EldmUs opinion as to how far 
 a. father is liable for necessaries furnished 
 to his children, living with the mother 
 apart from the father. 
 
 (m) Heskett v. Gowing, 5 Esp. N. P. 
 C. 131. 
 
 (n) By the common law the wife was not 
 permitted to take or enjoyreal or personal 
 estate separate from and independent of 
 her husband. This and several other 
 of the rules of the common law relating 
 to this subject have been entirely abro- 
 gated by the equity courts, affording a 
 remarkable instance of legislation by 
 judicial decision. The interposition of 
 trustees seems to have been at first con- 
 sidered necessary, but it has been long 
 settled that this is not essential, for 
 equity in such a case considers the hus- 
 band a trustee for the wife {Bennett v. 
 Davis, 2 P. W. 216). Where personal 
 property is settled to the separate use of 
 a married woman she may dispose of it 
 and its produce as a, feme sole to the full 
 extent of her interest {Fettiplace v. 
 Georges, 1 Vesp. 46 ; Gore v. Knight, 2 
 Yen. 535), but if she does not dispose~of 
 the savings before death the husband be- 
 comes entitled to them by his marital 
 
 right (Molony v. Kennedy, 10 Sim. 255), 
 and not as administrator, for he is not 
 next of kin {per Lords Loughborough and 
 Eldon, ^all v. Wall, 3 Ves. 246 ; Gar- 
 rish v. Camden, 14 Ves. 372V Lord 
 Hardwicke thought otherwise {Fettiplace 
 V. Georges). In the case of real property 
 limited to her separate use, though she 
 may dispose of the rents and profits as a 
 feme sole (Hulme v. Tennant, 1 B. C. C. 
 16), she has no power of disposition over 
 the estate except by deed executed under 
 the provisions of the act for the abolition 
 of fines and recoveries (3 & 4 W. IV. c. 
 74, ss. 40, 77 ; see, also, 8 & 9 Vict. o. 
 106), unless the gift is accompanied with 
 an express power of appointment. In 
 equity as at law the wife can incur no 
 personal liability by her engagements in 
 respect to her separate estate. The extent 
 of the liability of the separate estate to 
 general demands appears to be unsettled. 
 It seems established that it is liable to 
 debts for which she has given a written 
 security, as a bond {Heatley v. Thomas, 
 15 Ves. 596), or a promissory note {Bull- 
 pin v. Clarke, 17 Ves. 365), or a written 
 promise to pay (Mn/rray v. Barber, 3 M. 
 & K. 209). Perhaps it may be said that 
 her estate is not liable unless she has 
 shown an intention to charge it expressly 
 and in writing in the case of realty ou 
 account of the statute of frauds, and ex- 
 pressly or perhaps impliedly in the case of 
 personalty, but not necessarily in writing 
 (Johiison v. Gallagher, 30 L. J. 298, Ch. 
 All the authorities are collected in Tur- 
 
238 BAKON AND FEME. 
 
 sions (o) to the contrary, that a feme covert cannot bring an action or 
 be impleaded as a feme sole, while the relation of marriage subsists; 
 and she and her husband are living in this kingdom, notwithstand- 
 ing she lives separately from her husband, and has a separate 
 maintenance secured to her by deed. This point was solemnly 
 determined (after two arguments before the judges m the Ex- 
 chequer Chamber,) in Marshall v. Button, 8 T. R 545. A woman 
 who has even declared herself to be a feme sole, and as such has 
 executed deeds and maintained actions, if herself sued as a feme 
 sole, is not thereby estopped from setting up a defence of cover- 
 ture (f»). A woman divorced a mensd et thoro for adultery, and 
 living separate from her husband, cannot be sued as a feme sole {q). 
 But the rule of law, which has considered a married woman as 
 incapable of suing, or being sued, without her husband, admits of 
 some modification from particular circumstances : 
 
 1. By the custom of the city of London, a feme covert, being a 
 sole trader, may sue or be sued in the city courts as a feme sole, 
 with reference to her transactions in London ; but even there the 
 husband must be made a party to the suit for conformity. By 
 the custom of London, " A feme sole merchant is where the feme 
 trades by herself in one trade, in which her husband does not inter- 
 meddle, and buys and sells in that trade ; then the ferne_ shall be 
 sued, and the husband named only for conformity ; and if judgment 
 be given against them, execution shall be against the feme only " (r). 
 " This custom is one of those customs called executory customs, 
 the meaning of which expression is, customs united to the courts 
 of the city of London. They are pleadable in London, and not 
 elsewhere, except so far as they may be made use of in the superior 
 courts by way of bar" (s). A feme covert, sole trader in the city 
 of London, cannot sue (t) or be sued (u), in the courts at West- 
 minster, without her husband. 
 
 2. A wife may acquire a separate character by the civil death of 
 her husband, by exile {x), and formerly by profession (y) and abju- 
 ration of the realm. "An abjuration, that is, a deportation for 
 
 ner, L. J.'s judgment). The courts of the judgment of the court iu Beard v. 
 
 equity have so entirely established the Webb, in error, Exchequer Chamber, 2 
 
 independent personality of a feme covert Bos. & Pul. 98. The judgment here re- 
 
 with respect to property settled to her ferred to is very elaborate, and may be 
 
 separate use, that if any part of the usefully consulted on the whole subject, 
 
 estate be advanced to her husband upon (t) Caudell v. Shaw, 4 T. E. 361. 
 
 a contract of loan she may sue him in («) Beard v. Webb, 2 B. & P. 93. 
 
 respect of that contract ( Woodward v. (x) Belknap's case, 2 Hen. IV. 7, a ; it 
 
 Woodwa/rd, 8 L. T. 751). appears by the Year Book, 1 Hen. IV. 1, 
 
 (o) Hingstead v. Lady Lanesborough, a, that Belknap was banished to Gascony, 
 
 3 Doug. 197 ; Barwell v. Brooks, 3 there to remain until he attained the 
 
 Doug. 371 ; and Corbett v. Poelnitz, X king's favour, which Sir E. Coke con- 
 
 T. R. 5. sidered as a banishment for ever. 
 
 (p) DoAienport v. Nelson, 4 Campb. 26. (y) A man was said to be professed 
 
 (q) Lewis v. Lee, 3 B. & C. 291. But when he had taken the habit of religion 
 
 see now 20 & 21 Vict. c. 85. s. 26, post, 3i3. and vowed obedience, wilful poverty, and 
 
 (r) Langkam v. Bewett, Cro. Car. 68. perpetual chastity, 1 Inst. 132, a. 
 
 (s) Per Lord Eldon, C. J., delivering 
 
BARON AND FEME. 239 
 
 ever into a foreign land, like to profession, is a civil death : and 
 tlhot is the reason that the wife may bring an action, or may be 
 impleaded, during the natural life of her husband. And so it is, 
 if by act of parliament the husband be attainted of treason or felony, 
 and saving his life, is banished for ever, as Belknap, &c., was : this 
 is a civil death, and the wife may sue as a feme sole. But if the 
 husband by act of parliament, have judgment to be exiled for a 
 time, which some call a relegation, that is not a civil death (z). 
 Every person who is attainted of high treason, petit treason, or 
 felony, is disabled to bring any action; for he is extra legem 
 positus, and is accounted in law civiliter mortuus " (a). 
 
 3. Where the husband has been transported for a term of years, 
 before the expiration of which the d#bt was contracted, and sued 
 for ; Yates, J., thought that the transportation suspended the dis- 
 ability of the wife, and that she might be sued as a feme sole (6). 
 Lord Eldon (c), commenting on this case, having said, that in the 
 cases of abjuration, profession, &c., which amounted to a civil death, 
 he thought he understood the situation in which the wife was placed, 
 for the fiction of law, which considered the husband as civilly dead, 
 put the wife in the same situation as if he were actually dead ; then 
 proceeded to observe that, " transportation for a term of years 
 might give rise to many difficulties T\'ith respect to the enjoyment 
 of the husband's estate, both real and personal ; but, besides the 
 difficulties which might arise during the term of transportation, 
 another difficulty of equal importance occurred, where the wife had 
 contracted debts after the period of her husband's transportation 
 had elapsed, but before his actual return to this country. In the 
 case of Sparrow v. Garruthers, Mr. Justice Yates seemed to have 
 treated it as a material circumstance in evidence, that the time of 
 transportation was not expired, and he did not give any opinion as 
 to what would have been the situation of the parties if it had been 
 ex;pired. The court could not presume to say how Mr. Justice 
 Yates would have decided, had the husband continued to reside 
 abroad, after the period of his transportation had expired or had 
 only remained there to arrange his affairs, with a view of returning 
 to this country when he had so done (d)." Since the preceding ob- 
 servations were made, the following cases were decided at Nisi 
 Prius in 1801 : in assumpsit for goods sold and delivered, the 
 defence was, that the plaintiff was a married woman. The plain- 
 tiff's counsel answered this case by producing the record of the 
 husband's conviction for felony in March, 1794, and of a sentence 
 of transportation for seyen years ; whereupon it was insisted, on 
 the part of the defendant, that the sentence being for seven years, 
 from March, 1794, that time was now expired, so that the husband 
 was competent to sue. But Lord Alvanley, C.J., said, that by the 
 
 (a) 1 Inst. 133, a. v. Poelmtz, 1 T. E. 7. „ » „ 
 
 (a) 1 Inst. 130, a. (c) Marsh v. Hutchinson, 2 B. & i . 
 
 (5) Sparow v. Oarruthers, cited in Lean 231. 
 V. Schutz, 2 Bl. K. 1197, and in Corhett {d) Ibid. 
 
240 BAEON AND FEME. 
 
 record of the convictiou and sentence, there was conclusive evidence 
 to support the right of action in the plaintiff as a feme sole, and 
 though the term of his transportation had expired, if in fact he 
 had not returned, the right of action remained ; but that if the 
 defendant meant to rely on the circumstance of the husband 
 having returned, the proof of that lay on the defendant. Evidence 
 to this effect not being offered, the plaintiff had a verdict (e). 
 
 4. Where the husband is an alien, who has deserted this king- 
 dom, leaving his wife to act here as a feme sole, the wife may be 
 charged as a feme sole for contracts made after such desertion. In 
 assumpsit for goods sold and delivered (/), the defendant pleaded 
 that she was covert of the Duke de Pienne. It appeared in evi- 
 dence that the duke, who was an alien, had gone abroad in the 
 year 1793, with an intention to return in four months, but had not 
 returned ; during his absence the defendant had kept house, and 
 paid bills on her own account and in her own name. Lord Kenyan, 
 C. J., said, this case came within the principle of the common law,' 
 where the husband had abjured the realm. If the husband had 
 been absent for some time, and then returned, and paid bills con- 
 tracted by the wife in his absence, and again left the kingdom, he 
 should hold the defendant not Hable ; but here was a desertion of 
 the Jcingdom, and an absence for some years ; he was no longer 
 domiciled here, and, in the intei^al, the wife was supplied with 
 those article.s; if she was not to be held liable for debts contracted 
 under such circumstances, she might starve {g). Where the repli- 
 cation to a plea-bf coverture was, that the husband resided abroad, 
 (not stating him to be an alien,) and that the defendant lived 
 separate from him in this kingdom, that she traded as a feme sole, 
 and plaintiff did not give credit to the husband, but traded with 
 the defendant as a feme sole, and on her credit ; the court held the 
 wffe chargeable as a feme sole Qi). But it is conceived that such a 
 replication could not be supported unless it appeared that the 
 husband was an alien. " There is a great difference between the 
 cases of an Enghshman residing abroad, leaving his wife in this 
 country, and of a foreigner so doing. The former may be com- 
 pelled to return at any time by the king's privy seal. There is not 
 any case m which the wife has been held liable, the husband being 
 an Englishman." Per Heath, J. (i). " 
 
 (e) Carroll v Blencow, June 3, 1801, in this kingdom. 
 
 N P b IhI ^^'^'^'^''^ S^*t^°g«. 2 Esp. Pull. 226. See, also, Farrer y. Connies^ 
 I \'a ^ T, , of Granard, 1 Bos. & Pul. If R 80 
 
 Pieimp 2 Tf^r. w p n ^^ 7 JC ^ ,, ■'="'"'»> •>■< saia tne ease ot m 
 ™me effect But f.'. /„„ v ' nP v° *''' 'T"'""™ "■ ^'^'>^« proceeded much upon 
 
 Bmnach, 1 Bingh. N. C. 139, and 1 
 den V. De Keverherg, 2 M. & "W. 61. 
 
 3 Camnb isrXrP Tnv;,^;;.™"'^ ^^ S™""*! °f ^^^ defendant's husbJnc 
 
 6 Lampb. 12d, where Lord Ellenborough being a foreigner But see Strettcn v 
 
 coniines the preceding doctrine to the Busnach, 1 Bingh N C 139 and Lr- 
 
 case, where the husband has never been den v. Le ia„,rLn 4. M * V^i 
 
BARON AND FEME. 241 
 
 The case of Marsh v. Hutchinson was an action for goods sold 
 and delivered ; the defence, coverture. The defendant's husband 
 was an Englishman, who, about ten years before action brought, 
 had purchased the appointment of agent for the English packets, 
 at the Brill, in Holland, and had resided there ever since. During 
 that period, he became possessed of madder-grounds, from the cul- 
 tivation of which he derived considerable profit. On the irruption 
 of the French into Holland, in 1795, his employment as agent 
 having ceased, he sent the defendant, together with his family, to 
 reside in England, but he remained in HoUand to look after his 
 madder-grounds, and with a view to recover his situation, in 
 case the intercourse between England and Holland should be 
 re-established. The defendant lived in Norfolk, and was there 
 considered to be a married womatf. The plaintiff had furnished 
 her with coals, for the value of which this action was brought. It 
 was held, under these circumstances, that the husband's residence 
 in Holland did not enable the wife to bind herself by her own 
 contracts. So where to a plea of coverture the plaintiff replied 
 that the defendant's husband " lived and resided in Ireland, and 
 that the defendant lived in this kingdom separate from her hus- 
 band as a single woman, and as such single woman, promised, &c. ; " 
 the replication was held bad on general demurrer, because the 
 terms of it were perfectly consistent with a mere temporary absence, 
 and they might be applied to the case of every man, who went for 
 a short time to live in Ireland or Scotland, and whose wife in the 
 mean time contracted debts, here (/<;). So where to a plea of cover- 
 ture the plaintiff replied, that before the cause of action accrued 
 the defendant's husband became banknapt, absconded without 
 appearing to his commission, and continued to reside in foreign 
 parts; on general demurrer, the replication was held bad; for, 
 independently of the objection that this replication did not contain 
 any express averment, that the defendant's promise was made 
 during the absence of her husband, nor any equivalent allegation, 
 it did not state such an involuntary absence of the husband, as, 
 within the principle of former decisions, could affect her with the 
 liabilities of a feme sole. It alleged no more than a temporary 
 absconding (Z). To trespass for breaking and entering the plain- 
 tiff's dwelling-house and shop on the 8th of April, 1807, and on 
 divers other days, &c., and ejecting her from the possession thereof : 
 defendant pleaded, that plaintiff at the time of committing the 
 trespass, and thence continually hitherto, hath been, and still is, 
 under coverture of one Jos. Boggett, then and still her husband, 
 and still alive. Replication, that before the committing the tres- 
 passes, the husbund deserted and left plaintiff^ and departed out 
 of this kingdom to parts beyond the seas, viz., to America, without 
 leaving any means of necessaiy provision and support to plaintiff; 
 
 Ih) Famr v. Countess of Granard, 1 {V) Williamson v. Dawes, 9 Bingli. 
 
 B. & Pul. N. 11. 80. 292. 
 
 VOL, I. ^ 
 
343 BAEON AND FEME, 
 
 and from the time of his departure hitherto, has not returned to 
 this countiy, nor corresponded with or been heard of by plaintiff; 
 and that during all that time, plaintiff has lived apart from her 
 husband, and made contracts, and obtained credit as a single 
 ■woman; and for her necessary support and maintenance has, 
 during all that time, carried on the business of a merchant, as a 
 single woman and sole trader, and as such was lawfully possessed 
 of both dwelling-house and shop. Rejoinder, that the husband 
 was bom within this realm, and from the time of his nativity 
 hitherto, has been and still is a subject of our Lord the King, and 
 that he has not at any time hitherto abjured this realm, or been 
 exiled or banished, or relegated therefrom. On demurrer, the 
 court listened reluctantly to the argument in support of the repli- 
 cation, and gave judgment for the defendant on the authority of 
 the preceding cases, observing, that the rule had been laid down in 
 Marshall v. Button ; it was capable of having exceptions engrafted 
 on it, as where the absence is tantamount to a civil death, &c. ; 
 but that a temporary absence of the husband, not banished or the 
 like, had never been deemed sufiScient (m). The wife of an alien 
 enemy cannot maintain an action in her own name, on a contract 
 made either before or after coverture (n). 
 
 5. By the Divorce and Matrimonial Act (20 & 21 Vict. c. 85), 
 s. 25, it is enacted, that "in every case of a judicial separation the 
 wife shall, from the date of the sentence, and whilst the separatioa 
 shall continue, be considered as a feme sole with respect to pro- 
 perty of every description which she may acquire or which may 
 come to her or devolve upon her (o), and such property may be 
 disposed of by her in all respects as a feme sole ; and, on her 
 decease, the same shall, in case she shall die intestate, go as the 
 same would have gone if her husband had been then dead ; pro- 
 vided that if any such wife should again cohabit with her husband, 
 all such property as she may be entitled to when such cohabitation 
 shall take place, shall be held to her separate use, subject, how- 
 ever, to any agreement in writing made between herself and her 
 husband when separate. 
 
 Sect. 26 : " In every case of a judicial separation the wife shall, 
 whilst so separated, be considered a feme sole for the pui-poses of 
 coiitract and wrongs and injuries and suing and being sued in any 
 civil court ; and her husband shall not be liable in respect of any 
 engagement or contract she may have entered into, or for any 
 wa-ongful act or omission by her, or for any costs she may incur as 
 plaintiff or defendant : provided that where upon any such judicial 
 separation alimony has been decreed or ordered to be paid to the 
 
 (m) Raggett Y. Friar, 11 East. 301. coming to her as executrix, administra- 
 
 ■,^r^ „ J^iri ■^V -^^""'*^' 1 H. & N. trix, or trustee. See 21 & 22 Vict. c. 
 
 178 ; S. p. 26 L, J., Exch. 343. 108, s. 7. 
 
 (o) This provision applies to property 
 
BARON AND FEME. 243 
 
 wife, and the same shall not be duly paid by the husband, he shall 
 be liable for necessaries supplied for her use: provided, also, 
 that nothing shall prevent the wife from joining at any time during 
 such separation in the exercise of any ioint power given to herself 
 and her husband." 
 
 By sect. 21, power is also given to a wife deserted by her hus- 
 band, to apply to a police magistrate or justice in petty sessions 
 for protection as respects after-acquired property,, who may make 
 an order ( p) protecting her earnings and property acquired since 
 the commencement of such desertion, from her husband and all 
 creditors and persons claiming under him ; " and such earnings 
 and property shall belong to the wife as if she were a /erne sole." 
 And by 21 & 22 Vict. c. 108, s. 6, the like power is conferred upon 
 the judge ordinary of the divorce court. 
 
 An action cannot be maintained against one as the executor of a 
 feme cOvert, although the ground of the action be goods furnished 
 to her in the course of trade carried on by her as a feme sole, and 
 though defendant may have possessed himself of goods to the 
 amount of the demand, of which the woman was in possession as a 
 feme sole (q). 
 
 III. Of Actions hy Husband and Wife. 
 
 1. Where the Husband and Wife must join, p. 243. 
 
 2. Where the Husband must sue alone, p. 245. 
 
 3. Where the Husband and Wife may join, or the Husband may sue 
 
 alone at his Election, p. 246. 
 
 1. Where the Husband a/nd Wife must join. — In real actions 
 for the recovery of land for the wife, the husband and wife must 
 join (r). So in an action of waste, for waste committed on the 
 land of the wife (s). So in detinue of charters of the wife's 
 inheritance (f). In an action on a bond given to wife dum sola, 
 husband and wife must join (u). But the husband may sue 
 alone on a bill payable to the wife dum sola, but becoming due 
 after marriage (x). 
 
 (p) This order should state the time (R.)ij1.3. InMilnerY.Milnes,ST.'R, 651, 
 
 of the desertion (21 & 22 Vict. c. 108, s. hoxi Kenyan said: "It is extremely clear 
 
 9) ; and, if stated, is conclusiye thereof, on the one hand that marriage gives to 
 
 and, until reversal, protects all persons the hushaad all the personal estate which 
 
 dealing with the wife as a feine sole. the wife has in possession ; it is also 
 
 See sects. 8 & 10 of 21 & 22 "Vict, c, 108. clear, on the other hand, that where a 
 
 (q) Clayton v. Adams, Executor, L. P. chose in action of the wife is to be re- 
 
 B. 107, Dampier MSS. L. I. L. ; 6 T. E. duced into possession, and it is necessary 
 
 604, S. C. to bring an action for that purpose, it 
 
 (r) 1 Bulst. 21. must be brought in the names of both 
 
 («) 7 Hen. IV. 15 a. ; 3 Hen. VI. 34. husband and wife." 
 
 (t) 1 Eol. Abr. 347, (E.) pi. 1. (a;) M'Neilage v. Holloway, 1 B. & A. 
 
 («) Per Lord Hardwioke, C. J., in Bales 218. See JJicAor& v. Richards, 2 B. & Ad. 
 
 Dandy, 2 Atk. 203; 1 Eol. Abr. 347, 453 ; QaUrs v. Madeley, 6 M. & W. 423. 
 
 p. 2 
 
S44 BAEON AND FEME. 
 
 Bond was given to wife during the coverture ; the wife died ; and 
 then the husband sued upon the bond, as administrator to his 
 wife ; it was held, on demurrer, that the action was well brought {y). 
 Eailway stock was bought by a married woman out of her own 
 earnings, and was transferred in her name in the company's books ; 
 it was held, that she could maintain an action against the company 
 in her own name, subject to a plea in abatement. " We think," 
 said Jervis, C. J., " that the plaintiff, though a married woman, by 
 having become a registered shareholder of the company acquired, 
 as a chose in action, a right to the dividends, which, unless con- 
 trolled by her husband, would survive to her, and might have been 
 unobjectionably put in suit by her and her husband jointly" {z). 
 
 If an action is brought in respect of a personal wrong to the wife, 
 as for the battery of the wife, the husband and wife must join (a) ; 
 so in an action for slander of the wife, she must join because she is 
 the party slandered, and the husband must join for conformity (6). 
 The declaration ought to conclude, "to their damage" (c), and not 
 " to the damage of the husband " {d), for the damages will survive 
 to the wife, if the husband die before they are received ; and a plea 
 that the female plaintiff is not the wife of the male plaintiff is a 
 good plea in bar (e). So where action is brought for words in them- 
 selves actionable, spoken of the wife, and no special damage laid, 
 then such conclusion is right ; for the action survives (/); but in a 
 case where special damage was laid for the loss of wages of the 
 wife, it was held, that the husband and wife could not recover for 
 such damage ;, for as the profit of her wages is entirely his, he alone 
 can sue for the loss of them {g)^ So where the wife was injured in 
 consequence of the explosion of a lamp which the defendant had 
 warranted, it was held, that the wife could not be joined in an action 
 brotight for such injury, because there was no misfeasance on the 
 part of the defendant, independently of the contract which had been 
 made with the husband alone (h). And where husband and wife 
 sue on an account stated, the declaration must show that the 
 accounting was concerning matters in which the wife had an 
 interest (i). 
 
 By the Common Law Procedure Act, 1852, s. 40, " in any actions 
 brought by a man and his wife for an injury done to the wife in 
 
 {y) DayY. Padrone, B. R. Trin. 13 & (c) Hortmy. Byles, 1 Sid. 387. 
 
 14 Geo. II. MSS. 2 M. & S. 396, n. and (d) Judgment arrested for this con' 
 
 Serj. Hill's MSS. vol. 27, p. 172. elusion, in Newton and Ux. v. HaUer, 
 
 (x) Daltim V. Midland Counties Mail- Lord Raym. 1208. 
 
 way Company, 13 C. B. 474 ; 22 L. J., (e) ChawtUr v. Lindsey, 16 M. & W. 
 
 C. P. 166. 82. 
 
 (a) But in these cases the husband (/) Grove and Ux. v. ffart, Tr. 25 Geo. 
 
 may sue alone for the injury sustained II. Bull. N. P. 7. 
 
 by himself from the loss of the society, (g) Dengate v. Gardiner, 4 M. & "W. 5. 
 
 comfort, and assistance of his wife, in (h) Longmeid v. Holliday, 6 Exoh. 
 
 consequence of the battery. Byde v. 761. 
 
 Scissor; Cro. Jac. 538. (i) Johnson v. Lucas, 1 E. & B. 659 ; 
 
 (6) Dengate v. Gardiner, 4 M. & "W. 5, 22 L. J., Q. B. 174. 
 
BaEON and I'ilME. 245 
 
 respect of wtich she is necessarily joined as co-plaintiff, it shall be 
 lawful for the husband to add thereto claims in his own right ; and 
 separate actions brought in respect of such claims may be consoli- 
 dated if the court or a judge shall think fit, provided that in the 
 case of the death of either plaintiff such suit, so far as relates to 
 the causes of action, if any, which do not survive, shall abate (/c). 
 
 2. Where the Husband must sue alone. — Where the wife cannot 
 maintain an action for the same cause, if she survive her husband, 
 the action must be brought by the husband alone : as in the case 
 of an action of indebitatus assumpsit for the labour, &c., of the 
 wife, during the coverture (l) ; for, in contemplation of law, the 
 wife is considered as the servant of the husband, and he is entitled 
 to her earnings, and such earning* shall not survive to the wife, 
 but go to the personal representative of the husband (m). By a 
 settlement made on the marriage of the plaintiff and his wife, 
 leaseholds were assigned upon trust to allow the wife to receive the 
 rents and profits during her life to her separate xise. The wife 
 after marriage received the rents from the trustee, and lent a portion 
 of them to the defendant ; it was held, that the plaintiff might, after 
 his wife's death, recover this vaoiiej,jure mariti, from the defendant 
 in an action for money lent (n). But where trustees for the separate 
 use of the wife admitted that they held a certain sum to her sepa- 
 rate use, but refused to pay it over without her separate receipt, it 
 was held that an action for money had and received would not lie 
 by the husband and wife for the sum so admitted to be due to her. 
 " Here," said Lord DenTnan, " the defendants were not bound to 
 pay the dividend which they had received to the wife's use, and 
 indeed were bound to keep it for her until they obtained her 
 aiithority in the form of her sole and separate receipt ; their ex- 
 press duty being to secure her property against her husband" (o). 
 So in an action on the case for words, not actionable in themselves, 
 spoken of the wife, whereby the husband sustains special damage, 
 the husband must sue alone (p). So, in actions for injuries com- 
 mitted during coverture to personal chattels (q), which by law are 
 
 {Jc) As to the powers of amendment in tion cannot he raised to sucli declaration, 
 
 case of misjoinder, see C. L. P. Act, 1852, merely on the ground of the wife having 
 
 s. 222. been joined ; because contracts made by 
 
 {I) Muckley y. Collier, Salk. 114, and the wife, with the assent of the husband, 
 
 Carth. 251. are valid, and the bringing the action in 
 
 (m) It may here be observed, that al- their joint names is a declaration of such 
 
 though the law will not imply a promise assent ; and in this case the action would 
 
 to the wife, yet where the wife is the survive to the wife. Brashford v. Buck- 
 
 meritorious cause of the action, that is, inglmm (in error), Cro. Jac. 77, 205. 
 
 where the defendant has derived profit or (n) Bird v. Pegrwm, 13 C. B. 639 ; 22 
 
 advantage from her labour or skill, and L. J., C. P. 166. 
 
 an express promise of remuneration is (o) Bond v. Nurse, 10 Q. B. 244. 
 
 made by the defendant to (he wife, if, in (p) Coleman and Wife v. Harcourl, 1 
 
 such case, an action is brought by the Lev. 140, cited in Saville and Wife v. 
 
 husband and wife jointly, and it is ex- Sweeny, 4 B. & Ad. 514. 
 
 pressly stated in the declaration, that the (g) Arundel v. Short, Cro. Eliz. 133. 
 promise was made to the wife, an objec- 
 
246 BAEON AND FEME. 
 
 vested in the husband ; as in trespass for cutting down and cann- 
 ing away corn, although it grew upon the wife's land : for it grows 
 by the industry of man, and consequently the property thereof is 
 in the husband alone (r). 
 
 In all cases where the wife shall not have the thing when it is 
 recovered, either solely to herself, or jointly with her husband, but 
 the husband only shall have it, there the husband shall sue alone (s). 
 An action on the case was brought by A. and B. his wife for the 
 use and occupation of a messuage and lands, and for money had 
 and received to the use of the husband and wife, stating the pro- 
 mises to husband and wife ; after judgment by default, writ of 
 inquiry executed, and final judgment in B. R, a writ of error was 
 brought in the Exchequer Chamber, assigning for error, that judg- 
 ment was given for the husband and wife to recover their damages, 
 whereas it appeared on the record that B. was the wife of A. and 
 could not sustain any damage by reason of anything contained in 
 the declaration; the court were of opinion that the judgment was 
 erroneous, because a contract could not be made with a married 
 woman ; that a promise, either express or implied, did notgive any 
 interest to her ; the whole resulted to the husband, and the action 
 ought to have been brought in his name. The counsel for the de- 
 fendants in error having urged that, if an impossible assumpsit was 
 stated in the declaration, it might quoad her be surplusage, as much 
 as if she had been a stranger ; the court said, the insertion of the 
 wife could not be surplusage, for it created an interest in her, and 
 entitled her to damages by survivorship (f). Where a debtor to 
 the wife as executrix promises to pay the husband in consideration 
 of his giving time for payment, the husband ought to sue alone, 
 because the wife is not a party to the agreement between her hus- 
 band and the defendant (-«,) ; but in this case the life of the wife 
 must be averred {x). Note. — The recovery by the husband will 
 amount to a devastavit pro tanto. Per Holt, 0. J., Carth. 463 ; 
 but per Rokeby, J., assets at law. 
 
 3. Where the Husbcmd and Wife may join, or the Husband 
 may sue alone at his Election. — In personal actions for the ' reco- 
 very of damages only, (other than actions in respect of personal 
 wrongs to the wife,) where the action will survive to the wife {y), 
 
 (r) Will'!/ y. HanhswoHh, B. E. M., 3 (y) In Frosdike v. Sterling, 1 Freem. 
 
 Geo. II. MSS., and cited by the court in 236, North, C. J., said, " that he always 
 
 Weller v. Baker, 2 Wils. 424. took it for an unquestionable rule, that, 
 
 (s) 1 Eol. Abr. 347, (Q.) pi. 5. wheresoever, in case the husband should 
 
 (i) Bidgood v. Way and Wife, on error die, the action would survive to the wife, 
 
 inExch. Chamb. 2 Bl. R. 1236, cited iu therethewifemi^Ai join, but on the other 
 
 Morris y. Norfolk, 1 Taunt. 214. side, the husband may join the wife in 
 
 (u) Yard v. Bland, Lord Raym. 368 ; many oases where he is not bound to join 
 
 Salk. 117 ; Longmeid v. Molliday, ante, her, but may have the action alone. " See 
 
 P- 244. also Ayling v. Whiclier, 6 A. & E. 259 ; 
 
 (k) Lea V. Minne, Yelv. 84 ; Cro. Jac. 1 Nev. & P 416 
 110. 
 
BARON AND FEME. 247 
 
 the husband and wife may join (z) ; or the husband may sue alone, 
 for he alone may release such action (a). 
 
 Assumpsit. — In an action for a breach of promise made to hus- 
 band and wife after coverture, to pay a sum of money to the wife, 
 husband and wife may join (6). So where a promise is made to 
 the wife only (c). 
 
 Action by husband for money had and received. Plea, by way 
 of defence on equitable grounds that the money had been be- 
 queathed by will to the separate use of the plaintiff's late wife, 
 who, during the coverture, assigned the money to the defendant on 
 trusts in which the plaintiff took no interest. It was held that the 
 plea was good, admitting a receipt <if the money ^rima facie to the 
 use of the husband, and avoiding it by showing that in equity the 
 receipt was on trusts in which the husband took no interest, thereby 
 sufficiently negativing any marital right arising on her death (d). 
 
 Covenant. — Where a lease is granted to husband and wife for 
 a term of years, and the lessor ousts them, husband and wife may 
 join in action of covenant (e). Queen Elizabeth, by letters patent, 
 demised a house to A. for years, who covenanted to repair, and 
 afterwards, during the term, the queen granted the reversion to 
 husband and -wiie, and to the heirs of the husband in fee : the 
 house being out of repair, the husband alone brought covenant, 
 and it was held well, although the interest of the feme appeared 
 on the face of the declaration (/). Covenant will lie by husband 
 and wife for non-payment of rent, due by virtue of a lease granted 
 by husband and wife of lands, the inheritance of wife (g). Hus- 
 band alone may bring an action on a covenant made to himself and 
 his wife, for, although the covenant be made to both, yet he may 
 refuse quoad her (A). In this case, North, C. J., said, that he 
 remembered an authority in an old book, that, if a bond be given 
 to baron and feme, the husband shall bring the action alone, which 
 shall be looked upon to be his refusal as to her (i). 
 
 Debt. — So if a bond be given to husband and wife administra- 
 trix, husband may sue alone, declaring on it as a bond to him- 
 self (A;). In debt on bond made to husband and wife, both may 
 
 (s) Per Cur., 2 Mod. 270. Rol. Abr. 32, pi. 12. 
 
 (a) ".What the husband alone may {d) Sloper y.ColtreU, 6 E. & B. 497 ; 
 discharge, and of which he may make 26 L. J., Q. B. 7. 
 
 disposition to his own xise, he may re- (e) Bro. Baron and Feme, pi. 23. 
 
 cover alone without joining his wife in the (/) Bret v. Cumberland, Cro. Jac. 
 
 action." Per Doddridge, J., to which 399; Buls. 163. But s^a Middlemore y. 
 
 Coke, C. J., assented, and said it was a Goodall, Cro. Car. 506. 
 true and good ground, 3 Bulst. 164. (g) Aleberry v. Walby, Sir. 230. 
 
 (b) Hilliard v. Hambridge, Aleyn, 36. (A) Beaver v. Lane, 2 Mod. 217. 
 See Johnsm\, v. Lucas, 1 E. & B. 659 ; (i) Cited by Buller, J., 4 Tr. 617. 
 ante, p. 244. ' (Ic) Ankerstein v. Clarke, 4 Tr. 616. 
 
 (c) Prat V. Taylor, Cro. Eliz. 61 ; 1 
 
048 BABON AND FEME. 
 
 join (Z) ; or the husband may disagree to the wife's right to the 
 bond, and bring the action in his own name only (m) ; but, until 
 such disagreement, the right to the bond is in both the husband 
 and wife, and shall survive ; hence, if the husband dies, the wifu 
 shall have the bond, and not the personal representative of the 
 husband (n). So in debt on bond made to the wife during cover- 
 ture (o), or in assumpsit on a promissory note given to the wife 
 during coverture {%>), husband and wife may join : or husband may 
 sue alone {q) ; but if the husband does not reduce his interest into 
 possession during his lifetime, it will survive to the wife (r) ; but 
 after the death of wife, husband must sue as administrator to his 
 wife (s) ; for the rule of law is, that choses in actions can only be 
 put in suit by the party to whom they are given ; or, after their 
 deaths, by persons claiming ^/ure representationis. Hence, if the 
 husband, surviving his wife, does not, in his lifetime, reduce her 
 choses in action into possession, although in equity those claiming 
 under him are entitled to them, they must be recovered, not by his 
 representatives, but the wife's ; and they will take the property as 
 trustees for the representatives of the husband (t). A married 
 woman, being administratrix, received a sum of money in that 
 character, and lent it to her husband, taking in return for it the 
 joint and several promissory note of her husband, and two other 
 persons, payable to her with interest ; it was held, that although 
 she could not have maintained any action upon the note during 
 the lifetime of her husband, yet that, he having died, and the 
 note having been given for a good consideration, it was a chose in 
 action surviving to the wife, and that she might sue either of the 
 other makers at any time within six years after the death of her 
 husband, and recover interest from the date of the note (u). The 
 assignees of a bankrupt may maintain an action in their own 
 names only, for a chose in action belonging to the wife before 
 marriage, e. g. a promissory note given to her dum sola ; and in 
 such action, the defendant cannot set off a debt due to him from 
 the bankrupt (po). 
 
 (I) 32 Idw. III. 5 ; 43 Edw. III. 10 ; ture ; for devant, therefore, in some edi- 
 
 Bro. Baron and Feme, pi. 14, 65. tions of Levinz's Reports, read dmroml. 
 
 (m) Coppin v. , 2 P. AVms. 497. Comyns has stated the case accurately in 
 
 («.) Bro. Baron and Feme, pi. 60. his digest, tit. " Baron and Feme " (W.) 
 
 (o) Howell V. Maine, [in the record, (r) Oaters v. Madeley, 6 M. & "W. 423. 
 
 Powell V. Mason,] 3 Lev. 403, S. P. per (s) Day v. Padrone, B. R. Trm. 13 & 
 
 Lord Hardmcke, 2 Atk. 208. See also 14 Geo. II. 2 M. & S. 396, n., and Sent. 
 
 Nmse and Ux. v. Wills, 4 B. & Ad. 739, Hill's MSS. vol. 19, p. 290, and vol. 27, 
 
 judgment affirmed on error, 1 A. & E. p. 172. 
 
 ^^; XT.,-,,.,., , „, W 'b^''^ v. Kimpton, 2 B. & Ad. 273. 
 
 o tP /o in?' """^ ^""^^ ^- -P^'"'^"'^^^. («) Richards v. Richards, 2 B." & Ad. 
 
 ,\ T^ , „„ ■^^^i recognized in Rose v. Poulton, 2 B. 
 
 (q) It appears by a MS. note, in the & Ad. 822 
 
 possession of a friend of the oompUer, (k) Yates v, SJierriiigton, 11 M. & W. 
 
 that the roll in Howell v. Maine was 42, recognizing Miles v. Williams, 1 P. 
 
 searched, and it was found that the bond Wms. 249, post, p. 252 ' 
 
 was given to the wife during the cover- 
 
BARON AND FEME. 249 
 
 Where husband and wife have recovered judgment on a bond 
 made to wife, dum sola, husband and wife may join in an action 
 on such judgment ; or husband may sue alone ; for that which was 
 before a chose in action, transit in rem judicatam, and is of 
 another nature from what it was before the coverture (y). If it be 
 referred to a master in Chancery to take an account of what is due 
 to husband and wife, who reports the sura due, and appoints it to 
 be paid to the husband, and the defendant is committed for non- 
 payment, and escapes, the husband and wife may join in action 
 against the warden for the escape (z). 
 
 Quare impedit. — So where a right of presentation is in the 
 husband jure uxoris, a quare impedit may be brought by the 
 husband and wife jointly (a). Or*the husband may sue alone, for 
 the presentation only is recoverable and not the advowson, and the 
 release of the husband would bar the action (b). 
 
 Replevin. — Baron and feme may be joined in the same decla- 
 ration in replevin for goods distrained from the feme dum sola (c). 
 If the goods of a feme sole be taken, and she marries, the husband 
 alone may sue the replevin (d). In the replevin of goods which 
 the wife has as executrix, husband and wife shall join, ut videtur (e). 
 Avowry for rent arrear jure uxoris may be by husband and wife, or 
 husband only, averring the life of feme (/). 
 
 Tort. — In an action upon the case for stopping a way to the 
 land of the wife, husband and wife may join (g). So an action 
 upon the case for cutting down trees, the lops of which were reserved 
 to the "wife for her life, may be brought by husband and wife 
 jointly (h). An action was brought by the dippers at Tunbridge 
 Wells, together with their husbands, against the defendant for 
 exercising the business of a dipper, not being duly appointed and 
 approved according to a private statute ; it was held, that the 
 action was well brought in the names of the husbands and 
 wives (i). But where lands were demised to husband and wife for 
 years, and the husband had granted an underlease, it was held, 
 that the husband might sue alone for damage done to the rever- 
 sion (k). 
 
 Trespass. — Trespass was brought by the husband alone for 
 hunting in a free warren, which he had in right of his wife, and it 
 
 (y) WoolversUm v. Fynnimore, T. 18 & lome v. WalUeden, 1 Mod. 273. 
 
 19 Geo. II. C. B. MSS. (i?) AgmA in Baker and Wifey. Brere- 
 
 (z) Muggins v. Durham, Str. 726. man, Cro. Car. 418. 
 
 (a) Bro. Baron and Feme, pi. 41. (A) Tregmiell and Wife v. Eecve, Cro. 
 
 (6) Ibid. pi. 28. Car. 437. 
 
 (c) Ibid. pi. 85. (i) Welter and Wife and others v. Ba- 
 
 (d) F. N. B. 159, K., cited in Bull. N. her, 2 "Wils. 414. 
 
 P. 53. (k) Wallis r. Harrison, 5 M. & \V. 
 
 (e) Bro. Baron and Feme, pi. 85. 142. 
 (/) Wise V. Bellent, Cro. Jac. 442 ; Os- 
 
250 BAEON AND FEME. 
 
 was adjudged good, for damages only are recoverable (I). It is 
 immaterial as to the point in question, -whether the interest of the 
 husband is a joint interest with the wife, or an interest only in 
 right of the wife. In the first and second cases in covenant before 
 abridged, the husband had a joint interest with the wife. In the 
 fourth case in covenant, two first cases in tort, and the case to 
 which this remark is annexed, the husband had an interest only in 
 right of his wife. 
 
 Trover. — Where the inception of the cause of action is in the 
 wife before marriage, and consummated afterwards, husband and 
 wife may join, as in trover for a personal chattel of wife before, and 
 conversion thereof after marriage (m). It must be observed, that, 
 in all the preceding cases, where the wife is made a party, her 
 interest ought to appear on the face of the declaration, for the 
 court will not intend it upon demurrer (n), or even after verdict (o). 
 Bed quaere, whether this case be law to its full extent ; for where 
 husband and wife joined in replevin, and defendant avowed for 
 rent arrear, after verdict, it was objected, that the husband and 
 wife could not have a joint property in personal chattels, after the 
 marriage, and consequently the replevin ought to have been 
 brought by the husband alone. Lord Hardwicke, C. J., delivering 
 the judgment of the court, said that, although the ground of the 
 objection was generally true, yet, notwithstanding, as a man and 
 woman might have a joint property before marriage, or the wife 
 might have the goods in question as executrix, and the taking 
 might in both cases be before marriage, the court were of opinion, 
 that they might declare jointly in an action for such taking. That 
 if the law would admit of such joint action, the fact was admitted 
 by the pleading. The defendant had not disputed with the plaintiff 
 to whom the property belonged at the time of the taking, and 
 therefore, if there could be a case in which husband might join 
 with the wife in an action for a personal chattel, the court thought 
 that, after verdict, this ought to be intended to be the case : Bro. 
 Bar. and Ferae, pi. 85, abridges a book case in 33 Edw. Ill (but 
 which is not to be found in the " Year Book," and was probably 
 taken from some manuscript), wherein it is held, that husband and 
 wife may join for such things as the wife has as executrix, or where 
 goods are taken from her whilst sole (p). A declaration in replevin 
 by husband and wife, where nothing appears on the face of the 
 record whence the court can infer that the wife had an interest 
 in the goods taken, Avas bad, on special demurrer (q). 
 
 (0 Bro. Baron and Teme, pi. 16. (p) Bourne and Wife v. Mattaire, Bull, 
 
 (m) BlacMom v. Greaves, 2 Lev. 107, N P 63 and MSS 
 
 (n) Serres v. ^odd i N. K. 405. {q) Serves and Wife v. Dodd, 2 N. W. 
 
 (o) Abbott V. Blojkld, Cro. Jac. 644. 405. 
 
BAEON AND FEME. 251 
 
 IV. Of Actions against Husband and Wife. 
 
 In actions against the husband for the debts of the wife con- 
 tracted before marriage, if the wife is not joined, advantage may- 
 be taken of the omission in ari'est of judgment (r), and this rule 
 holds, although an account has been stated with the husband, for 
 that does not alter the nature of the debt (s), and the judge at Nisi 
 Prius has no power of any kind to enable him to add the name 
 of the wife as defendant on the record {£). A woman occupied a 
 house from Lady-day until the 8th of June, and then intermarried 
 with the defendant and quitted the house, having on the Lady-day 
 preceding given notice that she should quit at Michaelmas ; an 
 action for use and occupation frcwn Lady-day to Michaelmas was 
 afterwards brought against the husband ; and it was held, that it 
 would not lie; for there was no occupation by the husband for the 
 former part of the half-year either in fact or in law (u). Assumpsit 
 against husband and wife for goods sold and delivered to wife dum 
 sola ; promise by the wife : pleas, non assumpsit ; non assumpsit 
 by wife, dum sola, within six years ; evidence for plaintiff, sale of 
 goods by plaintiff to wife, dum sola, and payments by her within 
 six years ; for defendants : that they were married more than six 
 years before action brought : nonsuit : per Tenterden, C. J. (x). 
 To a declaration against husband and wife for debt due from the 
 wife, before coverture, the husband's discharge under the Insol- 
 vent Act is a good plea (y) ; so also to a similar declaration is a 
 plea, that the wife was discharged under the same act before 
 coverture (z). 
 
 As a husband de facto is liable to the debts of his wife,' a plea 
 of ne unques accowple en loyal matri/monie to an action brought 
 against husband and wife, for the recovery of a debt due from wife 
 before coverture, is bad (a). A husband cannot be charged at law 
 for money lent to his wife, even for the purpose of buying neces- 
 saries ; because it may be misapplied. If the money be laid out 
 in necessaries, equity will consider the lender as standing in the 
 place of the person providing the necessaries, and decree relief (b). 
 But a count for money lent to the wife at the request of the hus- 
 band, is good, because a loan to the wife at the request of the 
 husband is considered in law as a loan to the husband (c). The 
 
 (r) Mitchinson v. ffewson, 7 T. R. 348. (y) Lockwood v. Salter, 5 i3. & Ad. 
 
 (s) Drue v. Thome, Aleyn, 72. 303. 
 
 (t) Garrard v. Giubelei, 13 C. B. (K (a) Storr v. Lee, 9 A. & E. 868 ; 1 P. 
 
 S.) 832, in error. & D. 633. 
 
 (m) Richwrdson v. Hall, 1 Brod. & [a) Norwood v. Stevetison, Andr. 227. 
 
 Bingli. 50. (i) Harris v. Lee, 1 P. Wms. 482. 
 
 (k) ifwrt V. StoJari o?ui IVi/e, Middlesex Preoed. in Chan. 502, S. C, and HiU- 
 
 Sittings, after M. T. 1 Will. IV. ex rela- chinson v. Standly, JiOrd Bathurst, C, 
 
 Hone Cresswell, counsel for defendant. H. T. 1776, MSS. 
 
 See also Neal v. Hollands, 21 L. J., Q. B. (c) Stephenson v. Hardy, 3 "Wils. 388 ; 
 
 289. 2 Bl. R. 872. 
 
353 BAEON AND FEME. 
 
 count, however, must state the money to have been lent to the 
 wife at the request of the husband ; for where the money waw 
 alleged to have been lent to the wife at the wife's request, it was 
 held bad (d). " It is true that a complete or perfect contract 
 cannot be made by a feme covert by her own authority ; yet, by 
 the assent of her husband, she may contract as his substitute, as in 
 case either of sale or loan. This assent may be either express 
 or implied ; it may be prior or subsequent to the contract. If 
 prior and communicated to the defendant, the contract made is an 
 actual contract, and not merely virtual with the husband ; if sub- 
 sequent, then the wife's contract is inchoate and imperfect, until 
 affirmed by the husband ; and such affirmation, if given, transfers the 
 contract to him." Per Blaclcstone, J. (e). So where the plaintiff de- 
 clared, that the defendant was indebted for meat, &c., found by the 
 plaintiff at the defendant's request, and on evidence it appeared to 
 be found for the defendant's wife, at his request, in his absence ; upon 
 a case reserved, it was held, that a delivery to the wife, at the 
 husband's request, was in law a delivery to the husband (/). If a 
 declaration against husband and wife, for a debt of the wife con- 
 tracted before marriage, allege a promise of the wife, made after 
 the marriage, to pay the debt, it is bad (g). If an action is 
 brought against husband and wife on a bond given by the wife 
 dum sola, the defendant may plead the bankruptcy of the hus- 
 band after the intermarriage, &c., as a discharge of the debt (h). 
 Husband and wife cannot maintain an action of trover, and allege 
 the possession in them both ; for the law transfers the whole inte- 
 rest to the husband : but trover may be maintained against hus- 
 band and wife ; for the gist of the action is the conversion, which 
 is a tort, with which a feme covert may be charged, as well as with 
 trespass (i). Where the injury is not of such a nature as must 
 necessarily have been done by the husband alone, the wife may 
 properly be joined (k). Hence husband and wife may be jointly 
 sued in trespass for iheir joint act in assaulting and taking the 
 plaintiff into custody on a false charge (Q. Trespass against J. G., 
 widow, and pending the suit she took husband ; after judgment a 
 writ was directed to the sheriff quod caperet J. G. ad satisfaci- 
 endum, upon which the sheriff took J. G., whose husband, together 
 with her, thereupon brought an action for false imprisonment 
 against the sheriff, who justified under the ca. sa. On demurrer, 
 the court gave judgment for the defendant, observing, that if an 
 
 (d) Stmey. Macnair {in error),7Timnt. Tales v. Sherrington, 11 M. &. W. 42 ; 
 
 {e^ SUvensonv J?ar<^w, 2 Bl. R. 873. (i) Draper ^r.Fiahes,Ye\v. \65;Anm., 
 
 (/) Ross v. Noel, Bull. N. P. 136. 1 Vent 24 
 
 (g) Morris «.nd Wife y. Norfolk and (k) Per Tindal, C. J., in Vine v. Saun- 
 
 another 1 Taunt, 212. Oers and Ux., 4 Bingli. N. C. 101 ; 5 Sc. 
 
 Jh) M'lUsY.WMmms, 1 P. Wms. 249 ; 359, recognizing Bayley, J. , in Keyworih 
 
 said by Lord jffardwicke, in 2 Vesey, 181, v. Sill, 3 B. & A. 685. 
 
 to be truly reported, and recognized in (?) /j. on demuiTer to declaration, . 
 
BARON AND FEME. 253 
 
 action be brought against a feme, who before judgment takes hus- 
 band, yet, if she be found guilty, the ca. sa. shall be awarded 
 against her, and not against her husband (m). In like manner, 
 after interlocutory judgment in assumpsit against a feme, who 
 afterwards marries, the plaintiff, even after notice of the marriage, 
 may proceed to final judgment, without joining the husband, and 
 sue out execution thereon against the feme only ; and such execu- 
 tion cannot be set aside for irregularity (to). So where an action 
 is brought by a feme sole, who marries after the commencement 
 of the suit but before trial, it is not necessary to sue out a scire 
 facias to make the husband a party to the suit (o). Judgment 
 was obtained against a feme sole, who afterwards married, and then 
 the plaintiff brought a sci. fa. against husband and wife, and had 
 judgment thereon : then the wife flied, and the plaintiff afterwards 
 brought another sci. fa. against the husband alone : it was held, 
 on wi'it of error, that the second sci. fa. was well brought, on the 
 ground that the judgment on the first sci. fa. had made the 
 husband liable ( j>). In delivering the judgment of the Court of 
 Exchequer in a recent case, Pollock, G. B., said, " The wife is 
 responsible for all torts committed by her during coverture, and 
 the husband must be joined as a defendant. They are liable, 
 therefore, for frauds committed by her on any person, as for any 
 other personal wrong. But when the fraud is directly connected 
 with the contract with the wife, and is the means of effecting 
 it, and parcel of the same transaction, the wife cannot be respon- 
 sible, or the husband be sued for it together with the wife." 
 Upon this ground it was held, that an action would not lie against 
 husband and wife for a false and fraudulent representation by the 
 wife, that she was sole and unmarried, whereby the plaintiffs 
 were induced to take her promissoi-y note as seciirity for a loan to 
 a third party (g'). In an action against a husbaad and wife for a 
 false and fraudulent representation by the wife that a bill of ex- 
 change drawn upon her husband was accepted by him, whereby 
 the plaintiff was induced to discount such bill, it was held by Uric, 
 C. J., and Byles, J., that these facts did not constitute a cause of 
 action, and by Williams, J., and Willes, J., that they did, as the 
 fraudulent representation was not shown to have been connected 
 with any contract with the wife (r). 
 
 If slander be spoken by husband and wife, there must be sepa- 
 rate actions, one against the husband only, for the slander spoken 
 by him, and the other against the husband and wife, for slander 
 spoken by the wife (s). So for words spoken of husband and wife 
 
 ( (m) Doyleyv. R7ti<e, Cro. Jao. 323. Associgiion, 9 Exoh. 422; 23 L. J., 
 
 (n) Cooper v. Hwnchin, i East, 521. Exch. 163. 
 Soe 3 M. & S. 557. (r) Wright v. Leonard, 30 L. J. 365, 
 
 (o) Walker v. GolUng, 11 M. & W. 78. C. P. 
 
 Ip) ObrUm V. Bamm, Cartli. 30. See (s) Swithin v. Vincent, 2 Wils. 227; 
 
 the Kecord, 3 Mod. 170. _ Dyer, 19, a, pi. 112, in the margin. 
 
 (q) Fairhursty. Liverpool Adelphi Loan 
 
254 BAEON AND FEME. 
 
 formerly there must have been two actions, one by the husband 
 for the words spoken of the husband, and another by the husband 
 and wife for the words spoken of the wife (t) : but now such 
 claims may be joined in one action, and if more than one action is 
 brought, the actions may be consolidated (u). 
 
 The policy of the common law would not permit husband and 
 wife to give evidence for each other, because their interests were 
 the same ; nor against each other, on account of the implacable 
 dissension which might be occasioned thereby (x) ; but now, in all 
 civil causes, except proceedings instituted in consequence of adul- 
 tery, the husband and wife are compellable to give evidence for or 
 against each other, but neither is compelled to disclose any com- 
 munication made by the one to the other during marriage (y). 
 The declarations of a married woman, during coverture, of the 
 non-payment of money lent to her before marriage, are admissible 
 in evidence for the plaintiffs, in an action brought against her 
 husband as her administrator ; for the wife, like any other person, 
 may bind her representative (z). Feme covert, sued as feme sole, 
 cannot bring error without her husband joining (a). 
 
 If husband and wife are taken in execution for a debt of the 
 wife, she is entitled to be discharged, unless she has separate pro- 
 perty, out of which she can pay the debt (6). 
 
 {t) Brrington v. Gardiner, B. E. M. {y) 16 & 17 Vict. c. 83. 
 
 22 Geo. III. MS. See Smith v. Warner, (s) Per Lord Tenterden, C. J., Eum- 
 
 Goldsb. 76 ; Dalby v. Dorthall, Cro. Car. jphreysY. Boyce, 1 M. & Rob. 140. 
 
 553 ; Anon., "W. Jones, 440 ; Smith v. (a) Fisher v. M'Namara, B. E., April 
 
 Cooker, AY. Jones, 409. 19, 1799, L. P. B. 279 ; Dampier, MSS. 
 
 (u) Common Law Procedure Act, 1852, L. I. L. 
 
 s. 40, anU, p. 245. (J) Campbell, C. J., in Ivens v. Btdlcr, 
 
 (4 Davis V. Dinwoody, 4 T. E. 678 : 26 L. J., Q. B. 145. 
 
 Bull. N. P. 286. ' ^ . 
 
CHAPTER IX. 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 
 
 AGK 
 
 I. Of the Nature of a Bill of JEocchange . . . .256 
 
 II. Of the Capacity of the Covdracting Parties to a Bill 
 
 of Exchange 258 
 
 Corporations ........ 258 
 
 Infant 261 
 
 Feme Covert ......... 262 
 
 Agent 262 
 
 Partners 264 
 
 Spiritual Person . . . . . . .266 
 
 III. Of the Requisites in a Bill of Exchange . . . 267 
 
 Stamp 270 
 
 Date . . . 274 
 
 Alteration of Bill ....... 274 
 
 Of the Person to whom the Bill is made payable . . 277 
 
 Words, " Or Order" 277 
 
 " Value Received" 278 
 
 Consideration . . . . . . . .278 
 
 IV. Presentmeoit for Acceptance 281 
 
 Acceptance ........ • 282 
 
 Qualified Acceptance ....... 283 
 
 Liability of the Acceptor ...... 285 
 
 Non-Acceptance and Notice of Dishonour . . . . 286 
 
 Notice to Drawer , . . . . • .287 
 
 Notice to Indorser . . ; 289 
 
 Protest 291 
 
 Lost Bill 293 
 
 Inability of the Drawer on Non-Acceptance . . . 293 
 
 V. Of the Transfer of Bills of Exchange . . . . 294 
 Of the Party in whom the Right of Transfer is vested . 299 
 
 VI. Of Presentment for Payment, and herein of the Days 
 
 of Grace 300 
 
 Non-Payment and Notice thereof 302 
 
 Protest 308 
 
 Non-Payment of Checks 310 
 
 Of Crossed Checks 311 
 
 VII. Of the Acts of the Holder whereby the Parties to the 
 
 Bill may he Discharged ^12 
 
256 BILLS OF EXCHANGE, 
 
 PAGE 
 
 VIIL Of the Action on a Bill of Exchange . . . . 316 
 
 Declaration ^'■^ 
 
 Pleas 319 
 
 Evidence ^21 
 
 Recovery of Interest ...•••• ^-i5 
 
 IX. Of the Nature of a Promissory Note . . .328 
 
 Stat. 3 <fc 4 Ann. c. 9, «. 1, placing Promissory Notes on 
 
 tlie footing of Inland Bills of Exchange . . . 328 
 
 What are Negotiable Notes within the Statute . . 329 
 
 Of Bankers' Notes ....-• -335 
 
 Joint and Several Notes 335 
 
 Consideration .'. . • • ■ ..336 
 
 Stamp 337 
 
 X Of the Time when a Note ought to he presented for 
 
 Payment . . . ' . . ' ■ • • ■ 338 
 XI. Of the Declaration ' . ... • • • -340 
 
 Pleadings .......•• 340 
 
 Evidence ......... 341 
 
 Conclusion ......... 343 
 
 I. Of the Nature of a Bill of Exchange. 
 
 A BILL of Exchange is' a written' order from A. to B., directing 
 B. (who has, or is supposed to have, in his hands, suflScient effects 
 belonging to A.) to pay a sum of money to C. or order, or to C. 
 or bearer, either at sight or a certain number of days after sight, 
 or after date, or at single, double, or treble usance, or on demand. 
 The peculiar properties of a bill of exchange are these : — First, — 
 It is assignable to a third person not named in the bill, or party 
 to the contract, so a§ to vpst iq the ^.ssignee a right of action m his 
 own name : contrary to, the general rule of law, that choses in action 
 are not so assignable. Secondly, — Although a bill of exchange be 
 merely a simple contract, and not a specialty, yet it will be pre- 
 sumed that it has been originally, given for a good and valuable 
 consideration; . . , , 
 
 Bills of exchange' ai-e ' eithfer fo5:eign' or inland : foreign bilb 
 of exchange have long been considered as the most convenient 
 paper security among merchants, in conformity to the universal 
 usages and customs established among traders, by unanimous 
 concurrence, for facilitating a general commerce throughout the 
 world (a). The person making the bill is called the drawer, the 
 person to whom it is directed the drawee (6), and the person in 
 whose favour it is made the payee. When the drawee has under- 
 taken to pay the bill, he is styled the acceptor, and his undertaking 
 to pay the bill is called an -acceptance. No one can be liable as 
 
 («) Postlethw. Diet. As to foreign bUls (J) As to the necessity of there being 
 
 of exchange, see Mercantile Law Amend- a drawee, see Peto v. Reynolds, 9 Exch. 
 ment Act, 1856, ss. « and 7. 410 ; 23 L. J., Exch. 98. 
 
BILLS OF EXCHANGE. 257 
 
 acceptor but the person to whom the bill is addressed (c), unless 
 he be an acceptor for honour. Bills of exchange payable to order 
 are assignable by indorsement. The person making an indorse- 
 ment is called the indorser ; the person in whose favour it is made 
 the indorsee ; the party in possession of the bill, and entitled to 
 receive its contents, the holder : but not so if he only lends his ■ 
 name for the purpose of suing on it {d). Bills payable to bearer 
 are transferable by dehvery without indorsement (e). Where the 
 drawee refuses to accept, a stranger, after protest for non-accept- 
 ance, may accept for the honour of the drawer, and thereby such 
 stranger acquires certain rights, and subjects himself to the same 
 obligations as if the bill had been directed to him. So a stranger 
 may become a party to a bill, paying it after protest for non-pay- 
 ment, either for the honour of the drawer or indorsers. Although 
 regularly there ought to be three persons concerned in a bill 
 of exchange, viz., drawer, drawee, and payee, yet there may be ■ 
 only two ; that is, the characters of drawer and payee may be, and 
 frequently are, united in the same person (/), as if A. draw a bill 
 in this manner : " Pay to me or my order £ Value received 
 
 by myself." 
 
 A bill of exchange is a simple contract (g), and consequently is 
 within the Statute of Limitations ; and must be sued for within six 
 years after it becomes payable. In an action by an administrator, 
 upon a bill of exchange payable to the testator, but accepted after 
 his death, it was held that the Statute of Limitations begins to 
 run from the time of granting the letters of administration, and not 
 from the time the bill becomes due, there being no cause of action 
 until there is a party capable of suing (h). An agent having 
 money in his hands belonging to his principal, purchased with it a 
 bill of exchange, which he indorsed specially to his principal ; the 
 latter, at the time of the indorsement, was dead, but that fact was 
 not known to the agent ; it was held, that the property in the bill 
 passed to the administrator of the principal, and that he might, 
 therefore, sue upon the bill in that character ; it was held, also, 
 that the administrator was only entitled to recover interest upon 
 bills accepted after the death of the testator from the time 
 of demand of payment made by the administrator, and not from 
 the time the bills became due (i). If a note be payable by instal- 
 ments, with a provision that if default be made in such payment 
 the whole note shall become due, it seems that the statute would 
 run from the time of the first default (k). Bills of exchange for 
 value received are not such matters of account as are intended by 
 
 (c) Per Lord TmUrden, C. J., deliver- 6 Mod. 30. 
 
 ing judgment in Polhill v. Walter, 3 B. & (g) Renew v. Axton, Garth. 3. 
 
 Ad. 122. See stat. 6 & 7 "Will. IV. o. 58, {h) Murray v. East India Company, 
 
 post, Protest. 5 B. & A. 20i. 
 
 (d) Emmett x. Tottenham, 8 Exoh.884. (i) Ibid. 
 
 (e) Grant v. Yaughan, 3 Burr. 15, 16. {k) Hemp v. Garland, i Q. B. 519. 
 (/) Per Holt, C. J., in Bullery. Crips, 
 
 VOL. I. s 
 
258 BILLS OF EXCHANGE. 
 
 the exception in the Statute of Limitations concerning merchants' 
 accounts (I). 
 
 A bill of exchange is to be paid as a simple contract debt ; and 
 constitutes bona notaUlia, not as a bond or specialty m the place 
 where the instrument is at the time of the deceased s death, but 
 -where the debtor resides (m). 
 
 II. Of the Capacity of the contracting Parties to a Bill of 
 Uxchange : — 
 
 Corporations, p. 258. 
 Infant, p. 26 L 
 Feme Covert, p. 262. 
 Agent, p. 262. 
 Partners, p. 264. 
 /Spiritual Person, p. 266. 
 
 All persons, whether merchants or not, if they have capacity 
 to contract, may be parties to a bill of exchange. This appears 
 from a case (n) in which it was decided, that the act of drawing a 
 bill of exchange constituted the drawer a merchant, within the 
 custom of merchants, so as to make him responsible to the holder 
 upon non-payment. 
 
 Corporations. — The general rule is, that as a corporation is a 
 body politic and invisible, it can only speak and act by its com- 
 mon seal (o) ; but on this general rule many exceptions have been 
 grafted, and it has been held (p) that assumpsit will lie on a 
 bill of exchange against a trading corporation, whose power of 
 drawing and accepting bills is recognised by statute. But a rail- 
 way company incorporated by a special act of Parliament contain- 
 ing the usual clauses cannot accept bills of exchange (q). 
 
 The Stat. 7 & 8 Vict. c. 32, s. 27, continues to the Bank of Eng- 
 land the privileges given or I'ecognised by the stat. 3 & 4 Will. IV. 
 c. 98, and by sect. 10 enacts, "that from and after the passing of 
 this act no person other than a banker, who on the 6th day of May, 
 1844, was lawfully issuing his own bank notes, shall make or issue 
 bank notes in any part of the United Kingdom." And by sect. 11, 
 " that from and after the passing of this act it shall not be lawful for 
 any banker to draw, accept, make or issue in England or Wales any 
 bill of exchange or promissory note, or engagement for the pay- 
 
 (Z) Clwvely v. Bond, Carth. 226. For further exceptions, see ante, p. 83. 
 (ot) Yeomans v. Bradshaw, Carth. 373. (q) Bateman v. The Mid Wales Bail- 
 
 (») Sarsfield v. Witherby, Carth. 82. way Company ; The National Siiconnt 
 
 (a) See Gibsm v. JSast India Company, Company (Limited) v. The Mid Wales 
 
 5 Bingh. N. C. 269. Mailway Company ; Overend, Gurney, 
 
 (p) Murray v. East India Company, and Co. (Limited) v. The Mid Wales 
 
 5 B. & A. 204. See Broughton v. Man- Railway Company, 35 L. J. C. P. 205 ; 
 
 clvesterWaterWorhs Company, Z'&.kX.l. L. R. 1 C. P. 499. 
 
BILLS OF EXCHANGE. 259 
 
 ment of money payable to bearer on demand ; or to borrow, owe 
 or take up in England or Wales any sums or sum of money on bills 
 or notes of such banker payable to bearer on demand, save and 
 except that it shall be lawful for any banker who was, on the 6tb 
 day of May, 1844, carrying on the business of a banker in Eng- 
 land or Wales, and was then lawfully issuing in England or Wales 
 , his own bank notes, under the authority of a licence to that effect, 
 to continue to issue such notes to the extent and under the con- 
 ditions in the act mentioned, but not further or otherwise ; and the 
 right of any company or partnership to continue to issue such notes 
 shall not be in any manner prejudiced or affected by any change 
 which may hereafter take place in the personal composition of such 
 company or partnership, either by the transfer of any shares or 
 share therein, or by the admission of any new partner or member 
 thereto, or by the retirement of any present partner or member 
 therefrom : provided always, that it shall not be lawful for any 
 company or partnership, now consisting of only six or less than six 
 persons, to issue bank notes at any time after the number of part- 
 ners therein shall exceed six in the whole." And by sect. 12, if 
 any banker after the passing of the act becomes bankrupt, or ceases 
 to act as a banker, or discontinues the issue of bank notes, he is 
 disqualified from resuming such issue. And by sect. 26, from and 
 after the passing of this act, it shall be lawful for any society or 
 company, or any persons in partnership, though exceeding six in 
 number, carrying on business of banking in London or within 
 sixty-five miles thereof (r), to draw, accept or indorse bills of 
 exchange, not being payable to bearer on demand, notwithstanding 
 the statute 3 & 4 Will. IV. c. 98, or any other statute. 
 
 " The right of one director of a joint-stock company to draw a 
 bill upon the rest, and still further the power of one director to 
 accept a bill for himself and the others so as to make those others 
 liable, is not a right or power implied by law, like that which 
 belongs to one member of an ordinary partnership in trade, with 
 respect to bills drawn and accepted for the purposes of the trade ; 
 it must depend upon the powers given by the charter or deed or 
 agreement under which the company is established and constituted, 
 or some other agreement between the parties, whether a bill so 
 drawn or accepted shall or shall not have that legal effect " (s). 
 
 By the act for the regulation of joint-stock companies (stat. 7 & 
 8 Vict. c. 110, s. 45) it is enacted, with regard to bills of exchange 
 and promissory notes made, accepted or indorsed on the behalf or 
 
 (r) Joint Stock Banks are regulated by MorreU, 12 A. & E. 745 ; ^="0!!; v. Frith, 
 
 Btat. 7 Geo. IV. c. 46, stat. 3 & 4 Vict. o. 10 M. & "W. 131 ; ffarmer v. Steele, i 
 
 111, and stat. 4 & 5 Vict. c. 113. Exoh. 1 ; Maerae v. Sutherland., 3E. & b. 
 
 (s) Per Tinda.1, C. J., delivering judg- 1 ; Eduards v. Cameron Coal Company, 
 
 ment of court in Bramah v. RoUrls, 3 6 Exch. 269 ; and Thompson v. Wesleyan 
 
 Bingh. E". C. 972, recognizing Dickenson Newspaper Association, 8 C. B. 849. 
 
 V. Valpv' 10 B. & C. 128. See Bult v. 
 
 ' s 2 
 
SCO BILLS OF EXCHANGE. 
 
 account of any company within the provisions of that act, so far as 
 relates to the mode of making, accepting or indorsing the same, 
 and to the liability of any such company thereon, that if the 
 directors of the company be authorised by deed of settlement or 
 bye-law to issue or accept bills of exchange or promissory notes, 
 then every such bill of exchange or promissory note shall be made 
 or accepted, as the case may be, by and in the names of two of the 
 directors of the company on whose behalf or account the same may 
 be so made or accepted, and shall be by such directors expressed 
 to be made or accepted by them on behalf of such company ; and 
 that every such bill of exchange and promissory note so made or 
 accepted as aforesaid shall be countersigned by the secretary or 
 other appointed officer of the company in whose behalf the same 
 is expressed to be made or accepted : and that every bill of ex- 
 change so made as aforesaid, or received by or on behalf of the 
 company, may be indorsed in the name of the company by any 
 officer authorised by deed of settlement or bye-law in that behalf ; 
 and that every such bill of exchange or promissory note so made, 
 accepted or indorsed as aforesaid shall, immediately after the 
 making, accepting or indorsing the same, be reported to the proper 
 officer of the company on whose behalf the same shall have been 
 made, accepted or indorsed, and such last-mentioned officer shall 
 enter the same in proper books to be kept for that purpose ; and 
 that if any such bill of exchange or promissory note be not so 
 reported and entered, then the officer, by whose default such bill 
 or note shall not be so reported or entered, shall be liable to repay 
 to the company the amount which the company shall pay, or be 
 liable to pay, in respect of such bill or note : provided always, that 
 nothing herein contained shall be deemed to make any such secre- 
 tary or officer personally liable upon any such bill of exchange or 
 promissory note, nor be deemed to make any such directors per- 
 sonally liable thereon, except as shareholders of the company ; and 
 that every such company on whose behalf or account any bill of 
 exchange or promissory note shall be made, accepted or indorsed 
 in manner and form aforesaid, shall and may sue and be sued 
 thereon, as fully and effectually, and in the same manner, as in the 
 case of any contract made and entered into under their common 
 seal. An acceptance in this form — " A. and B., directors ap- 
 pointed by resolution to accept this bill," is an acceptance within 
 this statute (t). 
 
 Of companies registered under the 19 & 20 Yict. c. 47, it is 
 enacted by sect. 43, that bills and notes made, accepted or in- 
 dorsed in the name of the company, or by any person acting under 
 the authority of the company, expressed or implied, shall bind the 
 
 t 
 
 (t) Balford \. Cameron Coal Company, ation, 8 C. B. 861 ; Allen v. Sea Fire Life 
 
 20 L. J., y. B. 160 ; Eduards v. Cameron Assurance Company, 9 C. B. 578 ; and 
 
 Coal Company, 6 Exch. 269 ; see also Aggnr. Nicholson, 26 L. J., Excli. 348. 
 T}iompson v. Wesley an Newspaper Associ- 
 
BILLS OF EXCHANGE. 261 
 
 company. But by sect. 31, if any person on behalf of a limited 
 company registered under the act, signs or indorses a bill, check 
 or note, in which the name of the company is not duly mentioned, 
 (and described as limited, sect. 5,) he is liable to a penalty of 50?.' 
 and is made personally responsible to the holder. A promissory 
 note in the following form : " Three months after date, we jointly 
 promise to pay F. S. or order 600?. for value received in stock on 
 account of the L. and B. Iron and Hardware Company, limited," 
 signed by three of the directors of the company, has been held to 
 be a note made in the name of the company within this statute, 
 and therefore binding on the company, and not on the directors 
 individually who signed it (u). 
 
 By s. 47 of Joint-Stock Companies Act, 1862 (25 & 26 Vict. 
 c. 8.9), it is enacted that a promissory note or bill of exchange shall 
 be deemed to have been made, accepted or indorsed on behalf of 
 any company under this act if made, accepted or indorsed in the 
 name of the company by any person acting under the authority of 
 the company ; or if made, accepted or indorsed by or on behalf or 
 on account of the company by any person acting under the authority 
 of the company. 
 
 It is to be observed, that although the statute 7 & 8 Vict, and 
 statute 19 & 20 Vict, are repealed by the act of 1862, yet there is 
 a saving clause that no repeal shall affect " any right or privilege 
 acquired or liability incurred" under any repealed act (s. 206). 
 And it has been held that the power of making contracts signed 
 by their agent in pursuance of section 41 of the act of 1856 is a 
 right or privilege acquired under that act (x). 
 
 Infant. — It was formerly held that an infant could not bind 
 himself by a bill drawn in the course of trade (y), or even for ne- 
 cessaries (z), but it now seems that an infant's contract on a bill or 
 note 'is voidable only, and that his liability may be established by 
 ratification after full age (a). Infancy is a personal privilege, of 
 which the infant alone can avail himself. Hence it has been held, 
 that the drawer of a bill of exchange cannot set up the infancy of 
 the payee and indorser as a defence to the action (&). In like 
 manner the acceptor of a bill of exchange cannot set up the in- 
 fancy (c), or the bankruptcy (d), of the drawer as a defence to an 
 action brought at the suit of the indorsee. So, though a note 
 given by a wife to a husband is void, yet if it is indorsed over by 
 
 (v.) Lindus t. Mdrose, 27 L. J., Exch. (a) Byles on Bills, 8tli Edit. 54 ; Bar- 
 
 326 ; see also Eastwood v. Bain, 7 Week. ris v. Wall, 1 Exch. 122. 
 Eep. 90 ; Penrose v. Martin, 28 L. J., (J) Grey v. Coop-.r, B. E, E. 22 Geo. 
 
 28 Q. B. III. M.S. ; S. 0. more fuUy reported, 3 
 
 (a) Prince v. Prince, 1 L. R., Ch. 490. Doug. 65. 
 
 (y) Williams v. W. Harrison and B. (c) Taylor v. CroTcer, 4 Esp. N. P. G. 
 
 Earrison, Garth. 160. 187 ; and per Lord Hardwicke, in Haly 
 
 («) Williamson v. Watts, 1 Camph.652, v. Lane, 2 Atk. 181. 
 Sir J. Mansfield, C. J. ^d) Pitt v. Chappelow, 8 M. & "W. 616. 
 
263 BILLS OF EXCHANGE. 
 
 the husband, as between him and the indorsee, it is certainty 
 good (e). And if a bill be accepted by a party after he is of full 
 age, he will be liable, although the bill was drawn on him while an 
 infant (/). 
 
 Feme Covert. — A feme covert cannot bind herself by drawing 
 a bill of exchange. This proposition falls within the general rule 
 of law, which permits married women to avoid all contracts made 
 by them during their coverture. To this rule there are some 
 exceptions, which are stated under title "Baron and Feme," 
 The interest in a bill of exchange or note given to a feme covert, 
 vests in her .husband, and he must indorse it {g). Where 
 a promissory note is given to a married woman, the husband 
 may sue on it, in his own name only,, and then a debt due to the 
 maker from the wife dum sola cannot be set off (A.). But if the 
 husband die without having reduced it into possession, the note 
 belongs to the wife, and not to the husband's executors, and she 
 must bring the action (i). A promissory note made payable to a 
 woman who is married at the time of the making, passes by the 
 indorsement of the husband alone, during the coverture (^). If a 
 promissory note is made payable to a married woman, and she in- 
 dorses it for value in her own nUme, and the imaker afterwards 
 proTmses to pay it, in an action against him by the indorsee; it will 
 be presumed, that the nominal payee had authority from her hus- 
 band to indorse the note in that form, and the indorsement will be 
 considered as vesting a legal title to the note in the plaintiff (J). 
 So under the husband's authority she may indorse in her own 
 name (m). 
 
 A husband may sue alone on a bill of exchange made payable 
 to the wife dum sola, though she has not indorsed it ; he reduces 
 it into possession by bringing the action (%). 
 
 Agent. — Bills of exchange may be drawn, accepted, or indorsed, 
 by means of the agent or attorney of the party. An agent or at- 
 torney for this purpose may be constituted by parol. In such case 
 the principal is said to draw, accept, or indorse by procuration. 
 The words " per procuration" are an express intimation of a special 
 and limited authority ; and a person who takes a bill so drawn, 
 accepted, or indorsed, is bound to inquire into the extent of the 
 authority (o), and he cannot maintain an action against the principal 
 
 (e) Taylor Y. Crolcer and Saly v. Zane, (Jc) Mason v. Morgan, 2 A. & E. 30. 
 
 eupra. {1} Cotes v. Davis, 1 Campb. 485. 
 
 (/) Stevens v. Jackson, i Campb. 164. (to) Prestwick and another v. Marshall, 
 
 Ig) Barlow v. Bishop, 1 East's R. 432. 7 Bingh. 565. 
 
 (h) Bwrrough y. Moss, 10 B. & C. 658. (n) M'Neilage v. Holloway, 1 B. & A, 
 
 (i) Beits V. Zimpton, 2 B. & Ad. 273 ; 218. See Gaters v. Madeley, 6 M. & W. 
 
 Eoward v. Oakes, 3 Exeh. R. 136. As to 423 ; and Hart v. Stephens, 6 Q. B. 943. 
 what is a reduction into possession, see (o) Alexander v. Mackenxie, 6 C. B. 
 
 Scarpellini v. Atcheson, 1 Q. B. 864 ; and 766. 
 Mart V. Stevens, 6 Q. B. 937. 
 
BILLS OF EXCHANGE. 263 
 
 if the authority has been exceeded (p). Such an authority may 
 be implied from circumstances (q). 
 
 Agents should be cautious how they accept bills directed to them 
 personally, and not to their principals, although such direction de- 
 scribe them in their ofHcial characters ; for in such case, if they 
 accept in their own name, they will become personally responsible ; 
 as appears from the following case : — The plaintiff was indorsee of 
 a bill of exchange, drawn from Scotland upon the defendant in 
 these words, " At thirty days' sight pay to J. S., or order, 2001., 
 value received of him, and place the same to account of the York 
 Buildings' Company, as per advice from Charles Mildmay. To 
 Mr. Humphrey Bishop, cashier of the York Buildings' Company, 
 at their house in Winchester Street, London. Accepted per H. 
 Bishop." The bill not having been paid, an action was brought 
 against defendant upon his acceptance : at the trial he proved, that 
 the letter of advice was addressed to the company ; and that, the 
 bill having been brought to their house, defendant was ordered to 
 accept it, which he did in the same manner as he had accepted 
 other bills. Page, J., directed the jury to find for the plaintiff; 
 which they did accordingly. On motion for a new trial, the court 
 held the direction right ; " for the bill on the face of it imported to 
 be drawn on the defendant, and it was accepted by him gerieraUy, 
 and not as servant to the company, to whose account he had no 
 right to charge it until actual payment by himself. And this being 
 an action by an indorsee, it would be of dangerous consequence to 
 trade, to admit evidence arising from extrinsic circumstances — as 
 the letter of advice. And this differed widely from the case of a 
 bill addressed to the master, and underwritten by the servant : 
 where undoubtedly the servant would not be liable, but his accept- 
 ance would be considered as the act of the master. A bill of ex- 
 change is a contract by the custom of merchants, and the whole 
 of that contract must appear in writing. In this case there was 
 nothing in writing to bind the company, nor could any action be 
 maintained against them upon the bill : for the addition of cashier 
 to defendant's name was only to denote the person with certainty ; 
 the direction to whose account to place it was for the use of the 
 drawee only." Judgment for the plaintiff (r). A promissory note 
 was made in the following form : Midland Counties Building So- 
 ciety, No. 3. Birmingham, Sept. 1, 1856. One month after demand 
 we jointly and severally promise to pay J. B. the sum of 120?., with 
 interest, &c. for value received. — (Signed) W. R H. and S. D. S., 
 trustees ; W. D. F., secretary. "It was held that W. D. F. (the 
 defendant) was personally liable on this note, and that the addition 
 of the word ' secretary ' to his signature did not cut down or ex- 
 
 (») Staqq v. Elliott, 12 C. B. (N. S.) (r) Thomas v. BisUp, Str. 965; Ca. 
 
 g73 Temp. Hardw. 1. See also Man y. 
 
 (q) See Llewellyn v. W.iiickworth, 13 Charles, 25 L. J., Q. B. 119 ; mdCourt- 
 
 M. & "W. 598. ^'"'id V. Saunders, 16 L. T. (N. S.) 562. 
 
264 BILLS OF EXCHANGE. 
 
 elude his liability, his signature being placed where a party usually 
 signs such a document, and from its position showing nothing like 
 a counter signature as 'secretary' merely" (s). Where the de- 
 fendant, in the absence of his brother, who was liable to give the 
 plaintiff a bill for goods supplied, signed it in his own name ; it 
 was held, that he was personally liable, the debt of a third person 
 being a sufficient consideration for which a party may bind himself 
 by bill, and the consideration need not be such as would enable the 
 plaintiff to sue on a special contract (t). But where A. entered into 
 and signed an agreement as agent of B., and B, shortly afterwards 
 signed it with the words " I hereby sanction this agreement, and 
 approve of A.'s having signed it on my behalf;" it was held that 
 A. was not personally liable (u). An agent to a country bank to 
 whom the plaintiff sent a sum of money in order to procure a bill 
 upon London, drew in his own name, for the amount upon the firm 
 in London, the two firms being the same : it was held, that the 
 agent was liable as drawer, although plaintiff knew that he was 
 agent, and supposed that the bill was drawn by him as such, and 
 on account of the country bank, to which the agent paid over the 
 money (x). A power of attorney authorising an agent to demand, 
 sue for, recover, and receive by all lawful ways and means what- 
 soever, all monies, debts, dues whatsoever, and to give sufficient 
 discharges, does not authorize him to indorse bills for his prin- 
 cipals (y). 
 
 Partners. — By the custom of England, where there are joint 
 traders, and one of them accepts a bill dra;wn on them for himself 
 and paHner, such acceptance binds all the partners, if it concerns 
 the trade ; otherwise, if it concerns the acceptor only, in a separate 
 and distinct interest (z). The implied authority of one partner to 
 bind another by bills of exchange is by the custom and law of 
 merchants, and is confined to partnerships, other than mining and 
 farming partnerships (a), for the purpose of trade : but there is no 
 custom or usage that attomies shall be parties to negotiable instru- 
 ments, nor is it necessary for the purposes of their business ; hence, 
 one of two attomies in partnership has no implied authority to 
 bind his partner by a note in the name of the firm, though given 
 for their debt (6). The authority implied by law, is an authority 
 to bind the firm in the name of the partnership, and in that only; 
 hence, where a firm consisted of J. B. and C. H., the partnership 
 
 (s) BottomUy 7. Fishgr, 31 L. J., Ex. pany, 6 B. & A. 204 ; Davidson v. Stan- 
 *^/- „ , iey, 3 Scott's N. R. 49 ; 2 M. & Gr. 
 
 {t) Soweroy v. Butcher, 2 Or. & M. 721. 
 
 ^^f ■ , „ .,,, , ■ , («) Pinlcney v. Ball, Salk. 126. 
 
 (M) Sjpittle V. Lavender, 2 Brod. & (a) Dickenson v. Valpv, 10 B. & C, 
 
 Bingh. 452. 128. 
 
 {X) LeadUlUr v. Farrow, 5 M. & S. (6) Bedley v. Bainhridge, 3 Q. B. 316 ; 
 
 8*^\ ,, 2G. &D. 483. 
 
 \y) Murray t. The East India Com- 
 
BILLS OF EXCHANGE. 365 
 
 name being " J.B." only, and C. H. accepted a bill in the name of 
 " J. B. and Co.," it was held that J. B. was not bound thereby (c). 
 If a bill of exchange is drawn upon a firm, and one of the partners 
 abcept it in his own name, this acceptance binds the partnership (d). 
 So if A., B., and C, are in partnership, and A. draws a promissory 
 note, by which he promises individually to pay the money, and 
 which he signs with his own name only, but prefixing to 'his signa- 
 ture "for A., B., and C." this binds the whole partnership (e). 
 Where there are several partners, it is competent to either of them, 
 by his indorsement, in the name of the firm, to pass their interest 
 in the bill (/) ; and such indorsement made by one partner for the 
 satisfaction of his separate debt cannot be questioned in an action 
 by the indorsee against the acceptor, without showing that the in- 
 dorsement was at the time unknown to or unauthorised by the other 
 partner (g). If a creditor of one of the partners collude with him 
 to take security for his individual debt, out of the partnership funds, 
 knowing at the time that it is without the consent of the other 
 partners, it is fraudulent and void ; but if it be taken bond fide 
 without such knowledge at the time, no subsequently acquired 
 knowledge of the misconduct of the partner, in giving such security, 
 can disaffirm the act in the hands of the creditor, but it is valid in 
 the hands of a bond fide holder (h). If a partner accepts a bill in 
 the name of the firm, drawn upon him by his separate creditor on 
 account of his separate debt, the presumption is that the bill is so 
 accepted without the concurrence of the other partners, and that 
 the creditor knows it (i). Where a bill of exchange accepted by 
 a partner in the name of the firm includes a private debt as well as 
 a debt due from the firm, the holder may, there being no fraud, sue 
 upon it to the extent to which there is authority (&). 
 
 If a bill is sent into circulation after the dissolution of a 
 partnership, all the partners must join in the indorsement, and 
 one by putting the partnership name thereon cannot bind the 
 rest ; for the moment the partnership ceases, the partners become 
 distinct persons ; from that time they are tenants in common of 
 the partnership property undisposed of (T). In like manner, after 
 a secret act of bankruptcy committed by one of two partners, 
 the other cannot, by an indorsement in the name of the firm, 
 transfer the property in a biU which belonged to the firm before 
 the bankniptcy ; for the partnership having ceased to exist, the 
 solvent partner is to be considered as tenant in common with the 
 
 (c) Kirk V. Blurton, 9 M. & W. 284 ; (gr) Ridley r. Taylor, 13 East, 175. 
 see Forbes v. Marshall, 11 Exeh. 166 ; {h) Wiseman v. Mston, 8 L. T. (N. S.) 
 Maclae v. Sutherland, 3 E. & B. 1. 637 C. P. 
 
 (d) Mason v. Bumsey, 1 Campb. 384. (i) Levieson v. Lane, 32 L. J., C. P. 10. 
 
 (e) Lord Qalway y. Matthew, 1 Campb. (k) Ellston v. Deacon, L. R. 2, 0. 
 403. P- 20. -.T x> n 
 
 (/) Swany. SteeU, 7 East, 210; Yen (I) Abel v. Sutton, 3 Esp. JN. P. I.. 
 
 T. Ashby, 10 B. & C. 296. 108, Kenyan, C. J. 
 
866 BILLS OF EXCHANGE. 
 
 assignees of the bankrupt partner, and the property in the bill can 
 only be transferred by their respective indorsements (m). Where a 
 bill was drawn on the firm of " J. K. and Co." undei which firm the 
 defendant and his partners had traded, and it appeared that there 
 were other partnerships carried on under the same firm, in which 
 the other drawers were concerned, but in which the defendant had 
 no share ;" the defendant having offered to show that this bill was 
 not drawn on account of the partnership in which he was con- 
 cerned, but on account of one of the others, and that he knew 
 nothing of it. Lord Kenyan, C. J., was of opinion^ that the de- 
 fendant was nevertheless liable : he had traded with ' the other 
 persons under that firm ; any persons taking bills under it, though 
 without his knowledge, had a right to look to him for payment {n). 
 
 Spi/ritual Person. — To assumpsit by the indorsee against the 
 indorser of a bill of exchange, the defendant pleaded, that the bill 
 was made and indorsed after the passing of the stat. 57 Geo. III. 
 c. 99 (o), which restrained spiritual persons from being occupied in 
 any trade or dealing ; that the plaintiffs were a banking company, 
 (the Northern and Central Bank of England,) of which certain 
 spiritual persons, holding benefices, were partners ; that the trade 
 of a banker was carried on by the said partnership for the profit of 
 those spiritual persons, as well as others, contrary to the fonn of 
 the statute ; it was held, on demurrer, that the trade of a banker 
 was within the meaning of the statute, and consequently that the 
 plea was good (p). The inconvenience likely to arise from this 
 decision induced the legislature to interpose ; and by stat. 1 & 2 
 Vict. c. 10, [20th Feb. 1837] certain contracts, by banking firms, 
 were made valid, in cases of associations or corporations then 
 formed, or which might be formed before the end of the next ses- 
 sion of parliament, although any spiritual person might be partner. 
 And now, by stat. 4 & 5 Vict. c. 14, after reciting that " divers as- 
 sociations and co-partnerships, consisting of more than six mem- 
 bers or shareholders, have been formed for the purpose of carrying 
 on the business of banking and other trades and dealings for gain 
 and profit, and were then engaged in -carrying on the same, by 
 means of boards of directors or managers, committees, or other 
 officers, acting on behalf of all the members or shareholders of or 
 persons otherwise interested in such associations or co-partnerships ; 
 and that several spiritual persons, hblding dignities, canonries, be- 
 nefices, stipendiary curacies, or lectureships, have been members or 
 shareholders of or otherwise interested in divers of such associa- 
 tions or co-partnerships, and that it was expedient to render legal 
 
 (m) EamsboUom v. Lewis, 1 Campb. (o) This act was repealed ty stat. 1 & 
 
 279- 2 Vict. 0. 106 ; sects. 29 and 30 of this 
 
 (») Baher v. Oha/rlton, Peake's K. P. latter act contain the prohibitions now 
 
 C. 80. See Ashiy v. Vere, 10 B. k C. in force against spiritual persons trading. 
 296 ; South Carolina Bank v. Case, 8 B. (p) Ball v. Franklin, 3 M. & W. 259. 
 
 &C. 427. ^'^' ' 
 
BILLS OF EXCHANGE. 267 
 
 contracts entered into by such associations or co-partnerships, 
 although the same may now be void, by reason of such spiritual 
 persons being or having been such members or shareholders ; it 
 was enacted, that no such association or co-partnership already 
 formed, nor any contract, either as between the members, partners 
 or shareholders composing such association or co-partnership for 
 the purpose thereof, or as between such association or co-partner- 
 ship and other persons, heretofore entered into or which shall be 
 entered into by any such association or co-partnership already 
 formed or hereafter to be formed, shall be deemed to be illegal or 
 void, or to occasion any forfeiture whatsoever, by reason only of 
 any such spiritual persons as aforesaid being or having been a 
 member, partner or shareholder of or otherwise interested in the 
 same ; but all such associations and co-partnerships shall have the 
 same validity, and all such contracts shall be enforced in the same 
 manner to all intents and purposes, as if no such spiritual person had 
 been or was a member, partner or shareholder of or interested in 
 such association or .co-partnership : provided always, that it shall 
 not be lawful for any spiritual person holding any cathedral prefer- 
 ment, benefice, curacy or lectureship, or who shall be licensed or 
 allowed to perform the duties of any ecclesiastical office, to act as 
 a director or managing partner, or to carry on such trade or deal- 
 ing as aforesaid in person." 
 
 Ill Of the Requisites in a Bill of Exchange : — 
 
 Stamp, p. 270. 
 
 Bate, p. 274. 
 
 Alteration of Bill, p. 274. 
 
 Of the Person to whom the Bill is made payable, p. 277. 
 
 Words, " or Order," p. 277. 
 
 " Value received," p. 278. 
 
 Consideration, p. 278. 
 
 In order to prevent any mistake in the manner of penning this 
 instrument, (although to constitute a bill of exchange there is not 
 any precise form required (q),) a foreign and inland bill of exchange 
 are subjoined in the proper form : — 
 
 Foreign BUI. 
 London, 1st January, 1841. 
 
 ( stamp. ] Exchange for 10,000 Livi-es Tournoises. 
 
 At two usances [or " at sight," or " after date "] 
 pay this my first bill of exchange (second and third of the same 
 
 (j) Per Cur. Lord Raym. 1397. 
 
268 BILLS OF EXCHANGE. 
 
 tenor and date not paid,) to Messrs. or order, 
 
 [or " bearer,"] tea thousand Livres Tournoises, value received of 
 them, and place the same to account as per advice from 
 
 JAMES OATLAND. 
 To Mr. in Paris, ") 
 
 payable at J 
 
 Inland BUI. 
 £100. 
 
 London, 1st January, 1841. 
 
 At sight [or " on demand," " at days 
 
 after sight," " at after date,"] pay to Mr. 
 
 or order [or " bearer "] one hundred pounds, for value received. 
 
 SAMUEL SKINNER 
 To Mr. merchant in 
 
 Bristol, payable at 
 
 } 
 
 An instrument in the following form was sued upon as a bill of 
 exchange and as a promissory note : — " Four months after date 
 pay to my order 200?. for value received, to Captain William 
 Taylor." It was accepted by the defendant, but contained no date 
 or drawer's signature, and was not indorsed. Held, that it was 
 merely an inchoate instrument, capable of being perfected, but 
 could not, until completed, be declared on either as a bill of 
 exchange or promissory note (r). 
 
 The following document was held to be, if not a bill of ex- 
 change, at any rate a promissory note, if there was evidence of an 
 absolute promise to pay it (s) ; 
 
 M 
 
 *g 5 (^merons, Sept. 3rd, 1852. 
 Exchange for £200. | "^ H 
 
 At sight of this my Jaird^ efcha^e, the first and second 
 of the same teim and datepeiS^ u&aicBplease to pay to S. M. 
 Peto, Esquire, or order, the 'Sim ^f fwo |andred pounds sterling, 
 for value received, and plac^h^san^, M by letter of advice of 
 3rd Sept., to the account of o |^ i 
 
 "^ J" =V ALFRED RIGHTON. 
 
 But it was held that Clarke was not liable to be sued on the 
 following document as acceptor (t) : 
 
 Jr) M'CaUY Taylor 19 C. B. (N. S.) {t) Davis t. Clarke, 13 L, J., 305 
 
 oUl ; 64: Jj. J., (500 (J. 1 , Q^ 3 
 
 (s) Peto T. Reynolds, 9 Ex. 410. 
 
BILLS OF EXCHANGE. 269 
 
 London, 8th March, 1838- 
 £100. ^. J ^ ^ 
 
 Twelve months Scfter dlSe j^y to me or my order one 
 hundred pounds, value^cej^ed. ?<» 
 
 To Mr. Hart. 
 
 ^ S JOHN HART. 
 
 An instrument which appears on common observation to be a 
 bill of exchange may be treated as such, although words be intro- 
 duced into it for the purpose of deception, which might make it a 
 promissory note (u). The figures irL^the margin of a bill are not of 
 the same authority as words in the body of the bill. Where, 
 therefore, a bill of exchange was expressed in figures to be drawn 
 for 24<5l., but in words for " two hundred pounds : " it was held, 
 that this was a bill for two hundred pounds, and being an arnhi- 
 guitas patens, parol evidence was not admissible to show that 
 the words "and forty-five" had been omitted by mistake (i;). 
 With respect to these bills of exchange, the following rules must 
 be observed : A bill of exchange must not purport to be payable 
 out of a particular fund, which may or may not be productive, or 
 upon an event which may not happen ; for it would perplex the 
 commercial transactions of mankind, if paper securities were issued 
 into the world encumbered with conditions and contingencies, and 
 if the persons to whom they were offered in negotiation were 
 obliged to inquire at what time these uncertain events would 
 probably be reduced to a certainty {x). The following cases will 
 illustrate this position : — An action was brought by payee against 
 drawer of a written instrument in these words {y) : — 
 
 " Seven weeks after the date pay A. B. £ out of W. Steward's 
 money as soon as you receive it." 
 
 It was objected, " that it was payable out of a supposed fund at 
 a future time, which was uncertain, and might or might not hap- 
 pen." The court gave judgment for the defendant ; and JDe Orey, 
 C. J., said, that the instnunent or writing which constituted a 
 good bill of exchange, according to the law and custom of mer- 
 chants, was not confined to any certain form of words, yet it must 
 have some essential qualities, without which it was not a bill of 
 exchange ; it must carry with it a personal and certain credit 
 given to the drawer, not confined to credit upon any thing or 
 fund; that the payee or indorsee took it upon no particular 
 event or contingency, except the failure of the general credit of 
 
 (u) Allan Y. Mawson, i Campb. 115 ; {z) Jenney y. Eerie, LordRaym. 1361 ; 
 
 see Lloyd v. Oliver, 18 Q. B. 471. Steveiis v. Hill, 6 Esp. N. P. C. 247. 
 
 («) Saunderson v. Piper, 5 Bingh. N. (y) Dawkcs and another v. Lord de. 
 
 C. 425. Loraine, 3 Wils. 207 ; 2 Bl. K. 782, S. G. 
 
270 BILLS OF EXCHANGE. 
 
 the person drawing or negotiating the same. So where the in- 
 strument declared on was, " Pay A. B. one month after date £ 
 on account of the freight of the Veale Galley." It was objecied, 
 that it was an order upon a particular fund, and on this ground, 
 Lee, G. J., ruled it not to be a bill of exchange (u). So where a 
 bill was drawn by an officer upon his agent, requesting him to pay 
 out of his growing suhsistevM, it was held not be good because 
 the fund was uncertain (a;). So a request to J. S. to pay £ out 
 of the monies in J. S.'s hands (y), belonging to the proprietors of 
 the Devonshire mines, was held not to be a bill of exchange, be- 
 cause it was uncertain whether the fund would be sufficient to 
 pay it. So an order to pay money out of the fifth payment, when 
 it should become due, and it should be allowed by the drawer (2). 
 The same principle was recognised in the following case, although 
 the instrument was held to be a good bill of exchange : J. S., on 
 the 25th of May, 1724, drew a bill on (a) J. N., and directed him, 
 one month after date, to pay A. B. or order £ as his quarter's 
 
 half-pay, from 24th June, 1724, to 25th September following. 
 The court were of opinion that this was a good bill of exchange, 
 for it was not payable on a contingency nor out of a particular 
 fund, and was made payable at all events ; and was drawn upon 
 the general credit of the drawer, not out of the half-pay ; for it 
 was payable as soon as the quarter began for the half-pay men- 
 tioned in the bill, which was not to be due till three months after : 
 the mention of the half-pay was only by way of direction to the 
 drawee, how he should reimburse himself. 
 
 Of the Stamp. — A bill of exchange cannot be given in evi- 
 dence in an action (&), nor is it available as evidence of the con- 
 tract, unless it be duly stamped, that is, not only with a stamp of 
 the proper value, but also with a stamp of a proper denomination, 
 or the peculiar stamp appropriated to this species of instrument by 
 the legislature. The enactment of stat. 31 Geo. III. c. 25, s. 19, 
 that no bill, draft, or order liable to the duties thereby imposed, 
 shall be given in evidence, or admitted to be good, useful, or avail- 
 able in law, unless duly stamped, is incorporated in stat. 55 Geo. 
 III. c. 184, s. 8 (c). The i9th section of this act prohibits the 
 re-issuing a bill of exchange which has been paid, and a bill issued 
 contrary to such prohibition is void (d). By 17 & 18 Vict. c. 83, 
 s. 5, no person can recover on a foreign bill, or " make the same 
 available for any purpose whatever," unless stamped as directed. 
 
 (m) Banbury-v. lAsset, Str. 1212. (s) Haydoch v. Lynch (on demurrer) to 
 
 (x) Josselyn v. Lacier, 10 Mod. 294, declaration, Lord Raym. 1663. 
 
 316 ; Fort. 281, S. O.; MS. Serjt. Hill, (a) MacUod v. Snee, LordKaym. 1481 ; 
 
 vol. 32, p. 1. See Mussell v. Powell, 14 Str. 762, and 11 Mod. 400, Leach's Edit. 
 
 M. & "W. 418. (6) 1 B. & P. N. R. 30, see post, p. 272. 
 
 (y) Jenney v. Eerie, B. R. (om e/rror) (c) Field v. Woods, 7 A; & E. 114. 
 
 from C. B. Str. 691, and more fully re- (d) Lazarus v. Cowie, 3 Q. B. 459 ; 
 
 ported in 8 Mod. 266 ; Lord Eaym. 1361, 2 G. & D. 487. 
 
 and 11 Mod. 384, Leach's Edit. 
 
BILLS OF EXCHANGE. 271 
 
 • Notice of dishonour of a bill not drawn on a proper stamp is 
 not necessary (e), for it is worth nothing. 
 
 Before the 10th of October, 1854, the amount of the stamp 
 duties on bills of exchange was regulated by stat. 55 Geo. III. 
 c. 184. Since that date other duties are substituted by stat. 17 & 
 18 Vict. c. 83 ; and by that statute and the 16 & 17 Vict. c. 50, 
 the use of adhesive stamps on drafts or orders for the payment of 
 money was introduced. The 21 Vict. c. 16, pennaits cheques to be 
 drawn payable to order, and the 21 Vict. c. 20, imposes a stamp 
 duty of one penny on all cheques indiscriminately. These statutes 
 also contain provisions expressly preserving the effect of former 
 enactments not inconsistent with them. 
 
 The following instruments are now exempt from duty : — Letters 
 of credit. Bankers' drafts upon eSlch other for clearing accounts 
 (if not payable to bearer or order). WaiTants for the payment of 
 government annuities, dividends on stocks, and drafts of the Ac- 
 countant General. Bank of England bills and notes. Notes for one 
 pound, one guinea, two pounds and two guineas, payable to the 
 bearer on demand, issued by the Bank of Scotland, Koyal Bank of 
 Scotland, or the British Linen Company in Scotland. Bills or 
 notes issued by bankers paying a composition in lieu of stamps, 
 pursuant to 9 Geo. IV. c. 23. Bills drawn for the expenses of the 
 army or navy. Notes of loan societies and friendly societies (/). 
 
 The stamp duty is imposed upon the sum actually due at the 
 time of taking the security, and not upon what may become due 
 in future for the use of the money. Hence a promissory note for 
 the payment of 301. at three months after date, with interest from 
 the date, requires a stamp applicable to a note not exceeding 
 sol. (g). So where a note reserves interest from a day prior to the 
 date, a stamp apphcable to the principal sum is sufficient (h). 
 
 By stat. 37 Geo. III. c. 136, s. 5, it is enacted, that bills and 
 notes made after the passing this act, and liable to a stamp duty 
 by stat. 31 Geo. III. c. 25, if stamped with a stamp of a different 
 denomination than is required by the last-mentioned act, may, if 
 the same ba of equal or superior value to the stamp required, be 
 stamped by the commissioners on payment of the duty and penalty ; 
 that is, by sect. 6th of the 37 Geo. III. c. 136, the penalty of forty 
 shillings, if the bill or note is produced to the commissioners before 
 it is payable, and ten pounds, if so produced after it is payable. 
 But there is no provision for restamping bills or notes where 'the 
 stamp is of too small a value. The 19th sect, of 31 Geo. III. c. 25, 
 requires bills and notes to be stamped before made, and there is no 
 enactment dispensing with this when the stamp is of too small a 
 value (i). The act of 37 Geo. III. c. 136, is a clear legislative 
 
 (e) Cwndy r. Marriott, 1 B. & Ad. 696. (h) Wills v. Noot, i Tyrw. 726. 
 
 (/) See Byles on Bills, 95, 102, 8th (i) Chamberlain v. Porter, 1 B. & P. 
 
 Edit. N. E. 30. 
 (g) Pruessing v. Ing, 4 B. & A. 204. 
 
272 BILLS OF EXCHANGE. 
 
 declaration, that it is not sufficient, that a certain sum of money 
 be paid on the instruments which are the subjects of taxation, 
 but the stamp used must be of the proper denomination (j). By 
 Stat. 31 Geo. III. c. 25, s. 19, bills and notes were forbidden 
 to be stamped after they were made, and unstamped bills and 
 notes were not to be pleaded, given in evidence, or admitted to 
 be good, useful, or available (k). This provision is incorporated 
 in 55 Geo. III. c. 184, s. 8 (l), and is still in force. The 28th 
 section of the Common Law Procedure Act, 1854, gives no power 
 to put in evidence instruments that cannot be stamped after 
 execution. 
 
 By stat. 43 Geo. III. c. 127, s. 6, it is enacted, that every instru- 
 ment (m), matter, or thing, although stamped or impressed with 
 any stamp of greater value than the stamp required by law, shall 
 be valid and effectual, provided such stamp shall be of the denomi- 
 nation required by law for such instniment, &c. 
 
 An unstamped bill, or one improperly stamped, cannot be read 
 to the jury as evidence of the contract, or any part of it, in respect 
 of which the plaintiff sues (n). But an unstamped bill has been 
 allowed to be given in evidence to negative by anticipation a plea 
 of payment (o). And an unstamped instrument may now be 
 admitted in any criminal proceeding (p). 
 
 Where partners resident in Ireland signed and indorsed a 
 copper-plate impression of a bill of exchange, leaving blanks for 
 the date, sum, time when payable, and name of the drawee, and 
 transmitted it to B. in England for his use, who filled up the 
 blanks and negotiated it ; held, that this was to be considered a 
 bill of exchange, by relation from the time of the signing and 
 indorsing in Ireland, and consequently that an English stamp was 
 not necessary (g). But where a blank acceptance was written on a 
 stamped paper, which afterwards was filled up and became a biU 
 of exchange, it was held that the bill could not be considered as 
 existing by relation from the time of acceptance (r). A bill of 
 exchange drawn in England upon a person abroad, but accepted 
 by him, payable in England, is an inland bill, and requires a stamp 
 as such (s). 
 
 Where it appeared that a bill, drawn on a proper stamp, was 
 originally dated on the 2nd of September, 1793, payable twenty- 
 one days after date ; and, while it continued in the hands of the 
 
 (j) Per Sir J. Mansjkld, C. J., deliver- (o) Smart v. Nohes, 6 M. & G. 911. 
 
 mg the opinion of the court in ChamUr- (p) 17 & 18 Vict. c. 83, s. 27. 
 
 U^ny PorUr, IB. & P K. R 33. (q) Snaith v. Mingay, 1 M. & 8. 87, 
 
 (^) See S^nu^t y. NoJces, 7 Scott, N. recognized by ParUe, t, Holdmorth r. 
 
 /A p- 7j w J ., « .. ^ , Bunter, 10 B. & C. 456. 
 
 {1} Fwldv. Woods 7 A & E. 114 (r) Abrahams v. SUn^r, 12 A. & E. 
 
 (m) See Farr y. Price, I East's R. 55, 763 • 4 P & D 358 , ^-^ ■«■•«■ ■ 
 
 and Taylorj. Hague, 2 East's E 414. («) Amner y. Clark, 2 Cr. M. & E. 
 
 («) Jardine y. Payne, 1 B, & Ad. 663. 468 ; 1 Gale, 181. 
 
BILLS OF EXCHANGE. 273 
 
 drawer, was altered with the consent of the acceptor, to be made 
 ipB,y&\ile fifty-one days after date, and afterwards with the like con- 
 sent was again restored to twenty-one days after date, and the 
 date brought forward from the 2nd to the 14th of September ; the 
 kst alteration having been made on the 30th of September, the 
 bill being then over due according to the original tenOr of it ; after 
 these alterations, it was negotiated, and came into the hands of 
 plaintiff: Lord Kenyon, C. J., nonsuited the plaintiff; and, on a 
 motion to set Aside the nonsuit, the court were clearly of opinion, 
 that the nonsuit was proper ; for that, at the time when the last 
 alteration was made, the operation of the bill, as it originally 
 stood, was quite spent ; that it was a new and distinct transaction 
 between the parties ; and that therefore there ought to have been 
 a new stamp (t). The plaintiff dtclared as indorsee of a bill of 
 exchange against the acceptor, and it appeared that the bill in 
 question, which was drawn by Giles and Co. on the 3rd of June, 
 1807, payable to their own order, and accepted by the defendant 
 at three months' date, was exchanged by him with Giles and Co., 
 for their acceptance of a bill drawn by the defendant for the same 
 sum at eighty-five days, payable to his order, the object being that 
 Giles and Co. should put the defendant in cash before his accept- 
 ance became due. On the 23rd of June, before Giles and Co. or 
 the defendant had passed the respective securities to any other 
 person, it was agreed to procrastinate the payment of the bills by 
 post-dating them the 23rd of June, instead of the 3rd. . The court 
 were of opinion, that the alteration rendered a new stamp neces- 
 sary ; observing that the delivery of the bill by the drawer to the 
 acceptor, and the re-delivery of it for a valuable consideration, 
 such as the exchange of acceptances, has been held to be, since 
 Cowley V. Bunlop (u), a negotiation of the bill ; that the several 
 drawers were mutual purchasers of each other's acceptances ; and, 
 as the alteration was made while the bill was in this course of 
 negotiation, and after it had continued so twenty days (during 
 which time it was in the power of the drawer and payee to have 
 passed it to any third person), it was in effect drawing a new 
 bill (x). So where a promissory note, payable by the defendant to 
 the plaintiff or order, was originally expressed to be for value 
 received, but the day after it had been signed and delivered by 
 defendant to plaintiff, it was by consent of the parties altered, by 
 the addition of the words for the goodwill of the lease and trade 
 of Mr. F. K. deceased; it was held, that as the alteration was 
 material, as well because it was evidence of a fact which, if neces- 
 sary to be inquired into, must otherwise have been proved by 
 different evidence, as also because it pointed out the particular 
 consideration for the note, and put the holder upon inquiring, 
 
 (£) Bowman v. NicJwU, 5 Tr. 537. (as) Cardwell v. Martin, 9 East, 190. 
 
 \u) 7 T. E. 565. See also Bathe v. Taylor, 16 East, 412, 
 
 VOL. I. * 
 
274 , BILLS OF EXCHANGE. 
 
 whether that consideration had passed, and as such alteration was 
 made after the note had issued, a new stamp was necessary {y). 
 An alteration made with the assent of the defendant, the acceptor, 
 and before the bill was negotiated, has been held not to be a re- 
 issuing, so as to require a fresh stamp (0). So where, after issuing 
 of a joint and several note, the name of a third party was added, 
 with consent of all parties, as an additional surety {a). An objec- 
 tion, on the ground of the insufficiency of the stamp, cannot be 
 taken after payment of money into court (6). At the trial the 
 objection should in general be taken before the instrument is read. 
 If the judge nile against the objection, his decision cannot be 
 reviewed, nor ought he to reserve the point (c). 
 
 Omission of Date. — Eegularly, every bill of exchange ought to 
 be dated : but in the following cases, where the day of the date 
 was omitted in the declaration, the court said they would intend 
 the bill to bear date on the day when it was made. A date is not 
 of the substance of a deed, for if it want a date, or have a false or 
 impossible date, as the 30th of February, yet the deed is good {d). 
 Case on a foreign bill of exchange payable at double usance from 
 the date, and it was alleged that the party beyond the sea drew the 
 bill on a certain day, and that the same was presented to and ac- 
 cepted by the defendant. Exception that the date of the bill was 
 not set forth. The court said, that they would intend the bill 
 dated at the time of drawing it. Judgment for plaintiff (e). 
 In an action by the payee against the maker of a promissory 
 note, dated the 28th of June, 1837, the plaintiff in his particulars 
 gave credit for the payment of three years' interest on account. 
 It appeared that the note was made in 1839 ; it was held, that the 
 bill of particulars had reference to the date of the note, and there- 
 fore that the interest became payable from the year 1837, and not 
 from the year 1839, when the note was actually made (/). In 
 the case of a bill dated on a Sunday, the court, in the absence of 
 evidence, would not presume the acceptance to have been written 
 on that day ; and even if it had, such an act would not be an act of 
 ordinary calling within stat. 29 Car. II. c. 7 {g). Parol evidence is 
 admissible to show from what time an undated biU was intended to 
 operate Qi). 
 
 Alteration of Bill— A. bill of exchange, or any other executory 
 written contract, is avoided by an alteration in a material part, 
 
 {y) Knill v. Williams, 10 East, 431. (d) Ooddard's case, 2 Co. 5, a. ' 
 
 (s) Leykanff y. Ashfqrd, 12 Moore, (c) De la Courtier y. Bellamy, 2 Show. 
 
 281. i22; BagueY. Frm(^, 'Exchequer Cham- 
 
 (a) Catton v. Simpson, 3 Nev. & P. ber (in error), 3 B. & P. 173. 
 
 2*^ I ? ,■*■•,* ^- ^^- ^"* ^^^ Gwrdrnr (/) Cheelham v. SlurUvant, 12 M. & 
 
 V. Walsh, 5 E. & B. 83. . -W. 515. 
 
 (6) Israel v. Benjamin, 3 Campb. 40. '(g) BegUe v. Levi, 1 Cr. & J. 180. 
 
 (c) 17 & 18 Vict. e. 125, s. 31 ; Sior- (hyDams v. Jones, 25 L. J., C. P. 91. 
 
 del T. Kutzinski, 17 C. B. 251. ' 
 
BILLS OF EXCHANGE. 375 
 
 although such alteration is made by a stranger (i). A bill of ex- 
 change was drawn on defendant on the 26th March, 1788, payable 
 three months after date to J. S. and accepted by defendant. 
 After acceptance, and while the bill remained in the hands of J. S. 
 the payee, the date of the bill was altered by some person unknown, 
 from the 26th March, 1788, to the 20th March, 1788, without 
 the authority or privity of defendant : J. S. the payee, afterwards 
 indorsed the bill so altered to the plaintiffs for a valuable conside- 
 ration. It did not appear that plaintiffs knew of the alteration at 
 the time when the bill was indorsed to them. Payment having 
 been refused, plaintiffs sued the defendant as acceptor. The decla- 
 ration contained two special counts, one on a bill dated the 20th 
 March, 1788, the other on a bill dated the 26th March, 1788, and 
 the money counts. Special verdict. The case was argued twice 
 in B. R, after which the court {Buller, J., dissentient) gave judg- 
 ment for defendant, on the ground that the alteration of the instru- 
 ment had avoided it (k). So if the word "date" be inserted, in- 
 stead of the word " sight " (I). So where a bill having been accepted 
 generally, the drawer, without the consent of the acceptor, added 
 the words " payable at Mr. B.'s, Chiswell Street " (m) ; and this is 
 the case though the plaintiff be an indorsee for value, who took 
 the bill bond fide and without knowledge of the alteration (n). So 
 the addition of the words " interest to be paid at 6 per cent, per 
 annum," written at the corner of the note, and not in the body, is 
 a material alteration avoiding the note (o). 
 
 But a mere correction of a mistake, as by inserting the words 
 " or order," in furtherance of the intention of the parties, will not 
 vitiate the bill (jo). So where two persons, being jointly indebted 
 to another, agreed to give him a bill of exchange, to be drawn by 
 one of the debtors, and accepted by the other, instead of which 
 they sent him a promissory note, made by the one and indorsed by 
 the other, which he immediately returned to be altered into a bill 
 of exchange, which was done accordingly : it was held, that such 
 alteration, only fulfilling the terms of the agreement, might be 
 considered as the correction of a mistake, and did not render a 
 new stamp necessary, the instrument never having been negotiated 
 as a promissory note (q). So if the alteration be not in the time 
 of payment, sum, &c., or other material part, the biU will not be 
 affected by it. Hence, writing on the bill the place where it was 
 to be paid, before the bill was negotiated, at the request of the 
 
 (i) Davidson v. Cooper, 11 M. & W. 261 ; and see also Gardner v. Walsh, 5 
 
 778, affirmed in error, 13 M. & "W. 343. E. & B. 83. 
 
 (/fc) Master v. Miller, i T. B. 320, af- (o) Warrington v. Early, 23 L. J., Q. 
 
 firmed on error, 2 H. Bl. 141. ' B. 47. 
 
 {1} Long V. Moore, Kenyan, C. J., 3 (p) Byrom T. Thompson, 11 A. & B 
 
 Esp. N. P. C. 155. 31. , , 
 
 (m) Covm v. Halsall, 4 B. & A. 197. (?) WeUer v. Maddocks, 3 Campb. 1. 
 
 (m) Birchfield v. Moore, 23 L. J., Q. B. See Cole v. ParMn, 12 East, 471. 
 
 T 
 
 o 
 
276 BILLS OF EXCHANGE. 
 
 payee, has been held not to destroy the validity of the bill (r). 
 Where the acceptor had made the bill payable at his own house, 
 and some time after delivery to payee, at the request of payee, 
 altered the place of payment to a bankers; it was held to be im- 
 material (s). Three persons joined as drawer, acceptor, and first 
 indorser, in making an accommodation bill ; and it was afterwards 
 issued for value to J. S. Previously to its being issued, its date 
 had been altered : it was held, that the acceptor, having assented 
 to the alteration when he was informed of it, it was no answer to 
 an action on the bill against him, that the bill had been so altered 
 without the consent of the drawer and first indorser, and that a 
 fresh stamp was not necessary in consequence of such alteration, 
 the bill having been altered before it was issued in point of law. An 
 accommodation bill is not issued until it is in the hands of some 
 person who is entitled to treat it as a security available in law (t). 
 
 But in all these cases it lies on the plaintiff to show that the 
 alteration was made previous to the note, being issued (u) ; and 
 where an alteration appears upon the face of a bill, the party 
 producing it must show that the alteration was made with consent 
 of parties, or before issuing the bill (a;). Where the words "or 
 order " had been substituted fof " or other," and the attesting 
 ■\\dtness, who had prepared the note, stated that he could not say 
 whether the alteration was in his handwriting or not, but that he 
 ought to have drawn the note originally with the words, " or 
 order," and it appeared that the defendant had paid two years' 
 interest on the note ; this was held to be reasonable evidence, from 
 which it might be inferred that the alteration had taken place with 
 the defendant's consent (y). If, upon a bill being presented for 
 acceptance, the drawee alters it as to the time of payment, and 
 accepts it so altered, if the holder acquiesces in such alteration 
 and acceptance, the bill will be good as between these parties {z). 
 But if, after a bill has been drawn and indorsed, and before it is 
 accepted, the drawee alter it by postponing the time of payment, 
 it renders the bill void (a). So where a bill was delivered by the 
 drawee to the payee, and afterwards its date was altered by an 
 agreement between the payee and drawee before acceptance, in an 
 action by payee against acceptor, it was held void, for it was nego- 
 tiated when deHvered by the drawee to payee, and therefore 
 required a fresh stamp (b). But where drawer sues acceptor upon 
 
 ()■) Trapp V. Spearman, Kenyan, C. J,, DicJcimon, 5 Bingh. 184: see also KnigM 
 
 and see FansMwe v. Peet, 26 L. J., Ex. v. CUmmts. 8 A. & E. 235 ; Clifford y. 
 
 31f\ „. ,, „ „ Parker, 2 M. & Gr. 909 ; 3 Scott's N. E. 
 
 (s) Walter v. Cubley, 2 Cr. & M. 151 ; 233. 
 
 4 Tyrw. 87. (y) Qariss v. TaUersall, 2 M. & Gr. 
 
 (t) Dovmes v. Eidiardson, 5 B. & A. 890 ; 3 Scott's N. B. 257. 
 
 ^''f , , , :„,,„„ («) Patonv. Winter, 1 Taunt. 420. 
 
 («) Johnson v. Duke of Marlborough, (a) Outhwmte v. Zimtky, 4 Campl). 
 
 2 Stark. 313 
 
 179. 
 
 (k) Per Best, C. J., in Henman v. (6) Walton y. Hastings, 4 Campb. 223 
 
BILLS OF EXCHANGE. 277 
 
 a bill and fails, in consequence of having altered the bill in a 
 material part, he may still recover on the counts on the original 
 considei'ation (c). A cancellation by a third person, through mis- 
 take, of an acceptance will not avoid the bill (d). 
 
 Of the Person to whom the Bill is made payable. — Regularly a 
 bill of exchange ought to be made payable to a real person ; but if 
 it be drawn payable to a fictitious payee or order, and indorsed in 
 his name, by concert between the drawer and acceptor, it wUl be 
 considered as a bill payable to bearer, and may be declared on as 
 such in an action by an innocent indorsee for a valuable consider- 
 ation against the drawer (e). J. P. having died possessed of certain 
 goods, on which the plaintiff had some claim, the defendant was 
 allowed by the plaintiff to take po^ssion of the goods on giving 
 an acceptance for their value, and by arrangement between them a 
 bill was drawn and indorsed to the plaintiff by procuration, in the 
 name of the deceased J. P., and accepted by the defendant. In an 
 action by the plaintiff on the bill it was held, that he was precluded 
 from setting up that the indorsement was not J. P.'s (/). In one 
 case it was held, that if the circumstance of the payee being a 
 fictitious person is imknown to the acceptor, he cannot be declared 
 against on the bill, either as a bill payable to bearer, or to the 
 order of the drawer (g). But it has since been decided that the 
 acceptor suprob protest of a bill of exchange for the honour of the 
 drawer is like the drawer himself estopped from denying that the 
 bill is a valid bill, and consequently it is not competent for him to 
 set up as a defence to an action against him by an indorsee that 
 the payee is a fictitious person, and that he was ignorant of the fact 
 at the time he accepted the bill (h). Where the drawer subscribed 
 himself as Thomas Wilson, when his name was Thomas Wilson 
 Richardson ; it was held, that he was not to be esteemed to have 
 committed a forgery, unless it were proved that the omission of his 
 surname was for purposes of fraud (i). If the payee be a person 
 to be ascertained ex post facto, the bill will be invalid (Jc). 
 
 Words, " or Order." — The negotiability of a bill of exchange 
 depends on its being made payable to A. or order, or to A.'s order, 
 or to A. or bearer. See post, on the transfer of bills of exchange. 
 A bill payable to A.'s order is the same as if it were made payable 
 to A. or order (I), and may be declared on, without alleging that 
 
 (c) AtUiisonw. Hawdon, 2 A. & E. 628. (/) Aspital v. Bryan, 32 L. J,, Q. B. 
 
 {d) Raper-^. Birlcheck, 1.5 East, 17. See 91, 5 B. & S. 73, iu error. 
 Novtlli V. Rossi, 2 B. & Ad. 757. ig) Bennett v. Famell, 1 Campb. 130. 
 
 (e) Collismui others v. Emett, 1 H. Bl. (h) Phillips v. /m Thum, 18 C. B. (K. 
 
 313 ; or against the acceptor; Gibson and S.) 694. 
 
 another v.' Minel and another, 1 H. Bl. (i) SehuUz v. Astley, 2 B. N. C. 544 
 
 569. But see contr. the opinions of ^j/re, (fc) Storm v. Stirling, 23 L. J., Q. B. 
 
 C. J., and Heath, J., 1 H. BL pp. 598, 298 ; 3 E. & B. 832 
 
 625, -with whom Lord Tfiurlo^o, Ch., con- ^ (l) Per Holt, 0, J,, 12 Mod. 310, 
 ciirred. 
 
278 BILLS OF EXCHANGE. 
 
 A. did not make any order for the payment of the bill to any other 
 person (m). In an action by indorsee against payee, exception was 
 taken that a bill was payable to defendant only, without the words, 
 "or his order," and therefore not assignable by the mdorsement ; 
 and Holt, C. J., agreed that the indorsement of this bill did not 
 make him that d/rewih.&Wil chargeable to the indorsee; for the 
 words " or his order," give authority to the defendant to assign it 
 by indorsement ; and it is an agreement by the first drawer that 
 he would answer it to the assignee ; but the indorsement of a bill 
 which has not the words "or his order/' is good, or of the same 
 effect between the indorser and indorsee, to make the indorser 
 chargeable to the indorsee (n). 
 
 " Value received" — The essence of a bill of exchange is, that it 
 is negotiable or payable to order, and that it is payable generally, 
 not out of a particular fund. It is not necessary to insert the 
 words " value received " (o). 
 
 Consideration. — A bill of exchange is presu/med to be made upon 
 a good and valuable consideration ; and in actions not between im- 
 mediate parties some suspicion must be cast on the plaintiff's title 
 before he can be compelled to prove what consideration he has given 
 for it. But when suspicion is cast on the plaintiff's title, by showing 
 that the bill is connected with some fraud, and a suspicion of fraud 
 be raised from its being shown that something has been done with 
 it of an illegal nature, as that it has been clandestinely taken away 
 or has been lost or stolen ; in such cases the holder must show that 
 he gave value for it (p). In actions between immediate parties, 
 the illegality or want of consideration may be insisted on by way 
 of defence to an action on the bill. " As between the drawer and 
 payee, the consideration maj'- be gone into, yet it cannot between 
 the drawer and indorsee ; and the reason is, because it would be 
 enabling either of the original parties to assist in a fraud ; " per 
 Ashhurst, J. (q). But the want of consideration between drawer 
 and acceptor is no defence to an action at the suit of indorsees for 
 value, unless they take the bill with notice of the want of con- 
 sideration (r), and the onus probandi lies upon the defendant (s). 
 
 By Stat. 9 Ann. c. 14, s. 1, All notes, bills, &c., where the 
 whole or any part of the consideration was for money or any other 
 valuable thing, won by gaming, &c., were made void, as by stat. 16 
 Car. 11. c. 7, certain gaming contracts were ; and the consequence 
 of these enactments was, that even an innocent indorsee could not 
 
 (m) Smith v. M'Clure, 5 East, 476. Hall v. Fmtlierstone, 27 L. J., Exdi. 
 
 ()i) Hill V. Lewis, Salk. 133. 308'. 
 
 (o) Whae T. ledwick, i Dougl. 247 ; {g) Lickbarrow v. Mason, 2 T. R. 71. 
 
 Hatch V. Trages, 11 Ad. & E. 702. (r) Sobimon v. Reynolds, 2 Q. B. 196 : 
 
 (p) Mills V. £arher, 1 M. & -W. 425 ; 1 G. & D. 526. 
 
 and see Smith v. JBraim, 16 Q. B. 244 ; (s) Mills v. Barber, 1 M. & "W. 425; 
 
BILLS OF EXCHANGE. 279 
 
 maintain an action in any of those cases which fell within their 
 provisions (t). 
 
 By stat. 5 & 6 Will. IV. c. 41, intituled " An Act to amend the 
 Law relating to Securities given for Considerations arising out of 
 Gaming, usurious (u) and certain other illegal Transactions," after 
 reciting clauses in the foregoing and other statutes against gaming, 
 usury, &c., it is enacted, that so much of the recited acts as enacts, 
 that any note, bill, or mortgage, shall be absolutely void, shall be 
 repealed : and that such note, bill, or mortgage, which under those 
 acts would have been absolutely void, shall be deemed and taken 
 to have been made /or an illegal consideration (x) ; and the said 
 several acts shall have the same effect which they would respectively 
 have had if, instead of enacting that such note, bill, or Tnortgage, 
 should be absolutely void, they had provided respectively that 
 every such note, dill, or mortgage, should be deemed to have 
 been made for an illegal consideration, with a proviso that this 
 statute shall not affect any note, bill, or mortgage, which would 
 have been good, if this act had not passed : and by sect. 2, in case 
 any person shall, after the passing of this act, make, draw, give, 
 or execute any note, bill or mortgage for any consideration on 
 account of which the same is by any of the recited acts declared 
 to be void, and such person shall actually pay to any indorsee, 
 holder or assignee of such note, bill or mortgage, the amount of 
 the money thereby secured, or any part thereof, such money so 
 paid shall be deemed to have been paid for and on account of the 
 person to whom such note, bill or mortgage was originally given 
 upon such illegal consideration, and shall be deemed to be a debt 
 due from such last-named person to the person who shall have so 
 paid such money, and shall be recoverable by action in any of his 
 Majesty's courts of record. This statute does not mention judg- 
 ments (y). 
 
 The stat. 16 Car. II. c. 7, and so much of the stat. 9 Ann. c. 14, 
 as was not altered by the stat. 5 & 6 Will. IV. c. 41, are now re- 
 pealed by the stat. 8 & 9 Vict. c. 109, s. 15, the 18th section of 
 which enacts, that all contracts or agreements, whether by parol 
 or in writing, by way of gaming or wagering, shall be null and 
 void (z). It would seem that the effect of s. 15 of this latter statute 
 is, that notes, biUs, and mortgages given upon gaming considera- 
 tions are left as altered by stat. Will. IV. Hence, a bill of ex- 
 
 (t) Bowyer v. Bampton, Str. 1155 ; 731 ; Bingham v. Stanley, 2 Q. B. 117 ; 
 
 SUUito V. Theed, 7 Bingh. 405. 1 G. & D. 237 ; and Carter v. James, 
 
 (m) The statute 17 & 18 Vict. c. 90, Exch. T. T. 1844, where Alderson, B., 
 
 passed the 10th August, 1854, repeals the said he was the only survivor of the 
 
 laws against usury, but provides that no- judges who decided Edmunds v. Groves, 
 
 thing therein contained shall affect acts and that it could not be supported. 
 done previously to the passing of that (y) See Lane v. Chapman, 11 A. & E. 
 
 act, 966, affirmed on error, 11 A. & E. 980, 
 
 (a:) See Edmunds v. Groves, 2 M. & "W". (z) See Fitch v. Jones, 24 L, J., Q. B. 
 
 642 ; Applegarth v. Oolleij, 10 M. & W. 293 ; 5 E, & B. 238, see p. 109. 
 
280 BILLS OF EXCHANGE. 
 
 change given for a gaming debt is now void, except in the hands 
 of boTidfide holders without notice (a). 
 
 A plea to an action by drawer against acceptor, that the bill was 
 given for goods sold by the plaintiff, a foreigner, to the defendant, 
 for less than the real value, to be smuggled into this kingdom, was 
 held bad, on special demurrer, a foreigner not being bound to 
 respect the revenue laws of this country (&). 
 
 A bill may be negotiated after it is due, unless there be an agree- 
 ment for the purpose of restraining it ; and the party who takes a 
 bill for a good consideration, after it becomes due, is not precluded 
 from suing the acceptor by the circumstance of the bill being an 
 accommodation bill (c). It was said hj Buller, J., that generally, 
 when a note is due, the party receiving it takes it on the credit of 
 the person who gives it to him (d). To this position Kenyan, C. J., 
 agreed, with the addition of this circumstance, that it must appear 
 on the face of the note to have been dishonoured, or knowledge be 
 brought home to the indorsee that it had been so (e). In another 
 case (/), Buller, J., said, that it had never been determined that a 
 bill or note was not negotiable after it became due, but if there were 
 circumstances of fraud in the transaction, and it came into the hands 
 of plaintiff by indorsement, after it became due, he had always left 
 it to the jury, upon the slightest circumstance, to presume that the 
 indorsee was acquainted with the fraud. And where the holder of a 
 note had given a full consideration for a note after it became due, 
 but was not permitted to recover in an action against the maker, the 
 maker having proved that the note was originally made without con- 
 sideration ; Lord EUenhorough, C, J., observing, " That after a note 
 or bill is due, it comes disgraced to the indorsee, and it is his duty to 
 make inquiries concerning it ; if he takes it, though he gives a full 
 consideration for it, he takes it on the credit of the indorser,-,and 
 subject to all the equities with which it may be encumbered " (g). 
 " The reason why a party who takes an overdue bill or note takes 
 it with all its equities, is because on the face of it, it carries sus- 
 picion ; that does not apply to the case of a bill or note payable 
 on demand" Qi). A promissory note payable on demand, is in- 
 tended to be a continuing security (i). The indorsee of an over- 
 due bill or note is liable to such equities only as attach on the bill 
 or note itself, and not to claims arising out of collateral matters 
 
 (a) Eay v. Aylirig, 20 L. J., Q. B. (e) Boehm v. Stirling, 7 T. R. 431. 
 
 171 ; 16 Q. B. 423 ; JoJinsmi v. Lamley, (/) Taylor v. Mather, 3 T. R. 483. 
 
 12 C. B. 468. (gr) Tinson v. Franieis, 1 Camp. 19. In 
 
 (6) PdUcatt T. Angdl, 2 Cr. M. & E. StuHevant v. Ford, 4 M. & G. 101, 
 
 311. For other instances of securities, Oresswell, J., says, "perhaps the tetter 
 
 expressly avoided by the legislature, see expression would be that he takes the 
 
 Byles on Bills, 122, 7th edit. bill subject to all its equities." 
 
 (c) Charles v. Marsden, 1 Taunt. 224 ; (h) Per ParU, B., in Crims v. Daxis, 
 Sturtevant v. Ford, 4 M. & Gr. 101 ; 4 12 M. & W. 165. 
 
 Scott, N. R. 668. (i) Per Parke, B., in Brooks v. Mit- 
 
 (d) Brown v. Dames, 3 T. E. 82. chell, 9 M. "W. IS. 
 
BILLS OF EXCHANGE. 281 
 
 existing between the earlier parties to it (k). Therefore to an 
 action by the indorsee of an overdue note against the payee, a 
 debt due to the payee from a former indorsee cannot be set ofF(i). 
 If the plaintiff has received the bill from a person who could have 
 maintained an action on the bill, then the circumstance of the in- 
 dorsement, after the bill became due, is not sufficient to let in the 
 defence of an illegal consideration (m). Whoever takes a bill after 
 its dishonour takes it with all the infirmities belonging to it (n). 
 A bill paid at maturity cannot be reissued, and no action can after- 
 wards be maintained upon it by a subsequent indorsee ; but if it 
 be paid and indorsed before it becomes due, it will be a valid in- 
 dorsement, in the hands of a bond fide indorsee (o). If a bill of 
 exchange, payable to the order of a third person who has indorsed 
 it, be dishonoured when due and ftiken up by the drawer, it ceases 
 to be negotiable (p). But it is otherwise if the bill be payable to 
 the drawer's own order. " A bill of exchange is negotiable ad vn- 
 finitum, until it has been paid or discharged on behalf of the 
 acceptor. If the drawer has paid the bill, it seems that he may 
 sue the acceptor upon the bill, and if instead of suing the acceptor 
 he put it into circulation on his own indorsement only, it does not 
 prejudice any of the other parties who have indorsed the bill, that 
 the holder should be at, liberty to sue the acceptor" (q). But the 
 drawer of an accommodation bill is in the same situation as the 
 acceptor of a bill for value ; he is the person ultimately liable ; and 
 his payment discharges the bill altogether (r). 
 
 IV. Of Presentment for Acceptance : — 
 Acceptance, p. 282. 
 Qualified Acceptance, p. 283. 
 Liability of the Acceptor, p. 285. 
 Non-Acceptance and Notice of DisJtonour, p. 286. 
 Notice to Drawer, p. 287. 
 Notice to Indorser, p. 289. 
 Protest, p. 291. 
 Lost Mil, p. 293. 
 Liability of the Drcnver on Non-Acceptance, p. 293. 
 
 Presentment for Acceptance. — When a bill is drawn payable 
 within a certain time after sight, it is necessary, in order to fix the 
 time when the bill is to be paid, to present it to the drawer for 
 acceptance. — In other cases, it is not essentially necessary for the 
 
 (Tc) Burrough v. Moss, 10 B. & C. 563 ; 174 ; Atienborough v. Mackenzie, 25 L. J., 
 
 Holmes v. Kidd, 28 L. J., 112 Ex. Exch. 244. 
 
 (Z) Whitehead v. Walher, 10 M. & W. (p) Beck v Molley, 1 H. Bl. 89, n. ; 
 
 696. Barliam, v. Gaddy, 9 A. & E. 281. 
 
 (m) Chalmers v. Lanion, 1 Camp. 283 ; (q) Per Lord EUenbofrough, in Callow 
 
 Fairclmgh v. Paria, 9 Exch. 690. v. Lawrence, 3 M. & S. 95 ; Hubbard v. 
 
 (n) Crossley v. Ham, 13 East, 498. Jackson, i Bing. 390. 
 
 (o) Burbridge v. Manners, 3 Camp. (r) Lasa/rus v. Coivie, 3 Q. B. 459 ; 
 
 194 ; Morley v. Culvcrwdl, 7 M. & W. Parr v. Semll, 16 C. B. 684. 
 
283 BILLS OF EXCHANGE. 
 
 holder to present tlie bill before it is due ; but it is advisable to 
 procure an acceptance, if possible; for by that means another 
 debtor is added to the drawer, who becomes a new security, and 
 consequently makes the bill more negotiable. There is not any 
 fixed time when a bill drawn payable within a certam time after 
 sight, shall be presented to the drawee. But due diligence must 
 be used, and care taken that the bill be presented within a reason- 
 able time. "The only rule which can be appHed to all cases of 
 bills of exchange is, that due diligence must be used. Due dili- 
 gence is the only thing to be considered, whether the bill be foreign 
 or inland, or whether the bill be payable at or so many days after 
 sight, or in any other manner." Per BuUer, J. (s)._ It seems that 
 whether due diligence has been used is a question of law, but 
 dependent upon facts, viz. the situation of the parties, their places 
 of abode, and the facility of communication between them(i). 
 The holder went to the place at which the bill was addressed. 
 Finding the house shut up, he inquired for the drawee in the 
 neighbourhood ; this was held to be a sufficient presentment (u). 
 If he chose to remove from the house, pointed out by the bill as 
 his place of residence, he was bound to leave sufficient funds on 
 the premises. 
 
 Acceptance. — Formerly an acceptance, or promise to accept, an 
 existing (x) bill, by collateral writing (y), or even by parol (z), 
 (except for the purpose of charging the drawer of an inland bill 
 with damages and costs, see 3 & 4 Ann. c. 9, s. 5,) was equally 
 binding with an acceptance on the face of the bill ; provided the 
 expressions used clearly and unequivocally (a) meant an acceptance 
 of the bill. By stat. 1 & 2 Geo. IV. c. 78, s. 2, no acceptance of 
 any inland bill after the 1st of August, 1821, was sufficient to 
 charge any person, unless such acceptance were in writing on such 
 bill, or, if there were more than one part of such bill, on one of 
 the said parts. An unsigned acceptance (6), written on the face of 
 a bill of exchange, was not made invalid by this statute ; but it 
 was a question for the jury whether it was intended to operate as 
 an acceptance in its present form, or to be subsequently completed 
 by signature. This statute extends to every part of the tJnited 
 Kingdom, and applies to the case of a bill drawn in one part of 
 Scotland or Ireland, upon another ; but a bill drawn in Ireland 
 upon a person in England, is not an inland bill within the fore- 
 going section, and consequently might be accepted without writing 
 on such bill (c). But now by stat. 19 & 20 Vict. c. 97, " no ac- 
 
 (s) 2 H. Bl. 569. (;) Lumley v. Palmer, 2 Str. 1000. 
 
 (t) See DarlisUn v. Parker, 6 East, 3. (a) See Re.es v. Wanoick, 2 B. & A. 
 
 (u) Hine v. AlUly, 4 B. & Ad. 624, llS ; Powell v. Jams, 1 Bsp. N. P. C. 17. 
 
 reoognized in Buxlon v. Joives, 1 Man. & (6) Diifaur v. Oxenden, 1 M. & Kob. 
 
 Gr. 83. 90, Patteson. J. 
 
 (x) Johmon v. Collings, 1 East, 98. (c) Mahoney v. Aslilin, 2 B. & Ad. 478. 
 
 (y) Powell V. Monnier, 1 Atk. 611. 
 
BILLS OF EXCHANGE. 383 
 
 ceptance of any bill of exchange, whether vnlwnd or foreign, made 
 after the 31st of December, 1856, shall be sufScient to charge any 
 person unless the same be in ■writing on such bill, or if there be 
 more than one part of such bill in one of the said parts, and signed 
 by the acceptor or some person duly authorized by him." 
 
 Qualified Acceptance. — A qualified acceptance is, when the 
 drawee undertakes to pay the bill in any other maimer than ac- 
 cording to the tenor and effect thereof. This species of acceptance, 
 if qualified with a condition, is called a conditional acceptance. 
 The holder of a bill may consider a qualified acceptance as a nullity, 
 and protest the bill for non-acceptance, after which he is precluded 
 from insisting upon it as an acceptance (d) ; but if the holder 
 acquiesces in it, then such an aSceptance becomes absolute only 
 on the performance of the condition, which must be averred in the 
 declaration. If the acceptor of a bill cancels his acceptance, and 
 the holder causes it to be noted for non-acceptance, he thereby 
 precludes himself from contending, that an acceptance of a bill 
 once made cannot be retracted in point of law (e). Whether an 
 acceptance once made could be cancelled by the acceptor, while 
 the bill remained in his hands, was considered as doubtful. Lord 
 Kenyan, C. J., is said to have determined at nisi prius, that it 
 could not (/). But it has since been solemnly determined that it 
 can, so that acceptance, like indorsement, is not complete till de- 
 livery of the biU {g). If an agreement to accept is conditional, and a 
 third person takes the bill, knowing of the conditions annexed to 
 the agreement, he takes it subject to such conditions (A,). Formerly 
 it was a question whether an acceptance making the bill payable at 
 a particular place was a qualified acceptance. By the 1 & 2 Geo. 
 IV. c. 78, it was, however, enacted, that an acceptance payable at 
 a banker's or other particular place, is a general acceptance, unless 
 the acceptor express in his acceptance that the bill is payable there 
 only and not otherwise or elsewhere. But the doubt was confined 
 to the case where the question arose between the holder and the 
 acceptor ; in cases between the indorser and the drawer, upon a 
 special acceptance by the drawee, no doubt appears to have existed 
 but that a presentment at the place specially designated in the 
 acceptance was necessary (i). But this " statute neither intended 
 to alter, nor has it in any manner altered, the liability of drawers 
 of bills of exchange, but that it is confined in its operation to the 
 case of acceptors alone." Per Tindal, G. J. (k). 
 
 Whether an acceptance be conditional or absolute is a question 
 of law (I). A bill of exchange dated 8th September, 1856, drawn 
 
 (d) Sproatv. Matthews, 1 T. B. 182. (/i) Per Lord MansfieU, C. J., in de- 
 
 (e) Bentiihch v. Dorrien, 6 East, 199. livoring the opinion of tlio court, in Ma- 
 
 ( f) See 6 East, 200, and 15 East, 20. son v. fftint, Doug. 299. 
 
 (^) Oox V. Troy, 5 B. & A. 474. And (i) Gills v. Mather, 8 Bmg. 219. 
 
 see BMli v. Dennistoun, 6 Exoh. 483; (k) lUd. 221. ., m ion 
 
 20 L. J., Exch. 278. (0 Sproat v. Matthews, 1 Tr. 182. 
 
284 BILLS OF EXCHANGE. 
 
 and payable four months after date, was accepted in these words— 
 " Accepted, payable at Messrs. 0. & Co., London.— No. 1756. 
 Due December 11th, 1856;" and then followed the signature of 
 the acceptor in a different handwriting. It was held, that this was 
 not a qualified acceptance, and that the bill became due on the 
 11th January, 1857 (m). 
 
 The following cases will illustrate the nature of qualified accept- 
 ances : — 
 
 Defendant accepted a bill of exchange, to pay it when goods con- 
 signed to him, and for which the bill was drawn, were sold. Plain- 
 tiff counted upon the custom of merchants. After verdict for 
 plaintiff it was moved in arrest of judgment, that this acceptance, 
 depending on the contingency of the sale of goods, was not within 
 the custom of merchants, or negotiable. But the court (after con- 
 sideration) held it good ; for though the plaintiff might have refused 
 to take such an acceptance, yet he might submit to take it. And 
 it would affect trade if factors were not allowed to use this caution, 
 when bills are drawn before they have an opportunity to dispose of 
 the goods (to). So where defendant accepted a bill of exchange 
 upon account of the ship Thetis, when in cash for the said vessel's 
 cargo, and the plaintiff averred, that at the day when the bill 
 became payable, the defendant was in cash for the said ship's 
 cargo ; it was objected, in an-est of judgment, that the defendant 
 was not liable by this conditional acceptance ; but the court over- 
 ruled the objection (o). So an answer, that the bill would not be 
 accepted till a navy biU was paid, was held a conditional acceptance 
 to pay when the navy bill should be discharged (jp). So when the 
 answer was, " it will not be accepted until the ship with the wheat 
 arrives from Scotland : " this was held to import a promise to accept 
 the bill on the arrival of the cargo ; and that the cargo having 
 arrived, the defendant was liable as acceptor (g). 
 
 Defendant accepted a bill of exchange to pay parb of the sum of 
 money mentioned in the bill ; this was held to be valid, although 
 it was contended, that such partial acceptance was not within the 
 custom of merchants (r). If the payee of a bill annexes a con- 
 dition to his indorsement before the bill has been accepted, the 
 drawee, who afterwards accepts it, is bound by that condition; 
 and if the condition is not performed, the property in the bill 
 reverts to the payee, and he may recover the contents against the 
 acceptor (s). Where the defendant accepted a bill of exchange in 
 these terms, " accepted on condition of its being renewed until 
 the 28th November, 1844," it was held that the word "renewed" 
 
 (m) Fanshawe y. Put, 26 L. J., Ex. {q) Miln v. Prest, 4 Campb. 393. 
 
 314. (r) Wegersloff6\. Keene, Str. 214. 
 
 (m) Smith v. Abbott, Str. 1152. (s) Robertson v. Kensington, 4 Taunt, 
 
 (o) Julian v. Shobroolce, 2 "Wils. 9. 30. 
 (p) Pierson v. Dunlop, Cowp. 571. 
 
BILLS OF EXCHANGE. 285 
 
 might be read " extended," and that the plaintiff was at liberty to 
 treat the acceptance, as he had done in the declaration, as an 
 acceptance of the bill itself, making it payable at an extended 
 time (<). 
 
 There is also a kind of acceptance, called acceptance supra pro- 
 test, where a bill being refused acceptance by the drawer, is ac- 
 cepted by some third person for the honour of a party to it. " It 
 is an undertaking to pay if the original drawee upon a presentment 
 to him for payment should persist in dishonouring the bill, and 
 such dishonour by him be notified by protest to the person who has 
 accepted for honour " (u). 
 
 Liability of the Acceptor. — The acceptor, by reason of his ac- 
 ceptance, which is pri/md fa,cie evidence of his having in his hands 
 effects of the drawer to answer the amount of the bill, is considered 
 as the principal debtor, and primarily liable to all the parties to the 
 bill ; and an express agreement only will discharge him. The ac- 
 ceptor undertakes to pay the sum specified in the bill, and interest 
 according to the legal rate of interest where the bill becomes due ; 
 but his engagement does not extend any further; consequently 
 the acceptor of a foreign bill is not liable for re-exchange (x). Any 
 party to the bill may maintain an action against the acceptor, if 
 the bill is not duly honoured. If the holder of a bill of exchange 
 brings separate actions against an acceptor (y), drawer, and indorser, 
 at the same time, the court will stay the proceedings in any stage 
 of the action against the drawer, or any of the indorsers, upon pay- 
 ment of the amount of the bill and costs of that particular action ; 
 and will now (by R G. Triu. T., 1 Vict.) stay proceedings in the 
 action against the acceptor,, on the same terms; though formerly 
 he must have paid the costs in all the actions, because he was the 
 original defaulter and the occasion of all those costs (z). The 
 holder of a bill of exchange, having been informed that the ac- 
 ceptor had not received any consideration for it, and that he had 
 accepted the bill merely to accommodate the drawer, received in- 
 terest upon the bill from the drawer for several years after it became 
 due, and neglected to call upon the acceptor for payment. At 
 length he brought an action against the acceptor ; and it was held 
 that it would well lie ; and Buller, J., said, that nothing but an 
 express agreement would discharge an acceptor ; and the plaintiff's 
 conduct in this case only meant, that he would try to recover the 
 amount of the bill from the drawer, who was the true debtor, if he 
 could {a). But the holder of the bill may discharge the acceptor 
 by parol (&). 
 
 (t) Russdl V. Phillips, 14 Q. B. 891 ; (y) Smithy. Woodcock, Same v. Dudley, 
 
 19 L. J., Q. B. 297. 4 T. R. 691. 
 
 (u) Per mUniorough, C. J., in Boare {z) See Comes v. Taylor, 10 Exch. 441. 
 
 T. Cazenove, 16 East, 391 ; and see Mit- (a) Dingwall v. Dmster, Doug. 247. 
 
 ehell v. Baring, 10 B. & C. 11. See StecU v. Harmer, 4 Exch. 1 (inerror). 
 
 (a) Woolsey v. Crawford, 2 Camp. 445. (S) Whatley v. TricJcer, 1 Camp. 35. 
 
386 BILLS OF EXCHANGE. 
 
 The drawee (-who was also the payee) of a foreign bill of ex- 
 change drawn in three parts, accepted and indorsed one part to a 
 creditor; to remain in his hands until some other security was given 
 for it; and afterwards accepted and indorsed another part, for 
 value, to a third person. The acceptor substituted another security 
 for the part first accepted, whereupon it was given up to him : it 
 was held, that the holder of the part secondly accepted was entitled 
 to recover on the bill against the acceptor (c). 
 
 An acceptance in blank charges the acceptor for the amount 
 which the stamp will cover, and for the time limited by the stamp 
 laws, and is an "authority" to anybody to draw upon the ac- 
 ceptor (d) when it may be convenient to do so, or when the person 
 to whom the paper is given may think it advisable to apply it to 
 this purpose (e). 
 
 Non-Acceptance and Notiqe of Dishonour (/). — If a bill is pre- 
 sented, and an acceptance refused, or qualified acceptance only 
 offered, or any other default made, due diligence must be used in 
 giving notice thereof to the drawer, if the holder means to resort to 
 him for payment ; and this rule ought to be observed, although the 
 bill presented for acceptance be a bill payable at a certain time after 
 date ; for although it be not necessary to present a bill of this 
 description for acceptance at all, yet if it be presented and dis- 
 honoured, notice becomes requisite in the same manner as upon 
 non-payment : and it is not sufficient to give notice of the non- 
 acceptance at the same time with the notice of non-payment {g). 
 But the omission of the notice of non-acceptance will not vitiate 
 the remedy against the drawer at the suit of a subsequent hond 
 fide indorsee for a valuable consideration without notice, who was 
 not in possession of the bill at the time of the dishonour (A). The 
 notice of the dishonour may be either written or .oral. If written, 
 the question of its sufficiency is to be determined by the court ; if 
 oral, by the jury (i). A notice which gives such a description of 
 the bill as would not mislead, is sufficient Qi). It may be sent by 
 post (Z). It must be given within a reasonable time (m). What 
 is reasonable time appears to be a question of law dependent on 
 facts, viz. the situation of the parties, the place of their abode, and 
 the facility of communication between them. Where the parties 
 
 (c) Holdsworth v. Hunter, 10 B. & C. (g) Roscow^. Hardy, 2 Camp. 458. See 
 4*9. Dunn v. O'Keefe, 5 M. & S. 282 ; and 
 
 (d) Mountague v. Perkins, 22 L. J., C. Bartlett v. Benson, U M. & W. 733. 
 P. 188. {Ji) Dunn v. O'Keefe, ubi sup. 
 
 (e) Armfield v. Allport, 27 L. J., Exoh. (i) See Metcalfe v. Richardson, 11 C. 
 42. B. 1011 ; PhUlips v. QouU, 8 C. & P. 
 
 (/) A bill is dishonoured either by 355. 
 
 non-acceptance or by non-payment. The {k) Sromage v. Vaughan, 9 Q. B. 608. 
 
 law relatmg to notices of these two facts (^) Woodcock v. Houldsworth, 16 M, & 
 
 is nearly the same, and some of the cases W. 126. 
 
 cited are cases of notice of nonpayment; (m) DarUahire v. Pa/rher, 6 East, 3. 
 see further under that heading, p. 302. 
 
BILLS OF EXCHANGE. 287 
 
 reside in London, or in the same town, notice must be given in 
 time to be received in the course of the day following the day of 
 dishonour {n). Where the parties reside in different places, it is 
 sufficient to send off notice on the day next after the day of dis- 
 honour (o). In a case of a foreign bill drawn payable in the East 
 Indies, a certain time after sight, the court determined, that it was 
 not necessary to send notice of the dishonour by any accidental 
 foreign ship, which sailed thence, not direct for England ; but that 
 it was sufficient to have sent notice by the first regular English 
 ship which sailed for England, considering the latter in the nature 
 of a regular post between the two countries (p). But where a bill 
 was drawn in duplicate on the 12th of August at Carbonear, in 
 Newfoundland, payable ninety days after sight, on S. & Co. in 
 England, for the freight of a voyage from Liverpool to Carbonear ; 
 and the bill was not presented for acceptance until the 16th of 
 November ; and it was proved that Carbonear was twenty miles 
 from St. John's, with a daily communication between those places, 
 and from St. John's there was a post-office packet three times a 
 week to England, the average voyage being about twelve days ; it 
 was held, that the jury had properly found that the bill was not 
 presented for acceptance within a reasonable time, no circumstances 
 being proved in explanation of the delay (g). 
 
 The liolder of a bill of exchange, on non-acceptance, and protest, 
 and notice thereon, has an immediate right of action against the 
 drawer; and the Statute of Limitations, therefore, runs against 
 him from that time, and not from the non-payment of the bill 
 when due (r). 
 
 Notice to Drawer. — The rule which requires notice to be given 
 within a reasonable time hy the holder of a bill of exchange to the 
 drawer, of the drawee's refusal to accept, is calculated for the 
 benefit of the drawer, in order that he may, upon receiving such 
 notice, withdraw his effects out of the hands of the drawee. On 
 this rule, however, an exception has been engrafted, viz., that it is 
 not necessary to give such notice to the drawer, where the drawer 
 has not any effects in the hands of the drawee, at the time when 
 the hill is drawn ; because in this case the drawer cannot sustain 
 any injury from the want of such notice (s) ; but if the drawer has 
 effects in the hands of the drawee, at the time the hill was drawn, 
 though it does not appear to what amount, and though such effects 
 are withdrawn before the bill can be presented, the circumstance 
 of there not being effects in the hands of the drawee, at the time 
 when the bill is presented for acceptance, and refused, will not 
 
 ' (n) Smith v. Mulkit, 2 Camp. 208 ; (q) Straker v. GraMm,i M. & W. 721. 
 
 WilliaTm v. Smith, 2 B. & Aid. 500. (r) WhOehead v. Wallcer, 9 M. & W. 
 
 (o) Williams Y. Smith, supra. 506. , m t> ^n<! 
 
 (p) Muilmcm v. D'Eguino, 2 H. Bl. (s) BicTctrAiU v. Bollman, 1 T. K. 406 ; 
 
 gg^ Sogers v. Stevens, 2 T. E. 713. 
 
288 BILLS OF EXCHANGE. 
 
 supersede the necessity of notice ; for it would be very dangerous 
 and inconvenient, merely on account of the shifting of a balance, to 
 hold notice not to be necessary ; it would be introducing a number 
 of collateral issues in every case upon a bill of exchange, to ex- 
 amine how the account stood between the drawer and drawee, 
 from the time the bill was drawn down to the time it was dis- 
 honoured ; per Lord JSUenborough (t). So if the drawer has 
 effects in the hands of the drawee, at any time between the draw- 
 ing of the bill and its becoming due, he is entitled to notice of 
 nonpayment, although he had not any such effects at the time of 
 bill drawn (u). So also if he had drawn the bill for the accommo- 
 dation of the acceptor (x). 
 
 Where the question was, whether want of effects in the hands of 
 the drawee excused the holder of a bill from the necessity as 
 against the drawer of presenting the bill for payment at its matu- 
 rity, as well as of giving notice of dishonour to the drawer, the 
 court held that it did so excuse him ; for the same reason applied 
 equally to both cases (y). 
 
 Lord Kenyan, C. J., held that it did not make any difference 
 who gave notice to the drawer of the dishonour of the bill ; and in 
 one case ruled that a notice from the acceptor was sufficient, obser\'- 
 ing, that the only end of the notice was, that the drawer might 
 have recourse to the acceptor (0). And Lawrence, J., ruled, that 
 the drawer, who had received due notice of dishonour from the 
 first indorsee, was liable to the second indorsee, who had merely 
 given notice to his indorser(a). And in an action by indorsee 
 against drawer. Lord Mlenborough held it sufficient to prove that 
 defendant had notice of dishonour from the acceptor (6). This 
 point is now quite settled by Chapman v. Keane (c), in which it 
 was held, thSt it is sufficient if the notice be given by any person, 
 who is a party to the bill, and that it need not proceed either 
 immediately or derivatively from the holder. 
 
 " It is not necessary to say, whether the rule, which dispenses 
 with notice in cases where the drawer has no effects in the hands 
 of the drawee, was wisely adopted or not. That rule certainly 
 proceeds upon the ground of fraud {d) in the drawer ; and the 
 
 («) Orr V. Maginnis, 7 East, 359 ; see Ex parte Barclay, 7 Ves. jun. 598, 
 
 Blackan v. Doren, 2 Campb. 503. ' contra per Bldon, Ch., and Stewart v. 
 
 (u) Hammond v. Dufrene, 3 Campb. Kennett, 2 Campb. 177 ; per Lord Ellevr 
 
 1*^- borough, C. J., where notice was by a 
 
 {x) Ex parte Heath, 2 Ves. & Beam. mere stranger. It maybe observed, that 
 
 240; Sleigh v. Sleigh, 19 L. J., Exch. in t\\e case of Ex parte Barclay, the at- 
 
 345. teution of the court was not directed to 
 
 (y) Terry v. Parker, 6 A, & E. 507 ; Lord Kenyan's opinion in Shaw v. Croft. 
 
 1 Key. & P. 762. (c) 4 jfev. & M. 607 ; 3 A. & E. 193, 
 
 (2) ShoM V. Croft, sittings after T. T. See also Harrison v. Suscoe, 15 M. & W. 
 
 1798- 2Zl\;a.ndLysaty.Bryant,ldh.J.,C.?. 
 
 {a) Jameson v. Swinton, 2 Campb. 373. 160 ; 6 C. B. 46. 
 
 (6) Sosher v. Kieram,i Camgh. 87. But {d) There seems to be no necessity to 
 
BILLS OF EXCHANGE. 289 
 
 courts have said, that where the drawer has been guilty of fraud, 
 he shall not claim the protection of those rules which were intro- 
 duced for the benefit of drawers acting bond fide. When a person 
 draws a bill upon another, who has no effects in his hands, he is 
 not entitled to notice of its being dishonoured, since he must 
 know, without such notice, that funds have not been provided to 
 answer it ; " per Chambre, J. (e). In another case (/), Eyre, C. J., 
 said, it might be a proper caution to bill-holders not to rely on it 
 as a general rule, that if the drawer had not any effects in the 
 hands of the acceptor, notice was not necessary. The cases of 
 acceptances on the faith of consignments from the drawer, not 
 come to hand, and the case of acceptances, on the ground of fair 
 mercantile agi-eements, might be stated as exceptions, and there 
 might possibly be many others. Where A., the agent in America 
 of B. in England, drew a bill upon B. and indorsed it to C, also 
 residing in America, who indorsed it over. Before the bill became 
 due, A. having reason to believe that B. would fail, lodged property 
 belonging to B. in the hands of C. to answer the bill in case it 
 should be returned, C. undertaking to restore the same whenever 
 it should appear that he was exonerated from the bill. Accept- 
 ance and payment of the bill were refused, but no notice was given 
 to A.; held, that A. was discharged (g). Lord Mlenborough held, 
 that the drawer having effects in hands of acceptor before bill 
 became due, was entitled to notice, although he had not such 
 effects at time of bill drawn (Ji). The insolvency of the acceptor {i), 
 although within the knowledge of the drawer, will not supersede 
 the necessity of notice to the drawer, of the dishonour of the bill. 
 Although the holder may have lost his remedy against the drawer, 
 by laches, in not giving notice, yet a subsequent promise to the 
 holder, by the drawer, that he will see the bill paid, will enable 
 the holder to maintain an action on the bill (k). 
 
 Notice to Indorser. — If the holder of a bill of exchange looks to 
 the indorser for payment, it is incumbent on him to give notice of 
 the dishonour of the bill within a reasonable time ; otherwise the 
 indorser will not be liable (I). Thus it was held, that the indorsee 
 of an inland bill of exchange, who had neglected to give notice 
 to his indorser of the drawee's refusal to accept until a month 
 had elapsed, in the course of which the drawer became a bankrupt, 
 could not recover against such indorser. Lord Mansfield, C. J., 
 
 put it upon the ground of fraud. At and see Brown v Maffey, 15 East 221 ; 
 
 any rate, in the present day accommoda- Mucker v. mikr, 3 Camp. 217 ; lb E,ast, 
 
 tion hUls are not considered fraudulent. 43 ; and Claridge v. Bcdton, 4 M. & b. 
 
 (e) Oleggy. Cotton, 3 Bos. & Pul. 239. 226. -.i i? „f ni 
 
 /) Wd,wyn Y. St. Qumtm, 1 B. & P. (i EsdaiU v. ^cywerhy }l^^f, ^^^i- 
 
 652, overi-uled hy Cory v. Scott, 3 B. & (h) Hopes v. Alder 6 £ast, 16, n 
 
 Aid. 623, but thi dictum is good law. (D Sleasard v. Hirst and anotlu^r, 5 
 
 (g) Clegg y. Cotton, 3 B. & P. 239. Burr. 2670. 
 
 (h) Thackray v. Blackett, 3 Camp. 165 ; 
 
 VOL. I. 
 
290 BILLS OF EXCHANGE. 
 
 said, in this case, that there was not any difference in this respect 
 between an inland and a foreign bill. 
 
 The holder of a bill tendered it for acceptance, which was refused.' 
 He kept it till due without giving notice of non-acceptance, and' 
 then tendered it for payment, which was also refused. _ He then 
 returned it to his, the second, indorser, who, not knowing of the 
 holder's laches, took it up, and then sued the first indorsei:. It was 
 held that the plaintiff's ignorance of the .former holder's laches did 
 not deprive the defendant of his right to set up such a defence (m)'.' 
 With respect to the drawer, it has been observed, that if he had 
 no effects in the hands of the drawee at any time during the cur- 
 rency of iihe bill he will laave no remedy over against a third 
 party if he pay the hiU, and will not in fact be prejudiced by want 
 of notice when there is no necessity to give him notice (n) ; but 
 with respect to the indorser, as he has not any concern with the 
 accounts between the drawer and drawee, notice of dishonour miist 
 be given to him by the holder of the bill, although the drawer' has 
 not any effects in the hands of the drawee (o). The exception to 
 the general rule dispensing with notice where theire are ho effects 
 in the hands of the drawee, is confined to actions brought against 
 the drawer : the indorser is in all cases entitled to notice. Per 
 Lord Kenyan, C. J. {p). A subsequent promise by the indorser 
 is a waiver of the objection for want of notice (q), and it is imnla- 
 terial whether such promise be made to the plaintiff, or to a third 
 person (7-), who held the bill at the time ; but a subsequent pro- 
 posal by the indorser to pay the bill by instalments, made without 
 Icnowledge of all circumstances relative to the bill having been 
 dishonoured, has been held not to be a waiver of the objection for 
 want of notice (s). , , 
 
 In an action against the payee of a note, it appeared that the 
 note was not presented for payment till the day after it became 
 due, and that no notice was given till five days after such present- 
 ment ; but it also appearing that the defendant 'gave no value for 
 the note, that he lent his name merely to give it credit, and that 
 he knew at the time that the maker was insolvent, it was held, 
 that the plaintiff was entitled to recover (t). So {u) Lord Ellen- 
 
 (m) Bxiscow V. Har^, 12 East, 434. in Jones v. Morgan, 2 Camp. 475, and in 
 
 But see Dunn v. O'Keefe, ante, p. 286. Croxon v. Worthcrn, 5 M. & W. 5, since 
 
 (n) Bickerdike v. Bollman, 1 Tr. 406 ; the new nilea whicli do not affect the 
 
 Cory V. Scott, 3 B. & Aid. 623 ; Lafitte v. question. In this case the issue was on 
 
 Slatter, 6 Bing. 623. the fact of presentment. See ahoHopley 
 
 (0) Goodall Y. DoUey, 1 T. E. 712 ; v. Dufresne, 15 East, 275, as to what 
 
 Wilkes v. Jacks, Peake's N. P. C. 202, shall be evidence of a waiver of the- ob- 
 
 -S. P., per Kenyan, C. J. : Saul v. Jones, jection. 
 
 ^^h hr^l *^- \'' i \^ ^- ^^- W Potter V. Raywortk, 16 East, 417. 
 
 (p) Wilkes V. Jacks, Peake s N. P. C. («) Goodall v. Bolley, 1 T'. E. 712. 
 
 -"?■> T, , , -KT T, ^ (t) Be Berdtv.Amnsoh, 211. BhS^e. 
 
 (?) Peake s N. P. C. 202 ; Zundie v. (a) Sisson v. Fhomlinson, London Sit- 
 
 Bobertion, 7 East, 231, S. P., recognized tings, 17th December, 1805, MSS. 
 
BILLS OF EXCHANGE. 291 
 
 borough, C. J., ruled, on the authority of the preceding case, that 
 where the indorser has not given any consideration for a bill, and 
 knows at the time that the drawer has not any effects in the 
 hands of the drawee, he (the indorser) is not entitled to notice of 
 the non-payment as a bond fide holder for a valuable consideration 
 would be. But in a later case (cc), in which it was held that an 
 indorser • is entitled to notice of dishonour although he has not 
 received any value for his indorsement, at any rate if he does not 
 know that the bill is an accommodation bill in its inception, the 
 same learned judge seemed to throw some doubt upon the pre- 
 ceding case, and more recently, Lord Benman, C. J., delivering 
 the judgment of the court, observed that the case of De Berdt 
 V. Atkinson could hardly be supported, inasmuch as the defendant 
 was not the party for whose accommodation the note was made ; 
 on the contrary, he lent his name to accommodate the maker (y). 
 
 In addition to notice, it was formerly held, that an indorsee 
 could not sue his indorser until he had demanded payment of the 
 drawer, on the ground that the indorser was only a warranter for 
 the payment of the drawer ; but this doctrine has been overruled, 
 and it is now settled, as well in the case of a foreign as ia that of 
 an inland bill, that such a demand is not necessary (z). 
 
 Protest. — Foreign bills of exchange ought to be presented for 
 acceptance to the drawee, by a notary public, or his clerk ; pro- 
 vided that in the case of a presentment by the clerk, and non- 
 acceptance, the notary duly makes the protest (a). If the drawee 
 refuses to accept the bill, then the notary ought to draw a protest 
 for non-acceptance (&). Lord Kenyan, C. J., ruled, that when notice 
 of non-acceptance was given to the indorser of a foreign bill, it was 
 not necessary that such notice should be accompajiied with a copy 
 of the protest for non-acceptance (c). But where A. drew a biU of 
 exchange, in the West Indies, on T., in London, at sixty days' 
 sight, payable to W., or order : W. indorsed to G., who presented 
 the bill to T., who refusing, G. noted it for non-acceptance, and at 
 the end of sixty days protested it for non-payment, and then wrote 
 a letter to A., and also to his agent in the West Indies, acquaiat- 
 ing them that the bill was not accepted, in an action brought 
 against A. by G., on this case, he was nonsuited ; for hy not send- 
 ing the protest for non-acceptance he made himself liable (<^). The 
 only way in which this case can be reconciled with Lord Kenyan's 
 
 (x) Bromi v. Maffey, 15 East, 221. in the case of a foreign bill must be 
 
 See Smithy. Becket, 13 East, 187. made by a notaiy public," is not well 
 
 {y) See also on this point. Sands v. founded. 
 
 Clarhe, 8 C. -B. 751 ; 19 L. J., C. P. 87. (6) Per Holt, C. J., 6 Mod. 29, BuUer 
 
 (z) Bromley v. Frazier, Str. 441 ; ffey- v. Crips, 
 
 liny. Adamson, 2 Burr. 669. (c) Cromwell and another V. ITynson, 
 
 (a) See Brooke's Treatise on the Office 2 Esp. N. P. C. 511. 
 
 of a Notary in England, "wherein he shows [d) Goostry y. Mead, Gilb. Ev. p. 79, 
 
 that the dictum of Buller, J., in Lefiley Edit. 1761, and Bull. IST. P. 271. ' 
 T. Mills, 4 T. R. 175, "that the demand 
 
 V 2 
 
292 BILLS OF EXCHANGE. 
 
 decision is, by considering the expressions used in the latter case, 
 "not sending the protest," as meaning nothing more than "not 
 giving notice of the non-acceptance." It was said by the court, in 
 Bromley v. Frazier, Str. 442, that the requiring a protest for non- 
 acceptance is not because a protest amounts to a demand, for it is 
 only giving notice to the drawer to get his effects out of the hands 
 of the drawee. In Goodman v. Harvey (e), where the foregoing 
 subject was discussed, it was expressly ruled, in the case of a 
 foreign bill, the drawer whereof was resident abroad, that it was 
 sufficient to inform him that the bill had been protested for non- 
 payment, without sending him a copy of the protest. 
 
 A protest on an inland bill of exchange is governed by stat. 9 
 & 10 Will. III. c. 17, which enacts, that " where bills of exchange 
 (of 51. or upwards, payable at a certain time after date (/), and 
 expressed to be for value received,) are drawn in, or dated at, any 
 place in England, Wales, or Berwick-upon-Tweed, upon any per- 
 sons of or in any other place, in such cases, after presentation and 
 acceptance, by underwriting the bills under the parties' hands, and 
 after the expiration of three days (g) after the time when the same 
 shall be due, on refusal or neglect of payment thereof, the party, to 
 whom the said bill is made payable, his agent, &c. may cause the 
 same to be protested by a notary public, and in default of such 
 notary, by any other substantial person of the place, in the pre- 
 sence of two witnesses ; the protest to be written under a copy of 
 the bill in the following form : — 
 
 Know all men, that I, A. B., on the day of 
 
 at the usual place of abode of the said have demanded 
 
 payment of the bill, of which the above is the copy, which the said 
 
 did not pay ; wherefore I, the said 
 do hereby protest the said bill ; dated this day of ." 
 
 By sect. 2, " the protest is to be sent within fourteen days after 
 the making thereof, or due notice given, thereof to the party from 
 whom the bills due were received, who is (upon producing such 
 protest) to repay the bills with all interest {h) and charges from the 
 day such bills were protested ; sixpence only to be paid for the 
 protest {i). In default or neglect of such protest or due notice, the 
 person so failing or neglecting shall be liable to all costs, damages, 
 and interest." 
 
 This statute does not take away the party's action, where there 
 is not any protest, to recover the amount of the bill ; but it seems, 
 
 ^1 ^,t■ ^ ?■ ?^ '• ^ ■'^^^- * ^- ^''2- " »°t recoveraUe against the drawer. 
 
 (/)i His act does not extend to bills Per Raymond, C. J., Harris v. Bensm, 
 
 payable^ after sight. Leftley v. Mills, 4 Str. 910. But see WindU v, Andrews, 
 
 ^- ^- !'"■ 2B. &A. 696. 
 
 i?^^Al*\^-^^°- <i)4T.K.i70. 
 
 (A) It there he not any protest, interest 
 
BILLS OF EXCHANGE. 293 
 
 that in such case he is not entitled to recover interest and charges (Jc). 
 The principal is recoverable without interest (I). But it has 
 been held (m), that to entitle the indorsee of an inland bill of ex- 
 change to recover interest from the drawer, it is not necessary to 
 protest the same for non-payment. The statute here seems to give 
 the drawer a remedy by action, against the party failing to make 
 protest, for costs and damages (n). 
 
 Foreign bills are very frequently protested both for non-accept- 
 ance and non-payment ; but a protest is hardly ever made for non- 
 acceptance of an inland bill, though it is sometimes protested for 
 non-payment. It is conceived that a protest of an inland bill is 
 unknown to the common law, and must therefore derive its efficacy 
 from the above enactments; from -which it: will follow, that it is 
 applicable only to such instruments as are therein described, and 
 that the steps therein required must be taken (o). 
 
 Lost Bill. — Formerly the loser of a negotiable bill could not re- 
 cover at law against antecedent parties, although a sufficient in- 
 demnity was tendered (p) ; he must have resorted to a court of 
 equity for relief (g). Now, however, it is enacted by the 17 & 18 
 Vict. c. 125, s. 87, that " in case of any action founded upon a bill 
 of exchange or other negotiable instrument, it shall be lawful for 
 the court or a judge to order that the loss of such instrument shall 
 not be set up, provided an indemnity is given to the satisfaction of 
 the court or judge or a master against the claims of any other 
 person upon such negotiable instrument." 
 
 Liability of the Dratver on Non-acceptance. — If the drawee, on 
 presentment for acceptance, dishonour the bill, the drawer may be 
 called on for immediate payment. A foreign bill of exchange was 
 drawn payable at 120 days after sight, but when the bill was pre- 
 sented for acceptance, that was refused ; upon which an action was 
 immediately brought agaiast the drawer, without waiting till the 
 expiration of the 120 days. On the trial, the defendant objected, 
 that he was not liable until the expiration of the 120 days, and 
 offered to call evidence to prove that the custom of merchants was 
 such. But Lord Mansfield, C. J., said, the law was clearly other- 
 wise, and refused to hear the evidence (r). And in a later case (s), 
 it was adjudged, that the indoi'see of a foreign bill of exchange 
 might bring an action against the person who had indorsed it to 
 
 (k) Per BoU, C. J., in Brotigh v. Par- darkly. 
 
 Uns, Lord Raym. 993. (o) Byles on Bills, 224, 7tli Edit. 
 
 (I) Per Lord Hardwicke, C. J., in Imm- (p) Hansard v. RoUiison, 7 B. & C. 90 ; 
 
 ley V. Palmar, Ca. Temp. Hardw. 77. Rmmz v. Crowe, 1 Exch. 172 ; Crowe v. 
 
 (m) Windle v. Andrews, 2 B. & A. 696. Clay, 9 Exoh. 604 ; 23 L. J., Exoh. 160. 
 
 (m) Per Holt, C. J., in Brwigh v. Par- (q) See Walmesleyv. Child, 1 Ves. 341. 
 
 hins. Lord Baym. 993. Lord Hardwiche, (r) Bright v. Furrier, Bull. N. P. 269. 
 
 C. J., in Lumley v. Palmer, justly ob- (s) Ballingalls and another v. Gloster, 
 
 served, that this statute was drawn very 3 East, 481, 
 
394 BILLS OF EXCHANGE. 
 
 him, immediately on the non-acceptance of the drawee, although 
 the time for which the bill was drawn was not elapsed, on the 
 ground that every indorser was in the nature of a new drawer. 
 Md Lord Ellenhorough, G.J., said, that, in a late case tried before 
 him at Guildhall, it appeared to be the universally received law on 
 the Continent, that an indorser was liable immediately on the non- 
 acceptance of the drawee. 
 
 V. Of the Transfer of Bills of Exchamge. 
 Of the Party in whom the Bight of Transfer is vested, p. 299. 
 
 Bills payable to order or to bearer are negotiable, and the 
 transfer of them for a good and valuable consideration vests a right 
 of action in the assignee. And if a non-negotiable bill be indorsed 
 by the payee, he is liable upon it to the indorsee (f). It is a rule 
 of the common law, that choses in action are not assignable ; but 
 in the case of bills of exchange there is an exception to this rule, 
 and in favour of commercial intercourse they are, by the custom of 
 merchants, assignable to a third person not named in the bill, or 
 party to the contract, so as to vest in the assignee a right of action 
 in his own name. Whether a bill of exchange be negotiable or 
 not, is a question of law (u). In respect of bills payable to order, 
 the custom has directed that the assignment should be made by a 
 writing on the bill, called an indorsement, and be completed by de- 
 livery ; and in respect of bills payable to bearer, that the assignment 
 should be constituted by delivery only. If a bill be payable to A., or 
 bearer, and A. delivers it over for money received without indorse- 
 ment, this is a sale of the bill, and the seller does not become a new 
 security, for if he had indorsed it, he had become a new security, 
 and then he had been liable upon the new indorsement (x). A 
 transfer of a bill of exchange by indorsement is an act similar in 
 effect to making a new bill, the indorser being in the nature of a 
 new drawer (y). By indorsement, the indorser admits the signature 
 and capacity of all the prior parties to the bill (z). By the law mer- 
 chant, every person having possession of a bill, has (notwithstanding 
 any fraud on his part, either in acquiring or transferring it) full au- 
 thority to transfer such bill, but with this limitation, that, to make 
 such transfer valid, there must be a delivery, either by him or by 
 some subsequent holder of the bill, to some one who receives such 
 
 (t) Sill V. Lewis, Salk. 133 ; but see E. & B. 103. 
 Bamnister v. Hogarth, 11 M. & W. 97. (y) Per Holt, C. J., Skin. 411 ; Hard- 
 
 in) Oramt v. Vatighan, 3 Burr. 1523, wicke, Ch., 1 Atk. 202; Lord. . 
 
 1526, 1528. C. J., 2 Buit. 674 ; Lord Ellenhorottgh, 
 
 (k) Per Holt, C. J., Governor amd Com- C. J. 3 East, 482. 
 pa'ivyof the Bcmi; of Englmd V.Newman, (z) LwinUrt v. Oakes, 1 Lord Eaym. 
 
 Lord Baym. 442. And see Camidge v. 443 ; Macgregor v. Modes, 25 L, J., Q. B. 
 
 Aliening, e B. & C. S73 ; Bobson V. Oil- 318. 
 ver, 10 Q. B. 704 ; Pokier v, Morris, 2 
 
BILLS OF EXCHANGE. 295 
 
 hUl bond. Jide and for value, and who is either himself the holder 
 of it, or a person through whom the holder claims (a). An in- 
 dorsement may be of such a character as to give a title to the bill, 
 although insufficient in law to give a right of action against the 
 indorser(6). 
 
 Indorsements ai-e of two kinds : 1st, blank ; 2nd, fuU or special. 
 An indorsement in blank, which is the most common, is made by 
 writing the indorser's name on the back of the bill, without any 
 mention of the name of the person in whose favour the indorse- 
 ment is made. Indorsements, whether blank or special, subsequent 
 to a blank indorsement by the payee, may be struck out even at 
 the trial (c) ; consequently a remote indorsee may declare as the 
 inamediate indorsee of the payee or first indorser. Indorsees of a 
 bill of exchange against acceptor :-^he bill was indorsed in blank 
 by the payee, and after several indorsements it came to one Jack- 
 son, a bankrupt, (whose assignees had indemnified defendant,) under 
 a special indorsement to him or order. Jackson, without indorsing 
 the bill, sent it to Muir and Atkinson, who discounted it with plain- 
 tiffs. Plaintiffs had struck out all the indorsements except the first. 
 Per Lord Kenyan, G. J. : The fair holder of a bill may consider 
 himself as the indorsee of the payee, and strike out all the other 
 indorsements. This special indorsement being made after the 
 payee had indorsed it, cannot affect the title of the present plain- 
 tiffs (d). If A., the payee of a bill of exchange, indorses it in blank, 
 and delivers it to B., and B. writes above A.'s indorsement, " Pai/ 
 the contents to C." without subscribing his own name, B. is not 
 liable to C. as an indorser of the bill : for, in order to make a party 
 liable as an indorser, his name must appear written with intent to 
 indorse (e). By the law of France, an indorsement in blank does 
 not transfer auy property in a bill ; the holder of a bill, therefore, 
 drawn in that country, and indorsed there in blank, cannot recover 
 against the acceptor in the courts of this country (/). An indorse- 
 ment in full, or special indorsement, mentions the name of the 
 indorsee, as thus, " Pay the contents to A. B." and is subscribed 
 with the name of the indorser. A full or special indorsement con- 
 tains in itself a transfer of the interest in the bill to the person 
 named in such indorsement (g). But a bare indorsement without 
 other words purporting an assignment, does not work an alteration 
 of the property (h). Clark having a bill of exchange payable to 
 
 (a) Per Alderson, B., delivering judg- see Bartlett v. Benson, 14 M. & W. 733, 
 m.entoilh.& court in MarsUm -v. Allen, 8 and Fairclough v. Pavia, 9 Exch. R. 
 M. & W. 494. See also Lloyd v. Howard, 690. 
 
 20 L. J., Q. B. 1 ; 15 Q. B. 995 ; and (e) Vincent v. Eorloek, 1 Campb. 442. 
 
 Barker v. Richards, 6 Exch. 63. (/) Trimbui v. Vignier, 1 B. IST. C. 
 
 (b) Smith V. Johnson, 27 L. J., Exch. 151 ; 4 Mo. & Sc. 695. 
 
 363. (^)Poth.TraitediiContratdu Change, 
 
 (c) Theed v. Zovell, Str. 1103. Part I. chap. 2, ss. 23, 24. 
 
 (d) Smith V. ClarU, Peake's K. P. C. (h) Per C%r., hucas v, S<v\iMS, balk. 
 225 ; Chaters v. Bell, 4 Esp. N. P. C. 130, 
 
 210. Per Lord Elleniorough, C. J. ; and 
 
296 BILLS OF EXCHANGE. 
 
 him or order, put his name upon it, leaving a vacant space above, 
 and sent it to J. S., his friend, who got it accepted ; but the money 
 not being paid, Clark brought assumpsit against the acceptor. And 
 it was objected, that the action should have been brought by J. S. 
 But per Holt, C. J. : J. S. had it in his power to act either as a 
 servant or assignee. If he had filled up the blank space, making 
 the bill payable to him, as he might have done if he would, that 
 would have witnessed his election to have received it as indorsee. 
 The property of the bill would have been transferred to him, and 
 he only could have maintained this action against the acceptor ; 
 but since he has not filled up the blank space, his intention is pre- 
 sumed to act as servant only to Clark, whose name was put there ; 
 that on payment thereof, a receipt for the money might be written 
 over his name, and therefore the action is maintainable by Clark (i). 
 The payee of a bill of exchange indorsed it specially to the plain- 
 tiffs, and immediately after the special indorsement, the defendant 
 indorsed the bill and then the plaintiffs indorsed it ; it was 
 held, that the defendant's indorsement was equivalent to a new 
 drawing by him, and that he was liable to be sued upon the bill 
 by the plaintiffs (Jc). 
 
 Promissory notes and bills of exchange are frequently indorsed 
 in this manner, " Pay the money to my use," in order to prevent 
 their being filled up with such an indorsement as passes the 
 interest (I). " A bill, though once negotiable, is certainly capable 
 of being restrained. I remember this being determined on argu- 
 ment. A blank indorsement makes the bill payable to bearer ; but 
 by a special indorsement the holder may stop the negotiability" (m). 
 These positions were recognised in a case in the Exchequer Cham- 
 ber {n), where a bill payable to the order of A. was indorsed by 
 A. to B., and then indorsed by B. thus : " Pay to C. or his order /or 
 my use ; " it was held, that this indorsement was restrictive, and 
 that the property in the bill remained in B. 
 
 It is not necessary that in a special indorsement the words " or 
 order " should be subjoined to the name of the indorsee ; for if a 
 bill be drawn payable to order, the negotiability of the bill will not 
 be restrained by the omission of the words " or order " in the in- 
 dorsement, as will appear from the following cases : — 
 
 Upon a case made at nisi prius, coram Pratt, C.J., it appeared 
 that the plaintiff had declared on an indorsement made by A., 
 whereby he appointed the payment to be to B. or order, and upon 
 producing the bill in evidence, it appeared to be payable to A. or 
 order, but the indorsement was in these words, " Pa!y the contents 
 
 (i) Clark v. Figot, Salk. 126, and 12 v. Prescott, 1 Atk. 249. 
 Mod. 192. (to) PerlMT^ Mansfield, C. J., Aivcher 
 
 (h) Penny v. Innes, 1 Cr. M. & E. 439. v. Bank of Englamd, Doug. 639. 
 See Allen V. Walker, 2 M. &. W. 317. (») Sigoumey v. Zloyd, 8 B. & C. 622 
 
 (l) Per Lord Hardwicke, Ch., in Snee 5 Bing. 525. 
 
BILLS OF EXCHANGE. 297 
 
 to B. ; " and therefore it was objected, that the indorsement, not 
 being to order, did not agree with the plaintiff's declaration ; but 
 upon consideration, the whole court were of opinion, it was well 
 enough, that being the legal import of the indorsement ; and that 
 the plaintiff might upon this have indorsed it over to another, who 
 would be the proper order of the first indorser (o). Before this 
 decision, the same doctrine had been laid down with respect to a 
 promissory note (p), viz., that where a note is drawn payable to 
 order, and the payee indorses it to A. (omitting the words " or 
 order "), A. has (notwithstanding such omission) all the interest in 
 the note, and may indorse it to B., who, upon such indorsement, 
 may maintain an action -against the maker. So where a foreign 
 biU of exchange was drawn by A. on B. (q), payable to C. or order, 
 and accepted by B., and C. indorsed it to D. without adding the 
 words " or order," and T>. afterwards indorsed it to E., who brought 
 an action against B. the acceptor for nonpayment ; evidence having 
 been adduced at the trial of the usage of merchants with respect 
 to indorsements of bills payable to order, where the words "or 
 order " were omitted in the indorsement, which evidence was 
 contradictory, some merchants declaring that the omission did not 
 make any difference, others, that it restrained the negotiability of 
 the bill, and made it payable to the indorsee only ; the jury found 
 a verdict for the defendant. — On a motion for a new trial, on the 
 ground that evidence of the usage ought not to have been allowed ; 
 that the custom of merchants was part of the law of England, and 
 that the law of England was fully settled upon this point : the 
 court were unanimous that a new trial ought to be granted ; and 
 Lord Mansfield, C.J., said, he was clear that the evidence ought 
 not to have been admitted, for the law was fully settled in the 
 cases of More v. Manning and Acheson v. Fountain. The other 
 judges concurred ; and Denison, J., said, that there was not any 
 instance of a restrictive limitation, where a bill was originally 
 made payable to A. or order; that he had never heard of an 
 indorsement to A. only, and that in general the indorsement fol- 
 lowed the nature of the thing indM^sed. As a bill of exchange 
 payable to A.'s order, is, by the custom of merchants, payable to A. 
 if he does not make any order ; so, by an indorsement of a bill of 
 exchange to the order of A, A. is entitled to payment if he makes 
 no order. A bill of exchange was drawn, payable to I. S., who 
 indorsed it in this manner : " Pay the contents of the bill unto the 
 order of Mr. Fisher." Fisher brought an action as indorsee, 
 averring he had made no order to receive the money. The de- 
 fendant demurred to the declaration, supposing that Fisher could 
 not maintain the action, because the indorsement was not to him, 
 
 (o) Acheson v. Fowidain, Str. 557. since the new rules, which do not make 
 
 (») More T. Manning, Comyns' R311. any alteration in the law mei'chant m 
 
 iq) Edu V. East India Company, 2 Cunliffc v. Whitehead, 3 B. N. 0. 830. 
 Burr. 1216, and 1 Bl. K. 295, recognized 
 
298 BILLS OF EXCHANGE. 
 
 but to his order ; sed per Curiam : The action is well brought 
 against the indorser ; for among tradesmen this form of indorse- 
 ment is commonly used, although it is intended to be made pay- ■ 
 able to the person whose order is mentioned (r). 
 
 In order to derive a legal title to a bill of exchange payable to 
 order, it is neeessairy for the indorsee in an action against the ac- 
 ceptor, upon a traverse of the indorsement, to prove, the handwriting 
 of the payee or first indorser (s) ; and, therefore, though the bill may 
 come into the hands of another person of the same name with the 
 payee, yet his indorsement will not confer a title ; and such an in- 
 dorsement, if made with the knowledge that he is not the person to 
 whom the bill was made payable, with intdnt to defraud, is a forgery, 
 through the medium of which a title cannot be derived (Q. 
 
 With respect to bills payable to bearer, or bills payable to order, 
 but indorsed in blank, both which pass by delivery, it is now clear 
 law that if an assignee take them, without any knowledge of defect 
 of title, honafide, and for a valuable consideration, such assignee 
 is entitled to payment (tt). " I believe," said Lord Benman, in 
 Arbouin v. Anderson, " we are all of opinion that gross negligence 
 only would not be a sufficient answer by the defendant where the 
 plaintiff has given consideration for the bill. Gross negligence 
 may be evidence of mala fides, but it is not the same thing. We 
 have shaken off the last remnant of the contrary doctrine." This 
 proposition, as far as it affects bills payable after sight, or after 
 date, and not on demand, must be understood with this restriction, 
 viz. that the party seeking to recover on such bill has not taken it 
 after it became due : for in that case he takes the bill subject to 
 all its equities. See ante, p. 280. 
 
 A banker is bound to pay a check drawn by a customer within 
 a reasonable time after he (the banker) has received sufficient 
 funds belonging to the customer (x), and the customer may main- 
 tain an action of tort against the banker for refusing payment 
 of a check under such circumstances, and is entitled to have 
 a verdict for nominal damages, although he cannot prove that he 
 has sustained any actual damage. This decision rests entirely on 
 the consideration that the action, an action on the case, was founded 
 on a contract, not on a general duty implied by law. The con- 
 tract creates a duty, and the neglect to perform that duty, or the 
 nonfeasance, is a ground of action upon a tort (y). Where a cus- 
 tomer of the Bank of England was in the habit of making his 
 
 (r) Fisher v. Pom/ret, Garth. 403. Imd, 5 E. & B. 765 
 
 (s) SmUh V. Chester, 1 T. R 654. (a,) Marzetti v. Williams, 1 B. & Ad. 
 
 (t) Mead v. Young, 4 T. R. 28 ; per 415. 
 
 three justices, Kenyon, C. J. diss. See {y) Per Tindal, C. J., delivering the 
 
 SteWmg y. Spi.cer,ph. J., C. P 28. judgment of the ExeheqW Chamber in 
 
 (m) Arimin v Anderson, 1 Q. B. 498 ; Boorman v. Bromi, 8 Q. B. 526. See also 
 
 Sap^f v.Bcmk of England, 25 L. J., RoUn v. Steward, 14 C. B. 695. 
 C, P. 33 ; 1/ C. B, 161 ; Oarlon v. Ire- 
 
BILLS OF EXCHANGE. 299 
 
 acceptances payable at the Bank, and one of such acceptances 
 being presented for payment at eleven o'clock in the morning was 
 dishonoured, for want of assets, and was presented again by a 
 notary at six in the evening, when the same answer was given by 
 a person stationed for that purpose ; it was held, in an action for 
 dishonouring the bill, that the Bank, although they had, before six 
 o'clock, received assets, were not bound to pay the bill, it being 
 after the usual hours of business {z). 
 
 Of the Party in wJiom the Right of Transfer is vested. — ^Where 
 the defendant drew a bill of exchange upon A., payable at so 
 many days' sight to B. or order, for the use of C, it was held that 
 the right of transfer was in B., ^C. having an equitable title 
 only (a). 
 
 It is the constant usage of merchants for administrators to in- 
 dorse and assign over bills of exchange made payable to their 
 intestate's order (6). But where an indorsement is necessary, and 
 the testator has written his name, but not delivered the bill, the 
 executor cannot complete the indorsement by delivery (c). Where 
 a bill of exchange has been indorsed by the payee to A. and B. as 
 executors, they may declare as such in an action against the accep- 
 tor (d). If a biU of Exchange is drawn, payable to A. and B. or 
 their order, and A. and B. are not partners : to make it negoti- 
 able, the bill should be indorsed by A. and B., such being the 
 usage of merchants (e) ; but in such case, if the bill be indorsed by 
 A. in the name of himself and B., and afterwards the drawee 
 accepts the bill so indorsed, it is not competent to him to object, 
 that the bill has not been regularly indorsed (/). 
 
 As the property in a bill of exchange passes to the holder, when 
 he pays the consideration, and as indorsement is merely evidence 
 of the transfer, a trader, who before his bankruptcy has parted 
 with a bill for a valuable consideration, but omitted to indorse it, 
 may indorse it after his bankruptcy : and such indorsement will be 
 a sufficient title to the party to whom it was delivered (cf). 
 
 (z) Whitaker v. Bank of England,! Cv. (e) Bromagev. Lloyd, 1 Exch. 32. 
 
 M. & E. 744. (<^> J^in,g v. Tlum, 1 T. R. 487. 
 
 {a) JRvans v. Cramlingfon, Garth. 5 ; (e) Carvick v. Vwkery, Doug. 653, n. 
 
 affirmed in error, 2 Vent. 207 ; see also (/) Jones v. Radford, 1 Campb. 83, n. 
 
 Sigoumey v. Zloyd, 8 B. & C. 630. (s-) Smith v. Pickering, Peake's N. P. 
 
 (J) Per Seniion. J., 4 Wils. 4. C. 50. 
 
300 BILLS OF EXCHANGE. 
 
 VI 0/ Presentment for Payment, and herein of the — 
 
 Days of Grace, p. 300, 
 
 Non-Payment and Notice thereof, p. 302. 
 
 Protest, p. 308. 
 
 Where bills of exchange are drawn payable at usance, or a 
 certain time after date, or after sight, such bills ought not to be 
 presented for payment at the expiration of the time mentioned in 
 the bills, but at the expiration of what are termed days of grace. 
 This term signifies the time which, by the usage of the countries 
 between which the bills are drawn, is appointed for the payment 
 of them QC). Where bills are payable so many days after sight, 
 the days are computed from the day the bills are accepted, or pro- 
 tested for non-acceptance. In an action against the drawer of a 
 bill of exchange, the evidence being that the bill had been de- 
 manded from the acceptor on the day preceding the last day of 
 grace, the plaintiff was nonsuited (i). " In cases of foreign bills of 
 exchange, the custom is that three days are allowed for payment 
 of them (A;), and if they are not paid on the last of the said days, 
 the party ought immediately to protest the bill and return it, and 
 by this means the drawer will be charged ; but if he does not pro- 
 test on the last of the three days of grace, there, although he upon 
 whom the bill is drawn fails, the drawer will not be chargeable ; 
 for it shall be reckoned his folly that he did not protest, &c. But 
 if it happens that the last of the said three days is a Sunday, or a 
 great holiday, as Christmas-day, &c., upon which no money used 
 to be paid, there the party ought to demand the money on the 
 second day : otherwise it will be at his own peril, for the drawer 
 will not be chargeable." Per Holt, 3. (l). Good Friday is to be 
 considered as a Sunday or Christmas-day (m). By stat. 7 & 8 
 Geo. IV. c. 15, s. 2, bills of exchange becoming due on a day 
 appointed by proclamation for fast or thanksgiving are payable on 
 the day preceding : and by sect. 3, Good Friday, Christmas-day, 
 and every such day of fast or thanksgiving, is to be considered, as 
 regards bills of exchange and promissory notes, as Sunday. . 
 
 The foregoing passage from Lord Raymond's Reports mentions 
 only foreign bills of exchange ; but it was said by Lord Kenyan, 
 C. J.(7i), that it had been settled for more than half a century, that 
 inland bills of exchange were payable at the same time as foreign 
 bills of exchange. A foreign bill of exchange was drawn on C. 
 
 1^* Sr°S'' ^' ■'^A ^ . , T. -x-r „ ^'^'^ becomes due, every where, except at 
 
 W Wiffen T. Mherts, 1 Esp. N. P. C. Hamburgh, where that day makes one of 
 
 ,: , „ , i ■ . , ^^^ <lays of grace. 
 
 {k)Per merchants m evidence at Guild- {I) Tcrnell v. Lcvris, Lord Eaym. 743. 
 
 haU, Trm. 7 WiU III. coram Holt, C. J., (m) Stat. 39 & 40 Geo. III. c. 42. 
 
 TassellY. Leyns Lord Eaym. 743 Three («) Brown v. Harradcn, i T. R. 152. 
 
 days, exclusively of the day on which the 
 
BILLS OF EXCHANGE. 301 
 
 and Co. at Liverpool, payable to A. in London. C. and Co. having 
 refused to accept, it was accepted by B. in London, for the honour 
 of the payee, if regularly protested and i-efused when due. It was 
 held, in an action against B., that under the special form of the 
 acceptance, a presentment for payment to C. and Co. at Liverpool, 
 a refusal by them, and a protest there, were necessary, and there- 
 fore that the bill was properly presented for payment there on the 
 day it became due (o). Days of gi-ace are allowed also on pro- 
 missory notes, and on bills or notes payable by instalments {p). 
 There is a distinction between bills payable at a certain time after 
 date, and bills payable at a certain time after sight. The holder 
 of a bill payable after date is bound to use all due diligence, and 
 to present such bill at its maturity, but in case of a bill payable 
 after sight, the holder may put the bill into circulation before he 
 presents it (q) ; or, although he ftoes not circulate it, he may take 
 a reasonable time to present it. A delay until the fourth day in 
 presenting a bill on London, given within twenty miles thereof, is 
 not unreasonable. I am not aware that it has ever been solemnly 
 decided, that days of grace are allowable on bills of exchange pay- 
 able at sight. The weight of authority is in favour of such an 
 allowance. Days of grace are not allowed on bills payable on 
 demand. There are not any days of grace in France (r). 
 
 No debt arises upon a bill payable after sight, until a present- 
 ment for payment ; and consequently the Statute of Limitations 
 wUl not operate as a bar to such bill, unless it has been presented 
 for payment six years before the action commenced (s). With 
 respect to promissory notes payable on demand, the statute runs 
 from the date of the note (t) ; but where the note was payable 
 "two years after demand;" it was held, that the statute did not 
 begin to run until two years after demand of payment had been 
 made (u). Upon a promissory note, payable on demand " at 
 sight," an action cannot be maintained until after presentment (x). 
 Where the defendant promised, in consideration of the plaintiff 
 having agreed not to sue him on two bills, to pay him " whenever 
 his circumstances would enable him to do so, and he should be 
 called upon for that purpose : " it was held, that the limitation of 
 action ran from the time of defendant being able to pay, though 
 plaintiff had made no demand, and had not been informed by 
 
 (o) Mitchell v. Baring, 10 B. & C. 4. {t) Christie v. Fmskk, C. B., London 
 
 (p) Oridge v. Sherborne, 11 M. & "W. Sittings after M. T. 52 Geo. III. Sir/. 
 
 874; Carton v. Kenealy, 12 M. & "W. Mcmsfield, C. J., MS. This case is said 
 
 139. to have been overruled, sed qumre. See 
 
 (g) Per Gibhs, C. J., in Ooupy v. Bar- Byles on Bills, 300, n. (x), 7th edit., and 
 
 den, Holt, IS. P. C. 344 ; Pry v. Hill, 7 Norton v. Ellam, 2 M. & "W. 461. 
 
 Taunt. 397. («) 2%oj-^e and Wife v. Booth, 1 By. & 
 
 (r) Rothschild v. Currie, 1 Q. B. 43 ; Moo. 388 ; Clayton v. Gosling, 5 D. & C. 
 
 4 P. & D. 737 ; and they are abolished in 360. 
 
 New York, see Civil Code, § 1781. (s) JHxon v. Nuttall, 1 Cr. M. & E. 
 
 (s) Holmes v. Kerrison, 2 Taunt. 323. 307 ; 4 Tyrw. 1013. 
 
303 BILLS OF EXCHANGE. 
 
 defendant, or otherwise had knowledge of such ability {y). Where 
 to an action on a bill the Statute of Limitations is pleaded, it is 
 now settled that fraud cannot be replied {z). 
 
 Non-payment and Notice thereof. — The acceptor of a bill of ex- 
 change (a) having or being presumed to have, in his hands effects 
 of the drawer, for the purpose of discharging the bill, is considered 
 as the principal debtor, and is primarily liable; payment must, 
 therefore, be demanded of the acceptor, in the first instance, on 
 the day when the bill becomes due ; and in case of refusal or de- 
 fault, due notice of such demand and refusal or default must be 
 given to the drawer, within a reasonable time after such demand 
 and refusal or default, in order that he may withdraw his effects 
 as speedily as possible from the hands of the acceptor. Until 
 these previous steps have been taken, the drawer cannot be 
 resorted to for non-payment of the bill. — The want of notice to a 
 drawer who has effects in the hands of the acceptor, after dishonour 
 of the bill, is considered as tantamount to payment by him. The 
 notice of dishonour may be given on the same day on which pay- 
 ment is refused (6). It is generally no answer to the want of 
 notice that the drawer has not been injured thereby (c) ; but want 
 of effects in the hands of the drawee at the time of drawing the 
 bill and of its maturity, and the absence of reasonable grounds for 
 expecting that the bill will be paid, will dispense with the neces- 
 sity of giving notice of dishonour and of presenting the bill for 
 payment to the drawee, when it arrives at its maturity (cQ. 
 " Every bill," says Parke, B., delivering the judgment of the court 
 in Garter v. Flower (e), " prvmd facie must be taken to have been 
 drawn for value received, that is, on a person who was to accept 
 and pay by reason of having value, and if the drawer draws on one 
 who is not his debtor, nor has received any value for the bill, he 
 must be considered at least primd facie to request him to accept . 
 and pay on account of the drawer, or, in other words, for his 
 accommodation; and if he does not provide funds in time, he 
 necessarily knows that the bill would not be paid at maturity. 
 He is the person who himself ought to pay the bill, and conse- 
 quently primd facie cannot be entitled to notice. But the case of 
 an indorser of a bill of exchange stands upon a different footing 
 from that of a drawer. He is in the nature of a surety or guaran- 
 tor of its payment on due presentment, and is presumed to know 
 nothing of the arrangement between the drawee and drawer. 
 Story on Bills, 314. He is primd facie entitled to notice. It is 
 not enough to exempt him that the bill is drawn without value, 
 
 (y) Waters v. Ea/rl ofThamt, 2 Q. B. (h) Bv/rlridge v. Manners, 3 Campb., 
 
 757 ; 2 G. & D. 166. 193 ; Him v. Allely, 4 B. & Ad. 624. 
 
 (z) Imperial Gas Company v. London (c) Dennis v. Morrice, 3 Eap. l.'iS. 
 
 Gas Company, 10 Exch. E. 39. (d) Terry v. Packer, 6 A. & E. 502. 
 
 (a) Dagglish v. Weatherby, 2 HI. R. (e) 16 M. & W. 749 ; 16 L. J., Exch. 
 
 747. 202. 
 
BILLS OF EXCHANGE. 803 
 
 and that the drawer has no effects in the hands of the drawee. If 
 he indorses to the holder without value or effects in the hands of 
 prior parties, non constat that he is not entitled to notice, for he 
 may have indorsed for the accommodation of others, in which case 
 it is now clearly established that he has a right to notice, because, 
 on payment, he may recover over against those persons." 
 
 Notice may be sent by Post. — In an action by an indorsee of a 
 bill against the drawer (/), it appeared that the bill had been 
 drawn on the 1st of March, 1806, by the defendant, on one Moses 
 Agar, payable three months after date : and the plaintiff, having 
 become the holder of it, had placed it in the hands of his bankers, 
 Down and Co. On the 4th of June, when the bill became due, a 
 clerk of Down and Co. presented it f«r payment ; and it was dis- 
 honoured. On the 5th they returned it to the plaintiff, who, by 
 letter put into the two-penny post on the 6th, gave notice to the 
 defendant of the dishonour,; the plaintiff living in London and the 
 defendant at Shadwell. The case was left to the jury on the 
 question whether the notice of the dishonour had been given in 
 reasonable time ; and the jury, being of opinion that it had, found 
 a verdict for the plaintiff. And on motion for a new trial, on the 
 ground that due diligence had not been used, the court refused the 
 rule : — Le Blanc, J., observing that it could not be contended that 
 a banker ought to give notice of the dishonour to any but his 
 customer, for whom he. held the bill; and he thought that the 
 holder of a bill might avail himself of the conveyance by the two- 
 penny post (g). The distance at which the parties live from one 
 another is immaterial, provided they are within the limits of the 
 two-penny post ; and it is sufficient if the letter be put into the 
 receiving-house in time for the party to have it on the day when 
 he ought to have notice of its dishonour (A). " If," says Parlce, 
 B. (i), " a party puts a notice of dishonour into the post, so that in the 
 due course of delivery it would arrive in time, he has done all that 
 can be required of him, and it is no fault of his that delay occurs 
 in the delivery." The notice should be sent to the place of busi- 
 ness or residence of the person for whom it is intended. Notice to 
 the drawers of non-payment, by sending to their counting-house, 
 during hours of business, on two successive days, knocking there, 
 and making noise sufficient to be heard by persons within, and 
 waiting there several minutes, the inner door of the counting- 
 house being locked, has been held to be sufficient, without leaving 
 
 '" (/) Scott V. lAffard, 9 East, 347 ; 1 oface, is sufficient primd fade. SMlieck 
 
 Campb. 246. See ahoLmgdaUv. Trim- v. Oarbett, 7 Q. B. 846. The post-mark 
 
 mer 15 East. 291. on the letter is primiJ /acie, although not 
 
 (a) See Moison v. Bennett, 2 Taunt. conclusive evidence, of the time when 
 
 3g8_ the letter was posted. Slacken v. Ool- 
 
 (i) HilUm V. Fairclough, 2 Campb. vin, 7 M. & "W. 515. 
 633. Delivery to the beUman, who is to (i) Stocken v. Oolmn, 7 M. & W. 516. 
 
 be considered as an ambulatory post- 
 
304 BILLS OF EXCHANGE. 
 
 a notice in writing, or sending by the post, though some of the 
 drawers live at a small distance from the place (k). So a verbal 
 notice left with the wife of the drawer at his house has been held 
 sufficient (I). 
 
 By stat. 7 & 8 Geo. IV. c. 16, s. 1, where bills of exchange or 
 promissory notes becoming due on the day preceding Good Friday 
 or Christmas-day are dishonoured, notice thereof may be given on 
 the day after ; and when Christmas-day falls on Monday, and the 
 bill or note becomes due on the Saturday preceding, notice may be 
 given on Tuesday : and by sect 2, when bills or notes become 
 due on or on the day previous to a day of fast or thanksgiving, 
 notice may be given on the day after ; and when such day of fast 
 or thanksgiving is a Monday, and the bill or note becomes due on 
 the Saturday preceding, notice may be given on Tuesday. The 
 law merchant respects the religion of different people ; and conse- 
 quently a person is not required to give notice of the dishonour of 
 a bill on a day when by the rules of his religion it is unlawful to 
 attend to secular affairs ; e.g. a. great Jewish festival (m). 
 
 Where there are several indorsements, and the holder gives 
 notice of dishonour to his indorser, neither that indorser, nor any 
 prior indorser, is bound to transmit the notice of dishonour on the 
 very day on which he receives it. Each successive indorser will be 
 considered as having used due diligence, if he transmit the notice 
 of dishonour on the day after it was received, in a case where all 
 the parties live in the same place. Lord Elleviborough (n) said, 
 that it was of great importance that there should be an established 
 rule upon this subject, and he thought there could be none more 
 convenient than that where the parties reside in London, each 
 party should have a day to give notice. In that case the plaintiff 
 had notice of dishonour on the Monday, and did not give notice to 
 his indorser until the Wednesday ; Lord Mlenhorough ruled, that 
 as a day had been lost, the notice was not given in due time. A 
 subsequent indorser may avail himself of a notice given by a prior 
 indorser to the drawer (o). 
 
 If the drawee of a bill goes abroad, leaving an agent here in 
 England with power to accept bills, by virtue of which power 
 the agent accepts the bill in question, it is incumbent on the 
 holder to present such bill to the agent for payment, if the drawee 
 continues absent (p). " Bills of Exchange," said Abbott, C. J. (g), 
 " of late years have been made payable by the acceptor, either at the 
 
 (k) Crosse v. Smith, 1 M. & S. 545. {o) Jameson v. Sumion, 2 Camplj. 
 
 But see Allen v. Edmundson, 2 Exch. K. 373 ; 2 Taunt. 224. 
 
 719 ; 37 L. J., Exch. 291. (p) philips v. Astling, 2 Taunt. 206. 
 
 (Z) ffousego v. Cowne, 2 M. & W. 348. {q) Treacher v. ITinton, i B. & Aid. 
 
 (m) Undo v. Undsworth, 2 Campb. 413 ; and see Smith v. Thatcher, 4 B. & 
 
 602. Aid. 200. 
 
 (m) Smith v. Mallett, 2 Campb. 209. 
 
BILLS OF EXCHANGE. 305 
 
 houses of his friends or agents, they being expressly named in the 
 acceptance, or at banking-houses, or at houses merely described by 
 then- number in a certain street. It is most convenient that the 
 same rule should be laid down in all these cases. The most plain 
 and simple rule to lay down is this, that the effect of an acceptance 
 in any of these forms is a substitution of the house, banker, or 
 other person therein mentioned, for the house or residence of the 
 acceptor, and consequently that the presentment at the house or to 
 the party named in the acceptance, is equivalent to presentment at 
 the house of the acceptor. This rule will, I think, be equally ap- 
 plicable to the case of every acceptance, and will be convenient 
 and advantageous to the public." Where a bill is made payable at 
 a banker's in the city of London, it is sufficient to present the bill 
 for payment to a clerk of the banker at the clearing-house (r). 
 
 It is customary among the London bankers, in their dealings 
 with each other, not to pay any check which is presented by or on 
 behalf of another banker, after four o'clock in the afternoon ; but 
 merely to give an answer to the person so presenting it, whether 
 it is a good check or not ; and in case the check is approved, a 
 mark is made on it, either by the person presenting it, or the 
 person- who gives the answer ; and a check so marked is con- 
 sidered as entitled to a priority of payment on the next day. It 
 is not necessary to present a check so marked for payment at the 
 banking-house on the next day ; it is sufficient if it be presented at 
 the clearing-house (s). The receiver of a check has till the close of 
 the banking hours on the following day to present it. A debtor 
 paid his creditor by a crossed check ; the creditor on the same 
 day transmitted the crossed check to his banker, who negligently 
 (as it was alleged) omitted to present it at the clearing-house in 
 time for that day (when it would have been paid), — on the next 
 day it was dishonoured, the firm on which it was drawn having 
 stopped payment; it was held, that the supposed negligence of 
 the banker, although it might render him liable to his customer, 
 did not discharge the drawer ; the holder of a check being entitled, 
 by the general law as above stated, to present it on the day after 
 he receives it, and no custom of the city of London being proved 
 as between debtor and creditor, that a crossed check, if received 
 by the creditor and sent by him to his banker, in sufficient time, 
 must be cleared the same day (i). As between the drawer of a 
 check and the holder, no time less than six years is unreasonable 
 for presentment for payment, unless some loss is occasioned to the 
 drawer by the delay {u). 
 
 A presentment at a banking-house after banking hours, when 
 
 (r) Reynolds v. Chettle, 2 Campb. 596 ; Ad. 752 ; Moule v. Broimi., i B. N. C. 
 Halstmd v. Slcdton, 5 Q. B. 93. 268. 
 
 (s). Robson V. Bennett, 2 Taunt. 388. (u) Laws v. Rand, 27 L. J., C. P. 76. 
 
 {t) Boddington v. Schlencker, 4 B. & 
 
 VOL. I. X 
 
306 BILLS OF EXCHANGE. 
 
 the house is shut, is not a sufficient presentment to charge the 
 drawer (x) ; but though the presentment be out of bankmg hours, 
 yet if a person be stationed at the banking-house for the purpose 
 of returning an answer, and he returns for answer " No orders," 
 that is a sufficient presentment (y). And presentment at the 
 house where bill was made payable, not a banking-house, at half- 
 past seven, p.m., has been held to have been made ait a reasonable 
 timeand therefore to be sufficient (z). 
 
 A person receiving a bill or note payable to the bearer, on de- 
 mand, on a banker, given by way of payment, if payable in the 
 place where it is given, is not bound to present it until the morning 
 of the next day of business after its receipt ; and if payable else- 
 where, he is bound to send it by the post of the day next following 
 that on which it was given him (a). Where the holder of a bill of 
 exchange intends to sue any of the indorsers, it is incumbent on 
 him first to demand payment from the acceptor ; or, in the case of 
 a promissory note, from the maker (6), on the day when the bill 
 becomes due, and in case of refusal, to give due notice of dishonour, 
 within a reasonable time, to the indqrser (c). The general rale 
 seems to be, with respect to persons living in the same town, that 
 the notice shall be given so as to be received in the course of the 
 next day (d), and with regard to such as live at different places, 
 that it shall be sent by the next post. "It is," said Abbott, 
 C. J., in Williams v. Smith, 2 B. & Aid. 500, " of the greatest 
 importance to commerce that some plain and precise rule should 
 be laid down to guide persons in all cases as to the time within 
 which notices of the dishonours of bills should be given. That 
 time I have always understood to be the departure of the post 
 on the day following that in which the party receives the in- 
 telligence of the dishonour. If instead of that rule we were to 
 say that the party must give notice by the next practicable post, 
 we should raise in many cases difficult questions of fact, and 
 should, according to the peculiar local situations of parties, give 
 them more or less facility in complying with the rule. But no 
 dispute can arise from adopting the rule which I have stated." A 
 country banker, with whom a bill of exchange made payable in 
 London is deposited, is considered as a distract holder, and has an 
 entire day after receiving notice of its dishonour to transmit the 
 same to his customer, so that notice by the next day's post, though 
 it be not the next post, will be time enough (e). It is not neces- 
 sary to make any demand on the drawer of a bill (/). 
 
 (x) Elford V, Teed, 1 M. & S. 28. (J) Collins v. Butler, 2 Str. 1087. 
 
 (y) Oarnett v. Woodeoelc, 6 M. & S. 44, (c) BmUm v. Aspijiall, Dougl. 679. 
 
 (s) WilHns T. Jadis, 1 M. & Eob. 41 ; {d) Tindal v. JBrowii, 1 T. E. 167 ; 
 
 see Curlevns v. Oorfield, 1 Q. B. 814 ; 1 Haynes v. Birks, 3 B. & P. 699. 
 G. & D. 489. (e) OmUshire v. Parker, 6 East, S ; 
 
 (a) James v. HoldUeh, MS., and 8 D. Langdale v. Trimmer, 16 East, 291. 
 & K. 40. (/) Eeylyn v. Adamsan, 2 Burr. 678. 
 
BILLS OF EXCHANGE. 307 
 
 The notice must contain an intimation that payment has been 
 refused by the acceptor ; for a letter merely containing a 4emand 
 of payment has been held not to be a sufficient notice (g). So a 
 letter from the holder to indorser, threatening legal measures unless 
 bill be paid, has been decided by the House of Lords, confirming 
 the judgment of the Exchequer Chamber, not to amount to notice 
 of dishonour by the acceptor (h). In delivering the judgment of 
 the Exchequer Chamber in Solarte v. Palmer, Tindal, C. J., said, 
 " The notice of dishonour, which is commonly substituted in this 
 country in the place of a formal protest (such formal protest being 
 essential in other countries to enable the plaintiff to recover), most 
 certainly does not require all th^ precision and formality which 
 accompanied the regular protest, for which it has been substituted. 
 But it should, at least, inform the party to whom it is addressed, 
 either in express terms or by necessary implication, that the bill 
 has been dishonoured, and that the holder looks to him for pay- 
 ment of the amount. Looking at this notice, we think no such 
 intimation is conveyed in terms, or is necessary to be inferred 
 from its contents." With reference, however, to the words 
 " necessary implication " used in the above judgment, Parke, B., 
 in a subsequent case observed, "it seems to me enough if it 
 appear by reasonable intendment, and would be inferred by any 
 man of business that the bill had been presented to the acceptor 
 and not paid by him " (i). So a notice of dishonour is insufficient, 
 if it merely state that the bill has not been paid when due QS). 
 But the holder of a bill of exchange need not in terms inform the 
 party to whom he gives notice of dishonour that he looks to him 
 for payment (I). 
 
 If a bill be accepted, payable at a particular place, proof of a 
 demand at that place was held sufficient, without proof of notice 
 to the acceptor of non-payment (m). Where the residence of the 
 indorser is unknown to the holder, if due diligence be used in dis- 
 covering the place of residence, and notice is given as soon as that 
 is discovered, it is sufficient (n). The indorsee of a bill dishonoured 
 by the acceptor, being ignorant of the place of residence of one of 
 the indorsers, employed an attorney to give notice to him and the 
 other prior indorsers ; the attorney, having received information of 
 the indorser's residence, on the following day, consulted his client, 
 
 {g) EmtUy v. Case, 4 B. & C. 339. 2 G. & D. 116. 
 
 (A) Solarte, v. Palmer, 1 B. N. C. 194 ; i}) Furze v. Sharwood, 2 Q. B. 388. 
 
 5 M. & So. 1 ; 2 CI. & F. 93 ; 8 Bli. N. In the oases of Armstrong v. Chrisliani, 
 
 R. 874. In^wrortZv. TTatoi, IE. &B. 17 L. J., C. P. 181; 6 C. B. 687, 
 
 101, Campbell, C. J., expressed hisregret and JEverard v. Watson, 1 E. & B. 801, 
 
 at the decision in Solarte v. Palmer. all the authorities on this point were 
 
 {i) Eedger v. Steavenson, 2 M. & W. cited and considered. See also Paul v. 
 
 799. Joel, 28 L. J., Exch. 143. 
 
 {Jc) Mier v. Brown, 11 M. & W. 372, (m) Edwards v. Dick, 4 B. & A. 212. 
 
 recognizing Furze v. Sharwood, 2 Q. B. (re) Bateraan v. Joseph, 12 East, 433 ;. 
 
 388, and King v. BicUey, 2 Q. B. 419 ; Bvxxton v. Jones, 1 M. & Gr. 83. 
 
308 BILLS OF EXCHANGE. 
 
 and on the third day gave notice of dishonour ; it was held suffi- 
 cient (o). 
 
 As the rule requiring notice is introduced for the benefit of the 
 party to whom such notice is given, of course it may be waived by 
 that party. Quilibet potest renunciare juri pro se introducto. In 
 some cases the rule is dispensed with, as where the drawer has not 
 any effects in the hands of the acceptor ; for then the drawer is 
 presumed to have notice that the bill will not be paid ; besides, 
 not having any effects to withdraw from the hands of the acceptor, 
 he cannot sustain any injury from the want of notice (p). But if 
 a bill be drawn for the accommodation, not of the drawer,_but of 
 the acceptor, as the drawer might sue the acceptor he is entitled to 
 notice (g). Where a bill was drawn for the accommodation of an 
 indorsee, and neither such indorsee nor the drawer had any effects 
 in the hands of the acceptor, it was held that a subsequent in- 
 dorsee, in order to recover against the drawer, was bound to give 
 him notice ; for the drawer had a remedy over against his imme- 
 diate indorsee (r). Formerly it was held that the circumstance of 
 the indorser having effects in the hands of the acceptor would not 
 entitle the drawer to notice, if the drawer has not any effects in 
 the hands of the acceptor. A notice of dishonour is not required 
 in the ca.se of a promissory note indorsed by defendant, but not 
 made payable to order, the note having been dishonoured by the 
 maker (s). 
 
 From the circumstance of part payment of a bill without any 
 objection to the want of notice or a promise to pay the amount 
 thereof, a jury may be directed to presume that notice was regu- 
 larly given (t), or that it has been waived (u). 
 
 Protest. — In addition to notice of dishonour, it is necessary for 
 the holder, in the case of a foreign bill, to protest it for non-pay- 
 ment : but where there has been a promise of payment, after the 
 bill became due, such promise supersedes the necessity of proving 
 protest (x). It is not necessary in the case of a promissory note (y). 
 Where the drawer of a foreign bill of exchange, at the time of the 
 drawing, was in a foreign country, but returned home before it 
 became due, at which time it was dishonoured and protested, but 
 notice of the dishonour only, and not of the protest, was left at 
 the drawer's house ; it was held, that this was sufficient (z). And 
 
 (o) FlHh V. Thi-ush, 8 B. & C. 387 ; (t) Horford v. Wilson, 1 Taunt. 12 ; 
 
 Allenv. Bdmundson, 17 L. J., Exch. 29i. fficks v. Duke of Beaufort, 4 B. N. C. 
 
 (p) See ante, p. 288. 229 ; and see Bromwll v. Bonney, 1 Q. B. 
 
 (q) Cory v. Scott, 3 B. & Aid. 619 ; 39. 
 SUigh V. Sleigh, 19 L. J., Exch. 346 ; (u) Cordery v. Colmn, 14 C. B. (N. S.) 
 
 5 Exch. E. 514. 374 ; 32 L. J., C. P. 210. 
 
 (r) Cory v. Scott, supra (overruling {x) Gibbon v. Coggan, 2 Campb. 188. 
 
 Walim/n v. St. Quintin, 1 B. & P. 652) ; (y) Bonar v. Mitchell, 5 Exch. E. 416 ; 
 
 Norton V. PicUring, 8 B. & C. 610. 19 L. J., Exch. 302. 
 
 (s) PlimUy v. Westley, 2 ,B. K C. 249. {z) HoUns v. Gibson, 1 M. & S. 288. 
 
BILLS OF EXCHANGE. 309 
 
 it has since been decided that in all cases it is sufficient to inform 
 the drawer that the bill has been protested for non-payment, with- 
 out sending him a copy of the protest (a). It appears from a pas- 
 sage, extracted from the case of Tassell v. Lewis, Lord Raym. 743, 
 that this protest ought to be made on the last day of grace. This 
 strictness, however, is not observed in practice. The modern usage 
 is for the notary to make a minute on the bill, consisting of his 
 initial, the day, month and year when payment was refused, and 
 charges for making the minute. This minute, which is called 
 noting, is unknown in the law as distinguished from the protest. 
 The notary, having made his minute, draws up the protest at his 
 leisure. In BuUer's Nisi Prius, p. 272, it is said " That the use of 
 noting is, that it should be done*the very day of refusal, and the 
 protest may be drawn any day after by the notary, and be dated 
 on the day the noting was made." The practice certainly is as 
 here stated ; but in Chaters v. Bell, 4 Esp. N. P. C. 48, a question 
 was raised, whether the protest ought not to be drawn on the day 
 on which the bill is dishonoured ; and it was contended, that the 
 mere noting the bill on that day, and drawing the protest on a 
 subsequent day, was insufficient. Lord Kenyan was of opinion 
 that it was sufficient (h) ; and a new trial having been granted. 
 Lord Ellenhorough agreed in opinion with Lord Kenyan. A case 
 was then reserved for the opinion of the court ; and after argu- 
 ment, the court, conceiving the question to be of great importance, 
 directed it to be turned into a special verdict. But the sum in 
 dispute being very small, and the parties unwilling to incur the 
 expense of a special verdict, the recommendation of the court was 
 not attended to, and the case was not mentioned again. 
 
 The protest must be stamped (c). The protest for non-payment 
 on inland bills of exchange is regulated by the statute 9 & 10 Will. 
 HI. c. 17 ; and for non-acceptance, by the 3 & 4 Anne, c. 9. At 
 common law a protest was not required on such bills ; and as the 
 statutes are not obligatory (cZ), and the power of protesting given 
 by them is attended with very few advantages, it is not very 
 frequently exercised. 
 
 Doubts having arisen as to the place in which it is requisite to 
 protest for non-payment of bills of exchange, which on the present- 
 ment for acceptance to the drawees may not have been accepted, 
 such bills being made payable at a place other than the place 
 mentioned therein to be the residence of the drawees, it was for 
 the removal of such doubts enacted, by stat. 2 & 3 Will. IV. c. 98, 
 that all bills of exchange wherein the drawers shall have expressed 
 that such bills are to be payable in any place other than the place 
 by them therein mentioned to be the residence of the drawees, and 
 which shall not on the presentment for acceptance thereof be ac- 
 
 (a) Goodman Y. Earmy, 4 A. & E. 870. (c) 55 Geo. III. c. 184, Sched. Protest. 
 
 (b) Ace. GeralopidoY. WieUr, IOC. B. (d) Windle v. Andrcm, 2 B. & Md. 
 690; 20 L. J., C. P. 105. 696, 
 
310 BILLS OF EXCHANGE. 
 
 cepted, shall or may be, without further presentment to the drawees, 
 protested for non-payment in the place in which such bills shall 
 have been by the drawers expressed to be payable, unless the 
 amount owing upon such bills shall have been paid to the holders 
 on the day on which such bills would have become payable had 
 the same been duly accepted. 
 
 Bills of exchange had been occasionally accepted supra protest 
 for honour, or had a reference thereon in case of need ; doubts 
 having arisen as to the day on which it was requisite to present for 
 pajonent such bills to the acceptors for honour, or referees, by 
 Stat. 6 & 7 Will. IV. c. 58, s. 1, it was declared and enacted, that it 
 shall not be necessary to present such -bills to such acceptors for 
 honour, or to such referees, until the day following the day on 
 which such bills shall become due ; and if the place of address on 
 such bill, or such acceptance for honour, or such referee, shall be in 
 any city, town, or place, other than in the city, &c., where such bill 
 shall be therein made payable, then it shall not be necessary to 
 forward such bill for payment until the day following the day on 
 which such bill shall become due ; and by sect. 2, if the day fol- 
 lowing the day on which such bill shall become due shall be 
 Sunday, Good Friday, or a fast or thanksgiving, then the day 
 following such Sunday, &c., will be sufficient. 
 
 Non-payment of Checks. — The holder of a check is not bound 
 to give notice of its dishonour to the drawer, for the purpose of 
 charging the person from whom he received it. It is sufficient, if 
 he presents it with due diligence to the bankers on whom it is 
 drawn, and gives due notice of its dishonour to those against whom 
 he seeks his remedy. If a banker in London receives a check, by 
 the general post, one day, and presents it for payment the next 
 day, he will be considered as having used due diligence (e). "The 
 result of the cases, from Rickford v. Ridge, to Boddmgton v. 
 Schlencker {/), is, that the party receiving a check has till the 
 following day to present it, where there are the ordinary means of 
 doing so " (g). " The presentment should not be delayed beyond 
 the next day " Qi). 
 
 Where a check drawn by a customer on a banker, for a sum of 
 money described in the body of the check in words and figures, 
 was afterwards altered by the holder, who substituted a larger sum 
 for that mentioned, but in such a manner that no person in the 
 ordinary course of business could observe it, and the banker paid 
 to the holder this larger sum ; it was held, that the banker could 
 not charge the customer for anything beyond the sum for which 
 the check was originally, drawn (i). A customer of a banker de- 
 livered to his wife certain printed checks signed by himself, but 
 
 (e) Bichford v. Ridge, 2 Campb. 537. Brown, i B. N. C. 268. 
 
 (/) 4 B. & Ad. 752, cmte, p. 305. (h) Per Park, J., S. C. 
 
 (g) Per Tiirdal, C. J,, in MouU v. [i) Hall v. PulUr, 5 B. & C. 750. 
 
BILLS OF EXCHANGE. 311 
 
 with blanks for the sums, requesting his wife to fill the blanks up 
 according to the exigency of his business ; and she caused one to 
 be filled up with the words, fifty pounds, two shillings, the fifty 
 being commBnced with a small letter and placed in the middle of 
 the line and the figures, 50Z. 2s., being placed at a considerable 
 distance from the printed £. In this state the wife delivered the 
 check to her husband's clerk to receive the amount ; instead of 
 which he inserted at the beginning of the Hne in which the word 
 fifty was written, the words three hundred and, and the figure 3 
 between the £ and the oOl. The bankers having paid the 350^. 2s. ; 
 it was held, that the loss must fall on the customer ; for it was the 
 fault of the customer, who ought to have selected for the care of 
 such a check a person conversaat with business as well as trust- 
 worthy, who would have guarded against fraud in the mode of 
 filling up the check (/c) It was formerly held that a post dated 
 check was absolutely void, and could not be received in evidence 
 for any purpose (1) ; but now a check intentionally post dated is 
 held to have the legal effect of a bill of exchange at so many days 
 date (m). 
 
 Grossed Checks. — The effect of crossing a check at common law 
 was to direct the bankers, the drawees, to pay the check to some 
 banker. The crossing did not constitute a part of the check, but the 
 holder might erase the name of the banker and substitute that of 
 another banker. If a banker paid a crossed check otherwise than 
 through a banker, it was strong evidence of negligence on his part so 
 as to make him responsible to his customer (%). But the 19 & 20 Vict. 
 c. 25, s. 1, enacts, that " in every case where a draft on any banker 
 made payable to bearer, or to order on demand, hears across its 
 face an addition in written or stamped letters, of the name of any 
 banker, or of the words ' and Company,' in full or abbreviated, 
 either of such additions shall have the force of a direction to the 
 bankers upon whom such draft is made, that the same is to be 
 paid only to or through some banker, and the same shall be payable 
 only to or through some banker." 
 
 In a case upon this statute in which a cross check which had 
 been lost had the crossing afterwards erased, and the bankers paid 
 it therefore to the person who presented it for payment, — the jury 
 having found that neither the customer nor the bankers were 
 guilty of negligence, the Court of Common Pleas held that the 
 crossing was no part of the check, and that the loss must fall upon 
 the customer (o). 
 
 After this decision, the 21 & 22 Vict. c. 79, was passed, by the 
 
 (k) YovAig V. Orote, 4 Bingh. 253. Bellamy v. Marjoribanks, 7 Ex. 389 ; 
 
 (i) SerU V. Norton, 9 M. & "W. 309. Gmlon v. Irdand, 25 L. J., Q. B. 113. 
 
 (to) ForsUry. Mackreth, 36 L. J., Ex. (o) Simmonds y. Taylor, 27 L. J., C. 
 
 94 ; and see cases there quoted. P. 248 ; 4 C. B. (N. S.) 463, 
 (n) Stewart v. lee, 1 M, & M. 158 ; 
 
313 BILLS OF EXCHANGE. 
 
 first section of which it is enacted that " when a check, &c., shall 
 be issued crossed," the crossing shall be deemed a material part of 
 a check or draft. .By the second section the lawful holder of a 
 check, &c., uncrossed or crossed "and company," may cross the 
 same with the name of a banker, which crossing becomes a mate- 
 rial part of the check. By the fourth section, a banker is not to 
 be responsible for paying a check, &c., which does not plainly 
 appear to have been crossed or altered, unless he shall act maid 
 iides, or be guilty of negligence. 
 
 The law, therefore, of crossed checks, is now as follows: The 
 drawer may cross a check with the name of a banker, or with the 
 words, " and Co.," which crossing forms a material part of the 
 check, and cannot be altered, except that in the latter case a lawful 
 holder may fill up the name of a banker. When the first form of 
 crossing is used, the banker must pay through the particular 
 banker named by the drawer. When the second, the banker must 
 pay through a banker who may be named by a lawful holder. 
 When a check is drawn uncrossed, a lawful 'holder may cross it 
 with a particular banker's name, which crossing then becomes a 
 material and unalterable part of the bill. A banker is protected 
 when he pays an altered check hoTid fide and without negligence. 
 
 VII. Of the Acts of the Holder whereby the Parties to the Bill 
 may he discharged. 
 
 If the holder enter into a composition with the acceptor, he 
 thereby discharges the other parties to the bill unless he has pre- 
 viously obtained their assent, or unless remedies against them are 
 reserved (p). So if the indorsee receive part payment from the 
 acceptor, and take from him a security for the remainder, with the 
 exception of a nominal sum, the indorser is discharged (g). Keceipt 
 of part of the money from an acceptor will not discharge the drawer, 
 if timely notice be given that the bill is not duly paid. Bull. N. P. 
 271. Although there are some cases to the contrary (r), the better 
 opinion would seem to be that, notwithstanding the receipt of part 
 from the indorser, the holder may recover the whole amount of the bill 
 from the drawer,'the holder then becoming trustee for th^ drawer as 
 to such part (s). Where the holder, after receiving part payment 
 from the acceptor, agreed to take a new acceptance from him for the 
 remainder, payable at. a future date, and that in the mean time the 
 holder should keep the original bill in his hands as a security; it was 
 held, that such agreement amounted to giving time and a new credit 
 to the acceptor, and discharged the indorser, who was not a party 
 
 ip) Ex parte Smith, Co. B. L. 5th edit. (r) BaamY. Searles, 1 H. Bl. 88. See 
 
 pp. 168, 169 ;-3 Bro. Ch. C. 1 ; KearsUy Purssord v. Pule, 9 M. & W. 196 
 
 V. Cole, 16 M. &W. 128. Seei?i/mp.315. (s) Jofmson v. Kennion, 2 Wils. 262 ; 
 
 (q) English v. Dwrley, 2 B. & P. 61. Walivyn v. St. Quintin, 1 B. & P. 652 ; 
 
 See the opinion of Eldon, C. J. and see Jones y. Broadhurst, 9 C. B. 173. 
 
BILLS OF EXCHANGE. 313 
 
 to such agreement (f). And it has been held, that in such a case the 
 holder cannot sue till the second bill has become due (u). 
 
 But a mere forbearance to sue the acceptor after protest for non- 
 payment, and notice, or what is equi^valent to notice, thereof to the 
 drawer, will not discharge the drawer (x). If the executor of the 
 acceptor verbally promise to pay the holder out of his own estate, 
 provided the holder forbear to sue, and he forbears accordingly, the 
 drawer is not thereby discharged, inasmuch as the promise of the 
 executor, not being in writing, is void by the Statute of Frauds, 
 and, consequently, the holder does not derive from such promise 
 any better security than the bill had given him {y). 
 
 A bill of exchange having been dishonoured, the acceptor trans- 
 mitted a new bill for a larger amount to the payee, but had not 
 any communication with him respecting the first. The payee dis- 
 counted the second bill with the holder of the first, which he re- 
 ceived back as part of the amount, and afterwards, for a valuable 
 consideration, indorsed it to plaintiff : it was held, that the second 
 bill was merely a collateral security, and that the receipt of it by 
 the payee did not amount to giving time to the acceptor of the first 
 bill so as to exonerate the drawer (z). The cases Ex parte Smith, 
 and English v. Barley, seem to have proceeded on a principle of 
 law resulting from the relation in which the acceptor of a bill of 
 exchange may be considered as standing with respect to the other 
 parties. Although by his acceptance he only undertakes to pay 
 the debt of another, viz., of the drawer, yet he is primarily liable ; 
 for it is incumbent on the holder of the bill to resort to him in the 
 first instance. Under this view, although his engagement is really 
 only a collateral engagement, yet he may in this respect be con- 
 sidered as the principal debtor, and the remaining parties as sure- 
 ties only. Now, in the case of simple contracts, if a creditor give 
 time to the principal debtor, the collateral sureties are discharged 
 both in law and equity (a). The acceptor is considered the principal 
 debtor, even in the case of a bill drawn for the accommodation of 
 the drawer. Where, therefore, the holder of a bill of exchange, 
 accepted for the accommodation of the drawer, took a cognovit from 
 the drawer for payment by instalments, it was held, that he did not 
 thereby discharge the acceptor (&). 
 
 H. accepted a bill for the accommodation of B., the drawer, who 
 indorsed it over as a security for a debt, and afterwards became 
 bankrupt. The indorsee entered into an agreement with the as- 
 
 (t) Gould V. Jlobson, 8 East, 576. C. B. 201 ; 26 L. J., C. P. 201 ; per Wil- 
 
 (m) Kendrkh v. Lomax, 2 Tynv. 447. limns, J., Rees v. Berrington, 2 W. & 
 
 {x) 2nd Resolution in Walwyn v. .Si!. Tudor, L. C. 814. 
 
 , 1 B. & P. 652. (6) Pentum v. FococJc, 5 Taunt. 192 ; 
 
 («/) Philpot v. Briant, 4 Bingh. 717 ; Nichols v. Norris, 3 B. & Ad. 41, n. See 
 
 1 M. & P. 754. also Woodhov^e v. Farelrother, 23 L. J., 
 
 (z) Pring Y.' Clarkson, 1 B. & C. 14. Q. B. 22. As to the rule in equity, see 
 
 (a) Pooley v. Ifarradine, 7 E. & B. 431 ; Sollier v. Eyre, 9 CI. & F. 45 ; Strong v. 
 
 26 L. J., Q. B. 156 ; Strong v. Foster, 17 Foster, 17 C. B. 201. 
 
814 BILLS OF EXCHANGE. 
 
 signees for purchasing part of the bankrupt's property, and for the 
 arrangement of some claims, which he, the indorsee, had upon the 
 estate, and he afterwards gave them a release of all demands, no 
 mention being made of the bill which had been dishonoured. He 
 knew at the time of the agreement, but not when he took the bill, 
 that it was accepted for accommodation. It was held, that the 
 acceptor was liable (c). One of the makers of a joint promissory- 
 note may show that he was a mere surety for the other party, 
 and so known to the payee, and that the payee had taken a com- 
 position from the principal debtor, without his (the surety's) 
 consent (d). 
 
 The doctrine laid down in Exp. Smith, and English v. Dafley, 
 must be confined to those cases in which the agreement between 
 the holder and acceptor is made without the consent of the other 
 parties to the bill, for otherwise they will not be discharged. This 
 appears from the case of Clark and others, Executors of Moles v. 
 Devlin (e), in which it was adjudged that the drawer of a bill who 
 had assented to the holder's taking a security from the acceptor, 
 was, notwithstanding such security, liable to an action at the suit 
 of the bolder. The holder of a bill, on its becoming due, allowed 
 the acceptor to renew it without consulting the indorser ; but the 
 indorser afterwards meeting the acceptor, told him that it was the 
 best thing that could be done ; it was held, that this was not a 
 recognition of the terms granted by the holder to the acceptor, 
 and that the indorser was discharged (/). The holder may sue a 
 'prior indorser, although he has taken in execution a subsequent 
 indorser, and afterwards let him go at large on a letter of licence, 
 without having paid the debt {g). In a case where au action was 
 brought by several partners, as indorsees of a promissory note 
 against the defendant as indorser, and it appeared in evidence, that 
 one of the partners had discharged a prior indorser, by a deed of 
 composition ; it was held, that such deed operated as a release to , 
 the defendant. " If a holder enter into an agreement mth a prior 
 indorser in the morning, not to sue him for a certain period of time, 
 and then oblige a subsequent indorser in the evening to pay the 
 debt, the latter must immediately resort to the very person for 
 payment to whom the holder has pledged his faith that he shall 
 not be sued. In the case Exp. Smith, Lord Thurlow, after con- 
 sulting with all the judges, was of opinion, that the holder of a 
 bill, by entering into a composition with the acceptor, discharged 
 the indorser, and accordingly ordered the proof against the estate 
 of the latter to be expunged, proceeding on the ground of the 
 
 (c) Barrison v. Cowrtauld, 3 B. & Ad. Campb. 179. 
 
 36. See PooUy v. Swrradine, 7 E. & B. (g) Hayling v. Mullhall, 2 Bl. R. 1235, 
 
 431 ; 26 L. J., Q. B. 156. the marginal note of which is incorrect ; 
 
 (d) Ball V. Wikox, 1 M. & Eob. 58. Ellison, v. 7)««6?Z, Bristol Sum. Ass. 1811, 
 
 (e) 3 Boa. & Pul. 363. MS, 
 (/) V^itlMll V. MaaUrman & Co., 2 
 
BILLS OF EXCHANGE. 315 
 
 acceptor's liability being varied by the act of the holder. " We all 
 remember the case where Mr. Eichard Burke, being security for 
 an annuity, the grantee gave time to the principal, and yet argued 
 that Mr. Burke was not relieved thereby, though the principal was ; 
 but it was answered that the grantee could make no demand upon 
 the surety, because he must, by so doing, enforce- a pajrment from 
 the principal contrary to the agreement." Per Lord Eldon, 
 C. J. Qi). In the foregoing cases, the act done by the creditor is 
 his own act, over which the surety has not any control ; and the 
 injury which the surety would receive, is one which he has not any 
 mode of preventing. But a surety for a bankrupt is not dis- 
 charged by the creditor's signing the bankrupt's certificate, even 
 after notice from the surety not to»do so. " It is the duty of the 
 surety to pay the debt : and if he decliues so doing, and thereby 
 permits the creditor to prove, the signing the certificate, of con- 
 formity, which is a power given to the proving creditor, cannot be 
 considered as an act done by the' creditor, which altered the 
 surety's right without his control, and scarcely, indeed, without his 
 consent." Per Tindal, C. J. {i). But where the indorsee of a 
 note made by the defendant for the accommodation of the payee 
 and indorser covenanted not to sue the payee and indorser, it was 
 held, that the defendant could not avail himself of this covenant, 
 in an action brought against him by the indorsee, although the 
 defendant, by the verdict against him in this action, would have a 
 right to recover over against the payee and indorser (fc). 
 
 Giving time to the principal debtor will not discharge the surety, 
 if there be an agreement between the principal debtor and the 
 creditor that it shall not have that effect, although the surety him- 
 self be no party to the stipulation. " The reason," said Patteson, 
 J., " why a release to one debtor releases all jointly liable, is, because 
 unless it was held to do so, the co-debtor, after paying the debt, 
 might sue him who was released for contribution, and so in effect 
 he would not be released : but that reason does not apply where the 
 debtor released agrees to such a qualification of the release as will 
 leave him liable to any rights of the co-debtor " (I). The reserve 
 of remedies prevents the discharge of a surety, because the rights 
 of the surety against the principal debtor are not impaired thereby, 
 the consent of the debtor that the creditor shall have recourse 
 against the surety being impliedly a consent that the surety shall 
 have recourse against him (m). 
 
 (h) English v. Darky, 2 Bos. & Pul. (I) North v. Wakefield, 13 Q. B. 258 ; 
 
 62. See also £anh of Ireland v. Beres- and see Owen v. Horman, 4 H. L. Cas. 
 
 ford and another, 6 Dow. 234. 997, an* Kearsley v. Cole, 16 M. & "W". 
 
 (i) Delivering judgment. Browjie v. 128. See, however, cases in note (a) p. 
 
 Oarr, 7 Bing. 508. 313. 
 
 (k) MalUtt V. Thompson, 6 Esp. N. P. (ot) Per Parhe, B., Kearsley v. OoU, 
 
 C. 178. 
 
316 BILLS OF EXCHANGE. 
 
 VIII. Of the Action on a Bill of Exchange : — 
 
 Declaration, p. 316. 
 Fleas, p. 319, 
 
 Fleas, p. 319. 
 
 Evidence, p. 321. 
 
 Recovery of Interest, p. 325. 
 
 A bill of exchange being a simple contract, the form of action 
 ■which, previously to the Common Law Procedure Act, was usually 
 adopted for the recovery of the sum of money mentioned in the 
 bill in case of non-acceptance or non-payment was a special 
 assumpsit. The action of debt only lay when there was a privity 
 of contract between the parties. But now, by the Common Law 
 Procedure Act, the distinction between forms of action is sub- 
 stantially abolished (to). 
 
 Declaration. — The bill of exchange should be described either 
 by setting it out or by stating its legal effect. 
 
 Formerly the declaration extended to a great length ; but under, 
 the pleading rules, T. T. 1 Will. IV. (o), concise forms are given on 
 notes and inland bills, according to the principle of which, decla- • 
 rations on foreign bills maybe drawn with the necessary variations. 
 See these forms ; but it must be remembered that these rules were 
 made before the Uniformity of Process Act, 2 Will. IV. c. 39 ; and 
 the forms given by them, which were correct in actions by bill 
 (because then the declaration was the commencement of the suit), 
 are so no longer {f), the suing out the writ being now the com- 
 
 (n) By Stat. 18 & 19 Vict. c. 67, which curity or otherwise as to the judge may 
 
 was passed with the ohjeot of putting a seem meet. And sect. 3 enacts, that 
 
 stop to frivolous or vexatious defences to ' ' after judgm.ent the court or a judge may 
 
 actions on bills of exchange and proinis- under special circumstances set aside the 
 
 sory notes, aU actions upon bills of ex- judgment, and, if necessary, stay or set 
 
 change or promissory notes commenced aside execution, and may give leave to 
 
 withm SIX months after the same shall appear to the writ and to defend the action, 
 
 have become payable, may be by writ of if it shall appear to be reasonable to the 
 
 summons m the form given by the act ; court or judge so to do, and on such terms 
 
 and the plaintiff, on hling affidavit of as to the court or judge may seem iust." 
 
 personal service, may at once sign final See Hall v. Goates, 25 L. J., Exch. 3 ; 
 
 judgment as m the form likewise given. Robinson v. Cotterell 25 L J Exch 4 ■ 
 
 It IS enacted however, by sect. 2, that a and Keg. Gen. Nov. 26, 1855. ' ' As to' the 
 
 judge _ shall upon application within power of amendment where proceedings 
 
 the penod of twelve days from such ser- have been wrongly taken under this act, 
 
 vice, give leave to appear to such writ, see Leigh v. Baker, 26 L. J., C. P. 220. 
 
 andto defend the action, on the defendant See Reg. Gen. M T 1855- 17 C B 1 • 
 
 pajung into court the sum indorsed on the 25 L. J. c. vi. Rule H T 1868'- 3 c' 
 
 writ, or upon affidavits, satisfactory to the B. (N. S.) 620 ' ' ' ' 
 
 j-udge, which disclose a legal or equitable (o) 2 B. & Ad. 783 ; 7 Bingh 774 : 6 
 
 defence, or such facts as would make it M. & P. 813 • 1 Or & J 468 • 1 Tvrw 
 
 incumbent on the holder to prove con- 520. ' ■ • > J" • 
 
 sideration, or such other facts as the {p) Per PwrU, B„ in Ahbott v. AsleU, 
 
 judge may deem sufficient to support the 1 M. & W. 209. 
 application, and on such terms as to se- 
 
BILLS OF EXCHANGE. 317 
 
 mencement of the suit. The days of grace need not be noticed (g). 
 The frequent nonsuits, which used to occur on the ground of 
 variances between the instrument as set forth in the declaration, 
 and that produced in evidence, were greatly obviated by the stat. 
 9 Geo. IV. c. 15, and the stat. 3 & 4 Will. IV. c. 42, s. 23 : and 
 now, by the statutes 15 & 16 Vict. c. 76, s. 222, and 17 & 18 Vict. 
 c. 125, s. 96, power is given to make all amendments which may 
 be necessary for the purpose of determining in the existing suit 
 the real question in controversy between the parties (r). Concise 
 forms for declaration upon Bills of Exchange are given by Common 
 Law Procedure Act, 1852, schedule B. 17. Where the declaration 
 was on a promissory note for 250^ made by the defendant, dated the 
 9th of November, 1838, payable t<? plaintiff or order on demand: 
 plea, that defendant did not make the note ; and the proof was of 
 a joint and several promissory note for 250?., made by defendant 
 and his wife, dated the 6th of November, 1837, payable 12 months 
 after date, and no proof was given of any other note between the 
 parties ; this was considered to be a variance properly amended at 
 N. P. under 3 & 4 Will. IV. c. 42, s. 23 (s). The words " now over- 
 due " in the form of declarations on bills of exchange given by Com- 
 mon Law Procedure Act, 1852, are part of the description of the bill, 
 and are put in issue by the plea of non-acceptavit. The plaintiff 
 is bound on such an issue to produce at the time a bill overdue at 
 the time of action brought (it). Where the acceptance was written 
 before the bill was drawn, the declaration described the transaction 
 in the usual order of time, viz., the drawing first, and then the 
 acceptance ; this was held not to be a variance (u). And so with 
 respect to an indorsement, whether made before {x) bill drawn or 
 after (y) bill became due. 
 
 By stat. 1 & 2 Geo. IV. c. 78, s. 1, if any person shall accept a 
 bill payable at the house of a banker, or other place, Avithout fur- 
 ther expression in his acceptance, such acceptance shall be deemed, 
 to all intents and purposes, a general acceptance of such bill, and 
 such a bill may, in an action upon it, he declared upon as made 
 payable at that place ; although, under this statute, such an ac- 
 ceptance amounts to a general acceptance (0). But if the acceptor 
 shall, in his acceptance, express that he accepts the bill payable at 
 a banker's house or other place only, and not othenuise or else- 
 where, such acceptance shall be deemed to he, to all intents and 
 purposes, a qualified acceptance, and the acceptor shall not be 
 liable to pay the said bill, except in default of payment, when such 
 payment shall have been duly demanded at such banker's house or 
 
 (?) Padwick v. Turner, 11 Q. B. 124. M. & P. 275. 
 
 (r) See Leigh v. Baker, 26 L. J., C. P. (k) Rn^sel v. Langsiaffe, Doug. 514. 
 
 220 (y) Young v. Wright, 1 Campb. 139. 
 
 (s) Secketi v. Sutton, 7 M. & "W. 157. (z) Blake v. Beaumont, 4 M. & Gr. 7 ; 
 
 (t) Hiritm V. Duff, 31 L. J., C. P. 199. S. G. Blake v. Bowman, 5 Scott's N. E. 
 
 {u) MolUy V. Delves, 7 Bingh. 428 ; 5 617. 
 
318 BILLS OF EXCHANGE. 
 
 other place. Since this statute it has been adjudged, that the 
 holder of a bill accepted, payable at a banker's, but omitting the 
 words " there only," is not bound to present it at the banker's, and 
 consequently is not guilty of laches, if he omits to do so ; and may 
 still recover against the acceptor, in the event of the banker's 
 failure, although a considerable time, e.g. three weeks, have 
 elapsed since the bill became due, during all which time the 
 acceptor had funds in the banker's hands, exceeding the amount 
 of the bill (a). In such case no averment or proof of presentment 
 for payment at the place mentioned is necessary (&). But in an 
 action against the drawer of a bill (payable at a particular place, 
 where the drawee accepts it as payable at that place), on the ground 
 of non-payment by the acceptor, it is necessary to prove a present- 
 ment to the acceptor at that place ; for the statute neither in- 
 tended to alter, nor has it altered, the liability of drawers; but is 
 confined in its operation to acceptors only (c). 
 
 A conditional acceptance cannot be declared on as an absolute 
 acceptance, even after condition performed (d). In action on a bUl 
 against an acceptor for the honour of the drawer, it must be 
 alleged, that when the bill arrived at maturity, it was presented to 
 the drawee for payment. And this rule holds whether the bill be 
 a bill payable after date (e) or after sight (/). Where a bill has 
 been accepted by the drawee, if another person accepts it also for 
 the purpose of guaranteeing the first acceptor, the second accept- 
 ance is merely a collateral undertaking, and must be declared on 
 as such ; for there is not any custom of merchants authorizing a 
 series of acceptors (g). 
 
 Facts dispensing with presentment or notice must be specially 
 averred in the declaration. "I always thought that if present- 
 ment or notice was to be excused on the ground of want of 
 effects, &c., that fact ought to be stated in the declaration." Per 
 Farhe, B. Qi). 
 
 Where it was averred that the defendants accepted the bill, and 
 the acceptance was by an agent thus, " for Heseltine and Co., John 
 Wilson:" Lord Mlenborough was of opinion, that the evidence 
 supported the declaration : observing, that if the defendants 
 accepted the bill by an agent, in contemplation of law they 
 accepted it themselves : and it was a general rule in pleading, that 
 facts might be stated according to their legal effect (i). 
 
 When the action is brought between the immediate parties to 
 
 (o) Turner v. Smjden, 4 B. & C. 1. (/) WiUiams v. Germaine, 7 B. & C. 
 
 (6) Selby Y.Eden, SBingh. 611 ; Fayle 468. 
 
 V. Bird, 6 B. &C. 531 ; Halsiead v. SM- (g) Jackson v. Hudson, 2 Campb. 447. 
 
 ton, 5 Q. B. 92. (A; Burgh v. Legge, 5 M. & W. 421 j 
 
 (e) Oibb V. Mather, 8 Bingh. 214. See and see Carter v. Mower, 16 M. & "W. 
 
 " " V. Harlcness, 3 C. B. 168. 743 ; 16 L. J., Exoh. 199. 
 
 (d) Zamgston v. Carney, 4 Campti. 176. (r) jffeys v, ffezeltine, 2.Cainpb. 604. 
 
 (e) Hoare v. Caxenove, 16 East, 391. 
 
BILLS OF EXCHANGE. 319 
 
 the bill, it is usual to subjoin such counts as will embrace the con- 
 sideration for which the bill has been given : for as the bill does 
 not merge the original demand, if the plaintiff fail in substanti- 
 ating in evidence the special count, he may resort to evidence on 
 the common counts. TJnder the new rules, counts upon a bill or 
 note, and for the consideration in goods, money, or otherwise, are 
 considered as founded on distinct subject-matters of complaint. 
 Where a promissory note had been given for money lent, which 
 when produced in court was unstamped, Lord Kenyan, C. J., per- 
 mitted the plaintiff to recover on a common count for money lent, 
 by proving that when the money for which the note had been 
 given was demanded of the defendant, he acknowledged the 
 debt (]c). Where a declaration fii assumpsit contained three 
 counts ; the. first two on promissory notes for 50Z. each, and the 
 third for lOOZ. on an account stated, and the particulars of demand 
 stated, "This action is brought to recover the sum of 50Z., being 
 the amount of the promissory note in the first count of the decla- 
 ration mentioned, and also the further sum of 60Z., the amount of 
 the promissory note in the second count mentioned ; " and then 
 stated that the plaintiff would avail himself of the whole or any 
 part of the declaration : and no evidence of the notes was given at 
 the trial, but a conversation with the defendant was proved, in 
 which he acknowledged he owed the plaintiff 100?. : it was held, 
 that the particulars were insufficient to enable the plaintiff to 
 recover ; and that in order to do so, he was bound to prove an 
 admission, or an account stated with reference to the promissory 
 notes (I). If the plaintiff's particular' conveys the requisite infor- 
 mation to the defendant, however inaccurately it may be drawn 
 up, it is sufficient, unless the defendant will undertake to swear 
 that he has been misled by the inaccuracy (m). And although 
 the general rule is, that the plaintiff who has delivered an im- 
 perfect particular, shall be restricted in his evidence, and not 
 permitted to recover anything ultra the contents of such particu- 
 lar, yet if the defendant, in attempting to defeat the restricted 
 claim of the plaintiff, gives him a better case than he w:as at 
 liberty to make for himself, he will be entitled to a verdict for all 
 that is proved due to him ; what he could not have insisted on as 
 a right, he may receive as a boon (to). 
 
 Pleas. — In all actions upon bills of exchange and promissory 
 notes, the plea of " non-assumpsit " and " never indebted " is inad- 
 missible. In such actions, therefore, a plea in denial must traverse 
 some matter of fact ; ex. gr. the drawing, or making, or indorsing, 
 
 (ii;) Tyte v. Jmies, 1 East's E. 58, n. (a) ; (m) Day v. Bower, ElUnhorougli, C. J., 
 
 mUm V. Kevmedy, 1 Esp. N. P. C. 245, 1 Campb. 69, n. 
 
 S. P. (n) JSurst v. Watkis, ElUnlorougli, C. 
 
 a) Rolerts v. Elsworth, 10 M. & W. J., 1 Campb. 68. 
 653. 
 
320 BILLS OF EXCHANGE. 
 
 or accepting, or presenting, or notice of dishonour, of the bill or 
 note (o). TJnder the rule of H. Term 4 Will. IV., it has been 
 held, that the rule is confined to cases where the action is only 
 on the note, and on the promise contained in or implied by law 
 from it (p). Hence where an executor declared on a note payable 
 to his testator, laying a promise to pay him, the executor, after the 
 death of the testator ; it was held, that such promise might be 
 denied by a plea of non-assumpsit (g). 
 
 All matters of confession and avoidance, including not only those 
 by way of discharge, but those which show the transaction to be 
 either void or voidable, on the ground of fraud or otherwise, must 
 be specially pleaded, ex. gr. illegality of consideration, either by 
 statute or common law, drawing, indorsing, accepting, &c., bills or 
 notes, by way of accommodation, &c. (r). A plea simply, that no 
 consideration was given for the bill or note, although good after 
 verdict (s), was formerly bad on special demurrer. The proper 
 course is to set out the facts showing absence of consider3,tion, 
 with a denial that there was any other consideration (t) ; and 
 a traverse of these facts, without a traverse of the last averment, 
 is sufficient (u). If, however, upon a plea, that no consideration 
 was given, the replication be, that there was, the onus lies 
 on the defendant to prove that there was not any considera- 
 tion (x). To a declaration by indorsee against acceptor, the 
 defendant cannot plead that the bill was accepted by him with- 
 out consideration {y) from the drawer ; for such is not incon- 
 sistent with plaintiff's legal demand, indorsement pri/md facie 
 importing consideration {z). Assumpsit by the indorsee against 
 the acceptor of a bill. Plea, that the defendant accepted the bill 
 for the accommodation of the drawer, and that the drawer did not 
 give, nor did the defendant receive, any consideration for his ac- 
 cepting or passing the bill ; that the drawer indorsed the bill to 
 the plaintiff without any consideration, and that the plaintiff held 
 the bill without consideration ; it was held, that the onus proljandi 
 lay on the defendant ; that where there is not any fraud, or any 
 suspicion of fraud, but the simple fact is as here, the plaintiff is 
 not called upon to prove that he gave value for the bill (a). To a 
 declaration in assumpsit by indorsee against maker of a promissory 
 note, the defendant pleaded, that the note was indorsed and de- 
 Co) H. T. 16 Vict. 1853, rule 7. (t) Boden v. WHgU, 12 C. B. 445. 
 (p) PerParke,B., ia Timmisy. Piatt, ki) Atkinsm v. Damies, 11 M. & AV. 
 2M. &W. 721. 236. 
 
 (q) Timmis v. Piatt, 2 M. & "W. 720. (x) Lacey v. Forrester, 5 Tyr. 567. See 
 
 See Donaldson v. Thojnpson, 6 M. & W. WMtaker v. Edmunds, 1 A. & E. 638. 
 316 ; recognized in Oridge v. Sherborne, (y) Low v. Ohifimj, 1 B. N. C. 267. 
 
 1 1 M. & W. 374. (2) Reynolds v. Jveiney, 3 D. P. 0. 453. 
 
 (r) H. Term, 16 Vict. 1853, rule 8. {a) Mills v. Barber, 1 M. & "W. 425 ; 
 
 (s) Easton v. Pratchett, 2 C. M. & E, overruling Seath y. Sansom, 2 B. & Ad. 
 542; and see Crofts v. Beale, 11 C. B. 291 
 172. 
 
BILLS OF EXCHANGE. 321 
 
 livered to the plaintiff by his indorser, in violation of good faith, 
 and m fraud and contempt of an order for referring the claim of 
 that indorser to arbitration, and that the plaintiff took the note 
 with full knowledge of the premises. The plaintiff replied, that 
 he had not, when he took the note, any knowledge of the premises 
 in the plea mentioned. Issue thereon. Upon these pleadings, it 
 was held that the defendant was bound to begin at the trial, and 
 to prove the plaintiff's knowledge of the fraud; and that the 
 plaintiff was not bound in the first instance to prove consideration 
 given for the indorsement to him (6). Where, however, the de- 
 fendant pleaded that the note declared on was made on an illegal 
 consideration, and that the plaintiff gave no value, upon these 
 allegations being put in issue by th? plea ; it was held, that it was 
 sufficient for the defendant to prove the illegality, and that being 
 done, the onus was cast upon the plaintiff to prove that he gave 
 consideration (c). So also where the plea alleges fraud ; upon the 
 defendant proving that allegation, the plaintiff is bound to prove 
 that he gave value (d). When a bill has been altered after accept- 
 ance, the defendant may take advantage of it, under a plea that 
 he did not accept the bill declared on (e), but if the plea allege the 
 altera,tion, the defendant has the right to begin (/). And where 
 the bill is written on paper improperly stamped, the consequence 
 is that it cannot be given in evidence ; and this defence is 
 admissible under the plea of non-acceptance (g). 
 
 Evidenee. — The bill need not be prodiiced at the trial unless 
 there be some issue upon the plaintiff which renders its pro- 
 duction necessary (K). Nor can the defendant insist upon its 
 production in support of a plea, unless he has given the plaintiff 
 notice to produce it (i). So the production of the bill may be 
 rendered unnecessary by the defendant having admitted his hand- 
 writing (Jc). The date of a bill of exchange, unless impeached by 
 evidence, is considered as the true date (Z). 
 
 In an action by the indorsee of a bill against the acceptor, it is 
 not necessary for the plaintiff to prove the hand -writing of the 
 drawer, for when a bill is presented for acceptance, the acceptor is 
 supposed to look at the hand-writing of the drawer, and on that 
 account he is precluded from disputing it afterwards, and cannot 
 
 (J) Smith V. Martin, 9 M. & "W. 304. (h) Read v. Gamble, 10 Ad. & Ell. 
 
 But see BingJiamr. Stanley, 2 Q. B. 117. 597 (n.) ; but see Fryer T. Brown, E. & 
 
 (c) Bailey v. Bedwell, 13 M. & W. 73. M. 145, where the declaration contains 
 
 {d) Berry v. Alderman, 14 C. B. 95 ; money counts only. 
 
 23 L. J., d. P. 34. (i) Lane v. Mullins, 2 Q. B. 254; 
 
 (e) Cochy. Coxwell, 2 Cr. M. & R. 291. Davis v. BarJcer, 3 C. B. 606. 
 
 (/) BarJcer V. Malcolm, 7 0. & P. 101. (k). Chaplin v. Levy, 23 L. J., Exch. 
 
 (g) Davison v. Macdonald, 2 M. & W. 117. 
 
 26 ; recognized in Field v. Woods, 7 A. & (I) Anderson v. Weston, 6 B. N. C, 
 
 E. 114. 296. 
 
 VOL. I. T 
 
323 BILLS OF EXCHANGE. 
 
 give in evidence even a forgery of such hand-writing (m). And if 
 in such an action the acceptor dispute the hand-writing of the 
 drawer by plea, the plaintiff may reply the acceptance by way of 
 estoppel in). But the hand-writing of the first indorser, if the in- 
 dorsement be traversed, must be proved, because the acceptor is 
 not supposed to look any further than the hand-writing, of the 
 drawer (o). In an action by indorsee against acceptor, where the 
 defence was, that the acceptance was a forgery; evidence, that a 
 collection of bills, having oti them forgeries of defendant's signa- 
 ture, had been in plaintiff's possession, and that some of such biUs 
 had been circulated by him, was held inadmissible ; distinct proof 
 not having been given, that the bill, on which the action was 
 brought, formed part of the collection ; inasmuch as such evidence 
 would have been inadmissible on an indictment for forgery {p). 
 
 The acceptance of a bill di-awn by procuration, admits the 
 drawer's hand-writing and the procuration (g'). But although the 
 bill be indorsed by the same procuration, the date thereof not 
 appearing, the acceptance does not admit the procuration to in- 
 dorse (r). On proof, first, that J. S. was the confidential clerk of 
 the defendants, and had been introduced by them to their bankers, 
 as one to whom they were to pay the same attention as they 
 would to the defendants themselves : 2nd, that defendants had, in 
 repeated instances, recognised his authority to draw both bills 
 and checks by procuration by them ; last, that on three occasions 
 J. S. had indorsed bills by procuration for them, on one of which 
 occasions the defendants must have known of it ; and in the other 
 two instances, the defendants had received the money raised upon 
 the bills : it was held, that although an authority to draw does not 
 in itself import an authority to indorse, yet the evidence of such 
 authority to draw was not to be withheld from the jury, who were 
 to determine on the whole evidence, whether such authority to 
 indorse existed or not, and from the foregoLug facts they might 
 weU draw the inference that it did (s). 
 
 A bill of exchange was shown to the defendant, whose name ap- 
 pteared on the bill as acceptor, and he was asked whether it was 
 his hand-writing ; he said it was, and that the bill would be duly 
 paid ; Lord Mlenborough, C. J., held, that this accredited the hill, 
 and the plaintiff having been thereby induced to take it, the de- 
 fendant could not set up as a defence that his name, as written on 
 
 (m) Jenys v. Fawler, Str. 946, coram writing of second Indorser being alleged 
 
 Raymond, C. J. Per Butter, J., in 1 T. iu declaration. 
 
 K. 655, S. P. Per Dumpier, J., in £ass (p) Grim v. Payne, 11 A. & E. ISl ; 
 
 T. Clive, 4 M. & S. 13, S. P. 3 P. & D 107. 
 
 in) Samdersonv. Collman, iM. & Gr. (q) Mobinsonv. Yarrow, 7 Taunt. 465. 
 
 209 ; 4 Scott's N. E. 638. (r) & C. ; and see ParU, B.'s, judg- 
 
 (0) &m%th V. CUsUr, 1 T. E. 654 ; ment in Beevian v. Duch, 11 M. & W. 
 
 Cooper v. Lindo, B. E. London Sittings 265. 
 
 after M. T. 52 Geo, III, S. P. as to hand. (s) Prescott v. Plinn, 9 Bingh. 19. 
 
BILLS OF EXCHANGE. 333 
 
 the bill, was a forgery (t). A forged bill was drawn upon the plaia- 
 tiff, which he accepted and paid to an innocent indorsee, who had 
 given a valuable consideration for the bill; on discovering the 
 forgery, the plaintiff brought an action for money had and received, 
 to recover back the money ; it was held, that the action would not 
 lie ; Lord Mansfield, G. J., observing, that it was inculnbent on 
 the plaintiff to have been satisfied as to the drawer's hand-writing 
 before he accepted the bill (w). The defendants took a bill, ac- 
 cepted payable at the plaintiffs', who were the drawee's bankers, 
 and indorsed it to their, the. defendants', agents, to whom the 
 plaintiffs paid it when due, and seven days after sent it as their 
 voucher to the drawee, who apprised them that the acceptance was 
 forged. Held by three Justices fgainst G}i,amhre, J., that the 
 plaintiffs could not recover from the defendants the amount which 
 they had thus paid them on the forged acceptance (a;). But where 
 the plaintiffs (bankers) discounted for the defendants (bill-brokers) 
 a bill of exchange which the latter did not indorse, and it turned 
 out that the signatures of the drawer and acceptor (the latter of 
 whom kept an account with the plaintiffs) were forged ; it was 
 held, that the defendants were hable to refund the money {y). 
 
 Where a bill of exchange purports to be drawn by a plurality of 
 persons, and is so declai-ed on, the acceptor of such bill will not be 
 permitted to prove that the supposed firm consisted of one person 
 only (z). In a declaration by indorsee against acceptor of a bill of 
 exchange stated to be "drawn by certain persons by and unc^r the 
 name, style and firm of G. & Son," and that " the said persons by 
 and under the said name, style and firm of G. & Son " indorsed it : 
 this was held a sufiicient description of the drawer and indorser (a). 
 Where a bill is drawn in the name of a fictitious person, payable 
 to the order of the drawer, the acceptor is considered as under- 
 taking to pay to the order of the person who signed as drawer ; 
 and, therefore, an indorsee may bring evidence to show that the 
 signature of the supposed drawer, to the bill and to the first in- 
 dorsement, are in the same hand-writing (6). Where a bill of 
 exchange, purporting to be drawn by B. & W. (a really existing 
 firm), payable to their order and to be indorsed by them, was 
 negotiated by the acceptor with that indoi'sement upon it, and the 
 drawing and indorsement were forgeries ; it was held, that if the 
 bill was accepted and negotiated by the acceptor with knowledge 
 of the forgery, he was estopped from denying the indorsement as 
 well as the drawing by B. & W. (o). 
 
 Action by the indorsee against the indorser of a bill of exchange. 
 
 (t) LmckY. Buchatian, 4Esp. N. P. C. (a) Bass v. Olive, 4 M. & S. 13. 
 
 226. («) Tigar v. Gordon, 9 M. & "W. 347. 
 
 (u) Price V. Neal, 3 Burr. 1354 ; 1 Bl. See Ball v. Gordon, 9 M. & W. 345. 
 
 E. 390, S. C. ip) Cooper v. Meyer, 10 B. & C. 468. 
 
 (x) Smithy. Mercer, 6 Taunt. 76. (c) Beeman v, Ditdk, 11 M. & W. 251. 
 
 \y) FvMer v. BrnvOi, 1 By. & Moo. 49. 
 
 y 2 
 
824 BILLS OF EXCHANGE. 
 
 The declaration stated several indorsements prior to tliat of the 
 defendant, which was immediately to the plaintiff. A question 
 arose, whether, upon proof of the defendant's hand-writing, it was 
 necessary to prove the hand-writing of any of the prior indorsers, 
 and particularly that of the original payee. The plaintiff's counsel 
 contended, that the defendant's indorsement admitted all ante- 
 cedent indorsements ; that even if they were forged he would be 
 liable ; that he was to be considered as the drawer of a new bill of 
 exchange : and that his contract was very different from that of 
 the acceptor, who only undertook to pay to the payee or his order, 
 and against whom, therefore, a title through the payee must be , 
 established. Lord Mlenborough was of this opinion, and the 
 plaintiff had a verdict {d). Action for money paid by plaintiffs, 
 Messrs. Forsters, Lubbock, & Co., bankers for defendant. A bill 
 of exchange was drawii on defendant by one Hanley, payable to 
 his own order, which defendant accepted, " payable at Forsters, 
 Lubbock, & Co., London," the plaintiffs '; when this bill was pre- 
 sented at the plaintiffs' house, it was paid by them, and the action 
 was brought to recover the sum so paid. Plaintiffs proved the 
 acceptance, and the fact of payment, and contended they were 
 entitled to recover without proving the indorsement of the drawer, 
 which was upon the bill at the time it was paid by them ; alleging 
 that the bill, when presented, being priTnd facie in a negotiable 
 state, they were authorized to pay it, and were not bound to inquire 
 into the title of the holder ; but Lord UUenborough ruled that it 
 was necessary to prove the first indorsement (e). In an action 
 against the drawer of a bill, payment of money into court, upon 
 the whole declaration, is an admission of the drawing (/). 
 
 In order to make the declaration of a prior holder of a bill of 
 exchange evidence, there must be a community of interest between 
 him and the party against whom such evidence is proposed to be 
 given (g). In the absence of any community of interest, declarations 
 are not to be received to affect the title or interest of other persons, 
 merely because such declarations are against the interest of those 
 who make thbm. The general rule, that the living witness is to be 
 examined on oath, is not subject to any exception so wide ; and 
 the circumstance of fraud being acknowledged does not introduce 
 any difference in principle Qi). 
 
 A receipt upon a negotiable instrument may be contradicted or 
 explained by parol evidence (i). "Where the plea was, want of 
 consideration for the defendant's acceptance, concluding with a 
 
 (d) OritcMow v. Parry, B. E. 2 Campb. judgment of court, in Phillips v. Cole, 10 
 182. See Macgregor v. Bhodes, 25 L. J., A. & E. Ill ; 2 P. & D. 291. 
 
 Qv^- ^19- ^, (i) Scholeyy. Walshy, Peake's N. P. C. 
 
 (e) Forster v. Clements, 2 Campb. 17. 24, recognized by Lord Tenterden, deH- 
 (/) GwUendge v. Smith, 2 H. Bl. 374. vering judgment in Graves v. Key, 3 B. 
 {g) Bm-ough v. WhUe, 4 B. & C. 325. & Ad. 318 See Phillips v. Warren, 14 
 (A) Per Lord Denmam, C. J., delivering M. & AV. 379. 
 
BILLS OF EXCHANGE. 325 
 
 verification, and the plaintiff replied, setting it out, under a scilicet, 
 and concluded to the country ; it was held, that the plaintiff was 
 not bound to prove the consideration (k). 
 
 The signature of a party to a bill may be proved by a person 
 who has seen him write his surname only, several times {I). 
 
 The copy of an original letter, giving notice of the dishonour of 
 a bill, the subject matter of action, and which is produced, is 
 admissible in evidence without notice given to produce the 
 original (m) ; but, seciis, if the bill is not produced, nor the 
 subject-matter of action (n). It is not necessary to give a notice 
 to produce the notice of dishonour (o). 
 
 In an action against the drawer o&a foreign bill, the protest, being 
 part of the custom of merchants with respect to foreign bills, must 
 be proved, if the bill has been drawn for actual value in the hands 
 of the drawee (p) but not otherwise(g'). A promise by the drawer, 
 after the bill is due, that he will pay it, supersedes the necessity of 
 producing the protest ; for in such case it will be presumed, from 
 the party's not objecting to the want of a protest at the time when 
 he made the promise, that he has received due notice of dishonour 
 by a protest regularly di'awn up by a notary (r). The presentment 
 of a foreign bill in England must be proved in the same manner as 
 if it were an inland biU. A notarial protest under seal is not 
 evidence of such presentment (s). 
 
 A bill of exchange, payable to the order of the drawer, may be 
 given in evidence under the count for money had and received, in 
 an action brought by the drawer and payee against the acceptor (t). 
 It seems, that, in an action by payee . against acceptor, the bill 
 would not be evidence of an account stated, in a case where the 
 bill was drawn by a third person (w). 
 
 Recovery of Interest. — On bills of exchange payable at a day 
 certain, and not carrying interest on the face of them, interest is 
 recoverable from the day on which the bills become due. The 
 general rule at the present day, with respect to the allowance of 
 interest, is much narrower than it was formerly. The modern 
 doctrine is, that interest ought to be allowed in those cases only, 
 where there is a contract for payment of money on a certain day, 
 as on bills of exchange and promissory notes ; or where there has 
 been an express promise to pay interest ; or where, from the course 
 of dealing between the parties, it may be inferred that this was 
 
 (l) Zowv. Burrowes, 4 Nev. & M. 367 ; Armani v. Oastrique, 13 M. & W. 450. 
 
 and see Satley v. CatUrall, 1 M. & Rob. (q) Legge v. Thorpe, 12 East, 171 ; 2 
 
 379. Campb. ST. P. C. 310. 
 
 (Z) lewis V. Sapio, M. & M.ilk. 39. (r) Qibbon v. Coggon, 2 Campb. 188. 
 
 {m) £inev. Beaumont, SBvod.SiBiiigh. (s) Chesmer v. Noyes, 4 Campb. 129, 
 
 288. By C. B. , after conference with B. E. per Lord Ellenlorough, C. J. 
 
 (ra) Zanauze v. Palmer, M. & Malk. 31. («) Thompson v. Morgan, 3 Campb. 101. 
 
 (o) Swain v. Lewis, 2 Cr. M. & R. 261. {u) Early v. Bovman, 1 B. & Ad. 8S9. 
 
 (p) Gale V. Walsh, 5 T. R. 239. See 
 
326 BILLS OP EXCHANGE. 
 
 their intention ; or where it can be' proved that interest has been 
 actually made of the money (x). Hence upon a mere simple con- 
 tract of money lent, without an agreeinent for payment of the prin- 
 cipal at a certain time, or for interest to run immediately, or under 
 special circumstances, whence a contract for interest may be in- 
 ferred, interest is not allowable (y). In a contract for the sale of 
 goods, although a particular time be limited for payment of the 
 price, yet the vendor is not entitled to interest on the price from 
 that time (z). But if at the time of the original contract, the de- 
 fendant agreed to pay by bill or note, interest is recoverable (as 
 part of the price) from the time when the bill, if given, would have 
 become due, even in an action for goods sold and delivered (a), and 
 if there is some evidence for the jury of such an agreement, that 
 is suiiScient to support the verdict (6). And iji such cases iitterest 
 will be allowed, although the defendant has not accepted the goods, 
 in an action for not accepting the goods (c). Bankers cannot charge 
 interest upon interest upon money advanced by them without, an 
 express contract for that purpose (d). A bill was drawn at Barba- 
 does on the 8th of February,' 1809, on a house in London, payable 
 to the plaintiff at sixty days' sight : the bill was refused acceptance 
 on the 17th of April, 1809, and was afterwards presented for pay- 
 ment on the 19th of June following. Lord Mlenborough left thp 
 question, from what period the interest was to be calculated, to the 
 special jury, who said that the holdel- of the bill was entitled to 
 101. per cent on the principal, as damages, and that interest was to 
 be allowed only from the time when the biU was presented for 
 payment (e) ; but in a subsequent case, when the holder did not 
 claim any per centage upon the principal as damages, he was 
 allowed interest from the time the bill was dishonoured by non- 
 acceptance (/). The drawer of a bill which is dishonoured by the 
 acceptor, is not liable to pay interest for the time which elapses 
 between the day whereon the bill becomes due, and the day when 
 the drawer receives notice of the dishonour (g). 
 
 By Stat. 3 & 4 Will. IV. c. 42, s. 28, ".Upon all debts or sums 
 certain, paya,ble at a certain time or otherwise, the jury on the trial 
 of any issue or on any inquisition of damages, may, if they shall 
 think fit {h), allow interest to the creditor at a rate not exceeding 
 the current rate of interest from the time when sUch debts or sums 
 certain were payable, if such debts or sums be payable by virtue of 
 
 (x) Per Lord ElUnborough, C. J. , in De cognized in Fmr v. Ward, 3 M. & "W. 25 ; 
 
 Havilwnd v. Bowerlank, 1 Campb. 50. PorUr v. Palsgrave, 2 Campli). 472. 
 See Hare v. Riekwrds, 7 Bingh. 254 ; (5) Davis v. Smyth, 8 M. & W. 399. 
 
 Hifigim v. Sargtid, 2 B. & 0. 349, Ab- (c) Boyce v. Warhurtm, 2 Campb. 480. 
 
 hoU, C. J. Ici^ Dawes \. Pinner, 2 Campb. 486, n. 
 
 (y) Calton v. Bragg, 15 East, 223 ; (e) Oanttw. Mackenzie, 3 Campb. 51. 
 
 .%««) V. Piiton, 4 B. & 0. 723 ; Pagey. (/) Harrison v. Dickson, ibid. 62, n. 
 
 Nevman, 9 B. & C. 378. {g) Walker v. Barnes, 5 Taunt. 240. 
 
 (2) Gordon v. Swan, 2 Campb. 429 ; 12 (h) See Attwood v. Taylor, 1 M. & Gr, 
 
 ^o^\ *19- 832 ; 1 Scott's N. K. 611, 
 
 {a) MarsJiall v. Poole, 13 East, 98, re- 
 
BILLS OF EXCHANGE. 327 
 
 some written instrument at a certain time, or if payable otherwise, 
 then from the time when demand of payment shall have been made 
 in writing, so as such demand shall give notice to the debtor that 
 interest will be claimed from the date of such demand until the 
 term of payment ; provided that interest shall be payable, in all 
 cases in which it is now payable by law." 
 
 Formerly interest was, computed from the day on which the prin- 
 cipal became due, to the time of commencing the action; but, 
 according to Bobinson v. Bland, 2 Burr. 1085^ interest ought to be 
 carried down to the day on which judgment is signed. And when 
 a defendant, sued upon a security carrying interest, pays money 
 into court sufficient to cover the principal with interest down to 
 the commencement of the action^ut not to the time of paying 
 in the money, the plaintiff may proceed ; and a jury, on trial, is 
 bound to give him damages for the interest accruing between the 
 commencement of the action and the payment into court (e). 
 
 The indorser of a bill or note is liable to pay interest only from 
 the time that he receives notice of dishonour (/). Interest is 
 recoverable from a person who guarantees the due payment of a 
 bin of exchange, if it be not paid when due (g). In an action 
 against the drawer of a bill for 2001. with 101. per cent, interest, 
 the holder is entitled to recover interest at lOl. per cent, from the 
 time when the bill became due as well as for the time during which 
 it was running (h). 
 
 Upon promissory notes payable upon demand, interest is due 
 only fi'om the time of the demand ; but upon promissory notes 
 payable at a certain day, interest is due from that day, though 
 there be no demand ; becaluse the person who is to pay is in this 
 case bound to find out the other, and pay it at the day (i). 
 On a note payable on demand, where there is no proof of 
 any demand, the plaintiff can only obtain interest from the 
 day bf serving the writ of summons (k). Where money due on a 
 balance of accounts is awarded to be paid on a particular daj', 
 and' at a particular place, if duly demanded there on the day, it 
 caiTies interest from that day {I). Where the terms of a pro- 
 missory note ai-e, that it shall be payable by instalments, and on 
 failure of payment of any instalment the whole is to become due, 
 interest becomes payable from the time of the first default (m). A 
 promissory note in this form : " July 20th, 1808. I promise for 
 myself and my executors to pay to F. H., or her executors, one year 
 after my death, 300^., with legal interest," was held to bear interest 
 
 (e) Kidd v. Walker, 2 B. & Ad. 705. (Jr) Pierce v. Fothergill, 2 B. K C. 167. 
 
 (/) WalTcer v. Barnes, 5 Taunt. 240. {l) Pinhome v. TucMngton, 3 Carapb. 
 
 ig) Ackerman v. Mrenspcrger, 16 M. 468. See Swinford v. Bum, Gow's N. 
 
 & "W 99 !"• C. 8. 
 
 (A) Keem v. Keene, 27 L. J., C. P. 88. (m) Blake v. Lawrence, 4 Esp. N. P. C. 
 
 (i) Per Cur. Broekett v. Archer, M. 6 147, BlUnhoroiigJi, C. J. 
 Geo. I. 
 
328 BILLS OF EXCHANGE. 
 
 from the date of the note (n). Under a particular of the plaintiff's 
 demand, stating that the action was brought to recover the amount 
 of a notfe, interest (although not claimed eo nomine in the particu- 
 lar) is recoverable, as arising out of the principal demanded by the 
 particular (o). 
 
 IX. 
 
 Of the Nature of a Promissory Note : 
 
 Stat. 3 <fc 4 Ann. c. 9, «. 1, placing Promissory Notes on the footing 
 
 of Inland Bills of Exchange, p. 328. 
 What are negotiable Notes within the Statute, p. 329. 
 Of Bankers' Notes, p. 335. 
 Joint and Several Notes, p. 335. 
 Consideration, p. 336. 
 Stamp, p. 337. 
 
 A promissory note is an absolute promise in writing to pay to 
 A. or order, or to A. or bearer, a sum of money, either at sight, or 
 at a certain time after sight, or after date, or on demand. It 
 having been held, in the case of GUrk v. Martin, Salk. 129, and 
 in other cases, that the pa/yee, and in Buller v. Crips, 6 Mod. 29, 
 that the indorsee of a proniissory note, payable to order, could not 
 maintain an action against the maker thereof, such note not being 
 within the custom of merchants; it was for the purpose of en- 
 couraging trade and commerce, by permitting promissory notes to 
 be negotiated in like manner as inland bills of exchange, enacted, 
 by stat. 3 & 4 Ann. c. 9, s. 1, " That all notes in Meriting, made and 
 signed by any person or persons, body politic or corporate, or by 
 the servant or agent of any corporation, banker, goldsmith, mer- 
 chant or trader (p), usually entnisted by them to sign such notes 
 for them, whereby such person, &c., or their servant or agent, 
 promise to pay to any other person or persons, body poUtic or 
 coi-porate, or order or bearer, any sum of money mentioned in such 
 note, shall be construed to be, by virtue thereof, due and payable 
 to such person, &c., to whom the same is made payable : and also 
 such note, payable to any person, &c., or order, shallbe assignable 
 or indorsable over in the same manner as inland bills of exchange 
 are, or may be, by the custom of merchants ; and the person, &c., 
 to whom such sum of money is by such note made payable may 
 maintain an action for the same in siich manner as he might 
 upon an inland bill of exchange, made according to the custom 
 of merchants ; and the person, &c., to whom such note is indorsed 
 or assigned, may maintain an action, either against the person, &c., 
 who or whose servant or agent signed such note, or against any of 
 the persons who indorsed the same, as in cases of inland bills of 
 exchange, and the plaintiff shall recover damages and costs of suit ; 
 
 («) Hoffeyv. Oreenwell, 10 A. &E. 222. (p) The cases enumerated here are in- 
 
 (o) Blake v. Lawrence, i Esp. lif. P. C. stances only. Perhoi-iLyndhurst, C. B., 
 i^7. Dickenson y. Teague, i Tyrw. 453. 
 
BILLS OF EXCHANGE. 329 
 
 and in case of nonsuit or verdict against plaintiff, defendant shall 
 recover costs." 
 
 What are Negotiable Notes. — The foregoing statute being a 
 remedial law, and made for the encouragement of trade and com- 
 merce, the courts have construed it liberally : it extends to notes 
 made in a foreign country (q). A note promising to account with 
 J. S. or order, has been construed as a promise to pay J. S. or 
 order, and within the meaning of the statute (r). So a promissory 
 note, payable to B. (omitting the words " or order ") three months 
 after date, was held a good note within the statute ; and it was 
 adjudged, that it might be declared on as such by the payee (s). 
 So where the promise was by A. to^ay so much to B. for a debt 
 due from 0. to B., it was held, that it was within the statute, 
 being an absolute promise, and eveiy way as negotiable as if it 
 had been generally for value received (i). So where the note was 
 in this form, " I do acknowledge that Sir A. C. has delivered to 
 me all the bonds and notes, for which MOl. were paid to him on 
 account of Col. S., and that Sir A. delivered to me Major G.'s 
 receipt, and bill on me for 101.; which 101. and 151. 5s. balance 
 due to Sir A. I am still indebted, and do promise to pay." On 
 demurrer to the declaration, the note was adjudged good (u). So 
 where the instrument was, " Keceived of A. B. lOOl., which I 
 promise to pay on demand, with lawful interest " (as). So where 
 the note set forth in the declaration was, " I do acknowlege myself 
 to be indebted to A. in £ , to be paid on demand, for value 
 received." On demurrer to the declaration, the court, after argu- 
 ment, held, that this was a good note within the statute, the words 
 " to be paid " amounting to a promise to pay ; observing, that the 
 same words in a lease would amount to a covenant to pay rent (y). 
 So it was held that the payee.j30uld recover upon the following 
 instrument as a promissory not^(2;) :|— Sg 
 
 50, Kin^W^am Sti^t, London Bridge. 
 ?']fech.^4tlS 1860. 
 
 Two months after date pa^-to ^rs^ E^a Fielder or order 
 thirty-five pounds value receives. J^ ^ a 
 
 |- *^„ Ami LANGSTAFF. 
 To Mrs. Emma Fieldq^ S v? 
 
 Nelson Lodge, Trafalgar Square, Chelsea. 
 
 (g) Milne v. Graham, 1 B. & C. 192 ; on error from C. B. See liidoilt v. Bris' 
 
 Dt la ChaurmtU T. Bank of England, 2 tow, 1 Tyrw. 91. 
 
 B. & Ad. 385. ('^) Ohadmck v. Allen, Str. 706. See 
 (r) Morice v. lea, 8 Mod. 362 ; 1 Str. Peto y. Beynolds, 9 Exoh. 410 ; S. 0. 23 
 
 629 ; Lord Eaym. 1396, 1397. L. J., Exoh. 98. 
 
 {s) Smith v. Kendall, 6 T. E. 123 ; S. (x) Green v. Davies, 4 B. & C. 235. 
 
 P. per Hardvncke, C. J., Cunningham, (y) Casborne v. Dutton, Scaoc. M. 1 
 
 Bills of Ex. 127. See also ilfoorv.Pam, Geo. II. MS. „ „ /-kt o \ 
 
 Ca. Temp. Hardw. 288, where ffardwicke, (z) Fielder v. Marshall, 9 C. B. (H . b.) 
 
 C. J., said this point had'becn ruled often. 6D6. 
 it) PoppUwellM. Wilson, B. K. Str. 264, 
 
330 
 
 BILLS OF EXCHANGE. 
 
 So the following was held to be a promissory note (a) :— 
 
 London Trades Joint Stock Banking Company, 
 Dorking, Surrey; 
 
 24th August, 1839. 
 Six months after date pay without acceptance to the order of 
 John Cogan Francis, Esq., lOOl. value received. 
 For the Directors, 
 
 THOMAS NEWHAM, Manager. 
 
 To the Loiidon Trades Joint Stock Banking Company, 
 33, Gracechurch Street, London. : 
 
 So a promissory note payable by instalments is assigiiable within' 
 the statute, and the maker is entitled to the days of gr^ce upon 
 the falling due of each instalment (6). So where a promissory 
 note was payable by instalments subject to a condition, that on 
 default being made in payment of the first ihstalmerit, the' whole 
 amount should become immediately payable ; it was held, that the 
 note was assignable within the statute, and on default being made 
 by the maker in payment of the first instalment, an indorser was 
 liable for the whole amount (c). So a similar note to the above, 
 except that it was not transferable, was held to be ' within' the 
 statute (cZ). The following is a good promiissory' note : "On' de- 
 mand we jointly and severally promise to pi^y to. Messrs. W. S. and 
 M. or to their order, or the major part of . thenr, lOOOC" (e). ;A 
 note payable to the maker's owh order 'is not a promissory note 
 negotiable under the statute ; but' if a man makes a note payable 
 to his oWn order, and afterwards indorses it in blank, it thereby 
 becomes a vaUd note payable to bearer (/) ; and if such a note be 
 specially indorsed, it becomes a note payable to indorsee or 
 order (gf). 
 
 This statute, however, extends to. such notes only as contain an 
 absolute promise to pay money .at_all events (^) (and not a promise 
 depending upon a contingeucy), and where the money, at the time 
 of the giving the note,_ becomes due and payable by virtue thereof 
 (so are the words of the Statute),, and not where it becomes due 
 and payable by virtue of a suFsequent contingency, which perhaps 
 may never happen ; in which case the money wbiild never become 
 payable (i). Before the statute of Anne, a promise to pay A. or 
 his assigns a sum of money within a certain time after defendant 
 
 (a) Miller v. Thompsmi, 3 M. & Gr, 
 576. 
 (6) OriAge v. Sherborne, 11 M. & W, 
 
 374. . 
 
 (c) Oa/rlon v. Kenealy, 12 M. & "W. 139, 
 
 (d) Miller v. Siddle, 13 L. T., 334. 
 <e) Watsm, v. Evans, 1 H. & C. 662 
 
 32 L. J., 137 Ex. 
 (/) Browne V. De Winton, 6 C. B. 336 
 
 S. 0. 17 L. J„ C. P. 281. 
 
 {g) Gay v. Lander, 6 C. B. 336 ; 17 
 L. J., 0. P. 286. 
 
 , (A) Willes, 0. J., in delivering tho 
 opinion of the court in Oolehan v. Cooh, 
 Willes, 398 ; Mo^^ey v. Greenwefl, 10 A. 
 & E. 222. 
 
 (i) JRoMns V. May, 3 P. & D. 147 ; 11 
 A. & E. 213. 
 
BILLS OF EXCHANGE. 331 
 
 should be lawfully married to E. S., was held not to be a good 
 note; because to pay money on such a contingency could not 
 be called trading, and therefore not within the custom of mer- 
 chants (k). 
 
 The following notes have been adjudged not to be negotiable 
 notes vithin the statute, vis. : . 
 
 A promise. by defendant to pay to plaintiff 261. within a month 
 after Michaelmas, if the defendant did not pay the 261. for which 
 the plaintiff stood engaged for his brother I. B. (I). A promise to 
 pay A. B. £ value received, on the death of C. D. provided he 
 
 leaves either of us sufficient to pay the said sum, "or if we shall be 
 otherwise able to pay it (m). A paomise to pay A., or B. and C, 
 £ value received (ti). A promise "to pay m6ney within so 
 many days after the maker of the note should marry (o). So 
 where the promise was to pay A. F. £ out of the maker's 
 money that should arise from his reversion of £ when sold ; 
 the declaration averred the sale of the reversion ; yet it was held, 
 that the note could not be declsired on as a negotiable note under 
 the statute, because the money was to be paid only on a contin- 
 gency {p). A similar decision was made in Hill v. Halford (q), 
 where a promise was to pay £ ' , on the sale or prodtice, imme- 
 diately when sold, of the White Hart, St. Albans, Herts, and the 
 goods thereia, although it was averred iu the declaration, that the 
 . house and goods were sold. In a case where the instrument 
 acknowledged to have borrowed and received £ in drafts pay- 
 
 able to the defendants at a future day, which the defendants 
 promise to pay with interest, it was held that this was a special 
 agreement, and not a promissory note : for the money was not to 
 be paid at all, unless the drafts were honoured (r). So where the 
 instrument (s) was,-^" On demand we promise to pay G. C. or order 
 1200Z., for value received in stock, &c., this being intended to 
 stand against me, the undersigned M. P., as a set-off for that sum 
 left me in my father's will, above my sister Ann's share, signed by 
 T. P. (husband), M. P. (wife)." Where the words were, "Septem- 
 ber 11, 1839. I undertake to pay to Mr. R Jarvis, the sum of 
 61. 4s. for a suit of , ordered by Daniel Page. S. W. Wilkins." 
 The court held that this was not a promissory note ; but a guaran- 
 tee for the sale of goods ordered, that the consideration could be 
 collected by necessary inference, and that no stamp was neces- 
 sary (Q. "Drury v. Vaughan. — In consideration of W. D. not 
 
 th) Pearson v. Oarreft, 4 Mod. U2. (p) Carlos v. Fancowrt, 5 T. K. 482. 
 
 \l) Appleby V. Biddle, B. E. H. 3 Geo. (q) Bill v. Salford, 2 B. & P. 413 (m 
 
 I MS ■ theExoli. Ch.), oneiTorfromB. K 
 
 ' (m) Soberts y. PeaJce, 1 Burr. 323. (r) Williamson v. Bemiett, 2 Campb. 
 
 (wV BlancJcenhagen v. Blundell, 2 B. & 417. . , o n t. a ^ ARn 
 
 ^ ^417 (s) Clarice v. Percival, 2 B. & Ad. 660. 
 
 '{o) BeardsUy v. Baldwin, Str. 1151 ; (<) Jarois v. Wilkvm, TiLkW. 411. 
 
 7 Mod. 417, 8vo. ed. 
 
333 BILLS OF EXCHANGE. 
 
 taking any furtter proceedings in the above action, I do hereby 
 undertake with the said W. D. that I will pay him SI. 5s. every 
 quarter of a year, from this day until the whole of the principal 
 money now due from J. & T. V. to W. D. 2Ql. Is., with interest, be 
 fully paid ; the first of such quarterly payments to become due on 
 the 30th October next. It is understood that this undertaking is 
 not to be a release or discharge of the note by J. V. and T. Y. to 
 the said W. D., but as an additional security for the above- 
 mentioned amount now due on such note, with the interest. 
 Dated, &c." This was held not to be a promissory note, as the 
 money secured by it was not payable at all events (u). 
 
 Upon an instrament in the common form of a joint and several 
 promissoiy note, signed by A., B., and C, there was an indorse- 
 ment (written, as appeared in proof, before B. and C. had signed 
 the note), stating that the note was taken as a security for all 
 balances, not exceeding the sum specified in the note, which A. 
 might owe to the payee ; that the note should be in force for six 
 months, and no money liable to be called for sooner in any case : 
 an action having been brought by the payee against B., the first 
 count stating the note as payable on. request, and a second as pay- 
 able six months after date : Lord Mlenborough, C. J., held, that 
 although the instrument possibly might have been considered as a 
 promissory note in the hands of a bond fide holder, who had 
 received it as such, yet as between the immediate parties it could , 
 only be considered as an agreement, for as to them the indorse- 
 ment must be incorporated with the body of the note (a;). An 
 instrument, purporting on the face of it to be a promissory note, 
 payable absolutely for the price of goods, but having an indorse- 
 ment upon it (written before the note was signed), stating that it 
 was given on condition that if any dispute arose about the sale of 
 goods, it would be void, is not a negotiable note (y). " Received 
 and borrowed of A. B. 301, which I promise to pay with interest. 
 I also promise to pay the demcmds of the sick club at H., in part of 
 interest ; and the remaining stock and interest to be paid on de- 
 mand to the said A. B. "Witness my hand, C. D." This was held 
 not to be a promissory note ; for the instrument, as far as respected 
 the contingent demand was not a promissory note, and the trans- 
 action was entire (z). 
 
 A promissory note must be for the payment of money only. 
 Hence, on error from C. B. it was held, that a note to deliver up 
 horses and a wharf, and pay money at a particular day, could not 
 
 (m) Drury v. Mamulay, 16 M. AW. cited by Littledale, J., as in point, in 
 
 146; 16 L. J., Exch. 31. For other Sanest. Wilkimm, 10 A. & E. 105; 2 
 
 instances si& Alexander v. Thmnas, 16 Q. P. & D. 266. 
 
 B. 333; 20 L. J., Q. B. 207, and {y) ffa/rtley y. Wi?Mnson, iU. &,S. 25, 
 
 Slorm V. Sterling, 3 E. & B. 832; 23 («) Bolton v. Dugdale, i B. & Ai. 619 ; 
 
 L. J., Q. B. 298. Worley v. Harrison, 3 A. & E. 689, S. P. 
 
 {xy Leeds v. Lancashire, 2 Campb. 205, 
 
BILLS OF EXCHANGE. 333 
 
 be declared on as a note witliin the statute (a). And a similar de- 
 termination was made, where the promise was to pay 300Z. to A. 
 or order, in good East India Bonds (b). So where the promise was 
 to pay J. S. so much money, or to render the body of J. J^. to pri- 
 son before such a day, the note was held bad : because the note 
 was not necessarily and originally for the payment of money, but 
 by matter ex post facto became a note for payment of money only, 
 viz. the body not being surrendered to prison (c). 
 
 It must not be payable out of a particular fund ; which may 
 or may not be productive. Statement of the consideration, how- 
 ever, for which a note was made, will not vitiate it. On this prin- 
 ciple, a promissory note to pay a sum of money three months after 
 date, for value received of the premises in Rosemary Lane, late in 
 the possession of T. E., was held (d) a good note within the statute. 
 In the following cases the principle before laid down was recog- 
 nized, but the notes were adjudged good. A promissory note was 
 given to an infant payable when he should come of age, viz. on such 
 a day in such a year ; this was holden good ; for, per Benison, J., 
 here is no condition or uncertainty, but it is to be paid certainly and 
 at all events, only the time of payment is postponed (e). So where 
 plaintiff declared in the first count on a promissory note dated 
 27th May, 1732, whereby defendant promised to pay H. D. or order 
 150 guineas, ten days after the death of his father, John Cooke, for 
 value received, which note, after the death of the father, (which was 
 laid to be the 2nd April, 1741), was duly indorsed by D. to plain- 
 tiff; and in the second count, on a promissory note, dated 15th 
 July, 1732, whereby defendant promised to pay H. D., or order, six 
 weeks after the death of his father, fifty guineas, for value received, 
 the like indorsement laid after the death of the father as before : 
 after a general verdict for plaintiff on both notes, it was insisted for 
 defendant, in arrest of judgment, that these notes were not within 
 the statute 3 & 4 Ann. c. 9. After three arguments, Willes, C. J., 
 delivered the opinion of the court in favour of the plaintiff, on the 
 ground that the notes did not depend on any contingency ; that 
 there was a certain promise to pay at the time of giving the notes, 
 and the money by virtue thereof would become due and payable 
 one time or other, though it was uncertain when that time would 
 come ; that there was not any weight in the objection that the 
 maker might have died before his father, in which case the notes 
 would have been of no value, because the same might be said of 
 any note payable at a distant time ; that the maker might die 
 worth nothing before the note became payable. He added, that 
 the court thought that the averment of the death of the father 
 before the indorsement did not make any alteration, because they 
 
 {a) Martin v. Chauntry, Str. 1271. argument in Lord Eaym. 1362, and 1396. 
 
 (6) Moor V. VcmluU, BuU. N. P. 272. (d) Burchell v. SlococJc, Lord Eaym. 
 
 (c) Smith V. Boheme, (reported as to 1545, citedhy Kenyon, C. J., 6 T. K. 124. 
 
 the argument,) in Gilb. R. 93, cited in (c) Ooss v. Nelson, 1 Burr. 226. 
 
334 
 
 BILLS OF EXCHANGE. 
 
 were of opinion, that if the notes were not within the statute ah 
 vnitio, they could not be made so by any subsequent contin- 
 gency (/). So where the note was to pay within a certain time 
 after such a ship was paid off; it was hteld good ; because the ship 
 would certainly be paid off one time of other [g). 
 
 Where an instrument is made in terms so ambiguous as to make 
 it doubtful, whether it be a bill of exchange or a promissory note, 
 the law will allow the holder, at his option, as against the makei: of 
 the instrument, to treat it either as a promissory note or as a bill of 
 
 (/) CoUhcm V. Cooke, Willes, 393; 
 affirmed on error, in Str. 1217. 
 
 (g) Andrews v. FrcmMin, H. 3 Geo. I. 
 
 B. R. In Strange's report of this ease, 
 1 Str. p. 2i, the opinion of the court is 
 thus given : "The pajring off the ship is 
 a thing of a public naturcj and this is 
 negotiable as a promissory note." I have 
 stated the case as it was cited by Willes, 
 
 C. J., delivering the opinion of the court 
 in Ooleham v. Cooke, Willes, 399. See 
 also Mr. Hume Campbell's argument in 
 Evans v. Underwood, 1 Wils. 263, where, 
 in citing this case, he states the opinion 
 of the court to have been that the note 
 was within the statute and negotiable, 
 hecause the paying off the ship was morally 
 certain. The same point was decided by 
 EardwicTce, C. J., in Lewis v. OrtZe, Middx. 
 Sittings, 8 Geo. II. The note was in this 
 form: "I promise to pay J. S. 111. at 
 the payment of the ship Devonshire, for 
 value received." Willes, C. J., in Cole- 
 ham, V. CooTce, Witles, 399, says, " This 
 case was deterinined on the same reason 
 as Andrews v. Pra/nklin, viz. that the ship 
 would certainly ie paid off one time or 
 other, which seems to be the true rea- 
 son ; " but in the report of Levris v. Orde, 
 Diet. Trade and Com. 261, copied by 
 Cunningham, p. 127, of Law of Bills and 
 Notes, 2nd ed. 1761, Lord EardvncJce is 
 made to say, "That as to the contingency 
 of the payment, the subseciueht act of the 
 payment of the ship makes, it certain, and 
 therefore, though not a lieu db initio, yet 
 sufficiently so, and within the statute, by 
 the fact happening after ;" and in a MS. 
 note, in the possession of the editor. Lord 
 Hardwieke is made to say, "As to the 
 time, this note is certainly within the 
 statute, if it had been made payable at 
 any precise future day ; and if it be un- 
 certain at first, but referred to a subse- 
 quent fact to make it certain, when that 
 fact happens (as in this case it was aver- 
 red that the ship Devonshire was paid), 
 it is as much reduced to a certainty as if 
 the day had been mentioned at first. But 
 if the promise is to pay out of ahy parti- 
 
 cular fund, it is not a personal lien, and 
 therefore not within the statute. " It may 
 be observed, that this reason clashes with 
 the opinion of the court in Coleha/n, v. 
 Coohe, Willes, 399, where it was said, that 
 if the notes were not within the stetute 
 db initio, they should not be made so by 
 any subsequent contingency ; and with 
 the decision in Carlos v. Fa/ncokrt, 5 T. 
 E. 482, and in Bill y. Ealford, 2 Bos. & 
 Pul. 413, in which cases the ,events on 
 which the notes were to become payable 
 were averred in the declarations to have 
 taken place, and yet the notes were held 
 not to be good.- See also Kingston v, 
 Zong, 4 Doug. 9 ; where it was held by 
 the court, that if an instrument was not 
 a nil of exchange in its creation, it could 
 never become so afterwards. To the fore- 
 going cases of Andrews v. Franklin, and 
 Zeiois V. Orde, may be added that of 
 Evans v. Underwood, 1 Wils. 262, where 
 the nqte was to pay A., or order, 81. upon 
 the receipt of his the said A. 's wages, due 
 from his Majesty's ship the Suffolk, it 
 being in full for his wages and prize- 
 money, and short-allowance money, for 
 the said ship ; the declaration stated an 
 indorsement by A., and averred that the 
 defendant received the said wages from 
 the said ship. After verdict for plaintiff, 
 on motion in arrest of judgment, the case 
 of Andrews v. FramkUn was mentioned, 
 which Mr. Ford, for the defendant, said 
 had never been determined. The court 
 said, that they would look into the case, 
 and see whether it had been determined. , 
 The reporter adds, that the court inclined 
 to give judgment for the plaintiff; and, 
 after looking into the case, did so, vi 
 audivi. In Bewrdesley v. Baldivim, E. 
 15 Geo. II., B. E. MS., the court said, 
 that as to Andrews v. Franklin, if it ever 
 was detennined, which they could not 
 find, it must have been decided on the 
 certainty observed on the return of ships, 
 and which must be looked upon as an 
 event in itself not contingent. See fur- 
 ther on this subject, Maussoullier v. 
 HartsTMok, 7 T. E. 733. 
 
BILLS OF EXCHANGE. 335 
 
 exchange (h). But where there is an absence of two distinct par- 
 ties as drawer and drawee, which circumstances are essential to the 
 constitution of a bill of exchange, the instrument is a promissory- 
 note, and is properly declared on as such (i). A note payable to 
 A. or order, on demand, cannot be re-issued after payment by the 
 maker (Jc). 
 
 Of Bankers' Notes. — Bankers' cash notes, or goldsmiths' notes, 
 as they were formerly called, goldsmiths at that time being 
 bankers, are promissory notes given by bankers, payable to order 
 or bearer, on demand, and are stated? as such in pleading. They 
 are considered as cash, are transfejp,ble by delivery, but may be 
 indorsed ; in which case they may be declared on as a bill of ex- 
 change against indorser. Cash notes have not been made for a 
 long time except by country bankers ; their use having been 
 superseded by the introduction of checks. 
 
 Joint and several Notes. — A note beginning, " I promise to pay," 
 and signed by two or more persons, is several as well as joint (I). 
 It has been held, that where a promissory note, beginning, " I pro- 
 mise to pay," was signed by one member of a firm for himself and 
 his partners, the party signing was severally liable to be sued upon 
 the note. But this case has been over-ruled, and the law now is, 
 that such a note only binds the firm (m). Where a joint and several 
 note is made payable to one of the makers, there is no objection 
 to such maker suing the others (n). If a promissory note appears 
 on the face of it to be the separate note of A. only, it cannot be 
 declared on as the joint note of A. and B., although given to secure 
 a debt for which A. and B. were jointly liable (o). 
 
 In an action by A. against B., upon a promissory note, it was 
 stated in the declaration, that B. and another, jointly or severally, 
 promised to pay it. It was held, that the declaration was good ; 
 for or was synonymous with and. They both promised that they 
 or one of them should pay ; consequently both and each were liable 
 m solidni/m (p). If an action is brought on a joint note, and some 
 of the persons making the note are not made defendants, advantage 
 can be taken of the omission by plea in abatement only (q). An 
 action was brought against defendant only, on a joint and several 
 
 (h) Mis V. £ury, 6 B. & 0. 433. and see Maclae v. Sutherland, 3 E. & B. 
 
 (i) Miller v. Thompson, 3 M. & Gr. 1 ; 25 L. J., Q. B. 229, and Aggs v. 
 
 576 ; 4 Sootf s K R. 204 ; and see Peto Nicholson, 24 L. J., Exch. 348. 
 
 V. Seynolds, 4 Exch. 410 ; 23 L. J., (n) Beechcm v. Smith, 27 L. J., Q. B. 
 
 Exch. 98. 257. 
 
 (i) Bartrum v. Caddy, 9 A. & E. 275. (o) Siffkin v. Walker, 2 Camph. 308 ; 
 
 See Beck v. Bobley, 1 H. Bl. 89, n. Emly v. I/ye, 16 East, 7. 
 
 <Z) March v. Ward, Peake's N. P. C. (p) Beesr. AUott, Cowp. 832. 
 
 130. (?) Per Buller, J., in Bees t. Abbott, 
 
 {m) Exp. Bwikley, 14 M. & W. 475 ; Cowp. 832. 
 
836 BILLS OF EXCHANGE. 
 
 note made by defendant and one Stoddart. Defendant gave in 
 evidence an agreement in writing, entered into by plaintififwith the 
 assignees of Stoddart, then a bankrupt, to receive from them 6002. 
 in lieu of 8BSI. actually due from the bankrupt on this note (which 
 was for 1002.) and on other transactions ; and that defendant was 
 only surety for Stoddart. Defendant obtained a verdict. On 
 motion to set it aside, it was resisted on the part of the defendant, 
 on the ground that the agreement put an end to the plaintiff's 
 recovery on the note ; that the principal could not be discharged 
 without discharging the surety also. On the part of the plaintiff 
 it was urged, that it was not J;he meaning of the agreement that 
 defendant should be discharged. But per Lord Mansfield, C.J., 
 " the plaintiff was party to the agreement, and we cannot receive 
 parol evidence to explain it. Whatever might be the intention of 
 the parties, the principal cannot be released without its operating 
 for the benefit of the surety." Rule discharged (r). 
 
 Consideration. — It wiU be presumed, that the note has been 
 given for a good and valuable consideration until the contrary 
 appear. As between the immediate parties, want or illegality of 
 consideration may be insisted on as a defence. In an action by 
 the payee against the maker of a promissory note for 102. which had 
 been given by the defendant as an apprentice fee with his son to 
 the plaintiff, to whom the son was bound ; it appeared, at the trial, 
 that in the indentures of apprenticeship no mention had been made 
 of this premium having been given with the apprentice, nor was 
 there any stamp thereon in proportion to the value, as required by 
 stat. 8 Ann. c. 9, in default of which, by the 39th section of the 
 stat. the indentures are declared to be void. The apprentice re- 
 mained some part of his time with his master, and then absconded. 
 It was objected, on the part of the defendant, that the indentures 
 being void, the consideration of the note had failed. To this it 
 was answered, that the avoiding of the indentures could not col- 
 laterally affect this note : but that at all events it was sufficient, if 
 there were any consideration to sustain it ; and here the master 
 had provided board and lodging for some time for the apprentice. 
 But Lawrence, J., was of opinion, that the consideration was entire, 
 and that it had wholly failed. The Court of King's Bench con- 
 curred in opinion with the learned judge (s). But it is otherwise, 
 if the consideration has not wholly failed (t). In an action by 
 payee of a note expressed to be " in consideration of the payee's 
 care and medical attendance bestowed on the maker ;" it was held, 
 that evidence was admissible to show the consideration to have 
 been medicines furnished and services performed as an apothecaiy : 
 and if that was proved, that the plaintiff could not recover, without 
 
 (r) Oarrett v. JuU, B. R. M. 22 Geo. (s) Jackson v. Warwiek, 7 T. R. 121. 
 
 III. MS. cited ty Parke, J., in Price v. (t) Mwrm v. Lent, 10 B. & C. 877. See 
 
 Edmunds, 10 B. & C. 582. qlso Oibard v. Betham, M. & Malk. 483. 
 
BILLS OF EXCHANGE. 837 
 
 showing that he had obtained his certificate under 55 Geo. IIL 
 c. 194, s. 21 (u). Formerly it was held, that where a note has 
 been given under such circumstances that the payee cannot recover 
 on it, the indorsee must prove that he became so for a valuable 
 consideration (x) ; but now the law is, that " unless the note be 
 connected with some fraud, and a suspicion of fraud be raised from 
 its being shown that something has been done with it of an illegal 
 nature, as that it has been clandestinely taken away, or has been 
 lost or stolen (in which cases the holder must show that he gave 
 value for it) the onus probandi is cast upon the defendant" (y). It 
 is not necessary that the indorsement should be written with ink : 
 it may be with a pencil (z). In an action by the indorsee against 
 the maker of a promissory note, th'e defence insisted on was, that 
 the note had been given for hits against defendant in a lottery 
 insurance ; Kenyan, C. J., was of opinion, that the plaintiff was 
 entitled to recover ; and that a contrary determination would shake 
 paper credit to the foundation (a). A person who, at the request of 
 the holder of a note, has put his name upon it, and in consequence 
 thereof has been obliged to pay the contents to a bond fide holder, 
 may recover the money paid from any person whose name is on 
 the note, although he knew that the note was originally given for 
 an illegal consideration, viz. for premiums for the insurance of 
 tickets in the lottery (6). 
 
 Stamp. — Every promissory note must be duly stamped, that is, 
 with a stamp of the proper value and proper denomination. A 
 promissory note given at the time when -the 31 Geo. III. c. 25, 
 was the only statute regulating the stamp duty on promissory notes, 
 was held not available in law, because it was stamped with a re- 
 ceipt stamp, although it was of equal value with that required for 
 a promissory note (c). For the amount of the stamp duties on pro- 
 missory notes, see stats. 55 Geo. III. c. 184 ; 16 & 17 Vict. c. 50, 
 17 & 18 Vict. c. 83, and 23 & 24 Vict. c. 111. A bill was, in fact, 
 drawn on the 21st day of December, for 211., payable two months 
 after date, but on the face of it purported to bear date on the 31st ; 
 it was held to require only a stamp of 2s. which is imposed by 
 55 Geo. III. c. 184, on bills for that sum, not exceeding two 
 months after date (d). The word " date," as there used, means 
 the period of payment expressed on the face of the bill. A pro- 
 . missory note of 40^., payable to bearer generally, and therefore, in 
 law, payable on demand, is within the first class of promissory 
 
 (u) Blogg v. Pinkers, 1 Ey. & M. 125. Sittings, after M. T. 41 Geo. III., B. E. 
 
 (x) Per three jn&ges, Seaihv. Sansom, MSS. 
 
 2 B. & Ad. 297, cited by Tindal, C. J,, (h) Seddons v. Stratford, London Sit- 
 
 £assett v. Dodgin, 10 Bingli. 43. tings after T. T. 34 Geo. III., Kenyan, 
 
 (y) Per Lord AUnger, in Mills v. C. J. ; Peake's N. P. C. 215. 
 
 Barker, 1 M. & W. 423. (o) Chamierlain v. Porter, 1 B. & P. 
 
 {z) Geary v. Physic, 5 B. & C. 234. IS. E. 80. 
 
 {a) Winstanley v. Bowdcn, Middlesex [d) Upstmie y. Marchant, 2 B. & C. 10. 
 
 VOL. I. 2 
 
338 BILLS OF EXCHANGE. 
 
 notes in schedule, part 1, to the 55 Geo. ftl. c. 184, and requires 
 a 5s. stamp (e). A promissoiy note payable to A. B. generally, is 
 not one payable to bearer on demand, and re-issuable within this 
 first class ; but a note payable otherwise than to bearer on demand 
 (not re-issuable), within class 2 (/). So a promissory note made 
 for payment of 2QI. to B. on demand (g). 
 
 X. Of the Time when a Note ought to he presented for 
 Payment. 
 
 Payment must be demanded within a reasonable time after the 
 note becomes due. Whether a note has been presented for pay- 
 ment within a reasonable time is a question of law, but dependent 
 on facts, viz. the situation of the parties, their places of abode, and 
 the facility of communication between them Qi). On promissory 
 notes payable at a certain time after date, or after sight, three days' 
 grace are allowed : consequently, payment of such notes ought not 
 to be demanded until the last of the three days, unless it happen 
 to be a Sunday, or a great holiday, in which case payment ought 
 to be demanded on the next preceding day. The three days of 
 grace are computed exclusively of the day on which the payment 
 is by the tei-ms of the note ,to be made.' It has not been deter- 
 mined solemnly, whether days of grace are to be allowed on notes 
 payable at sight. They are not allowed on notes payable on de- 
 mand. A maker of a promissory note payable by instalments, is 
 entitled to the days of grace upon the falling due of each instal- 
 ment (i). Where a note is made payable at a month or months 
 after date, the computation must be (contrary to the general rule 
 of law) by calendar and not by lunar months. 
 
 Where a note is in the hands of an indorsee, and he demands 
 payment thereof from the maker, who refuses or omits to pay the 
 same, notice of such refusal or default ought to be given by the 
 indorsee himself, or some other party to the instrument, to the 
 prior indorser or indorsers (if more than one), within a reasonable 
 time ; otherwise the indorsers will be discharged (Jc). Action against 
 defendant, as indorser of this note, " One month after date I pro- 
 mise to pay Wm. George, or order, the sum of 16^., for value re- 
 ceived. John Hopley." Indorsed, Wm. George. This note George 
 had given in payment to the plaintiff; it became due 2nd May,' 
 and on the 5th May the plaintiff's banker (after three days' grace) 
 demanded it of Hopley. Hopley desired two or three days' time 
 
 (e) Wells T. Girling, 8 Taunt. 737. C. 7. . 
 
 (/) Cheetham v. BvMer, 5 B. & Ad. (7i) Darbishire v. ParJcer, 6 East, 3. 
 
 837. (i) Oridge v. Sherborne, 11 M. & W. 
 
 {g) Dixon v. Chamiers, 1 C. M. & E. 374. 
 
 845 ; Cheetham v. Butkr, 5 B. & Ad. 837 ; (k) See ante, ' ' Notice to Indorser. " 
 overruling Keatcs v. WhieMo^i, 8 B. & 
 
BILLS OF EXCHANGE. 339 
 
 to pay it in, and so from time to time, which were given him, till 
 the ] 3th May, when he told the banker he could not pay it. On 
 the 14th, Hopley failed, and became a bankrupt. On plaintiff's 
 applying to George for payment, George told him he should have 
 applied before, on Hopley's first refusal, and that he now did not 
 think himself liable to pay it ; whereupon this action was brought. 
 Lord Mansfield, C. J. : " The question is, who is to bear the loss, 
 as Hopley, the drawer, has failed? Now it is so necessary for 
 trade, where a bill of exchange is drawn on one man, and made 
 payable to another, that if the person to whom it is payable, either 
 wilfully or through neglect, omits to call at the time it becomes 
 due, it is the constant course of mercantile custom in the city of 
 London, that he shall bear the los^and not the other. This like- 
 wise is the rule on indorsed notes, which are in nature of inland 
 bills of exchange ; nothing is so certain as this rule, and great in- 
 convenience would follow from a different mode of proceeding. It 
 has been truly said that the law has not fixed any precise time 
 when the neglect of the indorser shall be said to make him liable ; 
 but I remember a case determined, where a bill became due at two 
 o'clock on Saturday afternoon, the person who gave the note became 
 a bankrupt at five o'clock on Monday afternoon ; the question was, 
 whether the indorsee had not neglected to call for his money ; and 
 it was held, that he had. The present case is not that of neglect ; 
 the note is dated on 2nd April, consequently becomes due on 2nd 
 May, but by the custom of the city there are three days of grace ; 
 the banker who has the note in his hands, and who in this case, 
 being the plaintiff's agent, is to be considered as one and the same 
 person with the plaintiff, comes on 5th and demands payment ; 
 the indorser and all the parties live in town; the banker gives 
 Hopley indulgence to pay it from 5th to 13th without giving any 
 notice to the indorser, which if he had done, it would have urged 
 the indorser to get his money. Now here is no neglect of appli- 
 cation. The case is still stronger : here is an actual credit given 
 for eight days ; and the question is, who gave the credit ? We 
 cannot go into any consideration of Hopley's circumstances at the 
 time ; they might be very bad ; and yet if he had been arrested 
 on 5th May, we cannot say he would have paid the money. I 
 am therefore of opinion, that the loss (though this is a hard case) 
 ought to be borne by the person who gave the credit." Verdict 
 for the defendant (i). 
 
 Action against the defendant as indorser of a promissory note, 
 due May 4th, 1805. The plaintiff proved the defendant's indorse- 
 ment, and also, that in the year 1807, the defendant being re- 
 quested to pay the note, he promised that he would, but prayed 
 for further time. There was no evidence of the presentment of 
 
 (I) Anderson -v. Oeorge, London .Sit- j(/a»s>Zc?, C. J., MSS. See a/ife, " Non- 
 tings, after Trin. T. 1767, coram T;ord payment £^I^d Notice thereof. ' 
 
 Z M 
 
840 BILLS OF EXCHANGE. 
 
 the note to the maker, or of any notice of its non-payment being 
 given to the defendant, nor did it appear that when the defendant 
 so promised to pay, he knew of any application for payment having 
 been made to the maker. For the defendant it was contended, 
 that the subsequent promise did not dispense with proof of the 
 presentment and notice, unless made with full knowledge of the 
 laches of the holder ; that in the cases hitherto decided upon this 
 subject, something appeared which might be considered as a waiver 
 of any irregularity, with regard to the bill or note, which could not 
 be inferred from a mere promise to pay, at a time when the party, 
 without being aware of it, was dischai'ged from his liability. But 
 Bayley, J., held, that where a party to a bill or note, knowing it 
 to be due, and knowing that he was entitled to have it presented 
 when due, to the acceptor or maker, and to receive notice of its 
 dishonour, promises to pay it ; this is presumptive evidence of the 
 presentment and notice, and he is bound by the promise so made. 
 Verdict for the plaintiff (m). But. if the drawer or indorser, after 
 being arrested, without acknowledging his liability, merely offers 
 to give a bill by way of compromise for the sum demanded, which 
 offer is rejected, this does not supersede the necessity of notice {n).' 
 A protest is not necessary in the case of a foreign promissory 
 note (o). 
 
 XI. Of the Declaration. 
 
 Pleadings, p. 340. 
 Evidence, p. 341. 
 Conclusion, p. 343. 
 
 Under the Common Law Procedure Act, concise forms are 
 given, adapted to the different parties, to which the reader is re- 
 ferred. 
 
 To action by A., B. and C, against D. (jp), as one of the in- 
 dorsers of a promissory note drawn by E., in favour of C, D. (and 
 himself) E., then in partnership, and by them indorsed to A., B. 
 and C. : defendant pleaded in bar, that C, one of the plaintiffs, 
 was liable to an indorser, together with D. On special demurrer, 
 the plea was held to be good ; Lord Eldon, C. J., observing, that 
 the subject of this plea could not have been pleaded in abate- 
 ment ; because a plea in abatement ought to give a better writ, 
 not to show that the plaintiff could have no action at all. The 
 effect, however, of a judgment for the defendant would be, that if 
 a man made a note to himself and others carrying on business 
 
 (m) Taylor v. Jones, 2 Campb. 105 ; (o) Bonar v. MitcheU, 5 Exch. 415 ; 
 
 and see Brownell v. Bonney, 1 Q. B. 39 ; S. 0. 19 L. J., Exch. 302. 
 
 4 P. & D. 623. (p) Mainwaring-r. Newman, 2 B. &P. 
 
 (Ji) Cwmming v, French, 2 Camiil). 120. 
 106, n, 
 
BILLS OF EXCHANGE. 841 
 
 under a particular firm, and the partnership was dissolved, the 
 promissoiy note could neither be put in suit as such, nor enforced 
 as an equitable agreement, because on a promissory note stamp. 
 Considering, therefore, the quantity of circulating paper in this 
 country, standing under the same circumstances with the note in 
 question, the consequence of such a decision might be highly in- 
 jurious. However, the case of Moffatt v. Van Millengen {q) was 
 unanswerable. 
 
 A note payable on demand is within the Summary Procedure 
 or Bills of Exchange Act, 1855, and the six months for suing runs 
 from the date of the note (r), and so is a banker's cheque (s). 
 
 Evidence. — ^As a general rule, ^here it is in issue upon the 
 pleadings the original note must be produced in evidence. This 
 rule is dispensed with in special cases only ; as where it can be 
 proved, that the note has been lost or destroyed by the defend- 
 ant (t), or that it is in the hands of the defendant, and that he has 
 had notice to produce it (u). In these cases a copy of the note, or 
 parol evidence of its contents, may be received. 
 
 The remaining evidence necessary to support the action will 
 vary according to the character in which the parties bring the 
 action, and the nature of the facts put in issue by the pleadings. 
 In an action by payee against the maker, the hand-writing of the 
 maker should be proved by some person who is competent to 
 prove such hand-writing, and it is no longer necessary to call the 
 subscribing witness, if there be one (x). An admission under a 
 judge's order, that a bill was accepted by A. for B., is an admission 
 of A.'s authority (2/). In an action by first indorsee against the 
 maker, the same evidence as in the preceding case, together with 
 proof of the indorsement to the plaintiff, will be necessary if put 
 in issue* In an action against an indorser, proof of the hand- 
 writing of the maker, or of any indorser prior to the defendant 
 (except the first), unless specially alleged in the declaration, is not 
 necessary ; but in this case it must be proved that payment was 
 duly demanded of the maker, and that the maker refused to pay, 
 or made default therein, and that notice of such refusal or default 
 was given to the defendant within a reasonable time. In an 
 action against the maker of ai note, if the promise be to pay the 
 money at a particular place, it is necessary to aver and prove a 
 presentment at that place (z) ; secus if the place of payment be only 
 
 " (q) 27 Geo.' III. B. E.. 2 B. & P. 124, (x) 17 & 18 Vict. c. 125, s. 26. 
 
 n. (s), cited in Sose v. PouUon, 2 B. & (y) Wilkes v. HopTcins, 1 C. B. 737. 
 
 ' ^|j_ 826. (s) Williams v. Wming, 10 B. & C. 2 ; 
 
 (r) Malthf v. Mwrrels, 5 H. & N. ^mblin v. Dartnell, 12 M. & W". 830 ; 
 
 813 • 29 L J 377, Ex SpiiiAler v. Grelleit, 1 Ex. 384 ; 17 L. J., 
 
 (s) W T.' Waller, 5 H. & N. 460 ; Ex. 6 ; VanderdoncJct V. Thellimon, 8 
 
 29 L. J., Ex. 246. ' C. B. 812 ; 19 L. J. C. P. 13 ; but see 
 
 (t) Lord Eaym. 731. Nicholls v. Bowes, 2 Campb. 498. 
 
 {fli) 2 B. & P. 39. ; 
 
343 BILLS OF EXCHANGE. 
 
 mentioned in the margin or at the foot of the note (a). If a bill 
 be payable or indorsed specially to a firm, evidence naust be given 
 that the firm, consists of the persons who sue as plaintiffs ; secVfS, 
 if the iiidorsement be in blank (b). A. being in insolvent circum- 
 stances (c), B. undertook to be a security for a debt owing from A. 
 to C, by indorsing a promissory note made by A. payable to B. at 
 the house of D. The note was accordingly so made and indorsed, 
 with the knowledge of all parties. Just before it became due, B. 
 having, been informed that D. had no effects of A. in his hands, 
 desired D. to send the note to him, B., and said he would pay it, 
 B. having then a fund in his hands for that purpose ; the note was 
 not presented at D.'s house till three days after it was due. It 
 was held, that C. could not maintain an action against B. on the 
 note, not having used due diligence in presenting the note as soon 
 as it was due to D. for payment, and in giving immediate notice 
 to B. of the non-payment by D. ; for B. had a right to insist on 
 the strict rule of law respecting the indorser of a note, notwith- 
 standing the particular circumstances of the case. , In an action 
 by a second, third, or any subsequent indorsee, against the maker, 
 where the first indorsement, is in blank ; as the plaintiff is not 
 bound to set forth any indorsement, except the first, but may 
 strike out the pthers, if he adopts this course, the proof will be the 
 same as in the prceding case ; but if all or any of the indorsements 
 subsequent to the first are set forth, they must be proved if put in 
 issue. Indorsements of interest are to be presumed to have been 
 written at the time they bear date, until contradicted (cZ). The 
 defendant may, if he has so pleaded it, show either that there 
 was no consideration for the note, or that the consideration has 
 failed (e). The defendant cannot set up in defence a parol agree- 
 ment, entered into when the note was made, that it should be 
 renewed when it became due (/) ; nor a parol agreement that 
 payment shall not be demanded until after such a time (g) ; for 
 this wojild be incorporating with a written contract an incongruous 
 parol condition, which is contrary to first principles. Where a 
 proipiissory note, on the face of it, purported to be payable on 
 demand, parol evidence is not admissible to show that, at the time 
 of making it, it was agreed that it should not be payable until 
 fitter the decease of the maker Qi). Where in an action by the 
 indorsee against the maker of a promissory note, payable with 
 interest on demand, the plaintiff having proved that he gave value 
 
 (a) Price r. Mitchell, 4 Campb. 200 ; 183 ; recognizing Foster v. Jolly, 1 Cr. 
 
 Masters v. Barretts, 8 C. B. 433 ; 19 L. M. & R. 703. 
 J-, Ex. 50. (/) Eoare v. Gralitm, 3 Campb. 57. 
 
 (J) Ord V. Portal, 3 Campb. 239. (g) Free v. Hawkins, 8 Taunt. 92 ; 
 
 (c) Nicholson v. Gouthit, 2 H. Bl. Mosley v. Handford, 10' B. & C. 729 ; 
 609. Foster v. Jolly, 1 Cr. M. & R. 703 ; Be- 
 
 (d) Smith V. Battens, 1 M. & Eob. santv. Gross, 10 C. B. 895. 
 
 341. (h) Woodbridge v. Spooner, 3 B. & A. 
 
 (e) Per Tindal, C. J., Abbott v. Send- 233. 
 ricJcs, 1 M. & Gr. 794 ; 2 Scott's N. R. 
 
BILLS OF EXCHANGE. 843 
 
 for it, the defendant tendered evidence of declarations made by the 
 payee, when the note was in his possession, that he (the payee) 
 had not given any consideration for it to the maker ; it was held, 
 that the evidence was inadmissible, as the payee could not be 
 identified with the plaintiff, and the note could not be treated as 
 over due at the time of the indorsement (i). So where, in an 
 action by indorsee of A. of a note, against maker, plea, that the 
 note was made without consideration, and- indorsed and delivered 
 by A. to W., for the purpose only of its being discounted ; that W., 
 in fraud of the maker (defendant) and without his consent, 
 indorsed the same and delivered it to plaintiff, who gave no cpn- 
 sideration, and who knew of the want of authority ; it was held, 
 that evidence tendered by defendajit of declarations made by W. 
 to prove the fraud was not admissible ; inasmuch as there was not 
 shown any community of interest, neither was any evidence offered 
 which, either directly or indirectly, connected the plaintiff with 
 W., or to show want of consideration, or that the note had been 
 taken when over due (Jc). 
 
 On a plea that the defendant did not make the promissory note 
 mentioned in the declaration, he cannot give in evidence that he 
 was of imbecile mind at the time when he made it (Q. 
 
 Conclusion. — The limits prescribed to this Abridgment will 
 not permit, the insertion of any more cases under this head, nor 
 indeed is it necessary; for although. a promissory note (m), while 
 it continues in its original shape, does not bear any resemblance to 
 a bill of exchange, yet when it is indorsed the resemblance begins ; 
 for then it is an order by the indorser upon the maker of the note 
 to pay to the indorsee : the indorser is as it were the drawer, the 
 make'r of the note the acceptor; and the indorsee the payee. 
 From this resemblance between a bill of exchange and promissory 
 note, it follows that many of the rules which are applicable to bills 
 of exchange, hold also in the case of promissory notes (n). But 
 the indorser does not stand in the situation of maker, relatively to 
 his indorsee. Hence the indorsee connot declare against his 
 indorser as maker, even where the indorser has indorsed a note 
 not payable or indorsed to him, and where consequently his in- 
 dorsee cannot sue the original maker (o). 
 
 (i) Barough v. White, 4 B. & C. 325. (n) See Di.Berdt v. Athinson, 2 H. Bl. 
 
 (jfc) PMlHpsY. Cole, 10 A. & E. 106. 336 ; aud ante, p. 383. 
 
 (I) ffarrison v. Ricliardson, 1 M. & (o) Owinnell y. Herbert, 6A;&E.436. 
 
 Rob. 5<ii, Abinger, C. B. See BurmcsUr v. Hogarth, 11 M. & \V. 
 
 (m) Perhovd.MaiisfieM, C. J., Eeijlyn 97. 
 V. Adamson, 2 Burr. 676. 
 
U4: 
 
 CHAPTEE X, 
 CARRIEKS. 
 
 PAGE 
 
 I. Of Common Carriers, and their Responsibility . . 344 
 
 II. Of the Stat. 11 Geo. IV. & 1 Will. IV. c. 68, Ivmiting 
 the Responsibility of Carriers by Land, as to the 
 Loss of Parcels of a certain Description ; and of 
 the Stat. 17 & 18 Vict. c. 31, s. 7— the Railway 
 and Canal Traffic Act, 1854 351 
 
 III. Of the Lien of Carriers 358 
 
 IV. By whom Actions against Common Carriers ought to 
 
 be brought 359 
 
 V. Of the Declaration, and 362 
 
 Pleading under New Rules . , . . . . 364 
 
 VI. Evidence 365 
 
 VII. Damages 367, 
 
 I. Of Com/mon Carriers, and their Responsibility. 
 
 Masters (a) and owners of ships, hoymen, -wharfingers (6), 
 lightermen, barge-owners (c), proprietors of waggons, stage-coaches, 
 railway companies (c?), &c., are denominated common carriers; and 
 by the custom of- the realm (e), that is, by the common law, are 
 bound to receive (unless they have reasonable excuse) (/) and carry 
 the goods of the subject, of the sort which they profess to carry or 
 are in the habit of carrying (gr), for a reasonable hire or reward (k), 
 to take due care of them in their passage, and to deliver them (i) 
 
 (a) Morse v. Slue, 2 Lev. 69. same liabilities at common law as a com- 
 
 (6) Maning v. ToM, 1 Starkie's N. P. mon carrier who carries only within the 
 
 C. 72. realm. As to carriers by railways and 
 
 (c) Rie}h V. Kneeland, Cro. Jac. 330 ; canals, see now 17 & 18 Vict. c. 31, post. 
 Hob. 17. (e) 1 KoU. Abr. 2. (C.) pi. 1. 
 
 (d) Exit a railway company are only (/) Jackson v. Rogers, 2 Show. 327; 
 carriers of goods which they profess to Wyld v. Pickford, 8 M. & W. 443 ; 
 carry or actually carry. Palmer v. Grand Crmwh v. Zondon and North Western 
 Junction Eailway, 4 M. feW. 749 ; John- Railway, 14 C. B. 265 ; 23 L. J., C. P. 
 smi T. Midland Railway, 4 Exch. 367 ; 73.' 
 
 Slimy. Great Northern Railway, 14 C. B. {g) Oarlon v. Bristol and Exeter Rail- 
 
 647 ; S. C. 23 L. J., C. P. 166 ; Crouch way, 1 B. & S. 112 ; Johnson v. Midland 
 
 V. London and North Western Railway, Railway, 6 Ey. Cases, 64 ; Oxlade v. 
 
 14 C. B. 255 ; 23 L. J., C. P. 73. In North Eastern Railway, 15 C. B. (N. S.) 
 
 the latter case it was held that a com- 680 ; 4 Ex. 365. 
 Mon carrier from a place within to a (h) Bastard v. Bastard, 2 Show. 81# 
 
 place without the realm, is subject to the (i) Per Popham, C. J., Owen, 67. 
 
CARRIERS. 345 
 
 safely, and within a reasonable time (j), and in the same con- 
 dition as when they were received ; or in default thereof to 
 make compensation to the owner for any loss or damage which 
 happens while the goods are in their custody, except such 
 loss or damage as arises 'from the act of God (Jc), as storms, 
 tempests, and the like ; or from the acts of the enemies of the 
 King. If the consignee refuse to accept the goods the carrier is 
 not bound to inform the consignor of the fact ; but he is merely 
 bound to do what is reasonable under the particular circumstances 
 of each case, which is a question for the jury (I). Where the con- 
 signee of a parcel refused to pay the amount charged by a carrier 
 for the conveyance of a parcel as being excessive, and the carrier 
 immediately sent it back from Plytnouth, its place of destination, 
 to London, whence it had been sent, and the consignee afterwards, 
 but within a reasonable time after it had been tendered for 
 delivery, offered to pay the sum charged, but the carrier refused to 
 receive the same or to deliver the parcel ; it was held, that such 
 conduct was unreasonable on the part of the carrier, and that he 
 was liable for the value of the parcel (m). 
 
 The hire must be a reasonable sum, but a carrier was not bound 
 at common law to charge the same to all customers, although it 
 might be evidence to show that the higher charge was unreason- 
 able : he has no right to refuse to carry a parcel without being 
 informed of its contents (n). 
 
 Carriers are, generally, answerable for the honesty of their ser- 
 vants : if, however, the plaintiff's own conduct, in full knowledge 
 of the circumstances, be such as to lead to the loss ; if he afford 
 undue temptation and facility to the crime of the servant, he can 
 maintain no action for a loss thus occasioned by his own fault (o). 
 
 In an action brought against a common carrier by water, 
 charging the defendant with negligence ; it was held to be no 
 defence that the ship was tight when the goods were placed on 
 board, but that a rat, by gnawing out the oakum, had made a 
 small hole through which the water gushed ; on the ground, that 
 whatever was not excused by law, was to be deenied a negligence 
 
 (j) Story on Bailment, 545 a. ; Jlrid- (h) Amies v. Stevens, Str. 128 ; and see 
 
 don V. Great Northern Railway Company, Oakley v. Port of Portsmouth Steam 
 
 28 L. J., Ex. 51. InEydev. The Trent Packet Company, 25 L. J., Exch. 99 ; 
 
 and Mersey Nd/iiigation Compa/ny, 5 T. E. 11 Exch. 618. 
 
 896, the general question, -whether a car- (I) Hudson v. Baxendale, 27 L. J. 
 
 rier was hound to deliver the goods to the Exch. 93. 
 
 person to whom they were directed, was (m) Crouch v. Gnat 'Western Railway, 
 
 a%\'aAA^\,Ashhuret,Buller,x!A6rose,Z^., 27 L. J., Exch. 345. 
 
 wereofopinionthatacarrierwas so bound; (re) Crouch y. London and North Wc^j- 
 
 but.ffe)!j^on,C. J., appears to have inclined em Railway, 14 C. B. 255; and see 
 
 to the contrary opinion. The special cir- Finnie v. Glasgow and S. W. Railway, 
 
 cumstances of the case (which see, post) 2 Maoq. H. L. Cas. 177. 
 
 .rendered it uiluepessary for the court to (o) Bradley v. Waterhouse, M. & Malk. 
 
 decide the general question, 151. . 
 
346 CAEEIERS. 
 
 in the carrier, and that he was answerable in all events, except ' 
 where the goods were damaged by the act of God or the king's 
 enemies {p). So where the proprietors of the Trent navigation 
 had undertaken to cany goods from Hull to Gainsborough, and 
 the vessel, on board which the goods were placed, drove against an 
 anchor in the River Humber and sank ; it was held, that the 
 carriers were responsible to the owner of the goods for the damage 
 sustained ; although it was proved that the accident was occa- 
 sioned by the negligence of the persons on board a barge in the 
 river, who had not put a buoy out, to mark the place where the 
 anchor lay : the court observing .that there was a degree of negli- 
 gence in the master of the vessel also ; for his not seeing the buoy 
 ought to have put him upon inquiring more minutely about the 
 anchor ; and even if there had not been any actual negligence, yet 
 negligence in law was sufficient (g). 
 
 A common carrier being an insurer, in. all cases (except the two 
 before mentioned), is responsible for a loss occasioned by accidental 
 fire, provided such loss happens while the goods are remaining in 
 his custody as a cominon carrier. As where the goods intrusted 
 to a common carrier were consumed by accidental fire communi- 
 cating to a booth where the goods had been deposited by the carrier 
 in the course of the journey; it was held, that the carrier was 
 liable, although the jury found that the goods were consumed with- 
 out any actual negligence on the part of the carrier (r). So where 
 common carriers from A. to B. charged and received for cartage 
 of goods from a warehouse at B. (where they usually unloaded, but 
 which did not belong to them), to the house of the consignee, in B.; 
 it was held, they were responsible for a loss by an accidental fire 
 while the goods were in that warehouse ; although they allowed the 
 profits of the cartage to another person, and that circumstance was 
 known to the consignee (s). So where to a declaration on a contract 
 by the master of a steam vessel to convey goods from Dublin to 
 London, and to dehver the same at the port of London to plaintiff 
 or his assigns, the defendant pleaded that, after the arrival of the 
 vessel at London defendant caused the goods to be deposited on a 
 wharf there to remain until they could be delivered to the plaintiff, 
 the wharf being a place where goods from Dublin were accustomed 
 to be landed, and fit and proper for such purposes, and that before 
 a reasonable time for delivery elapsed they were destroyed by an 
 accidental fire, the plea was held ill; the court considering, that 
 the defendant was acting, during the whole of the time whilst the 
 goods were in his possession, under the obligation of a common 
 carrier, who is liable for every loss (not specially excepted), except 
 
 (p) Dale V. Hall, 1 Wils. 281. (s) Hyde v. Trmt amd Mersey Naviga- 
 
 iq) Proprietors of the Trent Navigation tion, 5 T. R. 389 ; and see Bourne v. Gat- 
 
 y. Wood, 3 Esp. N. B. C. 127. liffe, 3 M. & G. 643 ; 7 M. & G. 850 ; 
 
 ()•) Forward v. Pittard, 1 T. E.. 27. 11 C. & F. 46. 
 
-CAEEIEES. 347 
 
 the act of God and the king's enemies (t). But where the goods 
 are not remaining in the defendant's custody as common carrier, he 
 is not liable ; as where the goods had been carried by the defendant 
 from A. to B. and there deposited in his warehouse, merely for the 
 convenience of the owner, until they could be forwarded by another 
 conveyance (the owner not paying the defendant anything for the 
 warehojise-room), and were consumed by an accidental fire there, 
 it was held, that the defendant was not liable (u). In Cairns v. 
 Robins, 8 M. & W. 258, Lord Ahinger, G. B., said, "A distinction 
 has been properly drawn between the duties of a carrier and of a 
 ■warehouseman. But the party may have so large a compensation 
 as a carrier, as to be sufficient also to remunerate him for acting as 
 a warehouseman, as is the case witlf many of the canal companies ; 
 and it is quite consistent with both these characters, that he will 
 for a certain time, until further orders, or for a reasonable time, 
 keep the goods, considering the general remuneration for carrying 
 sufficient to cover this risk also (x). Where parcels are deposited 
 in a cloak room at a railway station, the company does not receive 
 them as a carrier, but the responsibility of the company depends 
 upon the terms of the contract of bailment, i. e. practically the 
 company's liability is limited by the printed regulations upon the 
 ticket given to the depositor (y). 
 
 If a person brings a parcel to a railway station (which in this 
 respect is just the same as a coach-office), although he knows at 
 the time that the railway company only carry to a particular place, 
 yet if the company receive and book it to another place to which 
 it is directed, primd facie they undertake to carry it to that place. 
 A parcel was delivered at Lancaster, to the Lancaster and Preston 
 Railway Company, directed to a person at Bartlow, in Derbyshire ; 
 and the person who brought it to the station offered to pay the car- 
 riage, but the bookkeeper said it had better be paid by the person 
 to whom it was directed, on the receipt of it. The company were 
 known to be proprietors of the line only as far as Preston, where 
 the railway unites with the North Union, and that afterwards with 
 another, and so on into Derbyshire. The parcel having been lost 
 after it was forwarded from Preston, it was held, that the Lancaster 
 and Preston Railway Company were liable for its loss (z). And 
 if the sender of the goods countermand the directions originally 
 given, and the goods are lost by reason of the railway company's 
 non-compliance with the countermand, they are liable for such 
 loss (a). 
 
 (t) Bourne t. GatUffs,, 11 C. & F. 45. ton Jvmdiom, Railvmj, 8 M. & "W. 421 ; 
 
 (v) Oarside v. Trent and Mersey Navi- and see Collins v. Bristol and Exeter 
 gation, 4 T. R. 581 ;■ and see Bourne v. Railway, 26 L. J., Exch. 103 ; and Wilby 
 Gatlige, 11 C. & F. 46. v. West Gomviall Railway, 27 L. J., 
 
 (x) See also Oiles T. Taff Vale Rail- Exch. 181. 
 way, 2 E. & B. 822. {a) Seotthomc v. Soutli Staffordshire 
 
 (y) Van Toll v. South Eastern Rail- Railway, 8 Exch. 341- ; 22 L. J., Exch. 
 way, 31 L. J., C. P. 241. 191. 
 
 (2) Musehamp v. Lancaster and Pres- 
 
348 CAEEIEES. 
 
 If a common carrier be robbed of his goods, be shall answer the 
 value of them ; for having his hire, there is an implied undertaking 
 for the safe custody and delivery (6). 
 
 Where a person undertakes to carry goods safely and securely, 
 he will be responsible f'or the damage they sustain in the carriage 
 through his neglect, though he is not a common carrier, nor has any 
 reward for his labour (c) ; and this rule holds, although the plaintiff, 
 for greater caution, sends his servant with the goods, who pays a 
 person for guarding them, because he apprehends danger of their 
 being stolen (d). 
 
 A stage coachman has been held responsible for the loss of a 
 parcel which he had received to carry without reward, it appearing 
 to have been lost through gross negligence on his part (e). In a 
 special action on the case, wherein the plaintiff declared that 
 whereas the defendant had undertaken to carry a hare for the 
 plaintiff from A. to B., yet the defendant carried the same so neg- 
 ligently, that he lost it by the way, on demurrer, it was objected by 
 Hawkins, Seijeant, that the plaintiff had not declared, on the 
 general custom of the realm relating to carriers, and, therefore, the 
 defendant must be taken to be a private person ; if so, there was 
 not any consideration laid, and consequently the promise was 
 merely nudum pactum. 2ndly. The plaintiff had not set forth a 
 delivery of the hare, upon which the promise was made, and for 
 the breach of which promise the action was brought. Probyn and 
 Reynolds, (the only judges in court,) as to the first objection, ad- 
 mitted that the defendant must be taken to be a private person ; 
 but it was determined in Goggs v. Bernard, that a private person 
 was answerable, if he undertook the carriage of goods, for a mis- 
 feasance, though there was not any consideration ; and the only 
 difference was, that a common carrier was obliged to undertake 
 the carriage of goods, and a private person was not ; but if a pri- 
 vate person voluntarily undertook it, he was by law answerable for 
 damage arising from his negligence. As to the second objection, 
 the court said, that the delivery was implied ; for it was stated, 
 that the defendant had carried the hare part of the way, which he 
 could not have done without a delivery ; and as for the breach of 
 promise, the action was not brought for that, but for the loss of the 
 hare ; the promise was only inducement. Accordingly they gave 
 judgment for the plaintiff (/). 
 
 Carrier of Passengers. — Carriers of passengers for hire are suh- 
 
 (J) 1 Inst. 89, a ; Woodliefe v. Curties, 38 ; Soss v. Mil, 2 C. B. 877 ; 15 
 
 1 EoU. Ab. 2, (C) pi. i;S. P. Covington L. J., C. P. 182 ; Powles v. Bilder, 25 
 
 V. Willan, Gow's N. P. C. 115. L. J., Q. B., 331, in which latter case it 
 
 (c) _ Coggs v. Bernard, Lord Eaym. 909 ; was decided that the owner of a hack cab 
 1 Smith's Lead. Gas. was liable fot a loss occasioned by the 
 
 (d) Roiinson v. Dmimore, 2 B. & P. driver. 
 
 416. (/) muton V. Osborne, B. E. M. 
 
 (e) Beauchamp V. Powley, 1 M.&Bob. Geo. II. MS. 
 
CAEEIEES. 349 
 
 ject at common law to the same responsibility as carriers of goods, 
 so far as regards the passengers' luggage (g), but this must be 
 ordinary luggage, articles of personal convenience and use, and 
 not merchandise or valuables, although carried in a trunk (h), 
 unless the carrier has received the luggage, knowing that it is 
 goods or merchandise (i). The fact that the luggage is carried in 
 the same carriage with the passenger will not relieve the carrier 
 from his liability (/<;). 
 
 " There is nothing more common than for persons to put part of 
 their luggage into the same railway carriage with them : and that 
 may be done under such circumstances as never to cast any respon- 
 sibility on the carriers : but that is to be proved. "When this is 
 done by the company's servants, the company are not relieved from 
 their liability as carriers in respect of it. So a passenger taking a 
 valuable article openly and notoriously into the same carriage in 
 which he travels, will not save the company from responsibility " (I). 
 A railway company are bound, on the arrival of the train at the 
 terminus of the journey, to deliver a passenger's luggage into a 
 carriage to be conveyed from their station, if required so to do, 
 and if such is their usual practice (m). 
 
 Carriers of passengers are not common carriers (n), i. e. they are 
 not as regards their duties in respect to the passengers themselves 
 under the same liabilities -at common law as carriers of goods ; 
 they are not insurers, they are not responsible for mere accidents 
 happening to the persons of passengers without any default on the 
 carriers' part (o), but they are bound to carry passengers upon their 
 tendering their fare, provided they have no reasonable excuse (p), 
 having received them they are bound to provide for their safety 
 and conveyance so far as human care and foresight can go (q), and 
 to use due care and diligence to carry them without delay ; and of 
 course they are liable for the negligence of their servants in the 
 course of their employment (r). It has only recently been decided 
 in the Queen's Bench that they do not absolutely warrant that the 
 conveyance is sufficiently secure to undei'take a journey (s), and 
 
 (g) Brooke v. Pickwick, i Bing. 218 ; v. London and South Western Railway 
 RicJiard v. Great Northern Railway, 7 Company, 6 B. & S. 961. 
 C. B. 839. See, however, remarks of (m) Butcher v. London and South West- 
 Pollock, 0. B. Stewart v. London and era Railway, 16 C. B. 13; 24 L. J., 
 North Western Railway, 33 L, J., Ex. C. P. 137. 
 199. (n) Bao. Ab. Carrier, A. 
 ■ (A) Great Northern Railway v. Shep- (o) Aston y. Heai-en, 2 Esp. 533. 
 herd, 8 Exoh. 30 ; Belfast Railway v. {p) Story on Bailment, and aiithoritiea 
 Keijs, 9 H. of L. Gas. 5S6 ; Phelps v. Lon- cited by him, s. 496. 
 dm arnd North Western Railway, 19 0. (q) Per Mansfield, C. J. in Christie v. 
 B. (N. S.) 321. Griggs, 2 Campb. 79. 
 
 (i) Ibid. V (r) See duty of coach-owners explained 
 
 {k) Le Conteiir v. London and South by Best, C. J.', in Crofts v. WaterJwuse, 3 
 
 WestemRa,ilway,S5h. J.tQ-B. iO. Bing. 321. 
 
 (l) Per Wilde, G. J., in Richards v^ (s) Redhead v. Midland Railway, 2 
 
 London and South Coast RaUway, 18 L. L. E., Q. B. 413 ; Sharp v. Grey, 9 Bing. 
 
 J , C. P. 254; 7 C. B. 839 ; Le Conteur 257 ; 2 M. & S. 620. 
 
350 CARRIEES. 
 
 BlacJcburn, J., dissented from tlie judgment of the Court, Mellor 
 and Lush, JJ. An action has been held to lie against a railway- 
 company for refusing to convey a passenger by a train advertised 
 in their time tables (f). 
 
 A., a stable-keeper, let to B. four horses to draw B.'s caniage 
 from C. to D. The horses were ridden by A.'s servants. Through 
 their negligence, the carriage of I. S. sustained an injury. It was 
 held, that I. S. might maintain an action against A. (u). 
 
 The liability of railway companies as to the conveyance of pas- 
 sengers stands simply on the common law, capable of being modi- 
 fied by special conditions that maybe stipulated for on a special con- 
 tract, for the Canal and Railway Traffic Act and the Carriers Act 
 do not, with one trifling exception, apply to passenger traffic. The 
 contract as tothe time at which a passenger is to be delivered is 
 contained in the time table (y). Where the Great J^orthern pub- 
 lished and circulated a time table, stating that a certain train would 
 run from P. to H., although they knew the train would only run 
 to M., an intermediate station, and the plaintiff was detained and 
 sustained damage in consequence thereof, it was held, that he 
 might recover on the ground that the circulation of the time bills 
 amounted to a fraudulent representation ; the majority of the 
 court also held, that the time table amounted to a contract on 
 behalf of the company with those who'should come to the station 
 to forward them as stated in the table (x). But where there is a 
 statement on a time table, stating that the company wiU not be 
 liable for the punctual arrival of a train, but will do their best to 
 ensure its punctuality, it would seem that a person has no remedy 
 for damage sustained from detention on the journey (y), unless at 
 any rate he can show negligence in not taking due care to ensure 
 the due arrival of the train. The right which a passenger by rail- 
 way has to be carried safely does not depend on his having made a 
 contract, but the fact of his being a passenger, with the company's 
 authority, casts a duty on them to carry him safely (z). 
 
 It is a pri/md facie case of negligence in a railway company, that 
 at the tinie an accident, not consistent with due care, occurred, the 
 train and railway were exclusively in their management (a). But 
 this prvmd facie case may be rebutted by showing that the accident 
 
 (t) Denton v. Great Northern Eailway, (y) Hwrst-7. Great Western Hailway, 19 
 
 supra; and see Bennett v. Peninsular and C. B. 311 ; 34 L. J., C. P. 264. See Bridr 
 
 Oriental Compcmy, 6 C. B. 775. As to donY. Great Northern Bailway, 28 L. J., 
 
 the damages recoverable in such action, Ex. 51. 
 
 see Bamlin v. Great Northern Sailway, (z) Mars7t.aU v. Newcastle and Ber- 
 
 1 H. & N. 408 ; 26 L. J., Exch. 20, mck Eailway, 11 C. B. 655 ; 21 L. J., 
 
 post, 368. C. P. 34 ; Austin v. Great Western Bail- 
 
 (u) Sammell v. WrigM, 5 Esp. N. P. C. way, 2 L. E., Q. B. 445. 
 268. See Quarmari v. Burnett, 6 M. & W. {a) Carpue v. The London and Brighton 
 
 499 ; post, tit. " Master and Servant." Sailway, 5 Q. B. 747 ; Skinner v. Smiih 
 
 {x) Denton v. Great Northern Railway, Coast Railway, 5 Exch. 787. See Scott 
 
 S E. & B. 860. . v. London Docks, 3 H. & C. 699. 
 
CAREIEES. 351 
 
 was occasioned by the wilful act of a stranger (b). " Though there 
 may have been negligence on the part of the plaintiff, yet, unless 
 he might by the exercise of ordinary care have avoided the conse- 
 quences of the defendant's negligence, he is entitled to recover : if 
 by ordinary care he could have avoided them, he is the author of 
 his own wrong " (c). But in order to sustain an action for damages 
 arising from such negligence, the plaintiff must not have been in 
 the railway carriage under such circumstances as to have been a 
 trespasser (d). If the injury might have been avoided by the reason- 
 able skill of those who had the management of the conveyance in 
 which the plaintiff Avas a passenger, he has no remedy against the 
 owner of the other conveyance through whose negligence the 
 accident was caused (e), although if tbe accident was in part only 
 occasioned by want of care on the part of the conductor of the con- 
 veyance in which the plaintiff was, that would not be a defence to 
 such an action (/). 
 
 II. Of the Stat. 11 Geo. IV. & 1 Will IV. c. 68, limiting the 
 Responsibility of Carriers by Land (g) as to the Loss of 
 Parcels of a certain Description; and the Canal and 
 Railway Company Traffic Act (17 & 18 Vict. c. 31). 
 
 The 11 Geo. IV. & 1 Will. IV. c. 68, usually cited as the 
 Carriers Act, is intituled " An Act for the more effectual Protec- 
 tion of Mail Contractors, Stage Coach Proprietors, and other 
 common Carriers for Hire, against the Loss or Injury to Parcels or 
 Packages delivered to them for Conveyance or Custody, the Value 
 and Contents of which shall not be declared to them by the 
 Owners thereof." The preamble recites, " That by reason of the 
 frequent practice of bankers and others sending by the public 
 mails, stage-coaches, waggons, vans, and other public conveyances 
 by land, for hire, parcels and packages containing money, bills, 
 notes, jewellery, and other articles of great value in small com- 
 pass, much valuable property is rendered liable to depredation, 
 and the responsibility of mail contractors, stage-coach proprietors, 
 and common carriers for hire, is greatly increased ; and through 
 the frequent omission by persons sending such parcels and pack- 
 ages to notify the value and nature of the contents thereof, so as 
 to enable such mail contractors, &c., by due diligence to protect 
 themselves against losses arising from their legal responsibility, 
 
 (6) Latch V. The Bumner Railway, 27 Harrison (in error), 10 Exoh. 376 ; 23 
 
 L J Exch 155 See Bird v. Great L. J., Exch. 308; and Lygo v. iVej«- 
 
 i\r(,rfemifai-;t»ay, 28L. J. Exoh«3. JoM 9 Exch. 302. „ ^ „ ,,- 
 
 Ws Per Parke B. in Bridge v. Qramd (e) Thorogood v. Bryan, 8 C. B. 116 ; 
 
 Jxliction Bailway 3 M. & W. 248. See 18 L. J., C. P. 336. 
 also Greenland v. Chaplim,, 5 Exch. 243, (/) Mgby v. Hewelt, 5 Exch. 240 ; 19 
 
 snA Martin r. Great Northern Bailway, L. J , Exch. 291 
 16 C B 179 W ^^ to the hmit of the hability of 
 
 (d) See Great Nortlurn Bailway v. carriers by sea, see article Shipping. 
 
853 CABEIEES. 
 
 and the difiSculty of fixing parties with knowledge of notices pub- 
 lished by such mail contractors, &c., with the intent to limit such 
 responsibiUty, they have become exposed to great and unavoidable 
 risks, and have thereby sustained heavy losses ;" it is then enacted, 
 " that no mail contractor, stage-coach proprietor, or other common 
 carrier hy land, for hire, shall be liable for the loss of, or injury to, 
 any article of property of the descriptions following ; (that is to 
 say), gold or silver coin of this realm or of any foreign state, or 
 any gold or silver in a manufactured or unmanufactured state, or 
 any precious stones, jewellery, watches, clocks, or timepieces of any 
 description, trinkets, bills, notes of the governor and company of 
 the Banks of England, Scotland, and Ireland respectively, or of 
 any other bank in Great Britain or Ireland, orders, notes, or 
 securities for payment of money, English or foreign, stamps, maps, 
 writings, title-deeds, paintings, engravings, pictures, gold or silver 
 plate, or plated articles, glass, china, silks in a manufactured or 
 unmanufactured state, and whether wrought up or not wrought up 
 with other materials Qi), furs {%) or lace, or any of them, contained 
 in any parcel or package which shall have been delivered, either 
 to be carried for hire, or to accompany the person of any passen- 
 ger in any maU or stage-coach, or other public conveyance, when 
 the value of such article or articles, or property aforesaid con- 
 tained in such parcel or package shall exceed the sum of 
 ten pounds, unless at the time of the delivery thereof at the 
 ofiSce, warehouse, or receiving-house of such mail- contractor, &c., 
 or to their book-keeper, coachman, or other servant, for the purpose 
 of being carried, or of accompanying the person of any passenger 
 as aforesaid, the value and nature of such article or articles, or 
 property shall have been declared by the persons sending or 
 delivering the same, and such increased charge as hei-einafter 
 mentioned, or an engagement to pay the same, be accepted by the 
 person receiving such parcel or package " {k). [By 28 & 29 Vict. c. 
 94, s. 1 , lace is not to include machine-made lace.] By the second 
 section, common carriers, upon delivery of such parcels exceeding 
 the value of ten pounds, and so declared as aforesaid, may demand 
 an increased rate of charge, which is to be notified by a notice in 
 legible characters afiixed in the oflSce ; and persons sending parcels 
 are to be bound by such notice, without further proof of the same 
 havii?g come to their knowledge. The third section directs that 
 carriers shall, if required, give a receipt for the parcel, acknow- 
 ledging the same to have been insured, which receipt shall not he 
 liable to any stamp duty; and carriers who do not give such 
 receipt, when required, or affix the proper notice, " shall not be 
 entitled to any benefit or advantage ftnder the act, but shall be 
 liable as at the common law, and shall also be liable to refund the 
 
 {h) Darcy v. Mason, 1 Car. & M. 45. defence the non-declaration of tlie nature 
 {i) Mayhew v. Nelson, 6 C. & P. 58. and value of the goods, see Pianciani v. 
 (/c) For a plea setting iip by way of South Western Railway, 18 C. B. 226. 
 
CARRIERS. 853 
 
 increased rate of _ charge " (Z). By the fourth section, carriers 
 cannot by a public notice or declaration limit their liability at 
 common law to answer for the loss of any articles in respect 
 whereof they are not entitled to the benefit of this act. By the 
 fifth section, every ofSce of such common carrier snail be deemed a 
 receiving-house (m), and any one proprietor shall be liable to be 
 sued, and no action shall abate for want of joining any co-pro- 
 prietor. Special contracts are not affected by this act (n). Parties 
 entitled to damages for parcels lost or damaged may recover the 
 extra charges for insurance (o). This act does not protect any 
 such common carrier from liability to answer for loss or injury 
 arising from the felonious act of any servant in his employ, nor 
 does it protect any such servant front liability for any loss or in- 
 jury occasioned by his own personal neglect or misconduct (p). 
 Where felony on the part of such servant is set up in answer to a 
 defence under the statute, the question of negligence becomes im- 
 material, but a mere suspicion that the loss arose from felony, by 
 the carrier's servants is not sufficient ; it must be proved that it 
 actually did so arise (q). Carriers are not to be concluded as to 
 the value of any parcel by the value declared, but the party in- 
 jured must prove the actual value by the ordinary legal evi- 
 dence (/•). Money may be paid into court by the common carrier 
 in the same manner and with the same effect as money paid into, 
 court in any other action (s). 
 
 Although the foregoing statute in the preamble mentions 
 articles of great value in small compass, yet the provisions of 
 sect. 1, in its enacting part, are not controlled by those words in 
 the preamble. The terms of that section are general, and it 
 applies to any glass article if exceeding ten pounds in value. The 
 carriage of glass requires particular attention, and imposes peculiar 
 risk on the carrier. The term " glass " in the act being unlimited, 
 the court would not be justified in saying that it applied to ^mall 
 glasses only, and not to glass of every description. In such a case, 
 therefore, the plaintiff cannot recover, if he does not comply with 
 the terms of the notice in the office, unless he can establish wrong- 
 ful conduct, so as to take the case out of the protection intended 
 by the statute (t). The protection, however, does not extend to a 
 case where damage has arisen to the owner from delay in the de- 
 livery of the goods (w). And in a recent case it has been held, 
 
 (Z) See Earf v. BaxendaU, 7 Exeh. Railway, 11 0. Bi 140, is explained ; and 
 
 ygg see also Metmlfs v. Brighton Railway, 27 
 
 (m) Syms v. Chaplin, 5 A. & E. 634; L. J., C. P. 205. 
 
 1 Nev. & P. 129. • W Sect. 9. 
 
 (n) Seat 6. (s) Sect. 10. 
 
 in{ Sect 7 {() Per Bayhy, B., Owen v. Burnett, 
 
 (p) Sect 8 4 Tyrw. 141 ; 2 Cr. & M. 353. 
 
 (ai B^a ' Oreai Western Railway v. (u) Jlearm. London and Southwestern 
 
 RMl, 18 C. B. 575 ; 27 L. J., C. Railway, 10 Exch. 793 ; 24 L. J., Kxoh. 
 
 P. 201, where Butt v. Great Western 180; 
 
 VOL. I. 
 
 A A 
 
854 CAEEIEES. 
 
 that as the protection giren by the first section of this statute is 
 absolute, and without exception or restriction, if any of the goods 
 enumerated in the first section be sent to a carrier for conveyance 
 without a declaration of the nature and value of such goods, or 
 without paying or engaging to pay an increased charge, according 
 to sect. 2, the carrier is not liable for their loss, though it happen 
 by the gross negligence of his servants (v). A person who delivers 
 to a carrier goods of the description mentioned in sect. 1, must, in 
 order to fix the carrier with responsibility for their loss, declare to 
 him the nature and value of the. goods at the time of their de- 
 livery, whether it takes place at his office, or on the road, or else- 
 where (x) ; and if the carrier does not demand, either at the time of 
 delivery, or before a loss or injury, the increased rate for carriage 
 to -Brhich he may be entitled under the act, he is not protected 
 from his common law liability in case of loss or injury (y) Where 
 a carrier makes one contract for carriage partly by land and partly 
 by water, the contract is divisible, so as to bring that part which 
 applies to carriage by land within the statute (z). 
 
 Although by sect. 4 carriers can no longer by public notice limit 
 their liability at common law with respect to articles' not enume- 
 rated in the first section, still special contracts with respect to the 
 conveyance of any articles may be entered into betw^een the 
 carrier and his customer, and wUl bind both parties (a). 
 
 There is a difference of opinion as to whether these notices . by 
 which, if brought home to the knowledge of the consignor, carriers 
 could previously to the Carriers Act protect themselves from un- 
 foreseen losses not caused by the fraud or negligence of themselves 
 or their servants, acted by way of contract or as restrictions on the 
 public profession of a carrier (b). Where notices have been per- 
 sonally served on the senders of goodg a jury are bound to infer 
 from the receipt of the notice and the subsequent sending of th& 
 goods that a special contract on the terms of the notice has been 
 made (c). 
 
 By these special contracts all carriers might, and it would seem, 
 all except railway and canal companies still can, relieve themselves 
 from all reponsibUity, even if caused by their gross negligence (d). 
 
 (v) Hinton v. Dibbin, 2 Q. B. 646. See Lmcashire and TorJcshire Railway, 21 L. 
 
 Wyld V. Pwkford, 8 M. & W. 443 ; and J., Q. B. 23 ; Carr v. LancdsUn and 
 
 Butt V. Great Western Hailway, 11 C. B. Yorkshire Railway, 7 Exch. 707 ; Yvrlc, 
 
 140 ; 20 L. J., 0. P. 241. N. andB. BaUwayy. Crisp, 14C. B. 527; 
 
 , {X) HaH T. Baxmdale, 7 Exch. 769 ; 23 L. J., C. P. 125. But see now 17 & 
 
 21 L. J., Exch. 123, in error, rerers- 18 7ict. c. 31, s. 7, post. 
 
 ing the judgment of the Exchequer. (J) Peek v. North Staffordshire Railway, 
 
 (y) Behrens v. Great Northern Bail- 32 L. J., Q. B. 269. . . 
 
 i^ay, 31 L. J. , Ex. 299. (c) Walker v. York and North Midland 
 
 (z) Le Conteur v. London and South Railway, 2 Ell. & Bl. 780. 
 
 Western Railway, 35 L. J.,. 40 Q. B. - (d) Can- v. LancasMrb and Yorkshire 
 
 {a) Waller V.York and North Midland Railway, 7 'Ex. 707. 
 Railway, 2 E. & B. 750 ; Chippendale v. 
 
.CARRIEES. 855 
 
 The Eailway and Canal Traffic Act, ISo* (17 & 18 Vict. c. 31), 
 has, however, considerably limited the power of the latter to . do 
 this. 
 
 The first six sections are framed with a view of compelling rail- 
 way and canal companies to make arrangements for receiving and 
 forwarding traffic (which, by sect. 1 is to include passengers and 
 their luggage, goods, animals, &c.), without delay and without par- 
 tiality; and give power to the Court of Common Pleas to enforce 
 this obligation (e). Sect. 7 enacts as follows : " Every such com- 
 pany (i. e. railway or canal company) as aforesaid shall be liable 
 for the loss of or for any injury done to any hoirses, cattle or other 
 animals, or to any articles, goods or things, in the receiving, for- 
 warding or delivering thereof, occasioSed by the neglect or default 
 of such company or its servants, notwithstanding any notice, con- 
 dition or declaration made and given by such company contrary 
 thereto, or in anywise limiting such liability : every such notice, 
 condition or declaration being hereby declared to be null and void : 
 provided always, that nothing herein contained shall be construed 
 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 ; provided always, that no greater damages 
 shall be recovered for the loss of or for any injury done to any of 
 such animals beyond the sums hereinafter mentioned ; (that is to 
 say), for any horse 50^. ; for any neat cattle, per head, 15J. ; for any 
 sheep or pigs, per head, 2Z. ; unless the person sending or deliver- 
 ing the same to such company shall, at the time of such delivery, 
 have declared them to be respectively of higher value than as 
 above mentioned ; in which case it shall be lawful for such com- 
 pany to demand and receive by way of compensation for the 
 increased risk and care thereby occasioned, a reasonable per 
 centage upon the excess of the value so declared above the 
 respective sums so limited as aforesaid, and which shall be paid in 
 addition to the ordinary rate of charge ; and such per centage or 
 increased rate of charge shall be notified in the manner prescribed 
 in the stat. 11 Geo. IV. & 1 Will. IV. c.]68, and shall be binding 
 upon such company. in the manner therein mentioned : provided 
 also, that the proof of the value of such animals, articles, goods 
 and things, and the amount of the injury done thereto, shall in all 
 cases lie upoil the person claiming compensation for such loss or 
 
 (c) See Satisome v. Eastern Counties Earns y. Ooekermoulh and WorUngion 
 
 Sailway, 26 L. J., C. P. 91 ; Oaterham Eailway, 27 L. J., C. P. 162; Cooper v. 
 
 Mcdlway Y.London and Brighton Railway, South Western Bailway, 27 L. J., C. P, 
 
 26 L J C p. 161 : Oxlade. T. North 324 : Oidade v. North Eastern Railway, 
 
 Eastern Railway, 26 L. J., C. P. 129 ; 15 C. B. (N. S.) 680 ; Eaxendale ^- Great 
 
 Eaxendaiey. The North Devon Railway, Western Railway, 28 L. J., C. I*. 69 ; 
 
 3 C- B (N S ) 324 ; Ransmne v. Eastern and Nicholson v. Great Western Railway, 
 
 Counties Railway, 27 L. J., C. P. 166 ; 28 L. J., 0. P, 89, 
 
 A A 2 
 
S56 CARRIEES. 
 
 injury :' provided also, that no special contract between such com- 
 pany 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 deUvering such animals, articles, 
 goods or things respectively for carriage : provided also, that 
 nothing herein contained shall alter or affect the_ rights, privileges, 
 or liabilities of any such company under the said act of 11 Geo. 
 IV. & 1 Will. IV. c. 68, with respect to articles of the descriptions 
 mentioned in the said act." 
 
 After a great difference of opinion as to the meaning of this 
 section it has received its construction from the House of Lords, 
 confirming the view taken of it by the Lord Chief Justice Jervis, 
 in Simons v. The Great Western Railway Gom'pany. " I take it 
 to be equivalent to a simple enactment that no general notice 
 given by a railway company shall be valid in law for the purpose of 
 limiting the common law liability of the company as carriers. 
 Such common law hability may be limited by such conditions as 
 the court or judge shaU determine to be just and reasonable, but 
 with this proviso that any such condition so limiting the hability of 
 the company shall be embodied in a special contract in writing be- 
 tween the company and the owner or person delivering the goods 
 to the company, and which contract in writing shall be signed by 
 such owner or person." Per Westbury, Lord Chancellor, in Peek 
 v. North Staffordshire Railway CoTnpany (/). 
 
 In reference to the decisions upon the reasonableness of the con- 
 ditions, it is to be observed that many of them have undergone 
 considerable modification by the judgments in M'Manns v. Lanca- 
 shire ilailway, and Peek v. N'orth Staffordshire Railway Com- 
 pany, ^hich. maybe considered as the leading cases upon this part 
 of railway carriers' law. When there are no optional rates, any 
 condition that the company "will not be responsible for any injury 
 or damage howsoever caused," is unreasonable (g). So is a condition 
 in a cattle ticket, exempting the company " from any consequences 
 arising from over-caniage, detention, or delay, in conveying the 
 animals, however caused" (A). So is a condition "not to be 
 accountable for the loss, detention, or damage of any package, in- 
 sufiiciently or improperly packed " (i). And the unreasonable cha- 
 racter of a condition that places all the risk of carriage upon the 
 sender is not removed by a second condition granting a free pass 
 to a person having the care of the cattle (k). But where a railway- 
 company gave public notice that fish would only be conveyed on their 
 
 (/) 32 L. J., Q. B. 269, in dom. proe. North Eastern BaUway, 2 L. K. 173 Ex. 
 
 {g) McMcmnsy. Lancashire BaUway, (i) Simons v. Great WesUm Railvmy, 
 
 m Ex. Ck, 4 H. & W. 327. 18 C. B. 805, 829 ; Gwrtmy. Bristol amd 
 
 (A) Allday v. Cfreat Western BaUway, ExeUr BaUway, 1 B. & S. 112. 
 
 34 L. J., Q. B. 5 ; Gregory v. West Mid- (k) Booth v. North Eastern BaUway, 
 
 land Bailway, 2 H & Q. 9ii ; Booth y. 2 jy. P Ex 173 
 
CARMEBS. 357 
 
 line by special agreement, and that the sender should sign the fol- 
 lowing conditions, ," the company shall not be responsible for loss of 
 market or for other loss or injury arising from delay or detention 
 of train, exposure to weather, stowage, or from any cause whatever 
 other than gross neglect or fraud," the condition was held to be 
 reasonable (l): Where there are optional rates, conditions may of 
 course be reasonable which would not be so when the sender had 
 no option. In an early case, which has always been considered one 
 of great authority, it was held, that a condition, " that in the case 
 of goods conveyed at a special mileage rate the company would 
 not be responsible for any loss or damage, however caused," was 
 held reasonable (m,). And there are several dicta of the judges in 
 recent cases, stating that perhaps it i? not unreasonable for a rail- 
 way company to say that if the sender pays the ordinary rate, they 
 will be responsible, but if he pays a special reduced rate, he liiust 
 take all risk (n). On the other hand, it is difficult to see how 
 such a condition could be considered as reasonable, according 
 to the judgments of the Lord Chancellor Westhury and Lord 
 Wensleydale, in Peek v. North Staffordshire Railway Company. 
 In that case there was a condition that " the company will not be 
 responsible for the loss of or injury to any marbles, unless their 
 value be declared, and they be insured at the rate of lOl. per cent, 
 upon their value ; " and it was held unreasonable, as the effect 
 would be to exempt the company from loss, however caused. " I 
 am clearly of opinion that it is not reasonable for a carrier to 
 say, ' I will not be liable as a carrier at all for injury by neglect, or 
 any other injury in the course of the carriage of the goods de- 
 livered to me unless I receive a price for insuring the goods against 
 all possible loss. I will not be responsible for any loss unless you 
 pay me a fixed sum for indemnifying you against all,' per Lord 
 Wensleydale, and the Lord Chancellor's judgment proceeds on the 
 ground that by the first part of the section it is distinctly stated 
 that any condition, having for its object to relieve a company from 
 liabiUty occasioned by the neglect or default of such company, 
 shall be nuU and void. 
 
 A carrier of passengers and goods to the station of a railway 
 company cannot maintain an action against the company, either 
 at common law or under the above statute, for refusing to admit 
 him with his cari-iage within the precincts of the station, although 
 the company are in the habit of admitting the pubUc generally (o). 
 
 (?) SeaU V. Soitih Devon Railway, 3 (ft) Harrison v. London and BrigUon 
 
 H &C 337, in Ex. Ch. ; Xord V. ifMifimci Railway, 2 B. & S. 123; Allday Y. 
 
 Railway, L. E., 2 C. P. 347. Great Western Railway, 34 L. J., Q. B. 5 ; 
 
 (to) Siinms v. Great Western Railway, Robinson v. Great Western Railway, 1 H. 
 
 26 E. J., C. P. 25. &ee Aao Mc Andrew & R. 97. 
 
 V. EUctric Telegraph Company, 17 C B. (o) SarJcer v. Midland Railway, 18 C. 
 
 5 ; 25 L. J., C. P. 26. B. 46 ; 25 L. J., 0. P. 184. 
 
358 CAEEIEKS. 
 
 III. Of the- Lien of Carriers. 
 
 By the custom of the realm, a common carrier is bound to carry 
 the goods of the subject for a reasonable reward, to be therefor 
 paid, by force of which he has a lien as far as the carriage price of 
 the pS,rticular goods, but not to any greater extent (^). And 
 where the goods are retained by the carrier for such lien, he is 
 bound to take reasonable care of them, and to deal with them in 
 a reasonable manner (q). Common carriers have in many in- 
 stances attempted to extend their lien, so as to cover their general 
 balances, or, in other words, they have claimed a general lien/ In 
 Rushforih v. Hadfield (r), it seems to have been admitted by the 
 court, that the lien claimed by a carrier for his general balance 
 was not founded on the common law, but that such a hen might 
 arise by contract between the owner of the goods and the carrier ; 
 and that usage of trade, if general, unifoim, and long established, 
 was evidence of such contract (s). But it was resolved; that, as 
 general liens were not to be favoured, the party who sets up such 
 a claim ought to make out a very strong case, and evidence of a 
 few recent instances of detainer by carriers, for their .general 
 balance, would not be sufficient to furnish an mference, that the 
 party who dealt with a carrier had knowledge of the usage, and so 
 to warrant a conclusion, that he contracted with reference to it, 
 and adopted the general lien into the particular contract. 
 
 A carrier had given notice that all goods would be subject to a 
 lien, not only for the freight of. the particular goods, but also fpr 
 any general balance due from their respective owners : goods 
 having been sent by the carrier addressed to the order of J. S., a 
 mere factor ; it was held, that the carrier had not, as, against the 
 real owner, any lien for the balance due from J. S. (i). Query, 
 
 {p) Shmner v. Upshmjo, Lord Eaym. tended for. " %ee tlsQ Holdenms ■^. Col- 
 
 752. Umon, 7 B. & C. 112, where the court 
 
 (q) Crouch v. Great Western Sailway, said : " The onus of making out a right 
 
 27 L. J., Exch. 345. of general lien lies upon the wharfinger. 
 
 (r) 6 East, 519 ; 7 East, 224. There may be an usage in one place 
 
 (s) In Nay lor v. Mamgles, 1 Esp. N. P. varying from that whici prevails in 
 C. 109, it was contended, that a wharfinger another. When the usage is general and 
 had a lien for his general' halanoe ; but ■ prevails to such an extent, that a party 
 Tuoii, Kenyon, C. J., said, that "liens contracting with a wharfinger must be 
 were either by common law, usage, or supposed conusant of it, then he wiU be 
 agretoent; Liens by the c'ommbn law bound by the ' ttrms of that usage ; but 
 were given where a party was obliged by- then it should be generally known to pre- 
 law to receive goods, &c., in which case, vail at that place. If there b? any ques- 
 as the law imposed the burthen, it also tion as to the usage, the Wharfinger 
 gave him the power of retaining for his should protect himself by imposing special 
 indemnity. This was the case of inn- terms, and he should give notice to his 
 keepers; that a, lien from usage was a employer ofthe extent to which he claims 
 matter of evidence. The usage in the alien. If he neglects to do so, he cannot 
 present case had been proved so often, he insist upon a right of general lien for any 
 said, it should be considered as a settled thing beyond the mere wharfage." 
 point that wharfingers had the lien con- (<) Wright v. Snell, 6 B. & A. 350. 
 
CAERIERS. 359 
 
 whether, if the notice had been, that all goods, to -whomsoever 
 belonging, should be subject to a lien for any general balance that 
 may be due from the persons to whom they are addressed, he 
 would have any right to retain the goods for the balance due from 
 J. S. ? 
 
 As liens at law exist only in cases where the party entitled to 
 them has the possession of the goods, if a carrier parts with the 
 possession of the goods, after the lien attaches, the lien is gone. 
 An usage for carriers to retain goods as a lien for a general balance 
 of account between them and the consignees, does not affect the 
 right of the consignor to stop the goods in transitu(u). A carrier 
 who, by the usage of a particular tr^de, is to be paid for the car- 
 riage of goods by the consignor, has not any right to detain them 
 against the consignee for a general balance due to him for the 
 carriage of other goods of the same sort, sent by the consignor (v). 
 If a passenger book himself to go by a particular coach, and leaves 
 his portmanteau, but does not go by the coach, the carrier will 
 have a lien for something, though not for the' whole fare {x). 
 
 IV. By tvhom Actions against Common Carriers ought to be 
 
 brought. 
 
 In general the action against a carrier, for the non-delivery or 
 loss of goods, must be brought by the person in whom the legal 
 right of property in the goods in question is vested at the time ; 
 for he is the person who has sustained the loss, if any, by the neg- 
 ligence of the carrier, and whoever has sustained the loss is the 
 proper party to call for compensation from the person by whom he 
 has been injured (y). Hence where a tradesman orders goods to 
 be sent by a carrier, as at the instant when the goods are delivered 
 to the carrier, such delivery operates as a delivery to the purchaser, 
 and the whole property (subject only to the right of stoppage m 
 transitu by the seller) vests in the purchaser ; he alone can main- 
 tain an action against the carrier for any loss or damage to the 
 goods; and this rule holds as well where the particular carrier is 
 not named by the purchaser (z), as where he is {a), for the dehvery 
 of goods which were to be sent by some carrier, by the vendor on 
 behalf of the vendee to a carrier, although the vendee did not 
 name one, is a delivery to the vendee (b), and the goods are, im- 
 mediately upon the delivery to the carrier, at the risk, of the 
 
 (u) Oppmheim v. Eussell, 3 B. & P. 42. also Coomhes v. Bristol md Exeter Eaih 
 
 « SutUr V. Woolcotl,i B. & P. N. K. way, 27 L. J., Eich. 269, 401. 
 
 64 ; and see Small v. Moates, 9 Bingh. {z) i^««o»v.5oZaTOOjiso»,3B &1.,5?4. 
 
 574 ■ {a) Dawes v. Peek, 8 1. K. o6i) , i. AtK, 
 
 {x) Higgins v, Bretherton, 5 C. & P. 2. 248. o « * p f;<J9 
 
 (V) Dawes y. Peelc, 8 T.' R. 330. See {i] DuUon v. Solomonson, 3 B. & P. 582, 
 
360 CARRIERS. 
 
 vendee, although the carrier is to he paid hy the vendor (c) ; and 
 it holds as well in the case of a carrier by water, as where the 
 goods are conveyed by land. No property, however, passes to the 
 consignee by the consignor's mere delivery to a carrier, the con- 
 signee having given no order whatever for the sending (d) ; so also 
 where goods are sent to a customer for approval, until acceptance 
 no property vests in the consignee : and so where there has been 
 no acceptance and receipt of the goods, and the contract cannot 
 therefore be "allowed td be" good in consequence of the 17th 
 section of the Statute of Frauds, and no property therefore has 
 passed to the consignee (e) : in these cases therefore the action 
 against the earner for loss is properly brought by the con- 
 signor (/). So where a laundress sent linen which she had washed 
 to the owner, by the carrier whom she paid, the carrier having lost 
 it ; it was held, that the laundress was the right person to sue : 
 Parke, J., said, " The question is, who employed the carrier, and 
 at whose risk were the goods carried ? The plaintiff paid for the 
 carriage. The owner of the linen was not the employer of the 
 carrier, and the risk of the bailee was not over till the goods were 
 delivered. In the case of a complete sale, the vendor transmits as 
 agent for the vendee" (g). So if there have been no written con- 
 tract or acceptance under the Statute of Frauds the vendor is the 
 right person to sue Qi). 
 
 The plaintiff had shipped goods on board the Mercurius, of 
 which the defendant was owner, to be carried from London to 
 Tonningen. The goods were expressed in the bills of lading, to he 
 shipped by order and on account of Hesse and Co. of Hamburgh. 
 The ship arrived in the river Eyder, but was prevented from pro- 
 ceeding to Tonningen by the commander of one of his Majesty's 
 frigates, and ordered to return home. After her return, the 
 captain made an affidavit, that he believed the cargo to be Danish 
 property ; whereupon the goods were unloaded and delivered over 
 to the Admiralty marshal, and libelled in the Admiralty Court ; 
 the plaintiff afterwards recovered them by a proceeding in that 
 court. The action was brought to recover the expenses incurred 
 by the suit in the Admiralty. On the part of the defendant it 
 was insisted, that the goods being shipped by order and on account 
 of Hesse and Co., the property vested in them immediately on 
 their being shipped on board the Mercurius. Dawes v. Peck and 
 Button V. Solomonson, were cited. It was also urged, that a 
 recovery by the present plaintiff could not protect the defendant 
 from an action at the suit of Hesse and Co. On the part of the 
 
 (c) King V. Meredith, 2 Caraplj. 639. Chaplin, vhi sitp. 
 
 (d) Coats V. Chaplin, 3 Q. B. 483. {g) Freeman v. Birch, 3 Q. B. 492, n. 
 
 (e) Coombes v. Bristol and Exeter Bail- {h) Norman y. Phillips, 11 M. & W. 
 way, 3 H. & A. 510 ; 27 L. J., Ex. 401. 277 ; Comnies v. Bristol and Exeter EaU- 
 
 (/) Swain v. Shepherd, 1 M. & Eob. way, 28 L. J., Excli. 401. 
 223] Parh, J. ; recognized in Coats v. 
 
CARRIEBS. 361 
 
 plaintiff it was contended, that there was a distinction between 
 the carrying goods from one part of England to another, and the 
 transporting them beyond sea. That after a delivery of goods to a 
 earner, to carry them from one part of England to another, the 
 vendor had no property in the goods, but only a right of stopping 
 in transitu; and it was admitted, that if the goods were directed 
 to be sent by a carrier, without specifying the carrier, the delivery 
 to the carrier was a delivery to the vendee ; but urged that, in the 
 case of goods sent abroad, if the goods arrived safe, they were to 
 be paid for : aliter, if they do not arrive. Lord Ellenhorough, 
 C J. : " They are shipped by order, and on account of Hesse and 
 Co. I can recognize no property but that recognized by the bill 
 of lading," Plaintiff nonsuited (i). * 
 
 It is observable that in the case oi BavisY, James (j) it was 
 held, that the consignor might maintain the action, on the ground 
 that the consignor had made himself responsible to the carrier for 
 the price of the carriage. 
 
 So, where the action was brought by the consignor, and the plain- 
 tiff baring averred in his declaration, that the hire was to be paid 
 by him, proof that the hire was to be paid by the consignee was 
 held not to be. a variance, on the ground that whatever might be 
 the contract between the vendor and the vendee, the agreement 
 for the carriage was between the carrier and the vendor, the latter 
 of whom was by law liable Qc). But this doctrine that the con- 
 signor is as such always liable for the can-iage is no longer held, 
 the rule now being, in the absence of any express contract, 
 that the owner of the goods is liable for it (Q ; and further, 
 if the carriage were to be paid by the consignor, it would not 
 be more than prima facie evidence of the goods being at his 
 risk (m). 
 
 Where, by the bill of lading, the captain was to deliver the 
 goods for the consignor, and in his name to the consignee, and at 
 the time of shipment the consignee had no property in the goods, 
 it was held, that an action against the ship-owners for damage 
 done to the goods, must be brought in the name of the consignor ; 
 and this, although the consignee had insured the goods and 
 advanced the premiums of insurance before the arrival of the 
 ship (n) ; for the shipment was made on account of the consignor, 
 at his risk and for his benefit ; and it should be remembered " that 
 if an agent acts for me and on my behalf, but in his own name, 
 
 (i) Brovm t. Hodgson, 2 Campb. 36. v. Shepherd, 9 C. B. 297. 
 
 And now by the 18 & 19 Vict. c. 111. s. 1, (j) 5 Burr. 2680. 
 
 the indorsee of a biU of lading, to whom (A) Moore v. Wilson, 1 T. K. 659. 
 
 the property in the goods therein men- {l) Drew v. Bird, 1 M. & M. 150 ; 
 
 tioned shall pass by reason of such in- Dommett v. Beckford, 5 B. & Ad. 521. 
 
 dorsement, has transferred to and vested (m) King v. Meredith, 2 Campb. 63»- 
 
 in him aU rights of suit, &c. See Thomp- («) Sargent v. Morris, 3 H. & A. m. 
 son V. Domi7iy,U M. & W. 408; Horrard 
 
362 .CAEEIERS. 
 
 then, ihasiritich as he is the person' with whom the contract is 
 made, it is no answer to an action in his name to say that he is 
 merely an agent, unless you can also show that he is prohibited 
 from carrying on the action by me." Per Bayley, J. 
 
 Where goods were delivered to a carrier at Exeter, to convey to 
 Falmouth, and there deliver them to an agent, who was to forward 
 them to the consignee abroad ; and the carrier detained the goods 
 on the ground of a lieji against the agent for his general balance ; 
 it was held, that trover might be maintained agaiiist the carrier a,i 
 the suit of the consignor {o). A servant travelling with his master, 
 who has paid for the servant's railway ticket, may sue the railway 
 company in his own name for the loss of his luggage (p) ; but, 
 a master cannot maintain an action per quid servitium aTrtisit 
 against a railway company, for an injjiry to, his servant whilst a 
 passenger on the company's railway, caused by neglect of theil: 
 duty to safely, carry the servant according to their contract with 
 him, as such passenger, unless the master was a party to the 
 contract (q). An action lies against the commander of a ship of 
 war who takes the bullion of a private inerchant on boards, for not 
 safely keeping and delivering it(r). So where the master of a 
 store ship, in the king's service, took in the bullion of a private 
 merchant on freight, from Gibraltar to Woolwich, it ;was held, that 
 an action lay against him for the loss of the bullion' (s). 
 
 A common carrier is not, estopped from disputing the title of 
 the person from whom he has received goods to carry, and it is an 
 answer to an action of trover against the carrier by suehi person 
 that the goods have been delivered to the real owner on his .claim' 
 ing them;(i), , , 
 
 V. Pf the Declaration. ' 
 
 Pleading under the Common Law Procedure Act, p. 364. 
 
 Formerly the declaration in actions against common carriers 
 stated their employment as common carriers (u), their liability by 
 the custom of the realm, a delivery to and acdeptance by the 
 defendants of the goods to be carried, for a reasonable hire , or 
 reward, concluding with the loss or damage to the goods; but 
 afterwards it became usual to declare in assumpsit, and not to 
 state either the employment of the defendants as common carriers, 
 or the custom of the realm as to their liability. This form of de- 
 
 (o) TagViabue v. Wynm, Cornwall Lent J., Ex. 292. 
 ^^f- }^}^ ' y^?^^ ^- ™^^- W Hodgson v. FullarUm, i Taunt. 787. 
 
 ip) Marshall v. York, N. and B. Bail- (s) SatehwM v. Coolce, , 6 Tannt. 577. 
 
 way, 11 C. B. 655 ; S. 0. 21 L. J., C. P. (t) Sheridaoiv.TheNewQmyCompamy, 
 
 2*V , „ 28 L. J., 58 C. P. 
 
 (?) Alton V. Midland Railway, U L. [u) Heme's Plead. 76. Fid. Ent. 37, 38. 
 
CAEEIEES. 363 
 
 claration lias prevailed since the decision of Dale v. Hall, M. T. 
 1750, in which it was settled, that it did not make any difference, 
 whether the plaintiff declared on the custom, or more generally in 
 assumpsit; for, by stating that the defendant earned for hire^ it 
 would appear that the defendant was a common carrier, and then 
 ' the law would raise the promise from the nature of the contract. 
 But although the plaintiff is not bound to allege the custom, yet 
 he must prodiice sufficient evidence to bring his case within the 
 custom (v). And more recently, where the declaration, which was 
 in case, stated that the plaintiff delivered to the defendants, and 
 they accepted and received from him goods to be conveyed for 
 reasonable reward in that behalf, it was held, that after verdict the 
 declaration might be read, as founded»on the general custom of the 
 realm (x). A declaration against a common carrier for refusing to 
 carry goods averred that the plaintiff was ready and willing and 
 offered to pay to the defendant such sum of money as the defend^ 
 ant was legally entitled to receive for the receipt, carriage : and 
 conveyance of the goods ; it was held, that the declaration was 
 good, and that it was not necessary to allege an actual tender of 
 money for the carriage {y). 
 
 The advantage resulting to the plaintiff from declaring in as- 
 sumpsit previously to the passing of the Common Law Prbcedure 
 Act was, that he might join the common counts with the special' 
 counts in assumpsit, if he had other and distinct causes of action 
 to which they were applicable. The inconvenience was, that it let 
 in a plea of abatement for want of joining all the parties, and ex- 
 cluded the right to join a count in trover. If the plaintiff was 
 desirous of avoiding this inconvenience, he alleged his gravamen as 
 consisting- in a breach of duty arising out of an employment for 
 hire, and treated that breach of duty as a tortious negligence. 
 But by the Common Law Procedure Act, causes of action of 
 whatever kind, provided they be by and against the same parties, 
 and in the same rights, may be joined in the same suit {z), and 
 ample powers of aniendment, in the case of non-joinder or mis- 
 joinder of defendants, are given by the same act (a). Declaring in 
 tort, if the action was brought against several defendants, and some 
 were found guilty, and others acquitted, the plaintiff was, notwith- 
 standing, entitled to judgment against those who had been found 
 guilty (b). 
 
 {v) Per Lord HarohoicTce, C. J., ia (2) 15 & 16 Vict. c. 76, s. 41. 
 
 ioMcAer V. iawoji, H. 9 Geo. II. B. E. (a) 76id. ss. 27— 39. • „ 
 
 •Ca. Temp Hardw. 199, "The custom of (6) Govdt v. Eadnidge, K R. 3 East, 
 
 the realm is the law of the realm, and 62 ; Cooper v. South, i Taunt. 802 ;, ^re-_ 
 
 conseqirently it need not he set forth in tlierton v. Wood, 3 B. & B. 64 ; Pozzt 
 
 the declaration." See also Brethertm V. v. SUpton, 8 A. & E. 963 ; andin actions 
 
 Wood, 3 B. & B. 68. ■ of contract upon such a state of facts the 
 
 (x) Poazi V. Shipton, 8 Ad. & E. 974. variance is amendable under sect. 61 ot 
 
 (y) Pickford v. Orand Junction Rail- the Common Law Procedure- Act. 
 way, 8 M. & W. 372. 
 
364 CAERIEES. 
 
 Trover will not, though case will, lie against a common earner 
 for merely losing goods enti-usted to his care, without any actual 
 wrong (c) : but trover will lie against a carrier who delivers goods 
 to the wrong person, for then "he is an actor, though under a 
 mistake " (d) ; and where the owner of goods on board a vessel 
 directed the captain not to land them on the wharf against which 
 the vessel was moored, which the captain promised not to do, but 
 afterwards delivered them to the wharfinger, conceiving that the 
 wharfinger had a lien on the goods for wharfage dues, it was 
 held, that the owner might maintain trover against the captain, 
 who could not prove that any wharfage duty was due (e). Although 
 goods are spoiled by the default of the master of the ship, yet the 
 legal owners of the ship at the time are liable in respect of 
 the freight paid to them for their use (/), if charged on the 
 custom of the realm, or as usually carrying for hire, or upon an 
 express undertaking : but not otherwise (g). A ship was chartered 
 to the commissioners of the navy as an armed vessel, who put on 
 board a commander in the navy and a king's pilot, the master and 
 crew being appointed and paid by the owners. In consequence of 
 the improper execution of an order given by the commander, the 
 chartered ship ran foul of another ship. It was held, that the 
 owners of the chartered ship were liable for the injury which the 
 other 'ship sustained ; for the chartered ship, notwithstanding it had 
 an officer on board, was, with regard to third persons, to b.e con- 
 sidered as the ship of the owners (h). 
 
 Pleading under new Rules of Trim. T, 1853. — By the Com- 
 mon Law Procedure Act, sect. 74i, it is enacted, " that any plea 
 which shall be good in substance shall not be objectionable on the 
 ground of its treating the declaration either as framed for a breach 
 of contract or for a wrong." But by the new pleading rules, 
 Trin. T., 1853, the pleas of non assumpsit and not guilty put in 
 issue different facts. These rules state, that " in actions against 
 carriers and other bailees for not delivering or not keeping goods . 
 safe, or not returning them on request, the plea of non assumpsit 
 will operate as a denial of any express or implied contract to the 
 effect alleged in the declaration, but not of the breach " (i) : but that 
 " the plea of not guilty will operate as a denial of the loss or 
 
 (c) Soss T. Johnson, 5 Burr. 2825 ; See also Colmn v. Newherry, 8 B, & C. 
 Kirkman v. ffargreaves, (case from Lan- 166, reversed on error in Exoh. Cham, 
 caster Sum. Ass. 1800, before Graham, 7 Bingh. 190 ; 1 Tyrw. 81. 
 
 B.,) B. E. H. 41 G. III. MSS. S. P. {g) Boucher v. Lawson, Ca. Temp. 
 
 (d) Per Kenyan, C. J., Youl v. Bar- Hardw. 194. 
 
 lottle, Peake's N. P. C. 49, recognized in {h) Fletcher v. BraddicTc, 2 B. & P. N. 
 
 DeiiereMXY. Barclay, 2 'B.&X. mi; and E. 182. See also Fentonv. City of Dublin 
 
 see Wyld v. Pickford, 8 M. & W. 44. Steam Packet Co., 8 A. & E. 835 ; 1 P. & 
 
 (e) Syeds v. ffay, 4 T. R 260. D. 103. 
 
 (/) Boson V. Sandford, Salk. 440 ; 3 (i) See Wehb v. Page, 6 Scott's N. E. 
 
 Lev. 258 ; 1 Show. 29 ; 2 Show. 478 ; 961 ; Mownsey v. Penott, 2 Exch. 622. 
 Skin. 278; 3 Mod. 321 ; Carth. 68, S. C. 
 
CARRIERS. 8G5 
 
 damage, but not of the receipt of the goods by the defendant as 
 carrier for hire, or of the purpose for which they were received." 
 A declaration alleged that the defendants were common carriers, 
 and received the goods in question to be carried by them as such 
 common carriers for hire and reward. Plea : traversing the aver- 
 ment that they received the goods as common carriers. It appeared 
 that the defendants did not receive any goods to be carried by 
 them, unless the consignor signed a paper containing various con- 
 ditions (which the court thought were reasonable), subject to which 
 they were to be carried. It was held, that the plea was proved (k). 
 A plea, by way of traverse, that the defendants were not common 
 carriers for hire, only puts in issue the fact of the defendants 
 carrying passengers for hire, and nat their liability as common 
 carriers by the custom of England (I). All matters in con- 
 fession and avoidance must be pleaded specially. Rules 8 and 17. 
 Where the declaration was at common law, and the defendants 
 pleaded under the Carriers Act, sect. 1, a replication that the loss 
 of the goods was occasioned by the felonious acts of the servants 
 of the defendants, was held good (m). 
 
 VI. Evidence. 
 
 Action against defendants as owners of a coach, for the loss 
 of a parcel. To prove the ownership, on the part of the plaintiff, 
 an entry in the book, kept at the proper office in Somerset House, 
 stating the defendants to be licensed as owners of the coach, was 
 produced ; and it was contended, that as the entry was made in 
 pursuance of stat. 2.5 Geo. III. c. 51, ss. 50, 51, it must be pre- 
 sumed to be accurate, and was at least prima facie evidence ; but 
 Qibbs, C. J., rejected it, observing that the entry not being signed 
 by the defendants, and nothing being shown to connect them with 
 it, it was no evidence to prove them to be owners of the coach (n). 
 The legislature has now made a certified copy of such register 
 evidence of its contents (o). The inscription on a stage-coach 
 of the name of the party is evidence, in an action against him, of 
 ownership (p). 
 
 A parcel, containing bank-Hotes, stamps, and a letter, was sent, 
 by a common carrier, from one stamp distributor to another ; it was 
 held (q), in an action against the carrier, that the circumstance of 
 the letter accompanying the stamps was prvmd facie evidence that 
 it related to them, so as to bring the case within the proviso of the 
 
 {k) White V. Great Western Railway, 5 (ra) Strother v. WUlwn, 4 Carapb. 24. 
 
 Week. Rep. 488. See also TinJcUr v. Walpole, 14 East, 226 ; 
 
 (l) Bennett v. Peninsular and Oriental S. P. as to register of a ship. 
 Steam Boat Company, 6 C. B. 775 ; & 0. (o) 6 & 7 Vict. o. 86, s. 16. 
 
 18 L. J., C. P. 85. (P) Harford v. Nelson, 1 B. & Ad. 571. 
 
 (m) Metcalfe v. The Brighton Railway, (g) Bennett v, Clough, 1 B. & A. 461. 
 
 27 L. J., C. P. 205. 
 
366 CAREIEES. 
 
 42 Geo. III. c. 81, s.' 6 (r), which enacts, " that the prohibition to 
 send letters otherwise than by the post shall not extend to letters 
 sent by any common carrier, with and for the purpose of being 
 delivered with the goods that the letter concerns : " and that the 
 defendant, not having proved the letter to relate to "any other 
 subject-matter, was liable for the value of the parcel. 
 
 In an action on the case against a railway company for the loss 
 of a passenger's luggage, it was held to be unnecessary to prove 
 negligence, although the declaration alleged it (s). And where the 
 passenger is a servant, it is sufficient to prove that his master paid 
 his fare (t). In an action brought against the owner of a hack cab 
 for such a loss, the allegation that the defendant promised to carry 
 the plaintiff and his luggage " safely and securely," is proved by 
 the employment of the defendant in the usual way ; no express 
 promise to carry on these terms is necessary to be proved (tt). 
 
 To sustain an action against the keeper of a booking-pffice for 
 the loss of a parcel, it is not sufficient merely to show n on -delivery 
 of the goods to the consignee ; and that it had not reached its 
 destination. The office-keeper's duty is to deliver to a carrier: 
 and some evidence must be given showing specifically a breach of 
 that duty (x). By taking charge of a parcel at a booking-office, 
 the office-keeper merely makes himself an agent to book for the 
 stage-coaches ; • so that he send the parcel to the proper coach- 
 office, and once deliver it there, he has discharged himself ; he has 
 nothing to do with the carriage of the goQds(y). A parcel was 
 delivered to a porter of a railway company at the station, to be 
 forwarded from Gloucester to London, after the way-biU. and the 
 guards' parcel book had been made up. The parcel was placed by 
 the porter in the usual receptacle, a locked box in the luggage van, 
 and entered by him on the way-bill, but the fact of his having so 
 placed it in the box was not communicated to the guard. After 
 several intermediate stoppages the train reached London, where the 
 parcel was missed. It was held, that there was no evidence to go 
 to the jury that the parcel had been stolen by a servant of the 
 company (z). 
 
 (r) Eepealed by stat. 7 WiU. IV. & X ({) S. O. 18 L. J., C. P. 251. 
 
 Vict. c. 32; stat. 7 WUl. IV. & 1 Vict. c. (m) Boss v. Mill, 2 C. B. 877. : 
 
 33, excepts from the exclusive privilege (a;) Oilbart v. Dale, 5 A. & E. 543. See 
 
 of the post oiEce, " Letters concerning also Midland Sailway'v. BrortbUy, 17 C. 
 
 goods or merchandize sent by common B. 352 ; 26 L. J., C. P; 94. ' . 
 
 known carriers, to be delivered with the (y) Par Lord AUnger, C. B., in Mus- 
 
 goods which such letters concern, without champ v. Lammster and Preston Junolivn 
 
 hire or reward or other profit or advan- Sailway, 8 M. & W. 428. 
 
 ta^e for receiving or delivering such (z) Marshall v. York, N. amd B. MU- 
 
 letters." wi/, U C. B. 655 ; S. a 21 L. J.^ C. P., 
 
 , (s) RicTmrdsv. The London amd SowOi- 34; Great Western Mailway v. Rimell, IS 
 
 Coast Railway, 7 C. B. 839. C. B. 575 ; 27 L. J., C. P. 201. 
 
CARRIERS. 867 
 
 VII. Damages. 
 
 In an action brought by the owners of a steam grist mill, against 
 a earner for delay in delivering the broken shaft of the mill to the 
 plamtiff's engineer, who was thereby prevented from supplying a 
 new shaft, it appeared at the trial that the broken shaft was to be 
 sent to the engineer as a model for a new one, and at the time of 
 the contract for the carriage being made, the carrier was informed 
 that the mill was stopped, and that the shaft must be sent imme- 
 diately. It further appeared that its delivery at its destination was 
 delayed for several days, and that in consequence the plaintiffs 
 did not receive the new shaft back as they expected, and their mill 
 was kept idle. It was held, that the judge who presided at the 
 trial should have directed the jury that they ought not to take into 
 consideration, in estimating the damages, the loss of profit from not 
 working the mill. Alderson, B., in delivering the judgment of the 
 court, thus explained the principles upon which a jury ought to be 
 guided in estimating the damage arising out of a breach of contract 
 of this kind. " Where two parties have made a contract which 
 one of them has broken, the damages which the other party ought 
 to receive in respect of such breach of contract, should be either 
 such as may fairly and reasonably be considered arising naturally, 
 i. e., according to the uSual course of things, from such breach of 
 contract itself, or such as may reasonably be supposed to have been 
 in the contemplation of both parties at the time they made the con- 
 tract, as the probable result of the breach of it. Now, if the special 
 circumstances under which the contract was actually made were 
 communicated by the plaintiff to the defendant, and thus known 
 to both parties, the damage resulting from the breach of such a 
 contract, which they would reasonably contemplate, would be the 
 amount of injury which would ordinarily follow from a breach of 
 contract under these special circumstances so known and commu- 
 nicated. But, on the other hand, if those special circumstances 
 were whoUy unknown to the party making the contract, he at the 
 most could only be supposed to have had in his contemplation the 
 amount of injury which would arise generally, and, in the great 
 multitude of cases, not affected by any special circumstances from 
 such a breach of contract. For had the special circumstances been 
 known, the parties might have specially provided for the breach of 
 contract by special terms as to the damages in that case, and of 
 this advantage it would be very unjust to deprive them. In the 
 present case we find that the only circumstances communicated by 
 the plaintiff to the defendant at the time the contract was made, 
 were, that the article to be carried was the broken shaft of a mill, 
 and that the plaintiff was the miller of that mill. But how do 
 these circumstances reasonably show that the profits of the mill 
 must be stopped by an unreasonable delay in the delivery of the 
 
368 CAERIEES. 
 
 broken shaft by the earner to the third person? "(a). In more 
 recent cases, it has been said that the rule laid dowij in Hadley v. 
 Saaxndale is not applicable to all cases. " I doubt whether it is 
 the duty of the judge to lay down more to the jury than that the 
 plaintiff is entitled to such damages as are the natural consequences 
 of the breach of contract. The question what are such natural 
 consequences is, I think, in each case rather for the jury than the 
 judge," jper Crompton, J. (b). When a carrier loses goods, the measure 
 of damages is the market value of the goods at the place of desti- 
 nation at the time when they should have been delivered, or if 
 there be no market for such goods, the cost price and the expenses 
 of transit (if paid), and a reasonable sum for importer's profits (c). 
 In the absence of any special communication to the carrier,- the 
 hotel expenses of a commercial traveller during the time that he 
 has been kept waiting for a parcel cannot be recovered (d), nor can 
 the loss of profit that would have been made upon a sale which 
 would have taken place had not the delivery of the goods been 
 delayed until the traveller had left the place of delivery (e). The 
 damages to which a passenger, whom the carrier has failed in his' 
 contract to carry, is entitled, are those only which in the ordinary 
 course of things resulted from the breach of contract, and these 
 generally wiU. be the expenses incurred by the passenger in trying 
 to perform, as nearly as he can, the contract which the carrier 
 engaged to do (/)., 
 
 (a) EadUy v. BaxeitdaU, 9 Exoh. 341 ; (c) O'SamXan v. Greai Western Rail- 
 
 23 L. J., Exch. 179. See also Fletcher way, 34 L. J., Q. B 154 
 
 V. Tayleur,\^ C. B. 21. (d) Woodyer v. Great Western Mail- 
 
 (6) Smeed v. Poord, 1 Ell. & Ell. 616 ; way, 2 L. E , C P 318 
 
 approved in 5o|/(« v., ^i«, 14 Ir. C.L. E. {e) Greai Western Railway v. Red- 
 
 5b. bee Wildes, B., judgment in Gee y. mayne, L. E. 1 C P 329 
 
 Zammhire amd Yorkshire Railway, 6 H. (/) Mamlm v. Great NortJiem Rail- 
 
 * ^- 225. way, 26 L. J., Exoh. 20. 
 
369 
 
 CHAPTER XL 
 COMMON. 
 
 I. Of Right of Common, 369 
 
 II. Of ComTnon of Pasture, 379 
 
 Appendant ......... 371 
 
 Appurtenant . . . • 372 
 
 In gross 373 
 
 III. Of the Interest of the Owner of the Soil, subject to 
 
 Right of ComTnon, 374, 
 
 IV. Of Approvement and Inclosure, . . . . 375 
 V. Of the Remedy for DisturbaTice of Right of Common, 381 
 
 VI. Of Surcharges by Commoners, .... 382 
 
 VII Prescription, 2 tfe 3 Will. IV. c. 71, . , . . 382 
 
 VIII. Evidence, 337 
 
 Levancy and Couchancy 388 
 
 I. Of Right of Common. 
 
 Eight of Common is an incorporeal hereditament, or a right 
 (lying in grant) which certain persons have to take or use in 
 common a part of the natural produce of land (common of pasture 
 and common of turbary (a)), water (common of fishery), wood 
 (common of estovers), &c., belonging to other persons, who have 
 the perrnanent or limited interest in the soil, &c. 
 
 If a person claim by prescription any species of common in the 
 land of another, and that the owner shall be excluded to have 
 pasture, estovers, or the like ; this is a prescription against law to 
 exclude the owner of the soil, for it is against the nature of the 
 word common (b). But a person may prescribe for the several 
 pasture, and exclude the owner of the soil from feeding his cattle 
 there (c) ; and such a right is transferable (d). The common over 
 which the right is claimed is generally situate in the same manor 
 in which the tenements lie, in respect of which the right is claimed ; 
 
 {a) See Dames v. WilUains, 16 Q. B. (c) 1 Inst. 122, a. ; ffosHns v. Robins, 
 
 546. 2 "Wms. Saund. 324. 
 
 (J) 1 Inst. 122, a. {d) Welcome v, Upton, 6 M. & "W. 536. 
 
 VOL. I. B B 
 
870 COMMON. 
 
 but a person may prescribe for rigbt of common over a waste in 
 one manor, in respect of a tenement lying in another ; but stronger 
 evidence should be given to establish such a right than in ordinary 
 cases. A person may have two distinct substantial grants. of right 
 of common over different wastes, from different lords, in respect 
 of the same tenements ; and immemorial usage is evidence of such 
 distinct grants (d). 
 
 If A. has a common by prescription, and takes a lease of the 
 land for twenty years, whereby the common is suspended; after 
 the years ended,. A. may claim the common generallyby prescrip- 
 tion ; for the suspension was to the possession only, and not to the 
 right, "and the inheritance of the common did always remain (e). 
 Title once gained by prescription or custom, cannot be lost by in- 
 terruption of the possession for ten or twenty years ; but by in- 
 terruption in the right it may ; as if a man had a rent or common 
 by prescription, unity of possession of as high and perdurable 
 estate, is an interruption in the right. 1 Inst. 114, b (/). De- 
 claration stated that the plaintiff was possessed of amessuage and 
 land, in right of which he was entitled to common for all his 
 commonable cattle levant and couchant, on a common caUed 
 Bentry Heath, and th3,t defendant had enclosed the same. At the 
 trial it appeared that the messuage and land, in respect of which 
 the right of co'mmon was claimed, had about fifty years ago vested 
 in the lord by forfeiture, and that he re-granted the same as a 
 copyhold with its appurtenances. It was contended that the right 
 of common became extinguished, and that the re-grant of it as a 
 copyhold with its appurtenances did not re-create the right of 
 common. But per Abbott, C. J., "When a copyhold tenement is 
 seized into the hands of the lord, it does not thereby lose its right 
 of common ; for that right is annexed to all tenements deniised or 
 demisable by copy of court roll ; and while the estate remains in 
 the lord, it continues demisable" {g). 
 
 II. Of Common of Pasture. 
 
 Common of Pasture is, where one person has, in common with 
 other persons, the right of taking, by the mouths of his cattle, the 
 herbage growing on land of which some other person is the owner. 
 Common of Pasture is either coilimon appendant, common appur- 
 tenant, or common in gross. 
 
 With respect to two other kinds of common of pasture, which 
 are sometimes mentioned in the books, viz. common of vicinage, 
 and common in gross sans nombre, or without stint ; it may be 
 observed, that the former cannot, strictly speaking, be a right of 
 
 . {d) Bollmshead\. Walton, 7 East, 485. makes a title of inheritance, the party 
 (e) 1 Inst. 114, b. cannot alter or waive the same in pais. 
 
 (/) When a prescription or custom (g) Badger v. Ford, 3 B. & Aid. 153. 
 
.COMMON. 371 
 
 common, for if it were, it would prevent an inclosure, which it has 
 been always held that it will not (/;,). The truth is, " it is but 
 matter of excuse for a trespass" (i). Where the inclosure is in- 
 complete, common by vicinage still continues (j). An actual 
 undisturbed inter-communing of cattle must be shown. It is not 
 sufficient to show that there was no fence between the two districts, 
 and that the cattle in fact strayed ; it must be shown that they 
 fed without molestation (Jc). Such common may, it seems, exist 
 between two adjoining proprietors by prescription, although not 
 by custom (I). As to common in gross sans nombre, it has been 
 truly said, that the notion of this species of common, in the latitude 
 in which it was formerly understood, has been exploded long ago, 
 and it can have no rational meaning, but in contradistinction to 
 stinted common, where a man has a right to put in such a particular 
 number of cattle only (m). In Mellor v. Spateman, (1 Wms. Saund. , 
 346 d,) Kelynge, C. J., said positively, that there could not be any 
 common in gross sans nomhre. And it has been held that a claim 
 of a right of common, without stint, as annexed to an ancient 
 messuage, without land, could not be supported, such a right of 
 common not existing in law (n). 
 
 Common Appendant is of common right (and therefore a man 
 need not prescribe for it) for beasts commonable, that is, that serve 
 for the maintenance of the plough, as horses and oxen, and for 
 kine and sheep to manure the land (o), and is appendant to ancient 
 arable land only (p). It must have existed from time immemo- 
 rial (g), but it ought not to be claimed by prescription. The proper 
 way of pleading it is, that the party was seised in fee of certain, 
 arable land, to which he had common appendant in the Ifccus. See 
 4 Hen. VI. 13, a. It must be claimed in the waste of the lord, not 
 for a certain number of cattle, but for such only as are levant and 
 couchant on the land, and therefore it cannot be severed, not even 
 for a moment, nor turned into common in gross. 
 
 " The reason for common appendant 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, while 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 own arable land ; — hence it is plain, that the tenant can only 
 have a right of cominon for such cattle as are levant and couchant 
 on his estate, that is, for such and so many as he has occasion for 
 
 (h) Musgra/ve v. Cave, Wille.s, 322. (m) Berniett v. Reeve, Willes, 232. 
 
 (i) Prichard v. Powell, 10 Q. B. 603. (») Benson v. Chester, 8 T. R. 396. 
 
 U) Oulleit Y. Lopes, 13 East, 348. (o) 1 Inst. 122, a,. ; Bro. Atr. Com- 
 
 (Jc) Clarice V. TinJcer, 10 Q. B. 604. mon, 1, 11, 35. 
 (l) Jones V. Bobm Hn error), 10 Q. B. (p) i Eep. 37, b. ; Willes, 322. 
 
 620. (2) 26 H. IV. 13 a. 
 
 B B 3 
 
373 COMMON. 
 
 to plougli and manure his land, in proportion to tHe quantity 
 thereof." — " It js plain that a person cannot have a right of common 
 appendant for cattle which he borrows, unless he make use of them 
 all the year to plough or manure his land" (r). "Levancy and 
 couchancy mean the possession of such land as will keep the cattle 
 claimed to be commoned during the winter ; and as many as the 
 land will maintain during the winter shall be said to be levant and 
 couchant (s)." 
 
 Common appendant, being of common right, may be apportioned, 
 by alienation of part of the land to which the common is appen- 
 dant [t) ; and if the land be divided ever so often, each parcel of 
 land is entitled to common appendant (it). Although the commoner 
 purchases part of the land in which he is entitled to common, yet 
 the common shall be apportioned (y), because common appendant 
 is of common right ; but otherwise it is of common appurtenant (a;). 
 
 Common Appurtenant is a right of common founded on a 
 grant {y), or prescription (which supposes a grant), annexed to the 
 enjoyment of land. This species of common may be granted for 
 all manner of cattle, that is, not only for those which serve for the 
 maintenance of the plough, and to manure the land, but for swine, 
 goats, and the like (z). It may be granted for an unlimited number, 
 or for a. certain number of cattle. Where common appurtenant is 
 granted for an unlimited number of cattle, the measure of profit 
 which the commoner is to have, is, as in the case of common 
 appendant, [levancy and couchancy (a) ; and, consequently, like 
 common appendant, such common appurtenant cannot be con- 
 verted into common in gross. But common appurtenant for a 
 certain number of cattle, may be granted over, and so become 
 common in gi-oss. Such a right cannot be claimed by prescription 
 by the occupiers for the time being of a certain messuage (&). 
 
 Common appurtenant may be granted at this day (c), and may 
 be apportioned by a conveyance of part of the land to which the 
 right is appurtenant {d). This point was determined also in &- 
 cheverill v. Porter, Cro. Car. 482, where a right of common in a 
 waste having been granted to A. (who was seised of lands in S.), 
 and all his tenants in S., for all commonable cattle, and A. con- 
 veyed parcel of the lands in S. ; it was held, that the alienee was 
 entitled to common for all his commonable cattle, levant and 
 couchant, on the parcel of the lands conveyed., 
 
 (r) Bennett T. Reeve, Willes, 231, per (x) 1 Inst. 122, a. 
 
 WilUs, C. J. {y) Cro. Car. 482. 
 
 (s) Per Buller, J., Scholes v. Bar- (z) 1 Inst. 122, a. 
 
 grewves, 5 T. E. 48. See Mogers v. Ben- {a) 1 Eol. Abr. 398, (I) pi. 1 ; Srury 
 stead, post, "Levancy and Couchancy." v. Kent, Cro. Jac. 15. 
 
 («. 1 Inst. 122, a. (6) Dames v. Williams, 16 Q. B. 546. 
 
 («) Per Willes, C. J., Willes, 230. (c) Cowlam v. Slack, 15 East, 108. 
 
 (v) Wilde's case, 8 Kep, 79, a, {d) Hob. 235; 1 Inst, 122, a. 
 
COMMON. 373 
 
 Gonlnion appurtenant, as well as common appendant, may become 
 extinct by unity of possession (d). And where common appur- 
 tenant has been extinguished by unity of possession, a new right of 
 common is not created by a deed granting the messuage and land, 
 with all common thereto belonging ; although the occupiers of the 
 tenement have used the common since the extinguishment. Other- 
 wise, if the language of the deed had been, " all commons used 
 therewith (e)." To an action of trespass the defendant pleaded a 
 prescriptive right of common for all his cattle, levant and couchant, 
 upon a messuage, cwm pertinentiis ; on demurrer, the prescription 
 was held good, for that the messuage comprehended a curtilage, 
 which might be an acre or more, upon which the cattle might be 
 levant and couchant (/). In an acti(5Sb. for disturbing the plaintiff's 
 right of common, it appeared that the plaintiff, who claimed the 
 common in respect of a messuage for all commonable cattle, levant 
 and couchant, was the owner of a small house, wherein he carried 
 on the trade of a butcher. The house had neither land, curtilage, 
 nor stable belonging to it, but under the shop-window was a sheep- 
 hold, which would contain four or five sheep at a time, but neither 
 horse nor bullock could be kept there : Lord Kenyan, C. J., at the 
 trial, being of opinion,' that levancy and couchancy was not proved, 
 as the plaintiff had not shown that he was in possession of land 
 whereon the cattle might be levant and couchant, nonsuited the 
 plaintiff; and the court confirmed his opinion (gr). 
 
 Common of pasture, without land, for a certain number of cattle, 
 may be parcel of a manor, and demised and demisable by copy of 
 court-roll ; and, if it be thus claimed in pleading by the lord of the 
 manor, the plea wiU be good, although he does not describe the 
 common as common appendant, appurtenant, or in gross, since it 
 must be taken to be common appurtenant ; for, not being claimed 
 as incident to arable land, but to the manor, for a certain number 
 of cattle in the soil of another, it cannot be common appendant ; 
 nor can it be taken to be common in gross, being stated in the plea 
 to be parcel of a manor ; then it must be common appurtenant, the 
 only remaining sort of common (h). 
 
 Common in gross is so called, because it does not appertain to 
 any land, and it must be by grant or prescription (i). This species 
 of common may be granted for all manner of cattle, and for an 
 unlimited number, or for a certain number of cattle. If granted 
 for an unlimited number, it seems that the grantee may put on any 
 number of cattle, provided he leaves sufficient common for the lord ; 
 if granted for a certain numbep, the enjoyment of the right is of 
 course limited by the number specified in the grant. A corporation 
 may prescribe for common in gross for cattle levant and couchant 
 
 (d) BradsTiaw v. Rjre, Cro. Eliz. 670. (g) Scholes v. ffargreaves,5T:. B 46. 
 
 (e) Clements v. Lamtert, 1 Taunt. 205. {h) Musgrave v. Cave, WiUes, 319. 
 {/) Scambkr v. Johnson, 2 Show. 248. (i) 1 Inst. 122, a. 
 
874 COMMON. 
 
 within the town, but not for common in gross sans nombre(j). 
 And so may an individual burgess, but in such a case the grant 
 must be described as a grant to the corporation for the individual 
 burgesses, &c., and not to the burgesses, &c. of whom the plaintiff 
 or defendant is one, or the variance will be fatal (k). A copyholder 
 who has common in a waste, without the manor of which his 
 copyhold is parcel, has it annexed to the land, and not to his 
 customary estate, and must prescribe in a que estate through 
 his lord, for him and all his customary tenants thereof And such 
 common without the manor is not extinct by the enfranchisement 
 of the copyhold, though there be no words of re-gi-ant. And, after 
 enfranchisement, the feoffee must prescribe in a qii^ estate of his 
 lord for himself, and his customary tenants, till the time of the 
 enfranchisement, and since that time for the feoffee and his heirs, 
 as appurtenant to the enfranchised tenement (I). 
 
 III. Of the Interest of the Owner of the Soil, subject to Right of 
 
 Commton. 
 
 In land subject to a right of common, the right of the lord or 
 owner of the ,soil ought to be so exercised as not to injure the right 
 of common. The customary tenants of a manor may even allege a 
 custom to have the sole and several pasture in the soil of the lord 
 for the whole year, and thereby exclude the lord. In this case, 
 however, the lord may distrain, for other damage in his soil, the 
 cattle of any who have no right to put in their cattle, although he 
 has not any interest in the herbage, for he has an interest in the 
 miines, trees, bushes, &c. (m). E converso the right of the commoners 
 may be subservient to the right of the lord in the soil, so that the 
 lord may dig clay-pits there, or empower others to do so, without 
 leaving sufficient herbage for the commoners, if it can be proved 
 that such a right has been constantly exercised by the lord (n). 
 So the lord may, with the consent of the homage,' grant part of the 
 soil for building, if he has immemorially exercised such right (o). 
 The immemorial exercise of such right by the lord is evidence that 
 he reserved that right to himself, when he granted the right of 
 common to the commoners. In like manner, there may be a valid 
 custom in a manor for the lord, with the assent of the homage, to 
 grant parcels of the waste to be holden by copy of court-roll, and 
 for the grantees to inclose the same, and to hold them in severalty 
 against the commoners, and in exclusion of their rights (p).' 
 
 {j) ikeUor V. Spatemm, 1 Wms. Saund. 324 ; 1 Vent. 16i. 
 
 343. ' ' ' /fi) JSa,tes(m v. Green 5 T. R. 411. 
 
 (i) Parry v. Thomas, S Exch. 37. (o) Folka/rdyl Eemmeit, ST.K. 417, n. 
 
 .{I) JBa/rmck r. Matthews, 5 Taunt. (p) Eoulcott v. Winmill, 2 Campb. 
 
 865. 261. 
 
 (m) Eosldns v. Robins, 2 "Wms. Saund. 
 
COMMON. §75 
 
 If a commoner having a right of common for one beast, put on 
 two, the lord can only distrain the one put on last, unless they were 
 both put on together (q). It was held in the case deciding this 
 point that the plea, justifying the taking as a surcharge, must show 
 whether they were put on together or separately ; and if the latter, 
 which was put on first ; but in a subsequent case (r), a similar plea 
 did not contain such a statement, and no objection was made to it 
 on that account, although it was argued on demurrer, and the 
 court delivered a considered judgment. The only question made 
 was, whether one commoner could distrain the cattle of another 
 commoner who had surcharged the common, which was determined 
 in the negative. 
 
 IV. Of Approvement and Inclosure. 
 
 By the statute of Merton, 20 Hen. III. c. 4 (s), lords of wastes, 
 woods, and pastures, in which their tenants have common of 
 pasture, may approve such wastes, &c., provided sufficient pasture, 
 with a sufficient ingress and egress, is left to the tenants. An 
 owner pur autre vie of a common may approve under this statute, 
 and 13 Edw. I. st. 1, c. 46 ; and may erect on the common a house 
 necessary for the beast-keepers, for the care of the cattle of hipiself 
 and other persons having right of common there {t). 
 
 If the lord make a feofment of the waste, &o., the feoffee may 
 approve, leaving a sufficiency of common ; and this rule holds, 
 although the lord continues seised of the manor within which the 
 waste Ues; for though in the statutes, of Merton and Westminster 
 the lord only is mentioned, yet as in those days statutes were npt 
 drawn with that fulness, of expression with which they are at the 
 present time, the term "lord of the manor" must be considered as 
 equivalent to " owner of the soil," where they stand in the same 
 predicament. It is not necessary, therefore, that the person ap- 
 proving should be lord of the manor ; a seisin in fee of the waste, 
 &c., is sufficient {u). It is worthy of remark, that the statute of 
 Merton does not empower the lord to approve against any other 
 right of common, except that of common of pasture, appendant or 
 appurtenant (as). It does not extend to common in gross, the words 
 of the statute being quantum pertinet ad tenementa sua (y), nor 
 to common of piscary, of turbary (3^), estovers, and the like,; the 
 words used throughout the statute being pastura et communia 
 pasturce (a). But though the lord cannot approve against "common 
 
 (q) Ellis V. Bowies, "Willes, 638. . (t) Patrick v. Sluibs, 9 M. & W. 830. 
 
 (»•) ffallv. Harding, 4 Burr. 2426., . («) - <?^»«'' Y- LanSyZT. E.445. 
 
 {s) Extended ty iS Edw. I. stat. 1, (x) 2 Inst. 87. 
 
 c. 46, to approvements by, lord? against (j/) 2 Inst. 86. , . ■ _ ' 
 
 their neighbours— Confirmed by 3. ,& 4= (») Grant v. Gunner, 1 Taunt. 435, 
 
 Edw. VI. c. 3 ; 8 & 9 Vict. c. 118. (a) 2 Inst. 87. 
 
370 COMMON. 
 
 of turbary, yfet where there is common of pasture and common of 
 turbary in the same waste, the common of turbary will not prevent 
 the lord from justifying an inclosure against the common of pasture, 
 if he leaves suflficient : for they are two distinct rights, and the 
 concurrence of these rights in one person will not make any dif- 
 ference (h). In like manner, the lord of the manor, or his grantee, 
 may justify an approvement or inclosure against tenants having 
 common of pasture, although they have a further right of digging 
 sand, &c., if sufficient common of pasture be left (c). It is, however 
 observable, that if the inclosure operates, in fact, as an injury to 
 the other rights, the commoner will be entitled to an action for 
 such injury (d). By the approvement of part, agreeably to the rule 
 laid down in the statute of Merton, that part is discharged of the 
 common, insomuch, that if the tenant who has the common pur- 
 chases that part, his common is not extinguished in the residue (e). 
 
 If the lord incloses any part, and does not leave sufficient com- 
 mon in the residue, the commoner may break down the whole in- 
 closure which is upon the common, even although he can enter 
 without throwing down any part of it (/). But if the common 
 has been inclosed twenty years, the commoner cannot make an 
 entry, and even before the 3 & 4 Will. IV. c. 27, must have brought 
 an assize of common (g). A custom for the lord to inclose without 
 limit is bad, as tending to destroy the rights of the commoner 
 altogether, but a custom to inclose (even as against a common 
 right of turbary), leaving sufficiency of common, is good ; but the 
 onus of proving a sufficiency left lies on the lord (h). 
 
 By 29 Geo. II. c. 36, the lords and tenants may inclose part of 
 the common for the purpose of planting and preserving trees fit for 
 timber or underwood. By 31 Geo. II. c. 41, these powers are 
 declared to be vested in tenants for life, or years determinable on 
 lives. By 13 Geo. III. c. 81, provision is made for the better 
 cultivation of common field lands, by agreement amongst the oc- 
 cupiers and owners (i), for regulating, altering, &c., in a similar 
 manner the time of opening and shutting up stinted commons, and 
 power is given (by sect. 15) to lords of manors, with the consent 
 of three-fourths 1 of the commoners, to lease by auction a twelfth of 
 the waste for any term not exceeding four years, the net rent to be 
 applied to the improvement of the residue of the waste. By 4 & 5 
 Vict. c. 38, s. 2, a lord of a manor may convey any quantity of 
 land not exceeding one acre, as a site for a school for the education 
 of poor persons ; and where any portion of waste or commonable 
 
 (i) Fawcett v. StriokUnd, "WiUea, 57. Seel Tapley v. WainwriqU, 5 B. & Ad. 
 
 (c) Shakespeare v. Peppin, 6 T. E. 741. 395. 
 ■(d) Fawiett v. Strkhland, WiUes, 67. (h) Arlett v. Ellis, supra. 
 
 (e) 2 lust 87. „ „ ^ „ W See Whiteman v. King, 2 H. Bl. 
 
 •^I\^^^f I- ■^^^''' i' B. & C. 346 ; 9 4 ; 6 & 7 WiU. IV. c. 115 ; 3 & 4 Yict. 
 
 xUd. 671, S. C. c. 31 
 
 (0) Oreach v. Wilmott, 2 Taunt. 160. 
 
COMMON. 877 
 
 land shall be gratuitously conveyed by any lord for such purpose, 
 the rights of all persons in the land are barred by the conveyance. 
 And by 7 & 8 Vict. c. 37, s. 3, any deed which shall have been or 
 shall be executed under the powers or for the purposes of 4 & 5 
 Vict. c. 38, without any valuable consideration, shall be valid, if 
 otherwise lawful, although the donor shall die within twelve calen- 
 dar months from the execution thereof. 
 
 By the General Inclosure Act, 41 Geo. III. c. 109, the provisions 
 usually inserted in private enclosure acts are consolidated. Allot- 
 ments under private enclosure acts make the land allotted freehold, 
 unless the act otherwise directs (Jc). Under the above act the legal 
 title to the land allotted.does not vestin the allottee until the exe- 
 cution and proclamation of the award (l) ; though the local act 
 may, by proper words, give the legal seisin and estate upon allot- 
 ment only (m). But by the 1 & 2 Geo. IV. c. 23, s. 2, it shall be 
 lawful for any allottee, who has or shall be put into possession of 
 his allotment by an order of the commissioners in writing accord- 
 ing to the form given in the schedule to that act and signed by 
 the commissioner or commissioners, his tenant or servant, "to com- 
 mence, prosecute and maintain any action or suit at law for any 
 injury or damage that may be done or committed by any person 
 or persons whomsoever to the ground, soil or herbage of any such 
 allotment or allotments, or to the walls, hedges, fences, ditches, 
 gates, posts, rails, stiles, doughs, bridges or tunnels already erected 
 or to be erected in or upon any such allotment or allotments, and 
 to bring, maintain or prosecute any action or actions of ejectment 
 for recovering the possession of any such allotment or allotments, 
 or any part or parts thereof, from any person or persons whomso- 
 ever, notwithstanding the award or awards of the commissioner or 
 commissioners appointed in or named by or by virtue of any such 
 act or acts now made or passed, or to be hereafter made and passed, 
 shall not be executed and perfected by such commissioner or com-, 
 missioners by virtue or in pursuance of any such act or acts of 
 parliament, any thing in any act or acts, or any construction of or 
 implication from any act or acts, or any law, usage or custom to 
 the contrary in anywise notwithstanding" (n). 
 
 By sect. 13 of the General Inclosure Act, provision is made for 
 the allottees of small allotments depasturing their allotments in 
 common without any enclosure thereof, subject to "such orders 
 and regulations for the equitable enjoyment thereof, and for the 
 participation of any produce grown or to grow thereon, as such 
 commissioner or commissioners may think beneficial and proper." 
 Bysect. 14, the allotments when made are to be in full bar and 
 satisfaction of all rights of common and other rights previously 
 existing in the lands enclosed, and, on the making of the award 
 
 (k) Doe V. Davison, 2 M. & S. 176. (m) Doe v. Saunder, 5 A. & E. 66i. 
 
 {l) Farrer v. Billing, 2 B, & Aid. 171. {«) And see 11 & 12 Vict. c. 99, s. 11, 
 
378 COMMON. 
 
 (or befdre, if the commissioners so direct) all rights of common 
 and other rights intended to be extinguished shall cease and 
 determine. 
 
 Section 35 provides for the due execution of the award by the 
 commissioners, its enrolment within twelve calendar months, or so 
 soon as conveniently may be, in one of her Majesty's c.ourts of 
 record at Westminster, or with the clerk of the peace for the 
 county (o) ; and for the delivery by the officer of the court or the 
 clerk of the peace to any person requesting the same, of "a copy 
 of the said award, or any part thereof, signed by the proper officer 
 of the court, wherein the same shall be enrolled, or by the clerk 
 of the peace for such county or his deputy, purporting the same to 
 be a true copy ; " — " And the said award, and each copy of the 
 same or of any part thereof signed as aforesaid, shall at aU times 
 be admitted and allowed in all courts whatever as legal evidence, 
 &c." The award when made relates back to the time of allot- 
 ment (p) ; and it need not contain all the authorities the commis- 
 sioners had, the presumption bping, that they acted according to 
 their jurisdiction, until the contrary appears (g). 
 
 By the 8 & 9 Vict. c. 118, certain powers for the enclosure and 
 improvement of commons, &c., are given to " The Inclosure Com- 
 missioners for England and Wales," — " who shall cause to be made 
 a seal of the said board, and shall cause to be sealed therewith all 
 awards and orders made or confirmed by the commissioners, in 
 pursuance of this act ; and all such awards and orders and other 
 instruments proceeding from the said board, or copies thereof, 
 purporting to be sealed with the seal of the said board, shall be 
 received in evidence without any further proof thereof, &c." 
 (s. 2)(r). 
 
 The 94th section enacts, that all the land exchanged, partitioned 
 or allotted under the act shall be held by the person to whom it is 
 •given in exchange, &c., under the same tenures, rents, customs and 
 services, as the land in respect of which it shall have been so given 
 in exchange, &c., and the land exchanged, partitioiied or allotted in 
 respect of leasehold land shall be deemed leasehold, and be held 
 under the same rents and .covenants as the land in respect of 
 which it may have been allotted, and the remainder or reversion 
 thereof shall be vested in the same lessor respectively as the 
 remainder or reversion of such other land was vested before the 
 exchange, &c., except where otherwise directed by the act. 
 
 The 104th section provides for the drawing up and confirmation 
 of the award by the commissioners, " under their hands and seal," 
 
 (o) Any omission to enrol it in due 853. 
 time is remedied by the 3 & 4 Will. IV. (r) The 69th section enables the valuer 
 
 c. 87. to extinguish or suspend rights of com- 
 
 (p) Doe V. Willis, 5 Bingh. 441. mon during the inclosure. 
 
 (e) GoodtitU V. Milburn, 2 M. & ^Y. 
 
COMMON. 379 
 
 and the 105th section enacts, " That such confirmation as aforesaid 
 shall be conclusive evidence that all the directions of this act in 
 relation to such award, and to every allotment, exchange, partition, 
 and matter therein set forth and contained, which ought to have 
 been obeyed and performed previously to such confirmation, shall 
 have been obeyed and performed, and no such award shall be im- 
 peached by reason of any mistake or informality, &c., and every 
 allotment, exchange, &c., specified and set forth in such award as 
 aforesaid shall be binding and conclusive on all persons whomso- 
 ever." 
 
 The 146th section enacts — " That two copies of every confirmed 
 award shall be made, and sealed wilii the seal of the said commis- 
 sioners, and one such copy shall be deposited with the clerk of the 
 peace of the county in which the lands inclosed shall be situate, 
 who is hereby required to deposit and keep the same among the 
 records of the said county, so that recourse may be had thereto by 
 any persons interested in the premises, and the other copy shall be 
 deposited with the church or chapel-wardens for the time being of 
 the parish in which the lands or the greater part thereof shall be 
 situated, to be kept by them and by their successors in office, with 
 the public books, writings and papers of the parish, or shall be de- 
 posited with such other fit persons as the commissioners shall 
 apjprove ; and all persons interested therein may have access to and 
 be furnished with copies of or extracts from any such copy, on 
 giving reasonable notice to the person having custody of the same, 
 and on payment of two shillings and sixpence for such inspection, 
 and after the rate of threepence for every seventy-two words con- 
 tained in such copy or extract, and all such copies of and extracts 
 from any such copy of any confirmed award as shall be furnished 
 by the clerk of the peace shall be signed by the said clerk of the 
 peace or his deputy, purporting the same to be a true copy, and 
 every such copy and extract so signed shall be received in evidence 
 without further proof thei-eof, and every recital or statement in 
 such confirmed award, or any sealed copy thereof, shall be deemed 
 satisfactory evidence of the matters therein recited or stated." 
 
 Regulated Pastures (s).— The 113th section enacts, _" That it 
 shall be lawful for the commissioners on the application in writing 
 of persons interested in any land which shall be directed to be in- 
 closed under this act, whose interest shall exceed in value one half 
 of the whole interest in such land (such application to be made at 
 any time before the instructions to the valuer shall have been 
 delivered to him under the seal of the commissioners as herein- 
 before provided), to direct such land or any part thereof to be 
 converted into and used- as a regulated pasture, to be stocked and 
 depastured in common by the persons interested therein, in pro- 
 
 (s) Seo 20 & 21 Vict. o. 31, ss. 1, 2. 
 
880 COMMON. 
 
 portion to their respective rights and interests as the same shall be 
 determined on the examination of claims,. and in case part of such 
 land only shall be so directed to be stocked and depastured in 
 common, the valuer shall, subject to the instructions which shall 
 be given to him under the provisions of this act, ascertain and set 
 out the part which shall be so used as a regulated pasture, and 
 shall direct how and at whose expense the same shall be fenced 
 and divided from the residue of such land, and the valuer, acting 
 in the matter of such inclosure, shall, in every case where land 
 shall be so directed to be used as a regulated pasture, ascertain 
 and allot the respective stints or rights of pasturage, (specifying 
 the respective numbers of the respective kinds of stock or animals 
 to be admitted to the pasture in respect of such respective stints 
 or rights of pasturage, with such option as to equivalent numbers 
 of the respective kinds of stock and animals as he shall think just, 
 and if he shall think fit, specifying the time during which such 
 stock or animals may be kept on the pasture,) as he shall adjudge 
 and determine to be proportionate to the value of the respective 
 rights and interests of the persons interested as aforesaid, &c." 
 
 The 116th section enacts, "That the right of soil of and in all 
 land which shall be converted into regulated pastures, shall, subject 
 to the right of the lord of the manor to all or any of the mines, 
 minerals, stone and other substrata, where the same shall be reserved 
 to him under this act, and to the other rights given or reserved by 
 this act, and the award in the matter of such inclosure, be vested 
 in the persons, who, under the directions and determinations of 
 such award, shall be owners of the stints or rights of pasture therein, 
 in proportion to the shares or aliquot parts which such stints shall 
 be thereby declared liable to of any rate under this act, as tenants 
 in common." 
 
 Exchange of Right of Common. — The 9 & 10 Vict. c. 70, s. 11, 
 empowers the commissioners, on the application of the parties in- 
 terested in any undivided share, or any cattle gate or other gate or 
 any right of common defined by numbers or stints over any land 
 (whether subject to be inclosed or not), to make an order of ex- 
 change of such respective shares without the concurrence of the 
 other persons interested in the land. The provisions of the 8 & 9 
 Vict. c. liy, and this act, applicable to the exchange of land, are 
 to be applicable to such exchange, except that, instead of a map, 
 a sufficient description of the shares, rights, &c., so exchanged, and 
 of the land on which the exchange is to operate, may be inserted 
 in the order or annexed thereto {f). 
 
 The Metropolitan Common Act (29 & 80 Vict. c. 22) prevents 
 the future inclosure of commons within the metropolitan poUce 
 district, and makes provision for their improvement. 
 
 (t) See fiirtier on the subject of in- Vict. c. 99 ; 12 & 13 Vict. c. 83 ; 20 & 
 closure, 10 & 11 Vict. c. Ill ; 11 & 12 21 Vict, c. 31, 
 
COMMON. ySl 
 
 V. Of the Remedy for Disturbance of Right of Common (u). 
 
 Whatever destroys the right of common is a nuisance, and may- 
 be abated by the commoner, provided it can be done without in- 
 terfering with the lord's right to, or interest in, the soil (cc). But 
 if the nuisance cannot be abated without such interference, the 
 commoner must resort to his action on the case, and have satisfac- 
 tion in damages. If the right of common be partially injured, the 
 commoner ought not to abate the cause of such injury, more espe- 
 cially if in so doing he must necessarily interfere with the right to 
 the soil. On this principle it was held, in Cooper v. Marshall, 1 
 Burr. 265, that a commoner could not justify digging up the soil 
 and destroying the coney-burrows ^ected in the common by the 
 lord, who was entitled to free warren there. So where the lord 
 had planted trees on the common, and the commoner cut them 
 down, it was held, that the lord might maintain trespass, and that 
 the commoner could not justify the abatement of the trees (y). 
 Where a house obstructs the exercise of a right of common, the 
 commoner may, after notice and request to the plaintiff to remove 
 the house, pull it down, though the plaintiff is actually inhabiting 
 and present in the house {z). 
 
 The usual remedy adopted by commoners is an action on the 
 case for a disturbance of the right of common, which may be 
 maintained either against the lord or the owner of the soil, a 
 stranger, or a commoner (a). If the action is brought against the 
 WTong-doer, title being only inducement, it is not necessary to set 
 it forth ; it will be sufficient for the plaintiff to state in his decla- 
 ration, that he was possessed of a cei-tain quantity of land, &c., and 
 by reason of such possession was entitled to the right, in the 
 exercise of which he was disturbed ; secus, if it be brought against 
 the lord (6). The right, must be truly stated, for otherwise the 
 variance will be ground of nonsuit (c). If, to an action on the case 
 by a commoner for injuring his right of common, the defendant 
 plead that he dug turves under a licence from the lord, he should 
 add, that sufficient common was left for the commoner ; and if he 
 do not, the plaintiff is not obliged to reply, that there was not 
 sufficient common left ; because it is the gist of the action, and set 
 forth in' the declaration (d). Case for disturbing the plaintiff's 
 right of common by turning on cattle ; defendant pleaded a right 
 of common in himself and justified turning on the cattle, being his 
 own commonable cattle levant and couchant on his land ; plaintiff 
 must new assign, if he intends to prove a surcharge (e). 
 
 (u) As to the commoner's remedy (o) Hasswrd v. Cantrdl, Lutw. 101. 
 
 against the lord in ec[uity, see Powell v. (b) Qreenhow v. IlsUy, Willes, 621. 
 
 Powis, 1 Y. & J. 159. (c) Beadsworth v. Torhington, 1 Q. B. 
 
 (x) 2 Inst. 88. 782. 
 
 \y) Kirhy T. Sadgrove {in error), 1 B. (d) Greenhow v. IlsUy, 'Willes, 619. 
 
 & p. 13. (e) Bowen v. Jenhin, 6 A. & E. 911. 
 
 (z) Bavies v. Williams, 16 Q. B. 546. 
 
383 COMMON. 
 
 In this action the plaintiff must prove an injury sustained, but 
 any injury in the minutest degree is sufficient; e.g. the taking 
 away the manure which has been dropped on the common by the 
 cattle, although the proportion of the damage sustained by the 
 plaintiff be found to amount to a farthing only (/) ; for if, where 
 the injury was small, a commoner could not maintain an action, a 
 mere wrongdoer might by repeated torts in course of time estabhsh 
 evidence of a right of common {g). 
 
 VI. Of Surcharges by Commoners. 
 
 Formerly, if one of the commoners had surcharged the common, 
 that is, had put more cattle into the common than he was entitled 
 to, the commoner who was aggrieved might sue out a writ of 
 admeasurement of pasture, and by that suit the common was 
 admeasured in respect of all the commoners, as well those who had 
 not surcharged as those who had surcharged it, and the person 
 who brought the action (h). An action on the case has been sub- 
 stituted in the place of this writ of admeasurement, as a more easy 
 and speedy remedy ; and it has been held that this action may be 
 maintained by one commoner against another for a surcharge, 
 although the plaintiff himself has been guilty of a surcharge {i). 
 In the declaration, it is not necessary for the plaintiff to set forth 
 the defendant's right of common, and show in what manner he has 
 exceeded that right, by putting on a greater number or an im- 
 proper species of cattle ; but the disturbance may be alleged 
 generally, "that the defendant wrongfully and inj uriously ate up 
 and depastured the grass on the common with divers sheep and 
 lambs (Jc). Neither is it necessary that the plaintiff should state 
 that he was exercising his right of common at the time of the 
 surcharge {I). But it seems from Smith v. Feverel, 2 Mod. 6, and 
 from a dictum of the court in Hassard v. Cantrell, LvAw. 107, 
 that in an action against the lord it is necessary to show a par- 
 ticular surcharge. 
 
 VII. Prescription— 2 & 3 Will. IV. c. 71. 
 
 To an action of trespass quare clausum /regit, the defendant 
 may plead a right of common of pasture, of common of turbary, 
 and of common of estovers. 
 
 By 2 & 3 Will. IV. c. 71 (m), it is enacted, " That no claim 
 
 (/) Pindar y. Wadsworth, 2 East, 154. (h) F. N. B. 125, B. 
 
 See cases cited by Taunton, J., in Mar- (i) Eobson v. Todd, 4 T. E. 71. 
 
 zetti V. Williams, 1 B. & Ad. 426, and (k) Atkinson v. Teasdale, 3 "Wils. 278. 
 
 mofeld V. Payne, 4 B. & Ad. 410. (Z) Wells v. Waaing,2 W. Bl. 1233. 
 
 (g) See Patrick v. Qreenwmy, 1 Wms. (m) See further on the subject of this 
 
 Sa-und. 346, J., n. (2). statute, i>os«, tit. "Nuisance." 
 
COMMON. 383 
 
 which may be lawfully made at the common law by custom, pre- 
 scription, or grant, to any right of common or other profit or 
 benefit, to be taken and enjoyed from or upon any land of the 
 king, his heirs or successors, or any land, being parcel of the Duchy 
 of Lancaster, or of the Duchy of Cornwall, or of any ecclesiastical 
 or lay person, or body corporate, except such matters and things as 
 are herein specially provided for, and except tithes, rent, and 
 services, shall, where such right, profit, or benefit, shall have been 
 actually taken and enjoyed by any person claiming right thereto (n), 
 without interruption. (o), for the full period of thirty years, be 
 defeated or destroyed by showing only that such right, profit, or 
 benefit, was first taken or enjoyed at any time prior to such period 
 of thirty years, but nevertheless such claim may be defeated in 
 any other way by which the same is now liable to be defeated : 
 and when such right, profit, or benefit, shall have been so taken 
 and enjoyed as aforesaid, for the 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."- — ^Although a thirty years' user, as of right and without 
 interruption, cannot be defeated by showing only that it com- 
 menced at an antecedent period, yet the commencement of the 
 user may be shown to have been at such a time (antecedent to the 
 commencement of the thirty years) that the right could never 
 have had a legal origin either by prescription or grant {p). 
 
 By sect. 4. — "Each of the respective periods of years herein- 
 before 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 into 
 question ; and no act or other matter shall be deemed to be an 
 interruption, within the meaning of this statute, unless the same 
 shall have been or shall be submitted to or acquiesced in for one 
 year after the party interrupted shall have had or shall have 
 notice thereof, and of the person making or authorizing the same 
 to be made." 
 
 Sect. 6 enacts. — "That in the several cases mentioned in and 
 provided for by this act, no presumption shall be allowed or made 
 in favour 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 this act, as 
 may be applicable to the case and to the nature of the claim." — 
 " This provision is meant only, to encounter presumptions, from an 
 exercise of the right during such an imperfect period, that it was 
 exercised in older times. The effect of this clause is, that a claim- 
 
 (ra) See TicMe v. Brown, 4 A. & E. (p) Mill v. Commissioners of the New 
 
 369. Forest, 18 C. B. 60 ; see also Atlorney- 
 
 (o) See Carr v. Foster, post, p. 384. General v. Mathias, 27 L. J., Chan. 761. 
 
384 COMMON. 
 
 ant, proving enjoyment for less than the specified time, shall not, 
 on that ground, carry back his right to a period before that which 
 his proof extends to " (q). 
 
 By the seventh section, the time during which any disability 
 exists, e. g. infancy, non-compos, coverture, or tenancy for life (r) 
 or during which any action shall have been pending, and diligently 
 prosecuted (until abated by the death of any party (s)), shall be 
 excluded in the computation of the periods (t), except only where 
 the claim is declared to be absolute. 
 
 Under this statute a plea of enjoyment of right of common for 
 thirty years before the commencement of the suit is sufficient, 
 without saying for thirty years next before (u). " The 4th section 
 of the statute is nothing but an exposition of the proof required to 
 establish the right. It is a mere question of evidence ; and if the 
 plaintiff joins in the issue now offered, the defendant will not be 
 able to get out of the proof of enjoyment of the right for thirty 
 yfears next before action." Per Tindal, C. J., 8. C. " That case - 
 (Jones V. Price) merely establishes that the averment of ' thirty 
 years before the commencement of the suit,' means ' thirty years 
 Tiext before the commencement of the suit ;' in other terms, that 
 the omission of the word ' next ' makes no difference. — Taking the 
 4th and 5th sections together, it is clear that an averment of enjoy- 
 ment for thirty years next before the times when, &c., is not in 
 conformity with the act. The period nientioned in the act is 
 thirty years next before some suit or action in which the claim 
 shall be brought into question. Generally speaking, that would 
 be next before the commencement of the suit in which the plead- 
 ing takes place ; at all events it is not next before the times when, 
 &c." (x). Such an enjoyment, viz., for the prescribed number of 
 years before the act complained of, " gives an inchoate title, which 
 may become complete or not by an enjoyment subsequent, accord- 
 ing as that enjoyment is or is not continued to the commencement 
 of the suit " (y). 
 
 Before the passing of this act, a prescriptive claim was a claim 
 of immemorial right ; the evidence of it was such as a party might 
 be able to give in such a case ; and the jury were to draw their in- 
 ference from such proof as could be produced. Now, the burden 
 of establishing an immemorial right is withdrawn, and the proof is 
 limited to a thirty years' enjoyment, but that enjoyment must be 
 proved to the full extent ; therefore proof of a thirty years' enjoy- 
 ment of common of pasture is not complete, if proof be given of an 
 enjoyment for twenty-eight years immediately preceding an action 
 
 (q) Per Lord Demnrni, C. J., in Carr (i) Clayton v. Corby, 2 Q. B. 813. 
 
 V. Foster, 3 Q. B. 587. (u) Jones v. Price, 3 B. K C. 62. 
 
 (r) Clayton v. Corhy, 2 Q. B. 813. {x) Per Lord Denman, C. J., Richards 
 
 is) By the Com. Law Proc. Act, 1852, v. Fry, 7 A. & E. 698. 
 
 s. 135, actions no longer atate by the (y) Per Parke, B., Ward v. Eotms, 
 
 fleath of the parties thereto. 15 M. & "W, 23^, 
 
COMMON. 885 
 
 in whicli the right is disputed, and it appear that twenty-eight 
 yearsback the enjoyment was interrupted, but that the right was 
 exercised before the interruption: and the party disputing the 
 right is not bound to show that such interruption was adverse ; it 
 lies upon the party prescribing, under the statute, to prove thirty 
 years' uninterrupted enjoyment (z). But it is not necessary in 
 cases of tenancies for life, &c., under sect. 7, to prove that the 
 whole time of enjoyment immediately preceded the action. It is 
 sufficient if the enjoyment previous to the tenancy for life, &c., 
 and Subsequently, up to the commencement of the suit, make 
 up the prescribed period (a). This, however, must be specially 
 replied (6). 
 
 The " inten-uption " which defeats % prescriptive right under this 
 statute is an adverse obstruction, not a mere discontinuance of 
 user by the claimant. Hence, in a case under sect. 1, where a com- 
 moner had ceased to use the common during two intermediate 
 years of the thirty, having no commonable cattle at the time, but 
 had used it before and after ; it was held to be a question for the 
 jury whether the right had ceased, or was still substantially enjoyed, 
 and that they were justified from such evidence in finding a con- 
 tinued enjoyment of the right during thirty years (c). There must, 
 however, be an actual enjoyment during the first (d) and last years 
 of the prescribed time (e) ; and although, when once the enjoyment 
 as of right has begun, no interruption, unless acquiesced in for more 
 than a year, will defeat the right (/), yet interruptions, although 
 not so acquiesced in, may show that such enjoyment never was of 
 right, but contentious throughout (gr). 
 
 A plea of right of common under the above statute is a plea of 
 ibser, and therein differs from a plea of immemorial prescription, for 
 a right claimed by user can only be co-extensive with the user, and 
 is therefore divisible, but rights claimed by prescription are in their 
 nature entire. Where, therefore, to an action of trespass qu. cl.fr., 
 the defendant pleaded a right of common of pasture by thirty years' 
 user over a close which contained 3000 acres, but the plaintiff 
 proved that the particular part of the close on which the trespass 
 was committed had been inclosed, and the inclosure acquiesced in, 
 for more than a year, the plaintiff was held to be entitled to a 
 verdict (A). 
 
 By sect. 5, — " In all actions upon the case, and other pleadings, 
 wherein the party claiming may now by law allege his right 
 
 (z) Bailey v. AppUyard, 8 A. & E. where, semhU, per Parke, B., that the 
 
 jgl_ right should be exercised once a year at 
 
 i'a) Clayton v. Corhy, 2 Q. B. 813. least. „, . „ , 
 
 (J) Pye v. Mumford, 11 Q. B. 666. (/) Might v. Thomas, 8 CI. & F. 231. 
 
 (c) Carr v. Foster, 3 Q. B. 581. (?) Eaton v. Swansea Waterworks Co., 
 
 id) But see Lawson v. Langley, 4 A. & 17 Q. B. 267. „ t, ,, 
 
 E. 890 ; Hall v. Swift, 4 B. K C. 381. [h) Davies v. Williams, 16 Q. B. 546. 
 
 (e) Ziowe V. Carpenter, 6 Exch. 825, See Peardon v. Vnderhill, ibid. 120. 
 
386 COMMON. 
 
 generally, without averring the existence of such right from time 
 immemorial, such general allegation shall still be deemed sufficient ; 
 and if the same shall be denied, all and every the matters in ihk 
 act mentioned and provided, which shall be applicable to the case, 
 shall be admissible in evidence to sustain or rebut such allegation ; 
 and in all pleadings to actions of trespass, and in all other pleadings 
 v/herein, before the passing this act [1st August, 1832] 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 tencTnent in respect whereof tJie 
 same is claimed (i), for and during such of the periods mentioned 
 in this act as may be applicable to the case, and without claiming 
 in the name or right of the owner of the fee, as is now usually 
 done ; and if the other party shall intend to rely on any proviso,, 
 exception, incapacity, disability, contract, agreement, or other 
 matter hereinbefore mentioned, or on any cause or matter of fact 
 or of law, not inconsistent with the simple fact of enjoyment" (e.g. 
 a tenancy for life during part of the period (k)), "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." 
 
 A plea under the statute mu.st state that the enjoyment was had 
 " as of right " (l). A plea which omitted this statement, although 
 it stated that the defendant " had used and actually enjoyed, &c., 
 |,nd still of right ought to have, use, &c.," was held bad after 
 verdict. Where A. was seised in fee of a farm, which he occupied 
 by his tenants, and was tenant for life of a moor, which he occupied 
 himself, and the tenants of the farm had for more than sixty years 
 depastured their cattle on the moor without interruption ; it was 
 held, that such user could not be as of right within the statute, 
 for that the right of the tenants of the farm over the moor was 
 derived from A., who could grant or withhold it at pleasure ; and 
 as he could not have an enjoyment as of right against himself, so 
 neither could his tenants (m). Evidence that, during the alleged 
 enjoyment, the estates over which and in right of which it has 
 been exercised were held by the same person, disproves enjoyment 
 as of right ; and such unity of possession need not be pleaded, but 
 may be given in evidence under a traverse of the enjoyment as of 
 right (n). 
 
 (i) These words have given rise to a 10—13, 152. 
 
 question whether rights of common in (fc) Pye v. Mumford, 11 Q. B. 666. 
 
 gross are within the statute. See Wei- {I) Holford v. HanTdnson, 5 Q. B. 584. 
 
 come V. Upton, 5 M. & AV. 404 ; 6 M. & (m) Warhurtm, v. ParU, 2 H. & N. 
 
 W. 543 ; Bailey v. Stephenson, 12 C. B. 64. 
 
 (N. S.) 113 ; Gale on Easements, pp. (n) Clayton y. Corby, 2 Q. B. 813. 
 
COMMON. 387 
 
 VIII. Evidence. 
 
 To a declaration in trespass for breaking and entering two closes 
 of the plaintiff, the defendant pleaded that the said closes were, 
 from time immemorial, parcels of a waste, and that he, the defend- 
 ant, had a prescriptive right of common in the waste ; and because 
 the closes were wrongfully separated from the residue of the waste, 
 he broke down the gates. Replication, that the said closes were 
 not wrongfully separated from the residue of the waste, but con- 
 tinually for twenty years and more, and before the first time when, 
 &c., had been and were separated and divided, and inclosed from 
 the residue of the waste, and occujjied and enjoyed during that 
 time in severalty. Issue thereon. It was held, that the allega- 
 tion in the replication, that "the said closes had been inclosed 
 from the residue of the waste, and enjoyed in severalty," was 
 divisible, and satisfied by proof that any part of the closes in 
 which the trespasses were committed had been so inclosed for that 
 period, and that the plaintiff might therefore recover pro tanto (o). 
 By the Common Law Procedure Act, 1852, sect. 75, it is provided, 
 that all pleadings " capable of being construed distributively shall 
 be taken distributively, and if issue is taken thereon, and so much 
 thereof as shall be sufficient answer to part of the causes of action 
 proved shall be found true by the jury, a verdict shall pass for the 
 defendant in respect of so much of th6 causes of action as shall be 
 answered, and for the plaintiff in respect of so much of the causes 
 of action as shall not be so answered." 
 
 A plaintiff in trespass was the occupier of a farm, called Tyr 
 Adam, situate within a manor adjoining a mountain, and claimed 
 to be exclusive owner of that part of the mountain next adjoining 
 his farm. The question being, whether he was exclusive owner of 
 the soil, or had a right of common only over that part of the moun- 
 tain, the defendant, in order to show that the plaintiff had not the 
 right of soil, produced from the rolls of the manor an instrument, 
 purporting to be a presentment in the year 1759, wherein the 
 jurors, after reciting that they were sworn to view such part of the 
 waste land as lieth within the lordship, as was claimed by A. B. 
 to belong to his tenement called Tyr Adam, upon their oaths said, 
 that they had considered the claim and the evidence, and presented 
 that all the said lands within the said boundaries were part and 
 parcel of the common called K., and that neither the said A. B., 
 nor the tenants or occupiers of the tenement called Tyr Adam, had 
 any right to the same, or any greater right than such as the other 
 freehold tenants of the lordship had for their commonable cattle. 
 It was held, that this instrument was not admissible in evidence ; 
 first, not as a presentment, because the homage had no right to 
 
 (o) Tapley y. Wainwrighl, 5 B. & Ad. 395. 
 
 G G Ji 
 
388 COMMON. 
 
 decide the claim made by an individual to the freehold (p) ; nor as 
 an award, because there was no mutual submission, either express 
 or implied; nor as evidence of reputation, because it was on the 
 face of it made fost litem tnotam (q). 
 
 Levancy and Couckancy. — Trespass for entering plaintiff's close 
 with cows and sheep, and destroying his gi'ass. As to the cows, 
 defendant prescribed for common, for all cattle (except sheep) levant 
 and couchant on defendant's messuage, and one acre of land ; the 
 issue was on the levancy and couchancy. The evidence was, that 
 defendant was seised of a copyhold messuage, and one acre of 
 pasture land ; that be foddered eight or nine cows in the yard of 
 the said messuage with hay brought from another farm about two 
 miles off. Lord Raymond, C. J. : " These cows cannot be levant 
 and couchant upon the one acre ; for I am clear that levancy and 
 couchancy is a stint of commA)n in contradistinction to common 
 sans nomhre, and signifies only so many as the messuage or farm 
 will by its produce maintain ; and it was so resolved in the case of 
 the town of Derby (r). I know there are cases which say, that 
 foddering in a yard makes a levancy and couchancy, but then the 
 meaning is, foddering with stubble, &c. produced from the mes- 
 suage or land itself, to which the yard belongs ; for example, if an 
 acre of land will produce only so much hay, &c. as will maintain 
 but one cow, the occupier shall not put two on the common, be- 
 cause he fodders them in the yard with the produce of other land ; 
 for, by the same rule, he might put 1,000 of his own, or of other 
 persons, and deprive the other commoners of the benefit of com- 
 mon" (s). 
 
 Trespass for impounding plaintiff's colt and three fillies. De- 
 fendant set out his right to a messuage, with the appurtenants, to 
 which the defendant had a right of common belonging to the loc. in 
 quo, and that defendant took the cattle damage feasant ; plaintiff 
 replies, that he is possessed of a copyhold messuage in Drayton, 
 and prescribes for a right of common in the loc. in quo, for all com- 
 monable cattle, levant and couchant, on the said messuage, at all 
 times of the year. Defendant traverses the levancy and couchancy 
 of the beasts taken, and issue thereon. It appeared by the evi- 
 dence, that the plaintiff's messuage was only a yard where the 
 horses were foddered, and one acre of orchard, with the produce of 
 which the plaintiff could not maintain the colt and three fillies, and 
 for that reason he foddered them witE hay and straw from other 
 land hired by him ; per Lee, C. J. : " These beasts cannot be 
 levant and couchant on this yard, though they are foddered there, 
 
 (p) See DanU v. WilUn, 7 Exch. 429. ($) Rogers v. Benslead, Cambr. Sum. 
 
 (q) Richards v. Bassetl, 10 B. & C. Ass. 1727, cor. Lord iJaj/mond, C. J.,MS. 
 
 657- Serjt. Leeds ; quoted by BayUy, J., in 
 
 (»■) Mellorv. Spateman, 1 Wms. Saund. Cheesman v. Jlardham, 1 B. & Aid. 711- 
 343. 
 
COMMON. 389 
 
 unless they can be foddered with the produce of the messuage ; 
 and so it was determined by Lord Raymond, in Rogers v. Ben- 
 stead, at Cambridge, 1727, after much consideration, that levancy 
 and couchancy signify what the produce of the estate will bear, 
 and is a stint of common with respect to other commoners ; and I 
 know no difference as to this, whether the common is for the whole 
 year, or for half a year only " (t). " The rule now is, that such cattle 
 only are to be holden levant and couchant upon the inclosed land, 
 as that land will keep during the winter. It has been argued, that 
 the rule includes such as the land will keep during the whole or 
 any part of the year ; but that is not so : the real question is, has 
 this defendant turned more cattle on the common than the winter 
 eatage of his ancient tenement, together with the hay and produce 
 obtained from it during the summer, is capable of maintaining" (u). 
 A right of common appurtenant for cattle levant and couchant 
 proved by acts of user for thirty years, and exercised in respect of 
 a tenement formerly in a condition to support cattle, but now, and 
 for more than thirty years past, turned to different purposes, is not 
 extinguished or suspended by reason of such change in the condi- 
 tion of the tenement, if the tenement is still in such a state that 
 it might easily be turned to the purposes of feeding cattle, for 
 levancy and couchancy is rather a measure of the capacity of the 
 land, if applied to the purpose of maintaining cattle, than a con- 
 dition to be literally complied with, as necessary to the right, by 
 the cattle lying down a.nd getting up on the land, or by their 
 being actually sustained by the fruit thereof (x). 
 
 (t) Fulcher v. Scales, Kovfolk Summ. HvMiinson, 2 M. & Eob. 205. 
 Ass. 1738, MS. Serjt. Leeds. (x) Carr v. Lanbert, L. K. V, Ex, 168 
 
 (i() Per Parke, B., in WkUlock V. in error ; 35 L. J., Ex. 121. 
 
390 
 
 CHAPTER XII. 
 COSTS, CERTIFICATE FOR. 
 
 I. In Actions founded on Contract. 
 
 If in such actions the plaintiff recovers 201. or less (" a sum not 
 exceeding twenty pounds") he will not be entitled to his costs 
 unless he obtains either, 1st, a certificate from the judge, sometime 
 before the taxation of costs (a), that there was a sufficient reason 
 for bringing such action in such superior court (6) ; or, 2nd, a 
 rule or order of the court, or a. judge at chambers (c), within a 
 reasonable time (d), allowing such costs. 
 
 It is to be observed that if the plaintiff in such actions, except 
 such as concern the title or freehold of land, recovers less than 40s., 
 the judge who tries the cause may in the case of a frivolous action, 
 within a reasonable time, which is generally any time before final 
 judgment is signed (e), certify to deprive the plaintiff of his costs 
 under the 43 Eliz. c. 6, s. 2 ; this statute being unrepealed in 
 respect of such actions. Whether or not it will be practically 
 obsolete will depend upon the interpretation that is given to 
 section 5 of the County. Court Act of 1867. This statute of 
 Elizabeth gives neither the sheriff nor the court power to deprive 
 the plaintiff of his costs in an action tried upon a writ of enquiry 
 before the sheriff (/). 
 
 II. In Actions founded on Tort{g). 
 
 (1) If in such actions the plaintiff recovers from lOZ. to 40s., 
 both inclusive, he will not be entitled to his costs unless he obtains 
 either, 1st, a certificate from the judge, sometime before the taxa- 
 tion of costs, that there was a sufficient reason for bringing such 
 
 (a) JBmnelt v. Thompson, 6 E. & B. Wardroper v. Michardson, 1 A. & B. 75; 
 
 683 ; 25 L. J., Q. B. 378 ; Tharrall v. Jones v. Bmid, 5 D. P. C. 455. 
 
 Trevor, 6 Exch. 187. {g) There appears to he some doubt 
 
 (S) 30 & 31 Vict. c. 142, s. 5. whether detinue is really founded on 
 
 (c) Ibid. contract or on tort, see Danby v. Lamb, 
 
 (d) Reed v. Gordon, 8 Exch. 653. 11 C. B. (IST. S.) 423 ; but in reference to 
 («) Lyons v. Hyman, 20 L. X, Ex. 25 ; this subject, it would seem to belong to 
 
 1 L. M. & P. 60 ; Foxall v. Banks, 5 B. actions founded on contract, with which 
 
 & Aid. 536 ; Davis v. Cole, 6 M. & "W. it was always classed in the repealed 
 
 ^24. sections of the earlier' County Court Acts 
 
 (/) Slory V. Bodson, 5 D. P. C. 558 ; that related to costs. 
 Batchelor v. Dudley, 2 M. & G. 333 ; 
 
COSTS, CERTIFICATE. FOE. 391 
 
 action in such superior court ; or, 2nd, a rule or order of the 
 court, or a judge at chambers, within a reasonable time, allowing 
 such costs (k). 
 
 (2) If in such actions (except in the case of slander for words 
 actionable per se) the plaintiff recovers by the verdict less than 
 40s. he will not be entitled to his costs unless, besides the certi- 
 ficate or order as last above-mentioned, he also obtains from the 
 judge before whom the verdict was obtained, immediately after- 
 wards (i), a certificate^ under the 3 & 4 Vict. c. 24, s. 2, that the action 
 was brought to try a right besides the mere right to damages, or 
 that the trespass was wilful and 'maUciotl,s(k), unless the action 
 was brought for a trespass to lands ^ter notice, when, if the judge 
 has not certified, plaintiff may enter a suggestion on the roll, and 
 then the certificate under s. 2 will not be required (l). 
 
 In the excepted case of slander for words actionable per se, even 
 if a judge were to certify as above the plaintiff could only obtain 
 as much costs as damages, on account of the statute 21 Jac. I. 
 c. 16, s. 6 (m). 
 
 The following are the sections of the most important statutes 
 relating to the subject. 
 
 The statute of Gloucester, 6 Edw. I. c. 1, s. 2: "That the 
 demandant may recover against the tenant the costs of his writ 
 purchased together with the damages above said. And this act 
 shall , hold place in all cases where the party is to recover 
 damages." 
 
 The 43 Eliz. c. 6 : " For avoiding the infinite number of small 
 and trifling suits, &c. be it enacted:" s. 2. "If upon any action 
 personal, to be brought in any of her Majesty's Courts at West- 
 minster, not being for any title or interest of lands, nor concerning 
 the freehold or inheritance of any lands, nor for any battery, it 
 shall appear to the judges of the same court, and so signified or set 
 down by the justices before whom the same shall ,be tried, that the 
 debt or damages to be recovered therein in the same court shall 
 not amount to the sum of forty shillings or above, that in every 
 such case the judges and justices before whom any such action 
 shall be pursued shall not award for costs to the party plaintiff 
 
 (h) See notes {a), m, (d), sttpra. ing to "personal malice," Foster v. 
 
 (i) i.e., " within such reasopable'time . Fainter, 8 M. & W. 395. In actions of 
 as will exclude the danger of intervening trespass, the word may he satisfied by- 
 facts operating upon the mind of the violence and outrage ; and also {Sherwin 
 judge so as to disturb the impression v. Swindell, 12 M. & "W. 283), hy the 
 jpade upon it hy the evidence in 'the circumstance of having been done with- 
 cause ". Fer Lord AUnger, C. B., Thomp- out authoritv and after notice. 
 son Y. Gihsmi, 8 M. & "W. 287. See Jams (2) 3 & 4 Vict. o. 24, s. 3. Daw v. 
 V. 'TF-«mms, 12 M. & W. 420. Hole, 15 L. J., Q. B. 1^\ ; Bowyer y. 
 
 (h) In Actions on the case for libel the Oodk, 4 C. B. 248. 
 
 word "malicious" in this section cannot (m) FosUr v. Fainter, 8 M. & W . 395. 
 be satisfied, except by conduct amount- 
 
39a COST.S, CERTIFICATE FOR. 
 
 any greater or more costs than the sum of the debt or damages so 
 recovered shall amount unto, but less at their discretions." 
 
 The 3 & 4 Vict. c. 24, s. 1, repeals the act of 43 Eliz. "so far as 
 it relates to costs in actions of trespass or trespass on the case." 
 
 The 21 Jac. I. c. 16, s. 6 : " That in all actions upon the case for 
 slanderous words to be sued or prosecuted by any person or persons 
 in any of the courts of record at Westminster, or in any courts 
 whatsoever that hath power to hold plea of the same, if the jury 
 upon the trial of the. issue in such action, or the jury that shall 
 inquire of the damages, do find or assess the damages under forty 
 shillings, then the plaintiff or plaintiffs in such action shall have 
 and recover only so much- costs as the damages so given or assessed 
 amount unto, without any further increase of the same, any law, 
 statute, custom, or usage, to the contrary in any-wise notwith- 
 standing." 
 
 The 3 & 4 Vict. c. 24, s. 2 : "That if the plaintiff in any action 
 of trespass or of trespass on the case, brought or to be brought in 
 any of her Majesty's Courts at Westminster, or in the Court of 
 Common Pleas at Lancaster, or in the Court of Common Pleas at 
 Durham, shall recover by the verdict of a jury less damages than 
 40s., such plaintiff shall not be entitled to recover or obtain from 
 the defendant in respect of such verdict any costs whatever, whether 
 it shall be given upon any issue or issues tried, or judgment shall 
 have passed by default, unless the judge or presiding officer before 
 whom such verdict shall be obtained, shall immediately afterwards 
 certify on the back of the record, or on the writ of trial, or writ of 
 inquiry, that the action was really brought to try a right, besides 
 the mere right to recover damages, for the trespass or grievance 
 for which the action shall have been brought, or that the trespass 
 or grievance in respect of which the action was brought was wilful 
 and malicious." 
 
 The 8 & 9 Will. III. c. 11, s. 1 : "For relief of his majesty's 
 good subjects against causeless and unjust suits, and for the better 
 enabling them to recover their just rights, be it enacted, that from 
 and after the five-and-twentieth day of March which shall be in 
 the year of our Lord 1697, where several persons -shall be made 
 defendants to any action or plaint of trespass, assault, false im- 
 prisonment, or ejection firmse, and any one or more of them shall 
 be upon the trial thereof acquitted by verdict, every person or 
 persons so acquitted shall have and recover his costs of suit in like 
 manner as if a verdict had been given against the plaintiff or 
 plaintiffs and acquitted all the defendants, unless the judge before 
 whom such cause shall be tried shall immediately after the trial 
 thereof, in open court, certify upon the record under his -hand that 
 there was a reasonable cause for the making such person or 
 persons a defendant or defendants to such action or plaint." 
 
 The 3 & 4 Will. IV c. 42, s. 32: "When several persons shall 
 
COSTS, CEETIFICATE FOE. 393 
 
 be made defendants in any personal action, and any one or more 
 of them shall have a nolle prosequi entered as to him or them, or 
 upon the trial shall have a verdict pass for him or them, every such 
 person shall have judgment for and recover his reasonable costs, 
 unless in the case of a trial the judge before whom the cause shall 
 be tried shall certify upon the record under his hand that there 
 was a reasonable cause for making such person a defendant in such 
 action." 
 
 The following are the sections of the acts giving common law 
 jurisdiction to the county courts. 
 
 The 9 & 10 Vict. c. 95, s. 58: "All pleas of personal actions 
 when the debt or damage claimed is not more than 201. (extended 
 to 501. by 13 & 14 Vict. c. 61, s. 1), whether on balance of account 
 or otherwise (n), may be holden in the county court without writ ; 
 and all such actions brought in the said court shall be heard and 
 determined in a summary way in a court constituted under this 
 act, and according to the provisions of this act : provided always 
 that the court shall not have cognizance of any action of ejectment, 
 or in which the title to any corporeal or incorporeal hereditaments, 
 or to any toll, fair, market, or franchise, shall be in question, or in 
 which the validity of any devise, bequest, or limitation, under any 
 will or settlement may be disputed, or for any malicious prosecu- 
 tion, or for any libel or slander, or for criminal conversation, or for 
 seduction or breach of promise of marriage." 
 
 The 19 & 20 Vict. c. 108, s. 18 : "When a plaintiff shall dwell 
 or carry on business in the district of the Bloomsbury county 
 court of Middlesex, or in the district of the Brompton county 
 court of Middlesex, or in the district of the Clerkenwell county 
 court of Middlesex, or in the district of the Lambeth county court 
 of Surrey, or in the district of the Marylebone county court of 
 Middlesex, or in the district of the Shoreditch county court of 
 Middlesex, or in the district of the Southwark county court of 
 Surrey, or in the district of the Whitechapel county court of 
 Middlesex, and the defendant shall dwell or carry on business 
 in the district of any of the said courts, the summons may issue, 
 and be served, either in the district in which the plaintiff shall 
 dwell or carry on business, or in the district in which the defendant 
 shall dwell or carry on business." 
 
 Sect. 23 : "The county courts shall not have jurisdiction to try 
 any action for criminal conversation, but with respect to all other 
 actions which may be brought in any superior courts of common 
 law, if both parties shall agree, by a memorandum signed by them 
 or their respective attorneys, that any county court named in such 
 
 (n) A demand exceeding 501., and re- 312 ; nor can a plaintiff give jurisdiction 
 
 duced after a disputed set-off to a sum by offering to aliandon, except at the 
 
 not exceeding 50Z., is not within the trial, 
 jurisdiction, Avard v. Rhodes, 8 Exch. 
 
394 COSTS, CERTIFICATE FOR. 
 
 memorandum shall have power to try such action, such county 
 court shall have jurisdiction to try the same." 
 
 Sect. 24: "When in any action the debt or demand claimed 
 consists of a balance not exceeding fifty pounds, after an admitted 
 set off of any debt or demand claimed or recoverable by the 
 defendant from the plaintiff, the court shall have jurisdiction to 
 try such action." 
 
 Sect 25 : "In any action in the county court in which the title 
 to any corporeal or incorporeal hereditament, or to any toll, fair, 
 market, or franchise, shall incidentally come in question, the judge 
 shall have power to decide the claim which it is the immediate 
 object of the action to enforce, if both parties at the hearing shall 
 consent in any writing, signed by them or their attorneys, to the 
 judge having such power." 
 
 Sect. 27 : " No action shall be brought in a county court on any 
 judgment of a superior court." 
 
 The 30 & 31 Vict. c. 142, s. 1 : "A plaint may be entered in the 
 county court within the district of which the defendant, or one 
 of the defendants, shall dwell or carry on his business at the time 
 of bringing the action or suit ; or it may be entered, by leave of 
 the judge or registrar, in the county court within the district of 
 which the defendant, or one of the defendants, dwelt or carried on 
 business at any time within six calendar months next before the 
 time of action or suit brought ; or, with the like leave, in the 
 county court in the district of which the cause of action or suit 
 wholly or in part arose." 
 
 Sect. 3: "Where an action. is brought in any of the county 
 courts (o), mentioned in the section numbered eighteen of the act 
 passed in the session of parliament, holden in the nineteenth and 
 twentieth years of the reign of her Majesty, chapter one hundred 
 and eight^aU subsequent proceedings in such action shall be taken 
 and had in such court, if the party against whom the proceeding 
 is taken or had shall reside or carry on business within the district 
 of a,ny of such courts, or within the city of London. An action 
 may be commenced, and all subsequent proceedings taken and 
 had, in the court held under the provisions of 'The London (city) 
 Small Debts Extension Act, 1852,' by a plaintiff residing or carry- 
 ing on business within the city of London, against a defendant 
 who resides or carries on business within the district of any of such 
 courts ; and an action may be commenced, and, all subsequent pro- 
 ceedings taken and had, in any of such county courts, by a plaintiff 
 residing or carrying on business within the district of any such 
 county court, against a defendant who resides or carries on business 
 within the city of London." 
 
 (o) This refers to the metropolitan courts. 
 
COSTS, CEETIFICATE FOE. 395 
 
 Sect. 4 : " No action shall henceforth he brought, or be maintain^ 
 able in any court, to recover any debt or sum of money alleged to 
 be due in respect of the sale of any ale, porter, beer, cider, or 
 perry, which, after this act, was consumed, on the premises when 
 sold or supplied; or in respect of any money or goods lent or 
 supplied, or of any security given for, in, Or towards, the obtaining 
 of any such ale, porter, beer, cider, or peny." 
 
 Sect. 5 : "If in any action, commenced after the passing of this 
 act, in any of her Majesty's superior courts of record, the plaintiff 
 shall recover a sum not exceeding twenty pounds, if the action is 
 founded on contract, or ten pounds if founded on tort, whether by 
 verdict, judgment by default, or on demurrer, or otherwise, he shall 
 not be entitled to any costs of suit, u-nless the judge certify -on the 
 record that there was sufficient reason for bringing such action in 
 such superior court, or unless the court, or a judge at chambers, 
 shall by rule or order allow such costs." 
 
 Sect. 7 : " Where in any action of contract, brought or com- 
 menced in any of her Majesty's superior courts of common law, 
 the claim endorsed on the writ does not exceed fifty pounds, or 
 where such claim, though it originally exceeded fifty pounds, is 
 reduced by payment, an admitted set-off, or otherwise, to a sum 
 not exceeding fifty pounds, it shall be lawful for the defendant in 
 the action, within eight days from the day upon which the writ 
 shall have been served upon him, if the whole or part of the 
 demand of the plaintiff be contested, to apply to a judge at 
 chambers for a summons to the plaintiff to show cause why such 
 action should not be tried in the county court, or one of the county 
 courts, in which the action might have been commenced ; and on 
 the hearing of such summons the judge shall, unless there be good 
 cause to the contrary, order such action to be tried accordingly, 
 and thereupon the plaintiff shall lodge the original writ and the 
 order with the registrar of the county court mentioned in the 
 order, who shall appoint a day for the tearing of the cause, notice 
 whereof shall be sent by post or otherwise by the registrar to both 
 parties, or their attorneys, and the cause, and all proceedings 
 therein, shall be heard and taken in such county court as if the 
 action had been originally commenced in such county court,; and 
 the costs of the parties, in respect of proceedings subsequent to the 
 order of the judge of the superior court, shall be allowed according 
 to the scale of costs in use in the county courts ; and the costs of 
 the proceedings previously had in the superior court shall be 
 allowed according to the scale in use in such latter court." , 
 
 Sect. 10 : "It shall be lawful for any person against whom an 
 action for malicious prosecution, illegal arrest, illegal distress, 
 assault, false imprisonment, libel, slander, seduction, or other 
 action of tort, may be brought in a superior court, to make an 
 affidavit that the plaintiff has no visible means of paying the 
 
396 COSTS, CERTIFICATE FOE. 
 
 costs of the defendant, should a verdict be not found for the plain- 
 tiff; and thereupon, a judge of the court in which the action is 
 brought shall have power to make an order that, unless the 
 plaintiff shall, within a time to be therein mentioned, give full 
 security for the defendant's costs, to the satisfaction of one of the 
 masters of the said court, or satisify the judge that he has a cause 
 of action fit to be prosecuted in the superior court, all proceedings 
 in the action shall be stayed ; or in the event of the plaintiff being 
 imable or unwilling to give such security, or failing to satisfy the 
 judge as aforesaid, that the cause be remitted for trial before a 
 county court, to be therein named, &c." 
 
 Sect. 11 : "All actions of ejectment where neither the value of 
 the lands, tenements, or hereditaments, nor the rent payable in 
 respect thereof shall exceed the sum of twenty pounds by the year, 
 may be brought and prosecuted in the county court of the district 
 in which the lands, tenements, or hereditaments are situate." 
 
 Sect. 12 : "The county courts shall have jurisdiction to try any 
 action in which the title to any corporeal or incorporeal heredita- 
 ments shall come in question, where neither the value of the lands, 
 tenements, or hereditaments in dispute, nor the rent payable ia 
 respect thereof shall exceed the sum of twenty pounds by the year, 
 or in case of an easement or licence, where neither the value nor 
 reserved rent of the lands, tenements, or hereditaments, in respect 
 of which the easement or licence is claimed, or on, through, over, 
 or under which such easement or licence is claimed, shall exceed 
 the sum of twenty pounds by the year : provided that the defend- 
 ant in any such action of ejectment, or his landlord, may within 
 one month from the day of service of the writ, apply to a judge at 
 chambers for a summons to the plaintiff to show cause why such 
 action should not be tried in one of the superior courts, on the 
 ground that the title to lands or hereditaments, of greater annual 
 value than twenty pounds, would be affected by the decision in 
 such action ; and on the hearing of such summons the judge, if 
 satisfied that the title to other lands would be so affected, may 
 order such action to be tried in one of the superior courts, and 
 thereupon all proceedings in the county court in such action shall 
 be discontinued." 
 
 Sect. 14 : " Whenever an action or suit is brought in a county 
 court, which the court has no jurisdiction to try, the judge shall 
 order the cause to be struck out, and shall, unless the parties 
 consent to the court having jurisdiction to try the same, have 
 power to award costs in the same manner, to the same extent, and 
 recoverable in the same manner, as if the court had jurisdiction in 
 the matter of such plaint, and the plaintiff had not appeared, or 
 had appeared and failed to prove his demand." 
 
 Sect. 29: "When any action or suit shall be brought in any 
 other court than the superior courts of law, which could have been 
 
COSTS, CERTIFICATE FOR. 397 
 
 brought in a county court, and the verdict recovered ia for a less 
 sum than ten pounds, the plaintiff shall not recover from the 
 defendant a greater amount of costs than he would have been 
 allowed if the action or suit had been brought in such county 
 court, unless the judge shall certify that the action or suit was 
 a fit one to be brought in such other court." 
 
 Sect. 35 : " The words ' County Court,' when used in this act, or 
 in any future act, shall mean and include the courts held by 
 virtue of 'The London (city) Small Debts Extension Act, 1852,' 
 unless otherwise provided ; and such courts shall be holden by the 
 name of 'The City of London Court,' and shall be a court of 
 record ; and its decisions shall be subject to appeal in the same 
 way, and on the same conditions, as the decisions of a county court 
 are subject for the time being, &c., &c." 
 
 By sect. 34, this act and the other county courts acts (except as to 
 the provisions repealed) are to be construed together. The sections 
 (2 & 39) of " The London Small Debts Act " which define the juris- 
 diction of the sheriffs' courts, are nearly word for word the same 
 as the sections (9 & 10 Vict. c. 95, s. 58 ; 30 & 31 Vict. c. 142, 
 s. 1) which define the jurisdiction of the county courts. 
 
 Most of the above sections have no direct bearing upon the 
 question of certificate of costs. As, however, under sect. 5 of the 
 County Court Act of 1867, the superior courts seem to have con- 
 ferred upon them an equitable jurisdiction in the question of costs 
 in all cases tried in them, where the verdict is for 201. or less in 
 contract, and for lOl. or less in tort, their consideration is necessary 
 for the purpose of seeing what course either party had open to 
 him other than that which he has followed. 
 
 Certificate for Costs of Special Jury. 
 
 By 6 Geo. IV. c. 50, s. 34, the costs occasioned by the special 
 jury fall on the party applying for it, '■' unless the judge before 
 whom the cause is tried shall, immediately (p) after the verdict, 
 certify under his hand, upon the back of the record, that the same 
 was a cause proper to be tried by a special jury." 
 
 (p) {. c, within a reasonable time, Christie r. Richardson, 10 M. & liV. 68S. 
 
39'8 
 
 CHAPTER XIII. 
 COVENANT. 
 
 PAGE 
 
 I. Of the Action for Breach of Covenant . . .399 
 Where Assumpsit, &c., vnll lie, though there be a Deed - 400 
 
 II. Of the Construction of Covenants . . . ,402 
 
 III. Of the Different Kinds of Covenants . . .404 
 
 1. Express ......... 404 
 
 running with the Land ..... 408 
 
 3. Implied ......... 411 
 
 3. Alternative ........ 414 
 
 4. Joint and Several . . . . . . . 414 
 
 5. Void and Illegal . .' 420 
 
 IV. Of Particular express Covenants . . . . 423 
 
 i. For Title ...... _ .423 
 
 2. Wot to Assign without Licence . . ... 429 
 
 3. To Repair 434 
 
 4. To Insure ........ 435 
 
 V. By whom the Action of Covenant may be maintained 437 
 i: Heir 437 
 
 2. Executor 438 
 
 3. Assignee . . . . . . . . . 439 
 
 VI. Against whom, the Action of Covenant may he main- 
 tained ' 444 
 
 1. Heir ......... 444 
 
 2. Executor .:...... 444 
 
 3. Assignee ........ 445 
 
 4. Devisee ........ 453 
 
 VII. Of the Declaration 453 
 
 Venue ......... 453 
 
 As to the Statement of the Deed and its Provisions . . 454 
 
 Dependent Covenants and Conditions precedent . . . 455 
 
 Concurrent Covenants ....... 460 
 
 Independent Covenants ....... 461 
 
 Breach ......... 466 
 
 VIII. Of the Pleadings 468 
 
 1. Accord and Satisfaction . . . . . . 468 
 
 2. Eviction 470 
 
 3. Illegal Purpose ....... 471 
 
 4. Infancy/ ........ 471 
 
 5. Limitations, Statute of . . . . . . 472 
 
 6. Nil hahuit in tenementis ...... 473 
 
 7. iVore est factum, 475 
 
 8. N^on infregit Conventionem . . . . ■ . 476 
 
 9. Payment of Money into Court 477 
 
COVENANT. 399 
 
 PAGE 
 
 VIII. Of the Pleadings — contvnued. 
 
 10. Performance ........ 477 
 
 11. Release ......... 477 
 
 12. Set-off 478 
 
 IX. Evidence 479 
 
 X. Damages 480 
 
 Costs 480 
 
 Judgment 481 
 
 I. Of the Action for Breach of Covenant. 
 
 Covenants are of two kinds : 1. Express. 2. Implied, or cove- 
 nants in law. An express covenant is an agreement entered into 
 by deed indented or deed poll, between, two or more persons, for 
 the performance of certain acts, of for the forbearance to do cer-^ 
 tain acts. An implied covenant, or covenant in law, is an agree- 
 ment raised by implication of law between two or more persons in 
 a deed indented or deed poll, from certain technical expressions 
 used therein. For the violation of agreements of this kind the 
 law has provided a remedy by action of covenant, wherein the 
 party injured may recover damages in proportion to the loss sus- 
 tained. Where it is necessary to enforce the actual performance 
 of any agreement, e. g. the conveyance of land, execution of deeds,, 
 &c., application must be made to a court of equity for what is 
 termed a specific performance; for in the action of covenant 
 damages only for the non-performance can be recovered. - If the 
 performance of a public or qvMsi public duty be necessary, an 
 action of mandamiis, under Common Law Procedure Actj 1854, 
 s. 68, will lie (a). 
 
 A party bringing covenant on & deed poll must be named therein; 
 for where, upon the fece of the deed poll, it appeared, that the de- 
 fendant promised to do a certain act, without saying that he pro- 
 mised the plaintiff, it was held that an action would not lie (6). 
 Covenant lies for rent reserved by indenture, and accruing before a 
 re-entry for a forfeiture, notwithstanding the lessor has re-entered, 
 and under such re-entry is to have the premises again, " as if the 
 indenture had never. been made;" or,,in pther wordsj re-entty for 
 breach of covenant is no bar to covenant for rent accrued before 
 the re-entry (c). So an assignee of a lease is liable for the breach 
 of a covenant running with the land incurred in his own time, 
 although the action is not commenced until after he has assigned 
 over the premises {d). "Where in covenant for the further yearly 
 rent stipulated for in case of converting pasture into tillage, the 
 defendant pleaded, that the plaintiff accepted the original rent, as 
 
 (a) Faiherly v. Metropolitan Railway (c) HarlsJwme v. Watsca, i B. N. C. 
 Company, 2 L. E., C. P. 188. 178. „ „ ^ r, ,o 
 
 (b) Green v. ffome, Salk. 197. (d) Harley v. King, 1 C. M. & K. 18. 
 
400 COVENANT. 
 
 and for the rent due, without demanding the additional rent ; it was 
 held, that the right of the plaintiff to recover a sum of money, as 
 stipulated damages and as additional rent, was not waived by 
 receiving the sum due for the original rent ; aliter, if it were a 
 forfeiture (e). 
 
 If A. promises, by deed, not to do a certain act, an action of 
 covenant may be maintained, for the breach of such promise ; but 
 an action on the case will not lie. As where A. recovered a debt 
 of 71. 10s. against B., and B. paid A. 7L, whereupon A. by deed 
 released all actions, executions, &c. to B., and in the same deed 
 promised to discharge all executions against B. upon the same 
 judgment, but afterwards sued out execution thereon : the court 
 were of opinion, that the promise being by deed, B.'s remedy was 
 by an action of covenant, and not assumpsit (/). The defendants, 
 by deed of 18th April, 1838, contracted to employ the plaintiff in 
 the management of certain chemical works for the term of seven 
 years, from the 30th of June then next, with a proviso, that if a 
 certain process on which the plaintiff was then engaged should not 
 be in operation on the 21st of June, then the defendants should 
 after that day have power to determine the contract by notice in 
 writing. On the 9th of August a second agreement in writing, 
 not under seal, was entered into between the parties, whereby the 
 time for bringing the process into operation was extended to 21st 
 of December, 1838. The plaintiff having brought assumpsit upon 
 the second agreement, for a breach of stipulations contained in the 
 deed ; it was held, that the action could not be maintained, the 
 second agreement being merely an agreement for the extension of 
 the time mentioned in the deed, and not an agreement incorpo- 
 rating that deed, which was still in force (g). 
 
 Where Assumpsit will lie though there be a Deed. — Although 
 it is a general rule that assumpsit will not lie where there is a 
 remedy of a higher nature (h) co-extensive with the contract " 
 declared on{i), yet there are some exceptions to this rule; as 
 where two persons entered into articles of partnership for a term 
 of years, and the deed contained a covenant to account yearly, and 
 to adjust and make a final settlement at the expiration of the part- 
 nership ; and they dissolved the partnership before the years were 
 expired, and accounted together, and struck a balance, which was in 
 favour of the plaintiff, including several items not connected with 
 the partnership, and the defendant promised to pay it : it was held, 
 that assumpsit would lie on such express promise (j). And Buller, 
 
 (c) Denton T. Richmond, 1 C. & M. (i) Per Tindal, 0. J., FUmer v.Mrn- 
 
 734. b;/, 2 M. & G. 629 ; Ansell v. Baker, 15 
 
 (/) BenniiSY. Giiyldleij, Cro. Jac. 505. Q. B. 20. 
 
 (g) Gwynne v. Davy, 1 M. & G. 857. (j) An express promise is not however 
 
 (h) Slmck V. Anthony, 1 M. & S. 673 ; necessary ; per Parke, B., Wray v. Mile- 
 
 Baber y. Harris, 9 A. & E. 532. stone, 5 M. & "W. 24. 
 
COVENANT. 401 
 
 J., observed, that if no other articles had been introduced into the 
 account, but those relating to the partnership, he should still have 
 been of opinion, that assumpsit might have been maintained ; for 
 the question then would have been, whether a previous partnership 
 being dissolved, and an account settled, was or was not in point of 
 law a sufScient consideration for a (new and independent) promise. 
 He had no difficulty in saying, that it was (j). But it is otherwise 
 if the payment of the money is secured by a deed, and a balance 
 is struck merely to ascertain the amount due under it (/<;). A 
 stronger exception, however, to the general rule above mentioned 
 will be found in the case of Nurse v. Craig (I). 
 
 In Burnett v. Lynch (m), it was held, that case (not covenant) lay 
 by the assignor against the assignee of a lease assigned by deed 
 poll, upon his implied duty to perform the covenant in the original 
 lease, although the assignor had, by the assignment, parted with 
 all his interest ; and that, although assumpsit might lie, case was 
 the better form of action for the injury sustained by the assignor, 
 in consequence of the assignee's breaches of covenant. " That case 
 (of Burnett v. Lynch) proceeds upon the ground that during the 
 continuance of the interest of the assignee there is a duty on his 
 part to pay the rent and perform the covenants. — The effect of the 
 assignment is, that the (original) lessee becomes surety to the lessor 
 for the assignee, who, as between himself and the (original) lessor, 
 is the principal, bound, whilst he is assignee, to pay the rent and 
 perform the covenants running with the estate, and the surety, 
 after paying the debt or discharging the obligation to which he is 
 liable, has his remedy over against the principal " (n). 
 
 Where a plaintiff advanced money upon the security of a mort- 
 gage, which contained no covenant for the payment of money 
 advanced by the plaintiff, but merely gave the plaintiff the security 
 of the mortgaged premises : it was held, that, advance being made 
 at the request of the defendants, raised a contract by parol for the 
 repayment, which was not merged in a security of a higher nature, 
 the mortgage, in such a case, being in the nature of a collateral 
 security only (o). Secus, however, if there be a covenant to pay in 
 the mortgage deed (p) ; whether such covenant be absolute, or 
 only conditional, as by a trustee to pay out of any trust funds that 
 might come to his hands (g) ; and, although a deed be intended as 
 a security only for an existing debt, if it be made for the identical 
 debt, and between the same parties, the remedy on the simple con- 
 tract is taken away (r). 
 
 (j) Foster v. Allanson, 2 T. R. 479. (o) Yates v. Aston, 4 Q. B. 196. 
 
 ik) Middlediteh v. Ellis, 2 Exoh. 623. (p) Middleditch v. Ellis, 2 Exch. 623. 
 
 (l) 2 B. & P. 148. (?) MattJtew v. Blackmorc, 26 L. J., 
 
 (m) 5 B. & C. 589. Exch. 150. 
 
 (n) Per Lord Denman, C. J., Wolve- {r) Price T. Moulton, 10 C. B. 561. 
 ridge t. Steward, 1 C. & M. 644. 
 
 VOL. I. P » 
 
403 COVENANT. 
 
 II. Of the Construction of Covenants. 
 
 Covenants are to be constraed according to the obvious intention 
 of the parties, as collected from the whole context of the instru-. 
 ment, " ex antecedentihus et consequentibus, and according to the 
 reasonable sense and construction of the words ". (s). If there be 
 any ambiguity, then such construction shall be made as is most 
 strong against the covenantor (f) ; for he might have expressed 
 himself more clearly. In like manner, where the words of the 
 grant are doubtful, they are to be construed in favour of the grantee. 
 This general principle has been applied to the construction of leases. 
 Hence it has been held, that under a lease for fourteen or seven 
 years, the lessee only has the option of determining it at the end of 
 the first seven years (u). 
 
 It is immaterial in what part of a deed any particular covenant 
 is inserted (x) ; for, in the construction of it, the whole deed must 
 be taken into consideration, in order to discover the meaning of 
 the parties ; as where in a lease of a colliery, two lessees cove- 
 nanted jointly and severally in manner following, viz. &c. — here 
 followed a number of covenants in respect of the working of the 
 colliery, wherein the lessees covenanted jointly and severally ; then 
 followed a covenant, that the monies appearing to be due should 
 be accounted for and paid by the lessees, their , executors, &c., not 
 saying, " and each of them ; " it was held, that the general words, 
 at the beginning of the lease, "jointly and severally in the manner 
 following," extended to all the subsequent covenants on the part 
 of the lessees throughout the deed, there not being an3rthing in the 
 nature of the subject to restrain those words to the former part of 
 the lease {y). 
 
 An ambiguous covenant may be controlled by the recitals {z), 
 but not where there is no ambiguity. Thus, an absolute covenant 
 not to do an act, will not be controlled by a recital from which it 
 appears that the parties intended that such act might be done on 
 payment of a fixed sum for liquidated damages (a). 
 
 In conformity with the rules before laid down for the construction 
 of covenants, and in support of the apparent intention of the parties, 
 covenants in large and general terms have been frequently nar- 
 rowed and confined. As where A. leased a manor to B. for years, 
 excepting aU woods, great trees, timber trees, and underwood, &c., 
 and covenanted with the lessee, that he- might take fire-bote, swper 
 dicta premissa ; it was held, that the lessee could not take fire-bote 
 
 (s) Per Lord ElUnlorough, C. J., Ig- (y) JJuke of NorihumUrlandv. Ward 
 
 gulden v. May, 7 East, 241. Errington, 5 T. E. 522. See Copland v. 
 
 {i) Per Mansfield, C. J., Flint v. Bran- Laporte, 3 A. & E. 517. 
 
 don, 1 N. E. 78. (s) Selby v. Tlie OrystaZ Palace District 
 
 (u) Doe V. Dixon, 9 East, 15. Gas Company, 30 Beav. 606. 
 
 (x) Per Suller, J., 5 T. E. 526. (a) Bird v. Lake, 1 H. & M. 111. 
 
COVENANT. 403 
 
 in a close of wood, parcel of the manor, because, by the exception 
 of the wood, the soil thereof was excepted ; and the. words super 
 premissa should be intended of such things only as were demised. 
 It was admitted, however, that,, by the covenant, the lessee was 
 entitled to take the wood upon the other lands, for though the 
 wood was excepted, yet the' land was demised (&). So where the 
 defendant sold to the plaintiff a lease for years of a manor, and 
 entered into a bond, with a condition that he would not do, nor 
 had done, any act to disturb the plaintiff, hut that the plaintiff 
 should hold and enjoy without the disturbance of the vendor, or 
 any other person : it was held, that the condition was confined to 
 acts done or to be done by the vendor only, for that the words 
 subsequent to " but " were referribl#to the previous sentence (c). 
 
 Where A., in consideration of a certain fine and yearly rent, 
 demised land for twenty-one years, and covenanted, at the end of 
 eighteen years of the term, or before, on request of the lessee, to 
 grant a new lease of the premises " for the like fine, for the like 
 term of twenty-one years, at the- like yearly rent, with all covenants 
 as in that indenture were contained ; " it was held, that this cove- 
 nant was satisfied by a tender of a new lease for twenty-one years, 
 containing all the former covenants, except the covenant for future 
 renewal {d). 
 
 The plaintiff declared upon an indenture, whereby the defendant 
 demised to the plaintiff, for a term of years, certain parts of a mes- 
 suage then lately parted off from the part occupied by the de- 
 fendant, with certain easements belonging to the same, and a por- 
 tion of an adjoining yard ; and the defendant covenanted that he 
 would permit the lessee (the plaintiff) to have the use of the pump 
 in the said yard jointly with the defendant, whilst the same should 
 remain there, paying half the expenses of keeping it in repair. 
 The plaintiff assigned for breach, that, during the continuance of 
 the lease, the defendant, without reasonable cause, and in order to 
 injure the plaintiff, took away the pump, although the plaintiff 
 was willing to have paid half the expenses of keeping the same in 
 repair. On demurrer, it was held that the breach was ill assigned ; 
 for the use of the pump was not a specific subject of the demise (e) ; 
 and by the introduction of the words, " whilst the same should 
 remain there," it appeared that the lessor meant to reserve to 
 himself the liberty of removing the pump from whatever capri- 
 cious or unreasonable motive he might do so ; and that it was not 
 inconsistent with the stipulation, that the lessee should pay half 
 
 (b) Cage V. PaxKn, 1 Leon. 116, cited (d) Igguldm v. May (Exch. Ctamb.), 
 bvLord^ZZenJoTOMffA, C.J.,7East,241. 2 N E 449. _ , ,.- ■ 
 
 (c) Broiwhton v. Conway, Moore, 58 ; (e) The demise of the use of a thing is 
 cited hy Lord ElUnborough, C. J., in the demise of the thing itself. Pomfret 
 Gale V. Reed, 8 East, 89 ; and see Smith v. Bicrofl, 1 Wms, Saiiud. 321. 
 
 V. Compton, 3 B. & Ad. 199. 
 
404 COVENANT. 
 
 the expenses of repair, whilst the pump remained on the demised 
 premises (/). 
 
 Where a lessee of a house and garden for a term of years cove- 
 nanted with the lessor not to use or exercise, or permit or suffer to 
 be used or exercised, upon the demised premises, or any part 
 thereof, any trade or business, &c., without the licence of the lessor, 
 &c., and afterwards without the licence of the lessor assigned the 
 lease to a schoolmaster, who carried on his business in the house 
 and premises ; it was held, that the assignment was a breach of 
 this covenant (g). But where the covenant was not to exercise the 
 particular trades or business specified, " or any offensive trade," it 
 was held, that it was not a trade to use the house as a lunatic 
 asylum : the word trade in this covenant being applicable only to 
 a business conducted by buying and selling Qi). Upon the sale of 
 the goodwill of a drapery and hosiery business the vendor cove- 
 nanted that he would not carry on or assist in the carrying on of a 
 similar business within two miles ; it was held, that this covenant 
 was broken by vendor supplying from a place beyond the prescribed 
 limits, goods to customers residing within the district at their 
 solicitation (i). A covenant by a lessee of a theatre not to encum- 
 ber is not broken by the giving of warrants of attorney to bond 
 fide creditors, under which judgments (which by the 13th section 
 of the 1 & 2 Vict. c. 110, are a charge on real property) are 
 entered up {k). A covenant to pay as purchase money for pro- 
 perty a certain sum, part thereof in cash on a certain date, and the 
 remainder by four promissory notes, is a covenant for payment of 
 the purchase money when the notes become due, and is not per- 
 formed by the giving of the notes only (Z). 
 
 III. Of the different Kinds of Covenants. 
 
 1. Express, p. 404. 
 
 Running with tlie Land p, 408, 
 
 2. Implied, p. 411. 
 
 3. Alternative, p. 414. 
 
 4. Joint and Several, p. 414. 
 
 5. Void or Illegal, p. 420. 
 
 1. Of Express Covenants. 
 
 There is not any precise form of words' necessary to constitute 
 an express covenant : any form of words or mode of expression 
 
 (/) Modes V. Bnllwrd, 7 East, 116. S.) 538. 
 
 (g) Doe V. Keeliivg, 1 M. & S. 95 ; axx. (h) Croft v. Lumley (Doin. Proc), 27 
 
 Wickenden-v. Webster, 6 E. & B. 387. L. J., Q B 321 
 
 (7i) Doey. Bird, 2 A. & E. 161. ' (I)' Joicon v. Holdroyd, 27 L. J., Q. 
 
 (j) Brampton v. Beddoes, 13 C. B. (N. B. 43, 
 
COVENANT. 405 
 
 in a deed, whicli clearly evinces an agreement, Avill amount to a 
 covenant, for breach whereof an action of covenant may be main- 
 tained (m). As if it be agreed between A. and B. by deed, that B. 
 shall pay to A. a sum of money for his lands on a certain day ; 
 these words amount to a covenant by A. to convey the lands to B. 
 on that day {n). So if a lessee for years covenant to repair, " pro- 
 vided always, and it is agreed, that the lessor shall find great 
 timber ;" this word agreed will make a covenant on the part of the 
 lessor to find great timber (o). Secus, if the word agreed had been 
 omitted (p). So if A. lease to B. on condition that he shall acquit 
 the lessor of charges, ordinary and extraordinary, and shall keep 
 and leave the houses at the end of the term in as good a plight as 
 he found them ; if he does not leave^them in good repair, an action 
 of covenant lies (q). So where covenant was brought on a writing 
 sealed, whereby the defendant's testator acknowledged himself to 
 be accountable to the plaintiff for all such monies as should be 
 charged by plaintiff on A. to be paid to B. ; and alleged that he 
 the plaintiff charged a certain sum of money on A. to be paid to 
 B., and that the defendant's testator had not paid it ; it was 
 objected, that covenant did not lie, and that the proper form of 
 action was an action of account ; but it was held, that covenant 
 would lie in this case, and on any words, in a deed purporting to 
 be an agreement for the payment of money (?"). So in a case of 
 a lease for years rendering rent, it was adjudged that the word 
 render made a covenant (s). So where covenant was brought 
 against the executrix of an assignee of a lessee for years by 
 indenture, for rent arrear in the time of the executrix, upon the 
 words yielding and paying ; it was held, that the action would lie ; 
 and the opinion of the court was, that the words " yielding and 
 paying," in the indenture, made an express covenant, and were not 
 a bare covenant in ' law (t). So in covenant against_ the assignee 
 of lessee for years, upon an indenture whereby plaintiff demised to 
 the lessee a house, excepting a room, with free liberty of passage 
 unto the room excepted ; lessee assigned the_ lease, and the as- 
 .signee stopped the passage; whereupon plaintiff brought this 
 
 (m) Per ParU, B., Bigly v. Great C. J., so considered them in Webb v. 
 Western Bmlway, U M. & W. 815. Rv^sel, 3 T. R. 402. The same opimou 
 (n) Pordaqe v. Cole, 1 Wms. Saund. is adopted m 1 Wms. Saund. 241, c, 
 3]^g I note 5. Bnt in addition to the authori- 
 (o)' 1 Eolh Abr. 518, (C.) ph 2. ties in the text, it may he ohserved, that 
 \v) Ibid pi 3 in EoUe's Abridgment, Covenant, (C), 
 (g) 1 Roii: Abr. 519, (C.) ph 5. the title of which is, " What words will 
 ir) Price V. 0am, 1 Ler. 47. make an express covenant? m pi. 10, 
 (s) Giles V. Booper, Garth. 135. p. 619, this case is put as an instance ot 
 it) PmUr V. Sweetnam, Sty. 406, 431 ; an express covenant : ' If a, man lease 
 Sellier v. Caspard, 1 Sid. 266, S. P. land for years, reserving a rent, an ac- 
 These words •'yielding and paying" hsar a tion of covenant hes for the rion-pay- 
 sometimes been considered as sufficient ment of the rent; for t\ie reddendo of 
 to raise a covenant by implication of law the rent is an agreement for the pay- 
 only. See a dictum to this efTect, Til- ment of the rent, which will make a 
 den V. Walter, 1 Sid. 447 ; and Kenyan, covenant. 
 
406 COVENANT. 
 
 action, declaring for a breach of covenant. Eesolved by the court, 
 that this exception amounted to a reservation, upon which cove- 
 nant -would he ; and they;^compared it to the preceding case of rent 
 reserved, where covenant will lie upon the words of reservation, 
 without any express words of covenant (u). 
 
 But it must be clear, that the words are meant to operate as an 
 agreement, and not merely as words of qualification or condition. 
 For where an assignee took, from a lessee, leasehold premises 
 " subject to the payment of the yearly rent and to the performance 
 of the covenants in the lease ; " it was held, that these words did 
 not constitute an agreement for the payment of rent, &c. during the 
 term, and did not render the assignee liable to the lessee for rent 
 which had become due, and which the lessee had been obliged to 
 pay to the lessor, after the assignee had assigned over the pre- 
 mises ; for the words were words of qualification, and not of 
 contract (x). 
 
 Where the law creates a duty or charge, and the party is disabled 
 from performing it, without any default on his part, and has not 
 any remedy over, the law will excuse him ; but where the party, 
 by his own contract, imposes on himself a duty or charge, he is 
 bound to make it good, notwithstanding inevitable accident ; 
 because he might have provided against it by'his own contract (y). 
 " Where an obligation is imposed by rule of law, and there is not 
 any express covenant, the law introduces a reasonable exception, 
 viz. that an act of irresistible violence will excuse the party ; but if 
 a party enter into an absolute contract, without any qualification 
 or exception, and receives from the party with whom he contracts 
 the consideration for such engagement, he must abide by the con- 
 tract, and either do the act, or pay damages, his liability arising 
 from his own direct and positive undertaking " (z). 
 
 A lease for years was made of a meadow bounded on one side 
 by a river ; and the lessee covenanted to sustain and repair the 
 banks, to prevent the water from overflowing the meadow, upon 
 pain of forfeiture of a sum of money ; afterwards by a sudden and 
 violent flood, the banks were destroyed, and, by the opinion of Fitz- 
 herbert and Shelley, Js., " The law is, that the lessee is excused from 
 the penalty, because it is the act of God, which cannot be resisted ; 
 but still he is bound to make and repair the thing in convenient 
 time, because of his own covenant " (a). So where the assignee of 
 a reversion brought covenant against lessee of a house for non- 
 payment of a year's rent ; the lease contained a covenant on the 
 part of the defendant to repair the house during the term, except 
 
 (m) Sush V. Cdles, Garth. 232. Lord MUnlorough, C. J. ; Svwns v. But-' 
 
 (x) Woheridge v. Steward (Excli. ion, 4 M. & G. SRi. 
 Cliamb.), 1 C. & M. 644. (s) Per CMmire, J., Seale T. Thomp- 
 
 {y) Paradine. v. Jane, Aleyn, 27. See son, 3 B. & P. 420. 
 Atkinson v. Mitckie, 10 East, 633, per {a) Dyer, 33, a. 
 
COVENANT. 407 
 
 it should be destroyed by fire ; the defendant pleaded, that before 
 any part of the rent in question became due, the premises were 
 destroyed by fire, against the will of defendant, and were not 
 rebuilt by the lessor or the plaintiff; and that the defendant did 
 not occupy the premises during the year for which the rent was 
 claimed. On demurrer, it was held, on the authority of Paradine 
 V. Jane, that the defendant was bound by his express covenant to 
 pay the rent during the term (6). 
 
 In such case the general rule prevails, that equity follows the 
 law ; and a court of equity will not restrain a party from proceed- 
 ing at law for rent arrear after the premises are destroyed by fire ; 
 the agreement for payment of the re^t being without restriction (c) ; 
 and in Leeds v. Cheetham {d), it was decided, that a tenant has no 
 equity to compel his landlord to expend money received from an 
 insurance-office, on the demised premises being burnt down, in 
 re-building the premises, or to restrain the landlord from suing for 
 the rent until the premises are rebuilt. In that case the defendant 
 had demised to the plaintiff a cotton factory, with the steam-boiler, 
 &c. for twenty-one years, at a rent of £ . The plaintiff cove- 
 
 nantee? to pay the rent, and to repair and keep repaired the inside 
 of the cotton factory, &c., and the defendant covenanted to maintain 
 the outside brickwork and all other outer parts of the premises in 
 good and tenantable repair, &c. There was not any exception in 
 respect of accidents by fire, either in the covenant for payment of 
 the rent, or in the covenant to repair. During the term the factory 
 was destroyed by fire. After the lease was granted, the defendant 
 had insured the factory and buildings for 500^., the steam-engine 
 for 1001., the engine-house for 601., and the gearing for 40^. ; and, 
 shortly after the fire, had received the total of these sums, viz. 7001., 
 from the insurance-office. The bill prayed that it might be de- 
 clared, that the defendant was bound to apply the 7001. and the 
 old materials, ip reinstating the factory, steam-engine, &c., and that 
 the plaintiff was not bound to pay the rent during such time as 
 the factory, &c. should continue unrestored. Sir J. Leach, V. C, 
 " Clearly, at law, the plaintiff, having covenanted to pay his rent 
 during the whole continuance of the lease, is not entitled to any 
 suspension of rent during the time that wiU be occupied in rebuild- 
 ing and restoration of the premises : it appears to me that, in this 
 respect, equity must follow the law ; the plaintiff might have pro- 
 vided in the lease for a suspension of the rent in the case of accident 
 by fire ; but, not having done so, a court of equity cannot supply 
 that provision, which he has omitted to make for himself; and it 
 must be intended that the purpose of the parties was according 
 to the legal effect of the contract. With respect to the equity, 
 which the plaintiff alleges to arise from the defendant's receipt of 
 
 (6) MonJc V. Cooper, 2 Stra. 763. See (c) Gregg v. Coates, 23 Bear. 33. 
 
 Selfour V. Westmi, 1 T. E. 310. {d) 1 Sim. 1^6. 
 
408 COVENANT. 
 
 the insuratce-money, there is no satisfactory principle to support it. 
 The defendant, having so contracted with the plaintiff as to render 
 himself liable to rebuild the outer work of the factory in case of 
 accident by fire, has very prudently protected himself by insurance 
 from the loss he would otherwise have sustained by such an acci- 
 dent ; but upon what principle can it be that the plaintiff's situation 
 is to be changed by that precaution on the part of the defendant, 
 with which the plaintiff had nothing whatever to do ? The plaintiff 
 has sought his protection in the contract by the covenant, which he 
 has required from the defendant ; and to those covenants he must 
 'alone resort." 
 
 Ejectment by tenant against landlord to recover the possession 
 of some houses which had been burned down during the term, and 
 had been rebuilt by the landlord. In the lease there was an ex- 
 press covenant, on the part of the tenant, to pay the rent, but he 
 had not paid any after the time of the fire. Lord Mansfield, C. J., 
 said, the consequence of the houses being burned down was, that 
 the landlord was not obliged to rebuild, but the tenant was obliged 
 to pay the rent during the whol6 term. The houses having been 
 burned down four years before action brought, and the r^nt not 
 having been paid during that period, he l^ft it to the jury to con- 
 sider whether it was not to be presumed that the tenant had 
 abandoned the lease at the time of the fire ; and the jury found a 
 verdict for the defendant (e). 
 
 A covenant for payment of rent, or a charge, frequently specifies 
 some place where the payment is to be made. Where this is so, 
 it is for the benefit of the person charged, who would otherwise be 
 bound to seek his creditor. It is matter of defence, and must be 
 specially pleaded (/). 
 
 _ Of Eaypress Covenants running with the Land. — Covenants for 
 title are frequently termed real covenants, and pass by the common 
 law to the assignees of the land, who may maintain actions upon 
 them against the vendor and his real and personal representa- 
 tives (^). And as the covenants relate to the land, an assignee 
 may maintain an action on them, although they were entered into 
 with the original grantee and his heirs only ; and where the cove- 
 nants run with the land, although they are entered into with the 
 party, his executors, and administrators, yet they will go to the 
 heir with the land. The right of action, even for a breach in the 
 ancestor's lifetime, will descend to the heir, and not to the executor, 
 where no actual damage was sustained by the ancestor Qi). See 
 ^ost, IV. 1, 
 
 (e) Pindar v. Ainsky, cited 1 T. E. 503. 
 
 ^■^■f.^ „ . ^ m (*) See 2 Sugden's V, & P. 458 (lOtli 
 
 (/) Pmne v. JEmery, 5 Tyrw. 1100, ii. od.), and cases there cited. 
 {g) Middlemore r. Goodale, Cro. Car. 
 
COVENANT. 409 
 
 Express covenants, which run with the land, entered into by 
 lessee for years, for- himself, his executors, administrators, and 
 assigns, are binding on the lessee and his personal representative 
 (having assets), during the continuance of the term ; although such 
 covenants are broken, after an assignment of the term by the 
 lessee, and after an acceptance of rent from the assignee by the 
 lessor, or grantee of the reversion ; and there is not any distinction 
 in this respect between a voluntary assignment by the lessee and 
 a compulsory transfer by virtue of the bankrupt laws (i). In 
 covenant against lessee of a house by indenture, wherein the lessee 
 had covenanted for himself, his executors, and assigns, that he 
 would repair within a month after warning ; the breach assigned 
 was for not repairing the house -within a month after warning 
 given ; the defendant pleaded, that a long time before that warn- 
 ing he assigned his term to J. S., who paid his rent always after- 
 wards to the plaintiff, who had accepted the same; and then 
 averred the performance of all the covenants until the assignment; 
 the plaintiff demurred, on the ground that this assignment did not 
 talce from the lessor his advantage of the express covenant ; and, 
 notwithstanding his acceptance of rent by the hands of the assignee, 
 yet he might charge the lessee or assignee at his election ; and the 
 whole court being of that opinion, it was adjudged for the plain- 
 tiff (/c). The sarne point was ruled (l) in a case where the lessee had 
 covenanted for himself and his assigns to repair ; on the ground 
 that the lessee had expressly covenanted for himself and his 
 assigns, and that this personal covenant could not be transferred 
 by the acceptance of the rent. So where the breach was for non- 
 payment of rent (m). A bankrupt was held to be bound by an 
 express collateral covenant (to indemnify plaintiff against the 
 covenants of a lease), which had been broken after an act of bank- 
 ruptcy committed, and after the defendant had obtained his cer- 
 tificate (n). 
 
 From the foregoing cases it appears clearly, that express cove- 
 nants, which run with the land, entered into by lessee for years, 
 for himself, his executors, administrators, and assigns, are binding 
 on the lessee during the continuance of the term, although such 
 covenants are broken after an assignment of the term by the lessee, 
 and after the acceptance of rent from the assignee by the lessor or 
 grantee of the reversion ; it remains only to add, that such cove- 
 nants, under the same circumstances, are binding on the personal 
 representative of the lessee having assets. In covenant by the 
 
 (i) Auriol V. Mills, 4 T. R. 94. But Brownl. 20 ; Thimhy v. Plant, Sirl. 402 ; 
 
 see 12 &; 13 Vict. c. 106, s. 145, post. Sid. 447, nota ; Boultonx. Cann, Preem. 
 
 (k) Barnard v. Oodscall, Cro..Jac. 309. 337 ; Ashurst v. Mingay, 2 Show. 134 ; 
 
 (I) Ventrice v. Qoodcheap, 1 Roll. Abr. Ji'dwards v. Morgan, 3 Lev. 233 ; Jodde- 
 
 622, (N.) pi. 1. rell v. Cowell, Ca. Temp. Hardw. 343. 
 
 (m) Devon v. Collier, 1 Roll. Abr. 522, (a) Mat/or v. Steward, i Burr, 2439, 
 
 (K.) pi. 1 ; and see Fisher v. AmeerSj 1 
 
410 COVENANT. 
 
 lessor against the executor of lessee for years, on an indenture, by 
 which the lessee had covenanted for himself, his executors, and 
 assigns, that he would not erect any building in the garden 
 demised to the prejudice of the lessor's lights ; it was alleged, that 
 an assignee of defendant's testator had erected a house in the 
 garden to the prejudice of the lessor's lights. Defendant pleaded 
 an assignment of the term to J. S., who had paid rent to the lessor, 
 and had been accepted by him as tenant. On demurrer, it was 
 contended, on the part of the defendant, that by the assignment 
 and acceptance of rent, the privity of contract was determined, 
 more especially as it was a contract which concerned an act to be 
 executed on the land, and therefore running with the land ; but 
 the court conceived, that as it was an express covenant, that the 
 lessee should not build, it should bind him and his executors; and 
 neither an assignment, nor an acceptance of rent from the assignee, 
 could deprive the lessor of the advantage of suing the lessee or his 
 executors on an express covenant (o). 
 
 Queen Elizabeth, by letters patent, demised a house for years, 
 which the lessee covenanted to repair. On the death of the 
 Queen, the reversion descended to King James, when the lessee 
 assigned his term, and the assignee paid rent to the King, who 
 afterwards granted the reversion to the plaintiff ; the house being 
 out of repair, the plaintiff brought covenant against the executors 
 of the lessee for a breach of the covenant committed after an 
 assignment of the term and reversion, and after plaintiff had 
 accepted rent from the assignee of the term ; it was 'held, that the 
 action would lie, on the ground that it was a covenant in fait, by 
 the express words, running with the land : and that, notwithstand- 
 ing an assignment, the covenantor and his executors were always 
 chargeable, so that he could not, either by the assignment of his 
 estate, or by any other act, discharge himself or his executors (who 
 were chargeable by the act of the testator), having assets, as long 
 as the reversion continued in the lessor ; and by the express words 
 of 32 Hen. VIII. c. 34, such remedy as the lessor might have had 
 against the lessee or his executors, the assignee of the reversion 
 shall have against them (p): it being a covenant in fait, which 
 runs with the land (q). A. covenant against building entered into 
 by a purchaser of land (who was also owner of adjoining lands), his 
 heirs and assigns, runs with the land, and may be enforced by a 
 subsequent purchaser of part of such adjoining land (r). 
 
 A covenant made between a lessee holding under letters patent, 
 and his under-lessees, that he would procure the original letters 
 
 (o) Bachelour v. Gage, Cro. Car. 188, n. (a), 
 and Sir "W. Jones, 223 ; Arthur v. Van- (q) Bret v. Cumberland, Cro. Jao. 521. 
 
 durplank, B. E. H. 7 Geo. II. MS. S. P. (r) Western v. Macdermot, 1 L. K., 
 
 (i?) At common law covenants run with Eq. 499 ; 35 L. J., Cb. 190. S. G. on 
 
 the land, hut not with the reversion. appeal, 2 L. E., Ch. App. 72; 35 L. J., 
 
 Thursby v. Plant, 1 Wms. Sauud. 240, ch. 76. 
 
COVENANT. 411 
 
 patent to be renewed, and the lease under which he held to be 
 confirmed absolutely for a certain term, is a covenant which runs 
 with the land, inasmuch as it affects the very existence and con- 
 tinuance of the term itself "(s). Q-u-cere whether a covenant not 
 to carry on an offensive trade runs with the land (t). See further 
 as to covenants running with the land, and rights and liabilities of 
 assignees^ post, " Of Particular Express Covenants." 
 
 2. Of Implied Covenants (li). 
 
 In order to constitute a covenant, it is not necessary that the 
 word " covenant " should be employed (x), for there are certain 
 words, which, though of themselves they do not import any ex- 
 press covenant, yet, when used in ctntracts by deed, will amount 
 to a covenant (y). As if A., by indenture, "demise a/nd grant" 
 lands to B. for years, and C. enters and evicts B. by rightful title, 
 B. may maintain an action on the implied covenant ; and A. is 
 estopped from saying that B. was not in by the lease (z). But 
 now, by 8 & 9 Vict. c. 106, s. 4, the word "give," or the word 
 " grant," in a deed shall not imply any covenant iu law in respect 
 of any tenements or hereditaments, except so far as those words 
 may, by force of any act of parliament, imply a covenant (a). The 
 above act does not apply to the word " demise " (&). 
 
 If a lessor demise land for a term of years, and afterwards by 
 the words dedi et dimisi demise the same land to A. for life, who 
 enters and is ousted by the termor for years ; A. may maintain an 
 action against the lessor on the implied covenant, and have satis- 
 faction in damages for the chattel evicted ; for he continues seised 
 of the freehold (c). In covenant on a lease for years made by the 
 defendant by the word dimisi, it was averred, that at the time of 
 the lease made, the lessor was not seised of the land, but a 
 stranger ; it was objected, that the entry of the lessee by force of 
 the lease, and ejectment by the stranger, or some person claiming 
 under him, were not alleged ; but the' court was of opinion, that 
 the action would lie ; for the breach of covenant was, that the 
 lessor had undertaken to demise that which he could not, the word 
 
 (s) Simpson v. Clayton, i B. N. C. 780. (y) 1 Roll. Abr. 519, (F.) 
 
 (<) Wilson V. Bart, 12 L. T. (N". S.) (z) Style v. Hearing, Cro. Jae. 73. 
 
 789. (a) As to the words " bargain and 
 
 («) The doctrine of implied covenants, sale," see Sarton v. Fitzgerald, 15 East, 
 
 i. e., of covenants implied from the use 529. 
 
 of particular words, is confined to real (J) See per Parke, B., in Doughty v. 
 
 property. }ieace, it goods he demised fov Bowman, 11 Q. B. 454. Whether the 
 
 years, and the lessee be evicted, cove- words " to let," in an agreement for a 
 
 nant does not lie; for the law does not lease, imply a contract tov quiet enjoy- 
 
 create a covenant for a" -personal thing. meat,, gucere. Messent v. Reynolds, 3 C. 
 
 Com. Dig. Cov.,(A. 4.) B. 194, and quaere, whether the words 
 
 (k) Stevenson' s case, 1 Leon. 324; cited "to let" in a deed would be equivalent 
 
 in Saltoun v. Houstoun, 1 Bingh. 440; to the words "to demise." Per Cress- 
 
 and see Sampson v. Easterby, 9 B. & 0. well, J., S. C. 
 505 ; (Exoh. Cham.), 6 Bingh. 644, S. C. (c) Pincomie v. Rudge, Yelv. 139. 
 
413 COVENANT. 
 
 dimisi importing a power of letting, as dedi does a power of giving; 
 and they added, that it was not reasonable to enforce the lessee to 
 enter upon the land, and so to commit a trespass (d). And where 
 a lease for years is made by the words " demise," the assignee of 
 the lessee is entitled to the same advantage as the lessee, and may 
 in case of eviction maintain an action on the. implied covenant (e). 
 
 Tenant for life, remainder over, by indenture demised for fifteen 
 years, without any express covenant for quiet enjoyment; the 
 lessee was ousted by the remainderman, after the death of the 
 tenant for life, but, before the expiration of the fifteen years ; it 
 was held, that the lessee could not maintain an action of covenant 
 against the executor of the tenant for life ; for the covenant in law 
 ends and determines with the estate of the lessor (/). 
 
 The implied covenant follows the nature of the interest granted ; 
 as where A. and B. made a lease by the word " dimiserunt ; " it 
 was held, that the implied covenant was joint, viz., that A. and B. 
 had power to demise, and that an action on the ground of their 
 not being seised at the time of the demise should be brought 
 against both, and could not be maintained against one only {g). 
 
 The generality of an implied covenant may be qualified and re- 
 strained by an express covenant. As where the lessor demised, &c,, 
 a house for a- term of years, and covenanted, that the lessee should 
 enjoy the house during the term, without eviction by the lessor, or 
 any claimhimg under him (h) ; it was held, that the express cove- 
 nant qualified the generality of the covenant raised by implication 
 of law from the words demise, &c., and restrained it by the mutual 
 consent of both parties, so that it should not extend further than 
 the express covenant (i). Sir ]S. Coke, from whose Reports this 
 case is taken, subjoins as follows : "And there is great reason, that 
 the particular covenant subsequent should qualify the general force 
 of this word " dimisi," for otherwise the particular covenant would 
 be in vain if the force of, this word " dim^isi " should stand, and 
 these words dimisi et concessi are frequent in every ordinary lease 
 that is made ; and the better construction of deeds is to make one 
 part of a deed expound the other, and so to make all the parts 
 agree, and, quoad fieri fossit, according to the true intent and 
 meaning of the parties." So where in a covenant on an indenture, 
 whereby the defendant granted a fee farm rent to the plaintiff, and 
 covenanted that hte was seised in fee, and had good right to sell ; 
 the breach assigned was, that he had not good right ; the defendant 
 pleaded, that it was further agreed, in the same indenture, that all 
 
 (d) Holder v. Taylor, Hob. 12 ; 1 Inst. (g) Coleman v. Shermn, Salic. 137. 
 301, b. (h) See Stanley v. Hayes, 3 Q. B. 105 ; 
 
 (e) Spencer's ease, 5 Kep. 17, a, 4th Spencer v. Marriott, 1 B. & C. 457. 
 Eesol. (i) JSfoke's case, i Eep. 80, b. ; Line v, 
 
 (/) Adams v. Gibney, 6 Bingh. 656. Stephenson, i B. N. C. 678; (In Exch, 
 See Woodhotise v. Jenkins, 9 Bingh. 431. Cham.) 5 B. N, C. 183, S. 0, 
 
COVENANT. 413 
 
 the covenants in the indenture should not extend further than to 
 acts done by the vendor and his heirs, whereon the plaintiff de- 
 murred ; and although this was a remote agreement at the end of 
 the deed, at a great distance from the other covenant, it was ad- 
 judged, that it had qualified the first covenant, and restrained it to 
 acts doije by the covenantor only (I). 
 
 Where a lessee covenanted that he would at all times and seasons 
 of burning lime, supply the lessor and his tenants with lime, at a 
 stipulated price, for the improvement of their lands and repair of 
 their houses ; it was held, that this was an implied covenant also 
 that he would burn lime at all such seasons, and that it was not a 
 good defence to plead that there was no lime burned on the pre- 
 mises out of which the lessor couM be supplied (m). So where 
 the plaintiffs covenanted with a water company to complete a well 
 and works mentioned in certain drawings and specifications pre- 
 pared by the company's engineer,, finding all materials, &c., and the 
 specification; which was under the seal of the company, contained 
 the following passage : " The contractor will be required to sink 
 the well, &c., to the depth of 120 feet, &c., after which the com- 
 pany will undertake the erection of the permanent steam engine, 
 and permit the pumping to be performed by it, sufiicient interval 
 of time being allowed for the erection of the steam engine, and 
 such time added to the period assigned to the contractor for the 
 performance of the works ;" it was held, that there was an implied 
 covenant on the part of the company to erect the steam engine as 
 provided in the specification (n). So where a railway company 
 demised certain refreshment rooms at Swindon to the plaintiffs, 
 and it was declared to be the intention of the defendants and the 
 understanding of the plaintiffs that the defendants should give 
 every facility to the plaintiffs for obtaining an adequate return for 
 their capital invested in the refreshment rooms ; that all passenger 
 trains should, with certain exceptions, stop at the station for a 
 reasonable period of about ten minutes, and that the defendants 
 engaged not to do any act which should have an effect contrary 
 to the above intention, it was held that this amounted to a cove- 
 nant, on the part of the company, not to do any act to prevent the 
 trains from stopping at the station aforesaid (o). 
 
 But, although, where from words of recital or reference, a clear 
 intention is manifested that the parties should do certain acts, the 
 courts will infer a covenaut to do such acts, yet it does not follow 
 that where parties have expressly covenanted to perform certain 
 acts, they must be held to have impliedly covenanted for every act 
 
 (I) Brown v. Brown, 1 Lev. 57. See (n) Knight v. Gravesend Water Co., 2 
 
 Brovming v. Wright, 2 B. & P. 613. H. & N. 6 ; a.nd see Great Northern Bail- 
 
 (ro) Earl of Shrewsbury v. Gould, 2 B. way v. Harrison, 12 C. B. 576. 
 
 & Aid. 487. See Weib v. Plummer. ibid. (o) Rigby v. Great Western Railway, 
 
 746, but see Gwillim v. Daniel, 2 C, M. 14 M, & W. 811. 
 &K, 61. 
 
414 COVENANT. 
 
 convenient or even necessary for the perfect performance of their 
 express covenants; the presumption is, that the parties, having 
 expressed some, have expressed all, the conditions by which they 
 intend to be bound under the instrument (p). So the fact that 
 parties have entered into certain engagements, upon the supposi- 
 tion that certain acts would be done, does not imply a covenant on 
 the part of either to do those acts (q). 
 
 3. Alternative Covenants. 
 
 The construction to be put on covenants to which there is an 
 alternative in nowise differs from that of other covenants ; it is 
 still the intention of the parties which has to be ascertained. 
 Where the plaintiff granted to the defendant a licence to use a 
 patent for a term of years on payment of a certain royalty, and 
 the defendant covenanted to pay it, and that if the royalty fell 
 short of 2,000?. in any year, he would pay, within fourteen days of 
 the expiration of the year, such a sum -as with the royalty reserved 
 made up that amount ; " or, if the defendant shall at any time 
 make 4efault in such sum of money aforesaid within the time 
 appointed for payment, then it shall be lawful for the plaintiff, by 
 writing, &c., to declare that the said indenture and the powers and 
 licence thereby granted shall cease and determine ; " it was held, 
 that this was not an absolute covenant to pay 2fi00l. a year during 
 the term, but an alternative covenant enabling the plaintiff to put 
 an end to the term on non-pay njent of tha^t sum by the defendant (r). 
 But where the plaintiff agreed to serve the defendant in a certain 
 business for seven years at a salary of lOOl. a year, and the 
 defendant agreed to pay the salary ; and that if the defendant 
 should from any cause give up the business or not require the 
 plaintiff's services, he would use his best endeavours to procure for 
 the plaintiff employment in some similar business, at a salary of 
 not less than 1001. a year ; or i/n case he should be unable to do so, 
 then that he would pay to the plaintiff 1001. a year during the 
 residue of the seven years ; it was held, that it was not open^ to 
 the defendant to choose between using his best endeavours to find 
 the plaintiff a situation and paying him 100?. a year, but that he 
 was bound to use his best endeavours in the first instance, and 
 could only resort to the payment of the 100?. on failure of those 
 endeavours (s). 
 
 4. Of Joint Stock and Several Covenants. 
 
 Where the interest, i. e., the legal interest (t), of the covenantees 
 is joint, the action of covenant generally follows the nature of the 
 
 {p) Aspdinv. Austin, 5 Q. B. 671. (r) Tieknsy. Booper, 5 Exch. 880. 
 
 (g) RasMeigh v. South Eastern Rail- (s) Kust v. Nottidge, 1 E. & B. 99. 
 
 way, 10 C. B. 632, per MauU, J. ; (t) Anderson, v. Martimdale, 1 East, 
 
 James v. Cochrane, 7 Exch 177, per 501. 
 Poffke, B. 
 
COVENANT. 415 
 
 interest, and must be brought in the names of all the covenantees ; 
 and this rule holds, even where the covenant is in terms joint and 
 several; for such a wording of the covenant cannot make that, 
 which was before joint, several (u) ; and a covenant cannot be both 
 joint and several (x). So on the other hand, where the interest is 
 several, although the covenant be {primd facie) joint, yet it shall 
 be taken to be several. Bull. N. P. 157. "Where the covenant 
 is to several for the performance of several duties to each, the 
 covenant should be moulded according to the several interests of 
 the parties, and each shall only recover for a breach so far as his 
 own interest extends." Fer Kenyon, C. J. {y). 
 
 If the interest of the covenantees be several, they may maintain 
 separate actions, although the language of the covenant be (priTnd 
 facie) joint (z). " The result of the cases appears to be this, that, 
 where the legal interest and cause of action of the covenantees 
 are several, they shall sue separately, though the covenant be joint 
 in terms ; but the several interest and the several ground of action 
 must distinctly appear : — on the other hand, if the cause of action 
 be joint, the action should be joint, though the interest be 
 several" (a). If the covenantees can sue jointly, they are bound 
 to do so (b), and vice versd (c). " The rule is, that a covenant will 
 be construed to be joint or several according to the interest of the 
 parties appearing upon the face of the deed, if the words are 
 capable of that construction ; not that it will be construed to be 
 several by reason of several interests, if it be expressly joint " (d). 
 "The rule that covenants are to be construed according to the 
 interest of the parties, is a rule of construction merely, and it 
 cannot be supposed that such a rule was ever laid down as could 
 prevent parties, whatever words they might use, from covenanting 
 in a different manner. It is impossible to say that parties may not 
 if they please use joint words, so as to express a joint covenant, 
 and thereby to exclude a several covenant ; and that, because a 
 covenant may relate to several interests, it is therefore necessarily 
 not to be construed as a joint covenant. If there be words capable 
 of two constructions, we must look to the interest of the parties 
 which they intended to protect, and construe the words according 
 to that interest " (e). 
 
 Where B. by indenture covenanted with C. and D., and to and 
 with E. and F. his wife (who afterwards became the wife of D.), 
 
 <u) Eccleston v. CUpsham, 1 Wms. (b) Foley v. Addenhroofce ; per Farke, 
 
 Saimd. 163. B., Bradhurne v. BotfieU, 14 M. & "W. 
 
 (a) Fer Bolfe, B., Keightley v. Wat- 664; l)ut see Simpson, v. Clayton, 4 B. 
 
 son, 3 Ex. 723. N. C. 781. 
 
 (y) Anderson, v. Martindale, 1 East, (c) Servante v. James, 10 B. & C. 410. 
 
 501 {(^ Fer Farke, B., Sorslie v. FarTc, 12 
 
 (z) Jamm v. Emery, 8 Taunt. 245 ; M. & W. 158. 
 
 PaVmer v. Sparshott, 4 M. & G. 137. («) Fer Fa/rke, B., Keightley v. Wai- 
 
 (a) Per car. Foley v. Addenhrooke, 4 son, 3 Exoh. 723 ; perMaule, J., Beer v. 
 
 Q B. 197. ^^'^1 12 C. B. 78, ace. 
 
416 COVENANT. 
 
 and their assigns, and to and with each of them, that he (B.) at the 
 time of sealing and delivering the indenture was lawfully and solely 
 seised of a certain rectory ; and an action was brought by D. and 
 F. his wife, for a breach of the covenant : the judgment for the 
 plaintiff was reversed on error, upon the ground that notwith, 
 standing the words "and to and with each of them" the other 
 covenantee should have joined in the action (/). Where it 
 appears on the face of the declaration that each of the cove- 
 nantees is to have a several interest or estate, then the addition of 
 the words " with each of them," will make the covenant several in 
 respect of their several interests ; as if one by indenture demise 
 Blackacre to A. and Whiteacre to B., and covenant with each of 
 them, that he is lawful owner of both the said acres ; then, in 
 respect of the several interests, the covenant by those words is 
 made several {g). Where the defendant and others, having formed 
 a scheme for erecting by subscription a corn market, executed a 
 deed poll, whereby they covenanted severally and respectively, to 
 and tvith each other and to and with the plaintiffs, each to pay the 
 sums therein mentioned for erecting the same within four years, the 
 money to be advanced at such times and in such proportions, &c., 
 as a committee appointed by the subscribers should direct ; and in 
 case of the said committee not requiring any payments within the 
 four years, then, at such times and in such proportions, &c. as the 
 plaintiffs should direct, and, the committee having made default in 
 requiring payments within the four years, the plaintiffs sued alone 
 for the non-payment of the sum set opposite the defendant's name 
 in the deed ; it was held, that it was a joint covenant with the sub- 
 scribers and the plaintiffs, and not with the plaintiffs alone. Judg- 
 ment for defendant Qi). 
 
 Where by deed, reciting the grant of two distinct annuities, to 
 
 A. and B. during the life of the grantors and the survivor of them, 
 C. for a several consideration covenanted with A. and B. to pay 
 the annuities or either of them if the grantors should make 
 default. A. died ; it was held, that, although regarding only 
 the language of the covenant it would appear to be joint, yet the 
 interest of the covenantees was several, each having a distinct 
 interest in the annuity payable to him ; and consequently that an 
 action was well brought by the executor of that covenantee whose 
 annuity was in aiToar (i). If a lease of land be granted to A. and 
 
 B. to commence at a future day, and A. and B. jointly and seve- 
 rally covenant for the performance of certain acts, and A. dies 
 before the day, the covenant being joint and several, will be bind- 
 ing on the executors of A., although the interesse termini survive 
 to B. 0> 
 
 (/) SUngsh/s case (Exch. Cham.), 5 (h) SorsUe v. Park, 12 M. &"W. 146. 
 
 Sep. 18, b. See Lane v. DrinlcviaUr, 1 (i) Withers v. Bircimm, 2 B. & C. 254. 
 
 C. M. & R. 599. (,•) EnysY. Donnithorne, 2 Burr. 1190. 
 ig) Ibid. 
 
COVENANT. 417 
 
 The defendant covenanted that he would not agree for the 
 taking the farm of the excise of beer and ale for the county of 
 York without the consent of the plaintiff and another ; and the 
 plaintiff alone brought an action of covenant, and assigned for 
 breach the defendant's agreeing for the said excise without his 
 consent ; upon which the plaintiff had a verdict, and one thou- 
 sand pounds damages given. The court were of opinion, that thei-e 
 was no joint interest, but that each of the covenantees might 
 maintain an action for his particular damages, or otherwise one of 
 them might be remediless : for, suppose one of them had given his 
 consent that the defendant should farm this excise, and had secretly 
 received some satisfaction or recompense for so doing, is it reason- 
 able that the other should lose his remedy, who never did con-' 
 sent ? (Jc) • 
 
 Where by indenture, reciting that the proprietors of a certain 
 colliery had agreed to divide it into 'eighteen shares, fifteen of which 
 the parties to the deed of the third part had agreed to buy (the 
 proprietors retaining the remaining three shares), and had each paid 
 down 1,000?. in respect of his share ; each of the said proprietors 
 severally covenanted with each of the shareholders to produce a 
 good title ; it was held, that each shareholder covenantee might 
 sue separately upon the covenant, on the failure of the proprietors 
 to make a good title (I). M'^here A. (the plaintiff) had agreed to 
 sell land to B., which B. had agreed to sell to C. and D. (the de- 
 fendants), and the defendants covenanted with A. (the plaintiff), 
 and " as a separate covenant " with B., that they would on a certain 
 day pay to the plaintiff, or to the said B. in case the plaintiff should 
 then have been paid his purchase-money, the sum in the deed men- 
 tioned, and would in the meantime pay interest to A. (the plain- 
 tiff) on so much of the purchase-money as remained unpaid ; it 
 was held, that A. might sue alone for interest on the unpaid por- 
 tion of the purchase-money, without joining B. (m). 
 
 Where the interest of the covenantees is joint, if any of them 
 die, the action must be brought by the survivors averring the 
 deaths of their companions (-re). As where A., by indenture, 
 covenanted with B. and C, that he (A.) would enter into a bond 
 to pay B. a sum of money on a certain day : B. died ; B.'s admi- 
 nistrator brought covenant ; it was adjudged that it did not lie ; 
 for, although the money was to be paid to B., who was dead, yet he 
 who survived and was party to the indenture ought to have sued ; 
 for B. and the survivor made, as to this purpose, but one person. ' As 
 if a bond is made to three to pay money to one of them, all ought 
 to join in the suit, for they are all as one obligee : and if he who 
 ought to have the money dies, the survivors must sue, although 
 they have not any interest in the sum contained in the condition : 
 
 (k) WilMnson v. Lloyd, 2 Mod. 82. (m) Ke,ightUy v. Watson, 3 Exoli. 716. 
 
 (I) Mills V. Ladh-oolce, 7 M. & G. 218. (n) Scoit v. Godwin, 1 B. & F. 67. 
 
 vol,. I. ^ ^ 
 
418 COVENANT. 
 
 so in this case, the money payable to B., in his lifetime, being to be 
 obtained by suit on the indenture, an action. could notbe brought 
 thereon, except by those who were parties during their lives, and 
 after their death by the executor or administrator of the sur- 
 vivor (o). So where M. for himself, and the defendant as his 
 surety, jointly and severally covenanted with A., his executors, 
 &c., and also with W. and her assigns, that he_ (M.) would pay to 
 A., his executors, &c., an annuity during the life of W. ; A. died 
 intestate, and an action was brought by his administrator against 
 the defendant, on the covenant, assigning as a breach the non-pay- 
 ment of the annuity ; it was held, that the covenant being both to 
 A. and W. for the same thing, although the benefit were only to 
 A., yet both had a legal interest in the performance of it ; and 
 therefore, such interest being joint during the lives of both, on the 
 death of one it survived to the other {p). 
 
 The reversion of lands demised by indenture to the defendant 
 for years was conveyed to A. and B. and the heirs of B. in trust 
 for A. and his heirs : A. brought an action against defendant, on a 
 covenant to repair contained in the lease, stating his title as above. 
 It was held, 1st, that A. and B.. were joint assignees of the rever- 
 sion, the effect of which was, that the defendant's covenants 
 became, by operation of law, contracts with A. and B. jointly, and 
 that all causes of action to them arising out of those contracts must 
 follow the nature of the contracts, and must accrue to A. and B. 
 jointly ; 2ndly, that on demurrer, it could not be intended that B., 
 the joint covenantee, was dead, in order to sustain the declaration ; 
 that the plaintiff ought to have shown what was necessary to make 
 out his title, and having, by his own statement, given the legal 
 estate to hvmself and another, he ought to have taken upon hiia- 
 self the burthen of divesting that legal estate in the other, and 
 vesting it in himself; he should therefore have averred that B. was 
 dead {q). From the cases of Anderson v. Martindale, and Scott 
 V. Godwin, it appears, that if the objection on the ground of other 
 covenantees not being joined as plaintiffs, arises on the face of the 
 declaration, the defendant may take advantage of it by demurrer, 
 and, according to Slingsby's case, hj writ of error (r). 
 
 All joint covenantees, who may sue, must sue ; and joint cove- 
 nantees may sue, although they have not executed (s) ; notwith- 
 standing there are cross covenants on the part of the covenantee, 
 which are stated in the deed to be the consideration for the cove- 
 nants on the part of the covenantor (t). Even if one covenantee 
 
 (o) EoUs V. Yaie, 1 Bulstr. 25 (on the lessor (the covenantee) does not exe- 
 
 error). cute the lease, no interest passes ; and the 
 
 (p) Anderson v. Martindale, 1 East, covenants dependent on the lease fall to 
 
 ^97. the ground with it. Swatm,an v. Ambler, 
 
 (q) Scott V. Godwin, 1 B. & P. 67. 8 Exch. 72 ; Pelrie v. Sury, 3 B. & C. 
 
 , (r) See Vernon v. Jefferies, 7 Mod. 360. 353. See post, p. 419. 
 
 (s) Except in the case of leases; for if (Q Morgan v. Pike, U C. B. 473. 
 
COVENANT. 419 
 
 has disclaimed the covenant by deed, the other cannot sue alone 
 upon the covenant (u). But where one of two partners signed a 
 composition deed in the name of the firm, and set his seal thereto, 
 for the payment of an instalment due on a partnership debt ; it 
 was held, that the other partner, not being a party to the deed, 
 could not join in an action of covenant for the non-payment of the 
 instalment, and that the action was rightlj^ brought by the partner 
 who alone had executed the deed (x). If an indenture is made 
 between A. and B. on the one part, and C. and D. on the other, 
 and there are covenants on each side, and A. alone seals on the one 
 part, and C. and D. on the other ; but it is expressed throughout the 
 indenture that A. and B. covenant and are covenanted with ; in 
 such a case A. and B. may join in an «,ction against C. and D. for a 
 breach of one of the covenants (y). 
 
 A. and B., and each of them, by indenture granted an annuity, 
 and B. covenanted that A. and B. would duly pay the same ; to 
 an action for non-payment against B., he pleaded that A. at the 
 time of the making of the indenture was an infant, whereby^ and 
 according to the statute, the indenture was void ; on demurrer, it 
 was held that B. was liable (z). 
 
 Where there are several covenantees, and one of them only 
 brings an action, without averring in the declaration that the others 
 are dead ; the defendant may, if it appear on the face of the decla- 
 ration, demur (a), he may also take advantage of it at the trial, 
 as a variance under the plea of non est facturfi (b), but it would 
 be now amendable either before or at the trial under ss. 34, 
 35, and 36, of the Comm. Law Proc. Act, 1852. In Eccleston v. 
 Clipsham, 1 Saund. 153, the objection was taken in arrest of 
 judgment, but the omitted facts, i. e. the death of the other 
 defendants, might now be suggested under sect. 143 of the last- 
 mentioned act. 
 
 Where there are two covenantors, and one only is sued, the 
 defendant must take advantage of the omission by plea in abate- 
 ment (o). But by 3 & 4 Will. IV. c. 42, s. 8, no plea in abatement 
 for the nonjoinder of any person as a co-defendant shall be allowed, 
 unless it shall be stated in the plea, that such person is resident 
 within the jurisdiction of the court, and unless the place of resi- 
 dence of such person shall be stated wi'th convenient certainty in 
 affidavit verifying such plea ; and a plea which does not comply 
 with the above statute is bad on demurrer {d). The plaintiff may 
 reply the discharge of such person by bankruptcy and certificate. 
 
 (u) Wetherellr. Langston, 1 Exch. 634. (a) Bull. N. P. 158; Scott v. Godwin, 
 
 ■Whether in such a case a joint action 1 B. & P. 671. 
 
 could be maintained, quaere, S. 0. {b) 1 "Wms. Saund. 154, n. (1). 
 
 (x) Metcalfv. Ryeroft, 6 M. & S. 75. (c) Per Lie, C. J., Vernon ». JefferieSj 
 
 (y) Clement v. Henley, 2 Koll. Abr. 7 Mod. 360. 
 
 Paits, (F) 2. (<^) Joii V. Lord CvrzOn, i C. B. 249. 
 
 {z)'miow V. Lilli^:, 1 B. N. C. 695. 
 
 E E 2 
 
420 COVENANT. 
 
 5. Of Void and Illegal Covenants («). 
 
 Although the law, from the deliberation and solemnity which 
 accompanies the execution of a deed, presumes a consideration, 
 and relieves the covenantee from the necessity of proving it, yet 
 that doctrine applies only where the deed is good on the face of 
 it ; for a consideration cannot be presumed to support a deed which 
 is void on the face of it. Hence, where the plaintiff declared, that 
 the defendant, being single and unmarried, by deed promised the 
 plaintiff (she being sole aad unmarried) that he would not many 
 with any other person except herself, and if he should maiTy with 
 any other, then he agreed to pay the plaintiff 1,000^. within a cer- 
 tain time after such marriage ; and, after averring that defendant 
 had married another person, assigned for breach the non-payment 
 of the money : it was held, that this covenant not to marry any- 
 body,- except a person who was not obliged to marry, being to every 
 purpose the same as a general restraint, and being imsupported by 
 any consideration, the principle of public utility interposed, and 
 forbad the sustaining an action for the breach of it (/). 
 
 A covenant by a husband to pay to trustees a certain annual 
 sum, by way of separate maintenance for his wife, in case of then- 
 future separation, with the consent of such trustees, is valid in 
 law (g), for there is nothing illegal in a separation between husband 
 and wife, for good cause, and " the parties agreeing to refer the 
 question — wh^t is a good cause of separation — to a domestic forum" 
 (in this case the trustees), " instead of applying to the Ecclesias- 
 tical Court for a divorce and alimony " (/i). But a covenant for 
 separation generally at the will of the wife is contrary to the 
 policy of the law. Where therefore, on the face of the deed, it 
 appears that the parties contemplate present cohabitation and 
 future separation, the deed is void (i) ; for that is offering a pre- 
 mium to the wife for leaving her husband (Ic). So where a deed 
 was made between husband, wife, and a trustee, providing a sepa- 
 rate maintenance for the wife, and purporting to be made in con- 
 templation of an immediate separation, but in fact no separation 
 then took place, nor was intended to take place at that time, the 
 deed was held void (l). But a deed made in contemplation of an 
 immediate separation, which actually takes place, is not, it seems, 
 avoided by subsequent cohabitation, if that contingency is provided 
 for by the deed (m). 
 
 A covenant made in general restraint of trade is void ; such as, 
 
 (e) See post, VIII. 3. Vict. c. 85. 
 
 (/) Zowe V. Peers, i Burr. 2225 ; Wil- (i) Burant r. TitUy, 7 Price, 577. 
 
 mot, 364. See Gibson v. Dickie, 3 M. ik) Per Baylev, J., in Jee v. Thurlow, 
 
 & S. 463, 2 B. & C. 552. 
 
 (g) Itodmy v. Chambers, 2 East, 283. (Z) Hindley v. Marquis of Wesimeath, 
 
 {h) Per Lawrenee, J., Chambers v. 6 B. & C; 200. 
 
 Caulfield, 6 East, 252. The Eoclesias- (m) Wilson T. Mushett, 3 B. & Ad. 743. 
 
 tioal Courts are atol shed by 20 & 21 See ante, " Baron and Feme." 
 
COVENANT. 421 
 
 by the lessor of a brewery, that he will not during the demise carry 
 on the business of a brewer for the sale of ale in S. or elsewhere, 
 or in any other manner be concerned in the business {n). But if 
 the restraint be only particular in respect to time and place it is 
 good. 
 
 A covenant by a friend of a bankrupt to pay all his creditors 
 their full debts, in consideration that they will not proceed any 
 further under the commission, is good (o). So is a covenant with a 
 lessor of premises in a parish to indemnify the parish against any 
 paupers, which the covenantor may cause to be settled in it (p). 
 
 There is no obligation to perform the covenants in a void grant 
 conveying an estate, granting a leafe, &c., and if the conveyance 
 or lease is void, relative and dependent covenants are void also. 
 Thus, where A., being possessed of a term, gi-anted to B. so much 
 of the term as should be unexpired at the time of his death, and 
 covenanted for B.'s quiet enjoyment : the lease being void for un- 
 certainty, the covenant was held void also {q). But where a cove- 
 nant is a distinct, separate, and independent covenant, not referring 
 to the estate intended to be granted, nor waiting upon it ; in that 
 case, although no estate is granted, yet the covenant will be valid. 
 " When that which is good and that which is void are put together 
 in the same grant, the common law makes such a construction, 
 that the grant shall be good, for that which is good ; and void, for 
 that which is void." Per Lawrence, J. (r). As where the plaintiff 
 declared, that the defendant, by deed, granted .to him in fee, pro- 
 vided that if the grantor paid so much money, it should be lawful 
 for him to re-enter, and that the defendant covenanted to pay the 
 money to the plaintiff, and assigned for breach the non-payment of 
 the money. After judgment, it was objected, that nothing passed 
 by the deed for want of inrolment, which was admitted ; and hence 
 it was inferred, that the covenant was void. But Holt, C. J., said, 
 that it was not material whether any estate passed ; for the cove- 
 nant to pay the money was a distinct, separate, and independent 
 covenant (s). So where a rector granted an annuity out of his 
 benefice, which is void by 13 Eliz. c. 20 (t), and in the same deed 
 covenanted personally to pay the annuity ; it was held, that, although 
 the statute avoided the security of the rentcharge upon the living, 
 yet it did not affect the personal covenant (u). So though a bill 
 of sale for transferring the property in a ship, by way of mortgage, 
 may be void as such, for not reciting the certificate of registry, as 
 
 (n) Minde v. Graij, 1 M. & G. 195. (r) 8 East, 236. 
 
 See post, "Debt," III. " Illegal Con- (s) Northcotev. Underhill, Salk. 190. 
 
 sideration.'' . {() See Skaio v. Pritchard, 10 B. & C 
 
 (o) Kaye v. Bolton, 6 T. E. 134. 241. 
 
 \p) Walsh V. Pussdl, 6 Bingh. 163. (u) Sham v. Paclcman. 11 M. & V. 
 
 (q) OapenJmrsi v. Caperihurst, 1 Lev. 45. 770. 
 
423 COVENANT. 
 
 ■was required by 26 Geo. III. c. 60, s. 17 (x) ; yet the mortgagor 
 may be sued on a collateral covenant, for the payment of the 
 money contained in the same deed (y). In like manner, although 
 a covenant by the lessee for the payment of the property tax, and 
 for indemnifying the landlord from it, was void by 46 Geo. III. 
 c. 65, ss. 115, 195 ; yet that would not avoid other independent 
 covenants in the lease, such as the covenant for the payment of the 
 rent (2). 
 
 Where A. covenants not to do an act which it was then lawful 
 to do, and a subsequent statute compels him_ to do such act, this 
 statute extinguishes the covenant ; but if A. covenants not to do 
 an act then unlawful, and a subsequent statute makes it lawful to 
 do the act, the covenant is not extinguished (a). 
 
 The assignee of a void lease cannot maintain an action for a 
 breach of any of the covenants contained in the lease. Tenant in 
 tail demised land for ninety-nine years, and covenanted for himself 
 and his executors for the quiet enjoyment of the lessee. The 
 tenant in tail died without issue. After his death, the lessee 
 assigned to the plaintiff, who entered, but shortly after was ejected 
 by the remainderman, whereupon the plaintiff brought an action 
 against the executors of the tenant in tail for a breach of the 
 covenant ; but it was held, that it would not lie : for, the lease 
 being void at the time of assignnienti no interest passed under 
 it(&). 
 
 The plaintiff declared, that by deed made between her, as attorney 
 for I. S. on the one part, and the defendant on the other part, she 
 demised a house to the defendant, and that he covenanted (not 
 saying with the plaintiff) to pay the rent to I. S., and then assigned 
 a breach in non-payment of rent, to the damage of the plaintiff 
 (the attorney). It was objected that the lease was void, and that 
 an action could not be maintained upon it, especially by the plain- 
 tiff, who was the attorney only, and to whom the rent was not 
 reserved ; neither was there any covenant with the plaintiff, the 
 words being general, that he covenanted to pay the rent to I. S. ; 
 that the power was not pursued by a lease in the name of the 
 attorney, for it ought to have been in the name of the principal. 
 The court gave judgment for the defendant, observing that in a 
 good lease the rent might no doubt be reserved to a stranger who 
 was not a party to the deed, but not in the present case, where the 
 deed was void; that the deed being void, so as not to pass any 
 interest in the land, it was but just that it should be void as to the 
 reservation of rent, especially where the covenant was not with the 
 plaintiff, and where the rent was not reserved to her (c). 
 
 {x) See now 17 & 18 Vict. c. 104. (a) Brewster v. Kitohell, Salk. 198. 
 
 (2/) Kerrison v. Cole, 8 East, 231. (6) Andrew v. Pearce, 1 N. E. 158. 
 
 (2) Gaskell v. King, 11 East, 165. See (c) Frontin v. Small, Str. 705. 
 FiMer V. Alhott, 4 Taunt. 105. 
 
COVENANT. 42;5 
 
 IV. Of particular Express Covenants. 
 
 1. For Title, p. 423. 
 
 2. Not to Assign without Licence, p. 42D. 
 
 3. To Repair, p. 434. 
 
 4. To Insure, p. 435. 
 
 1. Covenants for Title are frequently termed real covenants, and 
 run with the land: see ante, p. 408. The covenants for ,title 
 usually entered into by the vendor, on a conveyance in fee, are four 
 in number (d), viz., 1st. That he has good right to convey ; 2nd. 
 For quiet enjoyment ; 3rd. For freedom from incunibrances ; 4th. 
 For further assurance. ^ 
 
 Where in covenant against the executors of J. W. the declara- 
 tion stated that J. W. granted land, &g., to the plaintiff in fee, and 
 after warranting the land, ,&c., against himself and his Aeirs,", cove- 
 nanted that he was, notwithstanding any act by, him done to the 
 contrary, lawfully seised in fee simple, and that he had full right 
 and pmver, &c,, to convey the sayne, and that the plaintiff should 
 qi;iptly enjoy without interruption from himself or any person 
 claiming under him ; and, lastly, that he, his heirs, or assigns^ 
 and all persons claiming under him, should make fjirther assur- 
 ance; and assigned a breach, that J. W. had not at the time of 
 making the indenture, &c., good right, power, &c., to convey or 
 assure the premises in manner aforesaid. It was held, that the 
 intervening general words, "full right, power, &c., to convey," were 
 either part of the preceding special covenant, "that he was,-not- 
 withstanding any act by him done to the contrary, &c., seised in 
 fee : " or if not, that they were qualified and restrained by all the 
 other special covenants to the acts of himself and his heirs (e). 
 So where the defendant, the assignor of a term, covenanted with 
 his assignee that he had done no act to encumber the premises 
 assigned, and that notwithstanding any such act the lease was a 
 subsisting lease, and that he had good right to assign the premises 
 in manner aforesaid ; it was held, that the covenant was qualified 
 and restrained to the assignor's acts only (/). 
 
 Covenant for quiet enjoyment during a term " without the inter- 
 ruption of J. M., his executors, &c., or any other person or persons 
 whomsoever, claiming any estate in the premises, and that freely 
 discharged, or otlierwise by J. M., his heirs, executors, &c., de- 
 fended and indemnified from all former gifts, grants, &c. made 
 by J. M. or by their or either of their acts, &c.," preceded by a 
 covenant that the lease was a good lease, notwithstanding any 
 
 {d) The covenant for title, viz., ".that (e) Browning v, Wright, 2 B. & P. 13 ; 
 
 the vendor is seised in fee," is now' ace. Stannardv. Forbes, 6 A. & E. 589. 
 usually omitted, being, in fact, corapre- (/) Foord v. Wi/son, 8 Taunt. 543. 
 
 hended in that for good right to convey. See Barton v. Fitzgerald, 15 East, 529. 
 See Sugd. V. & P. 487 (13th ed.) 
 
124: COVENANT. 
 
 act of J. M., and followed by a covenant for further assurance by 
 J. M., his executors, &c., and all persons whomsoever claiming any 
 estate in the premises under him or them. It was held, that the 
 covenant for quiet enjoyment extended only against the acts of the 
 covenantor and those claiming under him, and not against the acts 
 of all the world, for that, to construe it in the larger sense, would 
 be inconsistent with the other covenants, especially the first {g). 
 
 But where the defendants covenanted that, notwithstanding any 
 act by them done to the contrary, they were seised of the land con- 
 veyed in fee ; and also, that they, notwithstanding any such matter 
 or thing as aforesaid, had good right to grant the premises ; and 
 likewise, that the plaintiff should quietly enjoy the same without 
 the disturbance of them, " their heirs or assigns, or for or by any 
 other person or persons whatsoever ; and that the plaintiff should 
 be indemnified by them and their heirs against all other incum- 
 brances whatsoever, except the chief rent payable to the lord of 
 the fee ; it was held, that the general words of the covenant for 
 quiet enjoyment were not necessarily to be restrained by the lan- 
 guage of the antecedent covenants for title and right to convey ; 
 although those covenants were certainly of a limited kind, and 
 provided only against the acts of the defendants. Lord Mien- 
 borough, C. J., (who delivered the opinion of the court), observed : 
 — " The covenant for title and the covenant for right to convey, 
 are indeed what are somewhat improperly called synonymous 
 covenants ; they are, however, connected covenants, generally of 
 the same import and effect, and directed to one and the same ob- 
 ject ; and the qualifying" language of the one may therefore pro- 
 perly enough be considered as virtually transferred to and included 
 in the other of them. But the covenant for quiet enjoyment is of 
 a materially different import, and directed to a distinct object. 
 The covenant for title is an assurance to the purchaser, that the 
 grantor has the very estate in quantity and quality which he pur- 
 ports to convey, viz. in this case an indefeasible estate in fee 
 simple. The covenant for quiet enjoyment is an assurance against 
 the consequences of a defective title, and of any disturbances 
 thereupon. For the purpose of this covenant, and the indemnity 
 it affords, it is immaterial in what respects, and by what means, 
 or by whose acts, the eviction of the grantee or his heir takes 
 place : if he be lawfully evicted, the grantor, by such his covenant, 
 stipulates to indemnify him at all events. And it is perfectly 
 consistent with reason and good sense, that a cautious grantor 
 should stipulate in a more restrained and limited manner for the 
 particular description of title which he purports to convey, than 
 for quiet enjoyment." — The C. J. added:— "I do not find any 
 case in which it is held that the covenant for quiet enjoyment is 
 all one with the covenant for title, or parcel of that covenant, or 
 
 (g) Kind v. Marshall, 1 B. & B. 319. 
 
COVENANT. 425 
 
 in necessary construction to be governed by it, otherwise than as, 
 according to the general rules for the construction of deeds, every 
 deed (as was said by Hobart, G. J., Winch, Eep. 93, Sir George 
 Trenchard v. Hosldns) is to be construed according to the ' inten- 
 tion of the parties, and the intents ought to be adjudged of the 
 
 , several parts of the deed, as a general issue out of the evidence ; 
 and intent ought to be picked out of every part, and not out of one 
 word only.' Consistently, therefore, with that case, and with every 
 other that I am aware of, we are warranted in giving effect to the 
 general words of the covenant for quiet enjoyment ; and which are 
 entitled to more weight in this case, inasmuch as they immediately 
 follow and enlarge the special words of covenant against disturb- 
 ance by the grantors themselves ; a^ to restrain the generality of 
 these words, thus immediately preceded by express words of a nar- 
 rower import, would be a much stronger thing than to restrain 
 words of like generality, by an implied qualification arising out of 
 another covenant where no such general words occurred. The 
 
 ■person using the general words could not forget that he had im- 
 mediately before used special words of a narrower extent. If the 
 covenant containing both the special and general words stood by 
 itself, there would be no pretence for refusing effect to the larger 
 words ; and if this could not be done in favour of express words of 
 a narrower import in the same covenant, I cannot possibly under- 
 stand upon what ground it should be done in favour of implied words 
 of narrower import, which occur in another separate covenant, ad- 
 dressed, as has been before said, to a distinct object " Qi). 
 
 Where a lessor covenanted with his lessee for quiet enjoyment, 
 without disturbance by the lessor, " or any other person lawfully 
 claiming or to claim, by, from, or under him ; " it was held, that an 
 entry and seizure of the goods on the premises, by the collector of 
 land-tax, for arrears due from the lessor before the demise, was not 
 a proceeding within the terms of the covenant (i). Where the 
 lessor covenanted for quiet enjoyment without let, suit, &c. by him, 
 " or any person claiming under him," and at the time of the lease 
 was possessed of the equity of redemption only in the demised 
 premises, and subsequently the mortgagee gave notice to the lessee 
 to pay rent to him, and the lessee, on finding his lease defective, 
 gave up possession, it was held, that there was an eviction, or at 
 all events a molestation of the lessee, within the terms of the 
 covenant, by a person claiming under the lessor (Ic). 
 
 If the purchaser of lands sells them, and aftenvards takes a 
 reconveyance from his vendee, with a covenant for a good title, he 
 
 (/i) Howell V. Richards, 11 East, 633 ; (i) Stanley v. Eayes, 3 Q. B. 105. See 
 
 ace. Young v. Raincoclc, 7 C. B. 310 ; Sjiencerv. Marriott, 1 B. & C. 457. 
 and see per Parle, J., Nind v. Mar- (k) Carpenter v. Parlcer, 27 L. J., C, 
 
 shall,.l B. & B. 319, P. 78. 
 
426 COVENANT. 
 
 may, notwithstanding, maintain an action against the original 
 seller on his covenant for a good title (T). 
 
 A general covenant for quiet enjoyment does not extend to 
 tortious entries by a stranger (m). In the Year Book, 26 Hen. Tin. 
 3 b, is the following case : — A man made a lease for years by 
 indenture, and by a clause in that lease covenanted to warrant the 
 demised premises during the time of the lessee : afterwards the 
 lessee was ousted by one who had not any right to the premises ; 
 and the question was, whether the lessee should have writ of cove- 
 nant against the lessor or not : and Enghfield, J., said, " the lessee 
 shall not have writ of covenant against his lessor where he is ousted 
 by wrong, for he may have writ of trespassj or' ejectione firmdB 
 against him who ousted him ; but if he was ousted by one who had 
 title paramount against him, as in that case he cannot have any 
 remedy [against the person ousting him], he may. have writ of 
 covenant against the lessor by force of the warranty : quod fuit 
 concessum per plusors " (n). 
 
 The doctrine laid down in the foregoing case is not confined to 
 covenants in leases for years, for (o) it has been adjudged, that a 
 general covenant in a conveyance of lands in fee, that the grantor 
 had legal title, and that the grantee might peaceably enjoy the pre- 
 mises without the interruption of the grantor and his heirs, or any 
 other person, did not extend to the acts of wrong-doers ; but only 
 to the acts of persons claiming by a legal title. 
 
 The distinction taken in these cases illustrates the reason of the 
 following rule, viz: that in actions for breach of a general cove- 
 nant for quiet enjoyment, it is essentially necessaiy that it should 
 appear on the face of the declaration, that the eviction was made 
 by a person claiming by a legal title (p). It is sufficient, however, 
 
 to allege that at the time of the demise to the plaintiff, one had 
 
 lawful right and title to the premises, and, having such lawful right 
 and title, entered and ejected the plaintiff (g) ; and it is not neces- 
 sary to set forth the title of the party evicting more particularly (r). 
 Although, however, it be not necessary to set forth the particulars 
 of the title of the party evicting, yet room should not be left for 
 any intendment, that such title is derived from the plaintiff ; for 
 where the defendant granted land to plaintiff for years, and war- 
 ranted the same against all men during the term .; in an action of 
 covenant on this warranty, the breach assigned was, that one S., 
 after the commencement of the term, and during the term, having 
 lawful right and title to the premises, entered and ejected plaintiff; 
 
 (t) Goodere v. Lamb, B. E. Trin. 37 F. N. B. 342 (4to ed.) 
 
 Geo. III. Damijier MSS. L. I. L., L. P. (o) Dudley y. FollioU, 3 T. R. 584. 
 
 B. 186. (p) Tisdale v. Sir W. Essex, Hob. 34. 
 
 (m) Davie v. Sacheverell, 1 Roll, Abr. {q) Foster y. Pierson, 4 T. E. 617. 
 
 Condition, (V.) pi. 7 ; Hayes v. Bicker- (r) Hodgson v. The East India Oom- 
 
 staff Vaug. 119. pany, 8 T. E. 278. 
 
 (») See also 26 Hen. VIII. 3 h, pi. 11; 
 
COVENANT. 427 
 
 after verdict for plaintiff, it was moved, in arrest of judgment, ttiat 
 the breach was not well assigned ; because S. might have had, at 
 the time of his entry, a lawful right and title to the premises 
 under the plaintiff himself; and as it was not stated in the decla- 
 ration, that S. had title to the premises before the grant, it should 
 be intended, that he had aright to the premises, at the time of his 
 entry, by a puisne title, to which the covenant of defendant did not 
 extend. The court held, that the breach was not well assigned (s). 
 
 This intendment, viz. that the title of the party evicting was 
 derived from the plaintiff, may be precluded by averring, (if the 
 facts of the case warrant it,) that the person evicting entered by 
 lawful title, which accrued to him hefore the date of the conveyance 
 to the plaintiff {t), or by averring ftiat at the time of the demise 
 to the plaintiff, the party evicting had lawful title {%C) ; or that the 
 party evicting entered by virtue of a title made hy the defendant (x), 
 or lawfully claiming under the defendant {y). 
 
 The preceding remarks have been confined to the cases of general 
 covenants a,nd evictions by strangers ; but in cases where the cove- 
 nant is particular, as against interruption by the grantor or lessor, 
 or by any person expressly named ; upon the eviction of the cove- 
 nantee by the grantor or lessor, or by the person expressly named, 
 it is not necessary for the plaintiff to aver lawful title in the party 
 evicting. The declaration stated that the defendant granted a mes- 
 suage with the appurtenances to the plaintiff in fee, and covenanted 
 for quiet enjoyment, without the lawful let, &c. of the defendant ; 
 assigning for breach, that the defendant hindered the plaintiff in 
 the enjoyment of a pew appurtenant to the messuage ; on demurrer 
 it was objected, that the injury complained of ought to be the 
 subject of an action of trespass, but could not be the foundation of 
 this action, the covenant being against all lawful disturbance ; to 
 this it was answered, that, where the breach complained of was the 
 act of the covenantor, any intersuption was sufficient to support 
 this action against him. Judgment for the plaintiff; Ashhurst, J., 
 observing, that it was not necessary that the party against whom 
 the action was brought should have a title ; it was sufficient if he 
 did the act under a claim of title ; that in this case the act itself 
 asserted a title ; for the defendant locked up the pew, which was as 
 strong an assertion of right as could well be imagined (z). 
 
 So where the plaintiff set forth a covenant, which recited that 
 the defendant had sold, to the plaintiff's testator, goods which had 
 been seized by one B., and therefore defendant covenanted to 
 plaintiff's testator, to save him harmless from any costs or damages 
 
 (s) Wotton V. Jlele, 2 Wms. Saund. (x) As in Hodgson y. East India Com- 
 
 177. See 15 & 16 Vict. c. 76, s. 143. pany, 8 T. R. 278. 
 
 it) As in Buddy v. Williams, 3 Lev. {y) As in Young v. Raincocic, 7 C. B. 
 
 325. Sid. , 
 
 (u) As in Foster v. Pierspn, 4 T. E. fil7. (s) Lloyd v. TomUes, 1 T. E. 671. 
 
428 COVENANT. 
 
 relating to such seizure, and then assigned for breach, that the said 
 B. had seized the goods under pretence of a debt due from de- 
 fendant to him, touching which seizure testator was put to great 
 expense, which defendant neglected to pay. It was objected, that 
 the covenant did not extend to tortious acts, for which the plaintiff 
 had a remedy, and therefore the title of B. ought to have been set 
 forth ; that " having lawful title " was not sufficient ; that here it 
 was only said "under pretence," which was not so strong. The 
 counsel for the plaintiff admitted it to be a general rule, that the 
 plaintiff must show a title in the disturber ; but insisted that the 
 rule extended only to the case of a general covenant, and not where 
 it was particular against the acts of particular persons ; for in that 
 case it comprehended even tortious acts. And by the court : This 
 pretence of B.'s being recited in the covenant, shows it was meant 
 as a security against it in all events : and though it should be tor- 
 tious, yet being particular, it falls within the distinction that has 
 been well taken. Judgment for plaintiff (a). 
 
 The result of the foregoing cases is, that "where a man cove- 
 nants to indemnify against all persons, that is but a covenant to 
 indemnify against lawful title. And the reason is, because, as it 
 regards such acts as may arise from rightful claim, a man may well 
 be supposed to covenant against all the world ; but it would be an 
 extravagant extension of such a covenant, if it were good against 
 all the acts which the folly or malice of strangers might suggest ; 
 and, therefore, the law has properly restrained it within its'reason- 
 able import, that is, to rightful title. It is, however, different when 
 an individual is named ; for, there, the covenantor is presumed to 
 know the person against whose acts he is content to covenant, and 
 may, therefore, be reasonably expected to stipulate against any dis- 
 turbance from him, whether by lawful title or otherwise." Hence 
 where the condition of a bond, which recited the purchase of land 
 by plaintiffs, was, to save them and the land harmless from all 
 manner of mortgages, judgments, &c., obtained by T. T. or any 
 other person ; ib was held to bind the obligor against the wrongful 
 entry of T. T. (6). 
 
 Tenant for life, and his eldest son the remainderman in tail, 
 leased to S., for ninety-nine years, and gave S., who was acquainted 
 with their title, a bond, conditioned for the due observance of their 
 covenant for quiet enjoyment. S. underlet to W., and covenanted 
 with W. against eviction by any person claiming under him, or by 
 his acts, neglect, default, or procurement. The tenant for life and 
 his eldest son being dead without issue, W. was evicted by the next 
 remainderman in tail. It was held, that no breach could be as- 
 signed on the covenant; for, first, the eviction was not by any 
 person claiming under S., but by title paramount ; secondly, it did 
 
 (a) Parry y. Edtcards, 1 Str. 400. (J) Nash v. Palmer, 5 M. & S. 374 ; 
 
 and see Fowle v. Welsh, 1 B. & C. 29. 
 
COVENANT. 429 
 
 not appear to be an eviction arising from the acts or procurement 
 of S. ; lastly, although the eviction would have been prevented if 
 S., at the time he took the lease, had required the lessors to cut off 
 the entail, and the lessors had complied with such requisition, yet, 
 inasmuch as S. had no means of compelling the lessors to cut off 
 the entail, it could hardly be said that he was guilty of any neglect 
 or default in not procuring that step to be taken, which he was 
 unable to compel (c). A. covenanted for himself, his heirs, and 
 assigns, that B. should quietly enjoy, without the let of A., his heirs, 
 or assigns, or any person claiming under him or them. The estate 
 originally belonged to A.'s wife, and on marriage was settled on A. 
 for life, with power to make leases, and also with power to A. and his 
 wife jointly to revoke the uses, whiih they did ; and after A.'s death, 
 B. was evicted under the new settlement. It was held that covenant 
 lay against the executors of A., though the estate moved from the 
 wife and not from A. (d). An action may be maintained on a cove- 
 nantfor quiet enjoyment, if the lessor has not any title, although the 
 lessee has not entered (e) ; but in the case of a lease to commence 
 at a future day, the action cannot, it seems, be brought before the 
 time when the possession under the lease was to commence (/). 
 
 A covenant by lessor, that the lessee, paying the rent, &c., shall 
 quietly enjoy, is not, a conditional covenant, making the payment 
 of the rent a condition precedent to the performance of the cove- 
 nant for quiet enjoyment, on the part of the lessor {g). A covenant 
 for quiet enjoyment is broken by the lessor so working a vein of 
 iron-stone, lying over a seam of coal, demised by him to the plaintiff, 
 that the roof of the coal mine falls in (A). 
 
 2. Of the Covenant not to Assign without Licence. 
 
 A covenant not to assign or under-let without licence of the 
 lessor, with a clause of re-entry in case of breach, is frequently in- 
 troduced into leases, for the purpose of securing to the lessor a 
 responsible tenant in whom he can repose a confidence {i), upon a 
 bill filed for the specific performance of aa agreement by a landlord 
 to grant a lease of a public-house, containing the common and 
 usual covenants ; Lord Thurlow, C., was of opinion, that though 
 the covenant not to assign without licence might be a very usual 
 one, where a brewer or vintner let a public-house, that would not 
 make it a comTnon covenant ; and declared, that the landlord was 
 not entitled to have it inserted in the lease. Lord Kenyan, C. J., 
 
 Ccl Woodliouse v. JenJcins, 9 Bingh. (f) Ireland v. Surc7iam,2'B.Ii. C.90. 
 
 j^^Y (g) Dawson v. Dyer, 5 B. & Ad. 584. 
 
 (d) Hurd V. Fletcher, B. E. M. 19 Geo. See Doe v. ICennard, 12 Q. B. 2ii. But 
 
 III ■ B P 15. 85 ; Dampier, MSS. L. see Ireland v. Bircham, per Tindal, C.J. 
 
 I if ' ' ' ' Ui) Shaw V. Stenton, 27 L. J., Exch. 
 
 ' (e) Ludwell v. Newman, L. P. B. 253. „ „ „ r, r. 
 
 76 ; Dampier's MSS. L. I. L. ; 6 T, R. (?) In Henderson v. Say, 3 Bro. C. C. 
 
 458. 
 
 63;! 
 
430 
 
 COVENANT. 
 
 held such a covenant to be a fair and usual covenant (/c). The 
 opinion of Lord Thurlow was recognized by Lord Eldon, C, {]) ; but 
 Sir W. Grant, M. R. (m), held, that under an agreement for a lease 
 " with usual covenants," the lessor was not entitled to this covenant 
 against assigning or under-letting without licence {n). 
 
 " The general principle is, that a lessee may assign his interest 
 in the term (o). But the lessor may restrain the lessee from as- 
 signing by covenant or proviso ; and if the lessor grants the term 
 subject to a condition, that it shall cease, if the lessee assigns, an 
 assignment by the lessee will be void. But if the lessor restrain 
 the lessee from assigning by covenant only, although the lessee by 
 assigning commits a breach of covenant, yet the assignment itself 
 is not void " {p). 
 
 A covenant not to assign or otherwise put away the lease of the 
 premises thereby demised, without the licence of the lessor in 
 writing, is not broken by an underlease (g). So where the covenant 
 was not to assign or otherwise pat-t with the premises, or that pre- 
 sent indenture of lease : it was held, that a deposit of the lease 
 with a creditor, as a security for money advanced, was not a breach (r). 
 But where the words of the covenant were, that the lessee would 
 not set, let, or assign over the whole or part of the premises with- 
 out leave ; it was held, that an underlease amounted to a breach (s). 
 So where the proviso was, that the lease should be void if the 
 lessee assigned the indenture of lease, or the demised premises, 
 "for the whole or any part of the term, without leave in writing ;" 
 it was held, that the words included an underlease {t). And here 
 it is to be observed, that a lease by the lessee for the whole term 
 amounts to an assignment, although the rent be reserved to the 
 lessee, and a power of re-entry given to him and not to the rever- 
 sioner (u). But if a day only be excepted out of the term, then it 
 is an underlease (cc). 
 
 If a lease contain a proviso, making it void, if the lessee, his 
 executors, or administrators, alien without licence in writing, a 
 voluntary assignment by the executor, or administrator, without 
 such leave, will amount to a forfeiture {y). Where one of the 
 questions was, whether executors were warranted in disposing of a 
 lease as assets of the testator, where there was a proviso against 
 alienation by the lessee, but no mention of executors (z) ; Lord 
 Thurlow, C, said, " If A. lets a farm to B., with a covenant not to 
 
 (k) Morgan v. Slaughter, 1 Esp. 8. 
 
 {1} Church Y. Brown, 15 Ves. 258, 631. 
 
 (m) Browne v. Eabcm, 15 Ves. 529. 
 
 (m) And see Bennett v. Womach, 7 B. 
 & C. 627 ; Bell v. Barchard, 16 Beav. 8. 
 
 (o) By 8 & 9 Vict. o. 106_, s. 3, a lease 
 required by law to be iu writing, and an 
 assignment of a chattel interest, not being 
 copyhold, shall be void unless made by 
 deed. 
 
 (p) Per Holroyd, J., Paul v. Narse, 
 8 B. & C. 488. 
 
 (q) Crusoe v. Blencowe, 3 "Wils. 234. 
 (r) Doe V. Laming, 1 E. & M. 36. 
 ■ (i) Eoe V. Earrison, 2 T. R. 427. 
 (t) Doe V. Worsley, 1 Campb. 20. 
 (tt) Palmer v. Edwards, Doug. 186, n. 
 (x) Holford V. Hatch, Doug. 182. 
 (2/) Roe V. Harrison, 2 T. E. 426. 
 (.-) Seen v. Hind, 1 Ves. jun. 295., 
 
COVENANT. 431 
 
 alien, and B. dies, may not his executors dispose of the term ? I 
 think it has been determined that they may, and I have always 
 taken it to be clear law. It is an alienation by the act of God. I 
 remember Lord Camden entered into the question much in the 
 same way. He took it to be clear law, that an alienation by death 
 could not be a forfeiture. In the case of a lease for years to A., it 
 goes to his executors, not by way of limitation, as in the case of a 
 remainder over, &c., but it goes to them as coming in the place of 
 the lessee. I understood it to be well settled as I have stated. But I 
 do not mean to lay down, that a ma;n may not by a clause in his will 
 provide that, in case of a devolution to executors, it shall not be 
 alienable by them ; but it must be very, special for that purpose " (a). 
 
 Provisoes for re-entry in a lease ^-e to be construed, as other 
 contracts, according to fair and obvious construction ; and not with 
 the strictness of conditions at common law (6). 
 
 An assignment by operation of law will not amount to a for- 
 feiture. This point was decided in (c) -a case in which it was held, 
 that an assignment by the sheriff to a party purchasing under a 
 bond fide execution, will not amount to a forfeiture. But where 
 the execution is in fraud of the covenant, the assignment under 
 it will amount to a forfeiture, and the lessor may re-enter ; as 
 where the lessee gives a warrant of attorney to confess judgment 
 jto a creditor for the express purpose of enabling such creditor to 
 take the lease in execution under the judgment (d). 
 
 Covenant against assigning without licence is determined by a 
 licence once granted (e). So under a condition not to alien without 
 leave, if leave is once granted, the condition is entirely discharged (/). 
 
 C. C. College demised land for a term of years to A., with a 
 condition, that neither A. nor his assigns should alien the land 
 without the special licence of the lessors ; afterwards the lessors, by 
 writing under seal, licensed A. to alien the land to any person, and 
 A. afterwards assigned the term to B. : after B-'s death, C. became 
 entitled to the term, and assigned it to the defendant Syms. The 
 lessors entered for condition broken. It was resolved by the court, 
 that the alienation by licence to B. had determined the condition 
 as to the assignees ; and that it was not in the power of the lessors 
 to dispense with an alienation for one time, and yet to consider the 
 estate aliened or demised as afterwards remaining subject to the 
 condition ; for a condition was to be taken strictly, and by the aliena- 
 tion with licence it was satisfied (g). So in the case of a demise' to 
 A., B., and C, with a like condition, if a licence to alien was 
 granted to A., and A. aliened by virtue of such licence, it was held' 
 
 (o) Arid Bee per Ashhurst, J., in JRoe v. (d) Ibid. 8 T. R. 300. See Croft v. 
 
 Harrison ■ ver Gibbs, J., in Lloyd v. LuviUy, 5 E. & B. 648. 
 Crispe, 5 Taunt. 249.1 (e) 12 Ves. 191, per Sir W. Grant. 
 
 (b) Per Lord Tenterden, C. J., Doe v. (/) See Piatt on Covenants, 425-6. 
 
 Msam, 1 M. & M. 189. (g) Dumpor's case, 4 Eep. 119, 1). 
 
 ■ (c) £>oev Garter, 8 T. R. 57. "The profession have always wondered 
 
433 COVENANT. 
 
 that the condition was determined as to B. and 0. Qi). So in the 
 case of a demise upon a like condition, if the lessee aliened part, 
 with the assent of the lessor, the lessee might alien the residue 
 without such assent (i). The rule in Dumpor's case has, however, 
 ceased to be law with reference to covenants and conditions in 
 leases, and to waivers and licences of such conditions and cove- 
 nants occurring after the passing of the 22 & 23 Vict. c. 35, and 
 the 23 & 24 Vict. c. 38. The 1st section of the 22 & 23 Vict, 
 c. 35, preserves the condition or right of re-entry in all respects as 
 if the licence had not been given, except in respect of the particular 
 matter authorised to be done ; and the 2nd section confines the 
 operation of the licence given to one of several lessees or co-owners, 
 or given in respect of part only of the property, to the particular 
 lessee or co-owner, or the particular part of the property, leaving 
 the right of re-entry in force in respect of all shares or interests or 
 property not the subject of the licence. The 6th section of the 
 23 & 24 Vict. c. 38, confines an actual waiver of the benefit of any 
 covenant or condition in any lease on the part of any lessor, 
 to the instance or breach to which such waiver shall specially 
 relate, and prevents it from being a general waiver unless aa 
 intention to that effect shall appear. 
 
 Lessee covenanted, that he would not demise the premises with- 
 out licence ; the lessee became a bankrupt ; his assignees took to 
 the lease, and assigned it to A., who assigned it to the original 
 lessee, who underlet to B. ; it was held, that the covenant of the 
 lessee was discharged by 49 Geo. III. c. 121, s. 19 (the words of 
 which section are substantially the same as the Bankrupt Act, 
 12 & 13 Vict. c. 106) ; and, consequently, that the subsequent 
 under-letting by. the lessee was no breach of that covenant, which 
 no longer existed {k). The last-mentioned act, sect. 145, provides 
 for three cases : lat, where the assignees accept the conveyance 
 or lease (J) ; in which case the bankrupt is not liable to pay any 
 rent accruing after the date of the fiat or filing of the petition, or 
 to be sued in respect of the subsequent non-performance of any of 
 the covenants ; %idly, where the assignees decline the same ; in 
 this case also the bankrupt is not liable, in case he deliver up the 
 conveyance or lease to the conveyor or lessor within fourteen days 
 after he shall have had notice that the assignees have declined ; in 
 this case the covenants on both sides fall to the ground (m). It 
 has been held, however, that this is a personal discharge to the 
 lessee only, and that a surety who has joined in the lease with him 
 is liable for breaches of covenant, accruing between the date of 
 
 at Dumpor's case, but it has been law so (Ic) Doe v. Smith, 5 Taunt. 795. 
 
 many centuries that we cannot now re- (I) The assignees are not liable unless 
 
 verse it. Per MamfieU, C. J., in Doe they do some act which imeqmvomlly in- 
 
 V. ^Zv^s, 4 Taunt /36. _ dicates their election. GoodwiuY.NoUe, 
 
 (ft) Leeds v. Gromptoii, cited i Eep. 27 L. J., Q. B. 204. 
 
 ■^^?;>°"7, T, 7 r, T . -r. (m) Kearsey y. Carstairs, 2 H. & Ai. 
 
 {i} Per Popham, C, J., 4 Eep. 120, a. 716. 
 
COVENANT. 433 
 
 the commission and the actual delivery up of the lease by the lessee 
 under the statute ; the term remaining vested in the bankrupt till 
 election by the assignees (p), or delivery up of the lease to the 
 lessor under the statute (q). And where the original lessees had 
 assigned to B., subject to the payment of rent, who entered, and 
 afterwards became bankrupt, and rent became due after the com- 
 mission, and the assignees of B. declined the lease ; and then cove- 
 nant for the rent was brought by the lessor against the original 
 lessees ; it was held, that the action might be maintained ; for " if 
 before the statute, there had been an assignment of the lease, and 
 the lessors had accepted rent, they might, notwithstanding, have 
 proceeded by covenant against the lessees ; the privity of contract 
 not being destroyed. The statute (6 Geo., IV. c. 16, s. 75) makes 
 no difference in this respect ; it contemplates the case of a bank- 
 rupt lessee only, not of an assignee of the term. The statute ope- 
 rates only as a personal discharge of the bankrupt ; for it does not 
 say that the lease and the covenants shall be at an end, but merely 
 that the bankrupt lessee shall not be liable to be sued in respect 
 of any subsequent non-observance of the covenants " (r). Srdly, 
 where the assignees do not, upon request, elect whether they will 
 accept or decline ; in which case, the Lord Chancellor has power, 
 upon petition, to order the assignees to elect and to deliver up the 
 conveyance or lease and possession of the premises. 
 
 Whether the licence to assign was general, as in Bumpor's case, 
 or particular, as " to one particular person, subject to the perform- 
 ance of the covenants in the original lease," yet the condition was 
 gone, and the assignee might assign without a licence (s). But where 
 there is an exception out of the original restriction to alien in 
 favour of an assignment in a particular manner, e. g. by will, and 
 an assignment is made by the lessee by will ; and then his ex- 
 ecutors make another assignment, not by will, it seems that this 
 last assignment is bad (t). 
 
 Acceptance by the lessor of rent due after condition broken with 
 notice, is, generally speaking, a waiver of the forfeiture (u), as a 
 binding election on the part of the lessor to treat the lease as 
 valid (x) ; but such a receipt is not, it seems, necessarily a 
 waiver (y). 
 
 Where there has been a breach of the covenant for several years, 
 a jury may presume a licence in writing (z). 
 
 (p) Tuck V. Fi/son, 6 Bingh. 321. Whitchcot v. Fox, Cro. Jac. 398. See 
 
 (q) Briggs v. Sowry, 8 M. & "W. 729. Doe v. Bliss, i Taunt. 735, ante, p. 432. 
 
 (rt Mmming v. Flight, 3 B. & Ad. (x) See Jones v. Carter, 15 M. & W. 
 
 211. 718. 
 
 (s) Brummell v. Maeplierson, 14 Ves. {y) Dm v. Batten, Cowp. 243. bee 
 
 173, Eldmi, C. Croft v. Lumley (Dom. Proc.), 27 L. J., 
 
 («) Lloyd V. Orispe, 5 Taunt. 249, per Q. B. 322. 
 
 Gihbs, J. W Gihson y. Doey, 27 L. J., Ex. 40. 
 
 (m) GoodrigM t. Davids, Cowp. 804 ; 
 
 YOl. I. . F F 
 
Vi 
 
 434 COVENANT. 
 
 A court of equity -will not relieve against a forfeiture occasioned 
 by breach of covenant not to assign (a). 
 
 3. 0/ the Covenant to Repair (b). 
 
 The lessee of a house, on a general covenant to repair during the 
 term, is bound to rebuild, in case the house be consumed by an 
 accidental fire (c). If a lessor covenant that he will, in case the 
 demised premises be burned down, rebuild, and replace the same 
 in the same state they were in before the fire, he is only bound to 
 rebuild what he let, and not any additional parts, which may have 
 been erected by the lessee (d). 
 
 On a covenant to erect a bridge in a substantial manner, and to 
 uphold and keep in repair for a certain time, although the bridge 
 be broken down by an extraordinary flood, yet the party covenant- 
 ing is bound to repair (e). Where the lessor of a house covenanted 
 with the lessee to repair all the external parts of the premises, and 
 the corporation pulled down an adjoining house, leaving the wall 
 of the demised house exposed and without support, and thereupon 
 the wall fell down and the house became uninhabitable, and the 
 lessee sued the lessor upon his covenant ; it was held, that the ex- 
 ternal parts of premises are those which form the inclosure of 
 them, and beyond which no part extends : and that it was imma- 
 terial whether those parts are exposed to the atmosphere or rest 
 upon some other building which forms ho part of the premises 
 let ; and that the defendant was liable on his covenant, though 
 the injury to the wall was done in the first instance by the 
 corporation (/). 
 
 A covenant to keep and leave a house in repair, is satisfied by 
 keeping it in substantial repair, according to the nature of the 
 building; and with a view to determine the sufficiency of the 
 repair, the jury may inquire whether the house was new or old at 
 
 (a) Per Lord Mdm, C, in Hill v. [c) Bullock v. Dommitt, 6 T. K. 660. 
 
 Bwrckcy, 18 Ves. 63 ; and see generally In many cases an exception of accidents 
 
 as to relief in equity against breaches cif by fire or tempest is introduced into 
 
 covenant. Job v. Bannister, 2 K. & J. leases for the protection of lessees. It 
 
 374 ; Elliott v. Turner, 13 Sim. 477. appears, from the cases of Monk v. Ooo- 
 
 (6) If the plea be that defendant did per, and Hare v. Groves, 3 Anstr. 687, 
 
 repair, the plaintiff begins at the trial. that this exception should be introduced 
 
 Hoe T. Rowlands, 9 C. & P. 613. The into the covenant for repairs, in order to 
 
 measure of damages is not the amount exempt the lessee from the obligation of 
 
 that would be required to put the pre- paying rent as well as of rebuilding, in 
 
 mises in repair, but the amount to which case the house should be destroyed by 
 
 the reversion is injured by the premises fire or tempest. See Shep. Touch. 169- 
 
 being out of repair. JMd. See Davies 173. 
 
 V. Underwood, 27 Xj. J., Exoh. 113. (d) Loader v. Kemp, ^ G. &.V.Z15. 
 
 Where the lessor has lio reversion, but (e) Brecknock Canal Company v. PrU- 
 
 both he and his lessee have been evicted cha/rd, 6 T. E. 760. See Shubrick v. 
 
 by title paramount, the former measure Sahnond, 3 Burr. 1637. 
 
 of damages would seem to be correct. (/) Qreen v. Bales, 2 Q. B. 225. 
 
COVENANT. 435 
 
 the time of the demise (gr). So where the covenant was to keep 
 the premises in good and tenantable repair, and to surrender them 
 at the end of the term in like tenantable condition, reasonable 
 wear and tear excepted : TiTidal, G. J., said the meaning of such a 
 covenant was well understood to be good and tenantable repair, 
 regard being had to the state of the premises in point of age. The 
 landlord is not to have, at the end of the term, a new house at the 
 tenant's expense. The general state and condition of the premises 
 at the time of the demise may be shown (Ji), so as to measure the 
 amount of damages for want of repairs, by reference to that state ; 
 a house in Spitalfields may be repaired with materials inferior to 
 those requisite for repairing a mansion in Grosvenor Square (i). 
 The same nicety of repair is not exacted for an old building as for 
 a new one (Ic). And where a lessee covenants to keep old premises 
 in repair, he is not liable for such dilapidations as result from the 
 natural operation of time and the elements (I). Where the agree- 
 ment was "to put premises into habitable repair," Alderson,,^., 
 said, " It is difficult to suggest any material difference between the 
 term 'habitable repair,' used in this agreement, and the more 
 common expression ' tenantable repair : ' they must both import 
 such a state, as to repair, that the premises may be used and dwelt 
 in, not only with safety, but with reasonable comfort, by the class 
 of persons by whom, and the sort of purposes for which, they were 
 to be occupied (m)!' 
 
 Where by an agreement for a lease of premises, to be made as 
 soon as a licence could be obtained from the lord of the manor, the 
 defendant covenanted to keep the premises in repair during the 
 term, and there was a covenant by the plaintiff for quiet enjoy- 
 ment ; defendant entered, and occupied the premises during the 
 term : it was held, that he was liable on the covenant to repair, 
 though no lease had ever been made to him pursuant to the agree 
 ment, nor any licence obtained from the lord for that purpose (n). 
 
 4. Of the Covenant to Insure. 
 
 In every lease, containing a covenant to insure against loss by 
 fire, it should be stipulated that the money to be recovered from 
 
 (g) Stanley v. Towgood, 3 B. IT. C. 4. that can be implied on this 'head, is, to 
 
 Hence a covenant in the same words may keep wind and water-tight. Auworth v. 
 
 be substantially different in effect, as in Johnson, 6 C. & P. 239. 
 
 the case of an original lessee of a new (k). Mantz v. Goring, 4 B. N. C. 453. 
 
 house for 100 years, and his underlessee {I) Gutteridge v. Munyard, 1 M. & 
 
 who enters after 50 years of the term Eob. 334. 
 
 have expired, when the house is an old (m) BelAer v. M'Intosh, 2 M. & Eob. 
 
 house. Per Parke, B., Walker v. Eat- 186. 
 
 ton, 10 M. & W. 256, 257. See MmshuU {n) Pistor v. Cator, 9 M. & W. 315. 
 
 V. Oakes, 27 L. J., Exch. 194. He would be also (semble) in such a case 
 
 (7i) Toung v. Mantz, 6 Sc. 277. liable on an implied assumpsit. Richard- 
 
 (i) Per Alderson and Pa/rke, BB., son v. Qiffard, 1 A. & E. 52 ; Bolton y. 
 
 Payne v. Haine, 16 M. & W. 541. From Tomlin, 5 Hid. 856. 
 
 a yearly tenancy, the only agreement 
 
 r F 2 
 
436 COVENANT. 
 
 the insurance ofSce shall be laid out in restoring the premises ; and 
 a covenant containing such a stipulation -will run with the land. 
 And where the premises are situated within the limits mentioned 
 in the Party-wall Act (14 Geo. III. c. 78), the effect of which 
 act is to enable the landlord by applications to the governors or 
 directors of the insurance office to have the sum insured laid out 
 in rebuilding the premises : a covenant to insure is a covenant 
 running with the land ; for, connecting that covenant with the act 
 of parliament, the landlord has a right to say, that the money, 
 when recovered, shall be so laid out. It is, therefore, as compulsory 
 on the tenant to have the money laid out in rebuilding, and as 
 beneficial for the landlord, as if the tenant had expressly covenanted 
 that he would lay out the money to be received in respect of the 
 policy upon the premises {p). 
 
 Lessee covenanted, that he and his assigns would insure the de- 
 mised premises and keep them insured during the term, and deposit 
 the policy with the lessor ; it was held, that the true constniction of 
 this covenant was, not that the lessee should effect one policy, and 
 keep that policy on foot, but that the lessee and his assigns should 
 always keep the premises insured by some policy or another ; and 
 that it was a breach, if they were uninsured at any one time, and a 
 continuing breach for any portion of time that they remained un- 
 insured (g). Of such a covenant a neglect to insure for five weeks 
 and two days after the execution of the lease is (if unexplained) a 
 breach (r). So if the covenant be to insure in the names of the 
 lessors, and the lessee add his own (s). So if it be to insure and 
 continue insured in the lessor's and lessee's name, and the lessee 
 omit his, even although the lessor on a former occasion had 
 approved of such omission and accepted rent (t). 
 
 If a lease contains a covenant by the tenant to keep the premises 
 in repair, and a covenant to insure them for a specific sum against 
 fire ; on their being burnt down, the tenant's liability on the former 
 covenant is not limited to the amount of the sum to be insured 
 under the latter {u). 
 
 Formerly a court of equity would not afford any relief by in- 
 junction against a forfeiture for breach of a covenant to insure {x) ; 
 but now both the courts of common law and equity afford relief 
 against forfeiture for not insuring. 
 
 The Common Law Procedure Act, 1860, s. 2, gives, in case of 
 ejectment for forfeiture for non-insuring, to the court, or a judge, 
 power upon rule or summons to give relief in a summary way, in 
 all cases in which such relief may now be obtained in the court of 
 
 (p) Vernon v. Smith, 5 B. & Aid. 1. 368. 
 
 (q) Doe V. Peck, 1 B. & Ad. 428. See (t) Doe v. Gladwin, 6 Q. B. 953. 
 
 Doe r. Laming, i Campb. 73. («) JHghi v. AtMmon, i Campb. 275. 
 
 (r) Doe v. Ulph, 13' Q. B. 204. (x) White v. Warner, 2 Mer. 459 
 
 («) Penniall v. Ifarborne, 11 Q. B. Green v. Bridges, i Sim. 96. 
 
COVENANT. AB7 
 
 chancery, under " An Act to further amend the law of Property, 
 and to Relieve Trustees," and upon such terms as would be imposed 
 in such court. 
 
 The last-mentioned act, the 22 & 23 Vict. c. 35, has the following 
 important sections : 
 
 Sect. 4 : " A court of equity shall have power to relieve against 
 a forfeiture for breach of a covenant or condition to insure against 
 loss or damage by fire, when no loss or damage by fire has happened, 
 and the breach has, in the opinion of the court, been committed 
 through accident or mistake, or otherwise, without fraud or gross 
 negligence, and there is an insurance on foot at the time of the 
 application to the court, in conforijpity with the covenant to insure, 
 upon such terms as to the court may seem fit." 
 
 Sect. 6 : " The court shall ' not have power, under this act, to 
 relieve the same person more than once in respect of the same 
 covenant or condition, nor shall it have any power to grant any 
 relief, under this act, where a forfeiture under the covenant, in 
 respect of which relief is sought, shall have been already waived 
 out of court in favour of the person seeking the relief (x)." 
 
 Sect. 8 : " Whei-e on the bond fide purchase, after the passing of 
 this act, of a leasehold interest, under a lease containing a covenant 
 on the part of the lessee to insure against loss or damage by fire, 
 the purchaser is furnished with the written receipt of the person 
 entitled to receive the rent, or his agent, for the last payment of 
 rent accrued due before the completion of the purchase, and there 
 is subsisting at the time of the completion of the purchase an 
 insurance in conformity with the covenant, the purchaser, or any 
 person claiming under him, shall not be subject to any liability by 
 way of forfeiture or damages, or otherwise, in respect of any breach 
 of the covenant committed at any time before the completion of 
 the purchase ; but this provision is not to take away any remedy 
 which the lessor, or his legal representatives, may have against the 
 lessee, or his legal representatives, for breach of covenant." 
 
 Sect. 9 : " The preceding provisions shall be applicable to leases 
 for a term of years absolute or determinable on a life or lives, or 
 otherwise ; and also to a lease for the life of the lessee, or the life 
 or lives of any other person or persons." 
 
 V. By whom the Action of Covenant may be maintained. 
 
 1. By Heir. — Covenants which run with the land will descend 
 to the heir of the covenantee ; and he may sue for a breach thereof : 
 —where, therefore, the lessee covenanted with the lessor, his 
 executors and administrators, to repair, it was held, that the heir 
 of the lessor, though not named, might have covenant against 
 
438 COVENANT. 
 
 lessee for not repairing {y). Plaintiff declared as heir on a covenant 
 by lessee for years to repair, and assigned for breach, that the pre- 
 mises were out of repair for a period of time which included a 
 portion of his ancestor's life ; and on this ground an exception was 
 taken in arrest of judgment, after verdict for the plaintiff;' but it 
 was overruled ; Holt, C. J., observing, that " if the premises were 
 out of repair in the time of the ancestor, and continued so in the 
 time of the heir, it was a damage to the heir ; and the jury may 
 give as much in damages as would put the premises in repair ; but 
 hereby no damages are given in respect of the length of time they 
 continued in decay, but in respect to what it will cost at the time 
 of action brought, to put the premises in repair " (z). Upon a cove- 
 nant with A. and his heirs for further assurance upon request, and 
 a request made by the ancestor in his lifetime to levy a fine, and a 
 neglect so to do, the ancestor not being evicted in his life, but the 
 heir being evicted afterwards, the heir may maintain an action 
 upon the request of the ancestor; because the ultimate damage 
 had not accrued in the life of the ancestor {a). 
 
 2. By Executor.— A., and B. his wife demised lands to C. for 
 twenty-one years, arid covenanted, that they would, at the end of 
 twenty-one years, make a good lease to C. and his assigns for 
 twenty-one years, comrhencing at the expiration of the first term. 
 During the first term, the lessee died, having appointed D. his 
 executrix, who entered, and died, having appointed the plaintiff 
 her executor, who entered. At the expiration of the first teriix, A. 
 and B. having refused to grant the further lease, an action was 
 brought by the plaintiff (as executor of D., executrix of 0. the 
 lessee), on this covenant, against A. the husband ; and it was ad- 
 judged that the action would well lie. The reasons of the judg- 
 ment are not mentioned in the report ; but it appears to have been 
 decided on the ground that the plaintiff, being executor of D., 
 who was executrix of C. the lessee, was, as such, entitled to the 
 benefit of his covenant (b). 
 
 Covenant by the plamtiff as executor of J. S. The defendant 
 sold lands to J. S., and covenanted with him, his heirs and 
 assigns, that he should enjoy the lands against all persons claiming 
 under one A. ; and the breach assigned was, that B. and C. in the 
 lifetime of the testator, entered claiming under A. It was con- 
 tended that the covenant was with J. S., his heirs and assigns, 
 touching an estate of inheritance ; and, therefore, that the action 
 ought to have been brought by the heir or assignee, and not by 
 the executor ; but it was resolved by the court, that the eviction 
 being of the testator in his lifetime, he could not then have an 
 
 (y) LougJur v. Williams, 2 Lev. 92. p. 435. 
 
 {z)nmtm Y. Campion, Salk. 141. (a) King y. Jones, 5 Taunt. 418; [in 
 
 This IS not, however, the true criterion error), 4 M. & S. 188. 
 of damage in such a case as this, ante, {b) ' Chapman v. Dalton, Plowd. 284. 
 
COVENANT. 439 
 
 heir or assignee. of the land, and therefore that the damages belonged 
 to the executor, though not named in the covenant ; for he repre- 
 sented the person of the testator (c). But where the plaintiff as 
 executrix declared that the defendant conveyed to her testator cer- 
 tain land in fee (subject to redemption), and covenanted with the 
 testator, his heirs and assigns, that he was seised in fee, and had 
 good right to convey, assigning for breach that the defendant was 
 not seised, &c. ; it was held, that the executrix could not maintain 
 this action without showing some special damage to the testator in 
 his lifetime, or that the plaintiff claimed some interest in the pre- 
 mises (d). The plaintiff, being devisee in fee, sued afterwards in 
 that character, stating as damage, that the premises were thereby 
 of much less value than they wou^d have been, and that she had 
 been prevented from selling them at so large a price as she other- 
 wise would ; and it was held, that the action was maintainable (e). 
 The cases of Kingdon v. Nottle, and King v. Jones, have decided, 
 that where there are covenants real, that is, which run with the 
 land and descend to the heir, though there may bave been a formal 
 breach in the ancestor's lifetime, yet if the substantial damage has 
 taken place since his death, the real representative and not the 
 personal is the proper plaintiff. But where the covenant is merely 
 collateral, as where the lessee covenanted not to fell timber trees, 
 excepted out of the demise, the executor of the lessor may main- 
 tain an action for a breach in the lifetime of the testator (/). And 
 where the covenant is a continuing one, as, for instance, to repair 
 (the breach of which of itself imports damage), the executor may, 
 it seems, sue for the damage accruing in his testator's lifetime (g) ; 
 and the heir for the subsequent damage Qi). 
 
 Lessee for years demised for a term longer than his own, the 
 under-lessee covenanting to pay rent to the lessee ; it was held, 
 that the executor of the lessee might sue the under-lessee for rent 
 accruing during the continuance of the term, not as assignee of the 
 reversion, but on the privity of contract ; for the deed operated as 
 a demise, and the covenant was for a payment in the nature of 
 rent (i). Executors, though not named, may sue on a covenant 
 made with testator, in reference to a chattel [h). 
 
 3. By Assignee. — Assignee of part of the reversion of the land 
 demised, e. g. for life or years, may take advantage of the cove- 
 nants contained in an indenture of demise ; for he is an assignee 
 within the 32 Hen. VIII. c. 34 (I). But. the grantee of the whole 
 estate in reversion, in pai-t of the thing demised, is not within the 
 
 (c) iMcy v. Zevington, 2 Lev. ^6. 718. • _ „„ ,„ 
 
 (d) Kingdon Y. Nottle, 1 M. & S. 3.55. (h) Vimanv. Campion, Balk. 141. 
 
 (e) Ibid. 4 M. & S. 53. (i) -Safer v. Gostling, 1 B. S. C. 19. 
 /) Raymond v. Fiidi, 2 C. M. & R. (Tc) Doe v. Rogers, 2 N. & M. 550 ■ 
 
 gg^g'; ' " (I) I Inst. 215 a. ; Matures v. Wcst- 
 
 (g) Richctls r. Weaver, 12 M. & W. wood, Cro. Eliz. 599. 
 
440 COVENANT. 
 
 meaning of the statute ; as if the reversioner in fee of four acres 
 grants two acres in fee, the grantee cannot enter, because condi- 
 tions cannot be apportioned by act of the party (m). But 
 covenants may (n), and covenant will lie by the assignee of the 
 reversion of part of the demised premises against the lessee for 
 not repairing such part (o). 
 
 As the assignee of a term is bound by covenants which run with 
 the land, so he may take advantage of them (p). If a man demise 
 or grant land to a woman for years, and covenant with her to 
 repair the houses during the term, and the woman marries and 
 dies, the husband shall have an action of covenant as well on the 
 covenant in law upon the words " demise or grant," as upon the 
 express covenant (g). The law is the same with respect to tenants 
 by statute merchant, or statute staple or elegit, of a term, and he 
 to whom a lease for years is sold by force of any execution shall 
 have an action of covenant in such case as a thing annexed to the 
 land, although they come to the term by act of law (r). So the 
 executor of B., the executor of A., is entitled to the benefit of 
 a covenant made with A. and his assigns, for he is the assignee in 
 law of A. (s). The word assignee comprehends the assignee of the 
 assignee, the executors of the assignee of the assignee, and the 
 assignee of the executor or administrator of the assignee (t). But 
 covenant does not lie by an assignee for a breach done before his 
 time {u). A mortgagee died possessed of the residue of a mort- 
 gage term, subject to the usual proviso of its being determined on 
 payment of the money on a given day ; the money was not paid at 
 the day, and afterwards the mortgagee died, having bequeathed 
 the money to the plaintiff by will, and appointed him his execu- 
 tor : it was held, that the plaintiff could not sue in covenant as 
 assignee of the term, because this was a personal covenant, col- 
 lateral, and not running with the land, and because it was broken 
 in the lifetime of the testator (x). 
 
 32 Hen. VIII. c. 34. — By the common law no grantee or as- 
 signee of the reversion could take advantage of a re-entry by force 
 of any condition {y). And " no stranger to any covenant could 
 take advantage thereof, but only such persons as were parties or 
 privies thereunio" {z); but the 32 Hen. VIII. c. 34 (a), enacts :— 
 That all persons and bodies politic, their heirs, successors, and as- 
 sign,s, having any gift or grant of the king, of any lands or other 
 
 (m) Lee V. Arnold, 4 Leon. 27. (r) Spencer's case, 5 Rep. 17, 5tli Eos. 
 
 (n) Twynam y. Pickard, 2 B. & Aid. (s) Chapman v. Dalton, ante, p. 438. 
 
 105. (t) Spencer's case, 7th Ees. 
 
 (o) Ibid. Ace. BadeUy v. Tigurs, 4 E. (m) Lewes v. Eidge, Cro. Eliz. 8t)3. 
 
 & B. 71. (x) Oanham v. Jhist, 2 Moore, 16-1-. 
 
 (p) Eyde v. Dean of Windsor, Cro. {y) l Inst. 21.'i, a. 
 
 Eliz- 553. (z) See the preamble, and 1 Wms. 
 
 (q) The word grant doe.s not now imply Saund. 240, n. 3. 
 
 a covenant in law, 8 & 9 Vict. c. 106, s. i, (a) The statute does not extend to co- 
 
 ante, " Of Implied, Covenants. " venants upon estates tail. 1 lust. 215, a. 
 
COVENANT. 441 
 
 hereditaments, or of any reversion of the same, which belonged to 
 any of the monasteries, &c., and all other persons being grantees or 
 assignees to or by the king,, or to or by any other person than the 
 king, their heirs, executors, successors, and assigns, shall have like 
 advantages against the lessees, their executors, administrators, and 
 assigns, by entry for non-payment of the rent, or for doing waste 
 or other forfeiture, and, by action only, for not performing other 
 conditions, covenants, or agreements contained in the leases or 
 grants, against the said lessees and grantees, their executors, 
 administrators, and assigns, as the said lessors and grantors them- 
 selves, their heirs or successors, might have had. By sect. 2, all 
 lessees and grantees of land or other hereditaments, for terms of 
 years, life or lives, their executors, ^ministrators, or assigns, shall 
 have like action and remedy against all persons and bodies politic, 
 their heirs, successors, and assigns, having any gift or grant of the 
 king, or of any other person, of the reversion of the sa.me lands 
 and hereditaments so letten, or any parcel thereof, for any condition 
 or covenant contained in their leases, as the same lessees might 
 have had against the said lessors and grantors, their heirs and 
 successors. 
 
 This statute applies to leases by deed only, and where a lease is 
 not under seal, the assignee of the reversion cannot maintain 
 assumpsit against lessee for breach of his contract with the 
 assignor to repair (&). 
 
 The first section of the above statute gives to the assignee of the 
 reversion two remedies : one, by entry for non-payment of rent, 
 doing waste, or other forfeiture ; and the other, by action, for not 
 performing other conditions, &c. ; and as the remedy by entry, ac- 
 cording to the construction, 1 Inst. 215, b, is confined to forfeitures 
 by force of such conditions only, as are either incident to the rever- 
 sion (e. g. the payment of rent), or for the benefit of the estate (e. g. 
 to repair) ; so it hath been resolved, that the remedy by action is 
 confined to the breaches of such covenants as relate to the thing 
 demised, and not to collateral covenants (c). And on this ground, 
 where the mortgagor and mortgagee of a term made an under-lease, 
 in which the covenants for the rent and repairs were with the mort- 
 gagor and his assigns only ; it was held, that the assignee of the 
 mortgagee could not maintain an action for the breach of these 
 covenants ; because they were not covenants running with the land, 
 but collateral covenants, being entered into with the mortgagor, 
 who has only an equity of redemption, and is (in law) a stranger 
 to the land {d). 
 
 If the estate in reversion, in respect of which the condition or 
 covenant was made, be extinguished, the condition or covenant is 
 
 (5) Standen v. Christmas, 9 Q. B. 135. see Wootton v. Steffenoni, 12M.&'W. 129; 
 
 (c) Spencer's case, 5 Rep. 18, a. Doe v. Ongley, 10 C. B. 25. 
 
 (d) Webb V. RtKSell, 3 T. E. 393; and 
 
443 COVENANT. 
 
 also extinguished : as where a lease was made for 100 years, and 
 the lessee made an under-lease for twenty years, rendering rent, 
 with a clause of re-entry ; and afterwards the original lessor 
 granted the reversion in fee, and th« grantee purchased the rever- 
 sion of the term ; it was held, that the grantee should not have 
 either the rent, or the power of re-entry ; for the reversion of the 
 term, to which they were incident, was extinguished in the rever- 
 sion in fee (e). But now by 8 & 9 Vict. c. 106, where the rever- 
 sion of any land expectant on a lease shall be surrendered or merge, 
 the estate, which shall confer as against the tenant under the lease 
 the next vested right to the land, " shall, to the extent and for the 
 purpose of preserving such incidents to, and obligations on, the 
 same reversion, as but for the surrender or merger thereof would 
 have subsisted, be deemed the reversion expectant on the same 
 lease" (/). 
 
 Tenants in common of a reversion may maintain covenant 
 against the assignee of the term for the recovery of arrears of rent, 
 although it should appear that at time of action brought the re- 
 version was out of the plaintiffs, they having granted it over after 
 the rent became due (g). A grantee of the reversion of copyhold 
 lands is within the equity of the statute, 32 Hen. VIII. c. 34, 
 which is a remedial law Qi). And the grantee of land, subject to 
 a term in an incorporeal hereditament therein, e.g. the right to 
 dig for and take minerals, &c., is also within the statute, for in 
 reality the relationship of reversioner and owner of a particular 
 estate exists between them (i). A remainderman is an assignee of 
 the reversion within the statute. Devise to A. for life, remainder 
 to B. for life, &c., with power to lease. A. leases for a term under 
 the power, and the lessee covenants with the lessor, his heirs and 
 assigns, for payment of the rent to the lessor, and to such other 
 person as should be entitled to the freehold, &c. A. dies pending 
 the term, and after the death of A., rent becoming in arrear, B. 
 brings covenant. Held, that it would lie; for B. is, within the 
 meaning of the statute, an assignee of the reversion of that estate 
 out of which the lease is granted (^). And this is so, even 
 although the person leasing under the power, e.g. the tenant 
 for life, have an equitable estate only (l). But where J. B., being 
 seised in fee, conveyed to defendant and T. J., their heirs and 
 assigns, to the use that J. B., his heirs and assigns, might take to 
 his use a rent certain to be issuing out of the premises, and subject 
 
 (e) Moore, 94, pi. 232, cited 3 T. E. 219. 
 402, 403 ; see Thorn v. WooUcombe, 3 B. (A) Glover v. Cope, 3 Lev. 326 ; Garth. 
 
 * ^f; il^- ^ <L o -tr- . ^„ , . , 2''^- S«s Whitfon V. Peacock, 3 Myl. 
 
 (/) The 7 & 8 Yict. c. 76, which was & K. 325. 
 
 in force from 31st December, 1844, to 1st (i) Martyn v. Williams 1 H & F. 
 
 October, 1845, contained a similar pro- 817. 
 
 "Vision. Sect. 12. (i) hhcrwood v. OUlcnow, 3 M. & S. 
 
 (g) Midgley t. povelace. Garth. 289. 382. 
 See WoTMrsUy v. Dally, 26 L. J., Exch. [i) Greenaway v. Bart, 14 C. B. 340. 
 
COVENANT. 443 
 
 to the said rent, to the use of defendant, his heirs and assigns : 
 and the defendant covenanted with J. B., his heirs and assigns, to 
 pay to him, his heirs and assigns, the said rent, and to build one 
 or more messuages on the premises, for better securing the rent : 
 and J. B. demised the said rent to plaintiffs ; it was held, that 
 covenant would not lie at the suit of the plaintiffs for non-payment 
 of the rent, or for not building the messuages, for here was neither 
 privity of contract, nor privity of estate ; the rent was reserved 
 out of the original estate ; the covenant was a covenant in 
 gross (m). 
 
 Lessee for years assigns over his term by indenture to J.,S., and 
 covenants with J. S. and his assigns for quiet enjoyment ; after 
 which J. S. assigns over the term by^arol, and the assignee being 
 disturbed brought an action of covenant; and adjudged, that it 
 well lies; although the assignment was not by writing, because 
 the assignee was privy in estate (m). But by 29 Car. II. c. 3, s. 3, 
 leases, estates, or interests, either of freeholds, terms of years, or 
 any uncertain interest, cannot be assigned, unless by deed or note 
 in writing, signed by the assignor or his agent, or by operation of 
 law ; and now by 8 & 9 Vict. c. 106, a lease of any tenements 
 required by law to be in writing, and an assignment of a chattel 
 interest, shall be void, unless made by deed. 
 
 A person to whom an apprentice is assigned, according to the 
 custom of the city of London, cannot maintain covenant on the 
 indenture of apprenticeship to which he is not a party ; because 
 custom cannot make an assignee, so as to entitle him to an 
 action (o). 
 
 As an assignee of a lessee is charged in covenant for repairs, 
 though assignees are not named, in respect of his having the pos- 
 session ; so an assignee of the reversion has an action of covenant 
 for default of repairs in respect of his having the reversion, though 
 assignees are not named in the covenant (_p). 
 
 Tenants in common Tnay join in covenant for repairs (g), but no 
 case has decided that they must join (r). Hence an assignee of 
 part only of the interest of the original lessee may sue upon a 
 covenant to procure a renewal of letters patent, without joining 
 the assignee of the remaining part ; for they are tenants in c(jm- 
 mon, having separate and distinct interests in the term, and the 
 damages are, in their nature, severable, and may be apportioned 
 by the jury according to the value of the share of each (s). 
 
 ())i) Milnes v. Branch, 5 M. & S. 411. - (r) Per Tindal, C. J., in Simpson v. 
 
 (n) Awder v. Nokes, Cro. Eliz. 436. Olaijton, i B. N. C. 781 ; but see Wal- 
 
 (o) Barker Y. Beardwell, 1 Show. 4. lace v. McLaren, 1 M. & Ey. 518, n., 
 
 (p) Per cur. in Eitclien v. Buckhj, 1 and ante, p. 419. 
 
 Lev. 109 ; T. Eaym. 80. ' (s) Simpson v. Clayton, 4 B. N. G. 780. 
 (q) Kitchen v. Buckly, 1 Lev. 109. 
 
Ui COVENANT. 
 
 VI. Against whom the Action of Covenant may be maintained. 
 
 1. Against Heir. — An action of covenant will lie against the 
 heir on a covenant by his ancestor for himself and his heirs (t). It 
 is not necessary to allege in the declaration, that the heir has 
 lands by descent ; but if the heir has not any lands by descent, he 
 may insist on it by way of defence to the action (u). 
 
 In an action on a breach of covenant in a lease for qniet enjoy- 
 ment, the declaration, after stating that the defendant's ancestors 
 granted the lease in question, alleged, that the reversion vested in 
 the defendant by assignment; the defendant pleaded, that the 
 reversion did not vest in him m.odo et formd ; it appeared in evi- 
 dence that the estate descended to the defendant as heir at law to 
 the lessors ; whereupon it was objected, that the reversion vested 
 in the defendant by descent, and not by assignment. But the 
 court was of opinion, that it was sufficient to prove the substance 
 of the issue, which was, that the defendant was clothed with such a 
 character as would make him liable on the covenant : and that was 
 sufficiently proved by showing that the estate was vested in him ; 
 for whether he was in possession as assignee or heir at law, he was 
 equally liable on this covenant (x). 
 
 2. Against Executor. — Executors and administrators are bound 
 by the covenants of their testator or intestate, although they be 
 not named ; unless the covenants are such as in their nature 
 determine by the death of the covenantor. It was said by the 
 court in Hyde v. Bean of Windsor, Cro. Eliz. 553, that covenant 
 lies against an executor in every case, although he be not named, 
 unless it be such a covenant as is to be performed by the person of 
 the testator, which the executor cannot perform. But a covenant 
 by a testator to teach an apprentice his trade is binding on the 
 executors, and they ought to see that the apprentice is taught his 
 trade : if they are not of the same trade, they ought to assign him 
 to another who is, so that he may be taught according to the 
 covenant (y). 
 
 Executors and administrators may be sued as assignees {z) ; for 
 they are assignees in law of the interest of the term (a) ; but an 
 executor in such a case " may by proper pleading discharge him- 
 self from personal liability, by alleging that he is no otherwise 
 assignee than by being executor, and that he has never entered or 
 taken possession of the demised premises ; and, as is well known, 
 from all liability as executor, by alleging that the term is of no 
 
 {t) Dyle V. Sweeting, Willes, 585. (y) Walker v. Hull, 1 Lev. 177. 
 
 («) See a form of plea, Lutw. 290. (z) Tilney v. Norris, Cartli. 519. 
 
 («) Dcrisley v. Custance, i T. E. 75. (a) Per Fleming, C. J., 1 Bulstr. 28, 
 
COVENANT. 445 
 
 value, and that he has fully administered, &c." (6). Where cove- 
 nant is brought against an executor, although the breach assigned 
 be for default of reparation committed in the time of the executor, 
 yet the judgment must be de bonis testatoris ; for it is the cove- 
 nant of the testator which binds the executor as representing him, 
 and, therefore, he must be sued by that name (c). Where, how- 
 ever, an administrator had entered and occupied premises demised 
 by indenture to the intestate, it was held, that a plea to an action 
 of covenant for non-payment of rent, taxes and non-repair, stating 
 that the premises yielded no profit, could not be supported (d) ; 
 and in such a case the judgment would be de bonis propriis (e). 
 The general rule is, that the executor of a lessee who enters is 
 liable as assignee, except that, witl||^ respect to rent, his liability 
 does not exceed what the property yields. No such exception 
 applies to the covenant for repairs (/). By a lease, some print 
 works, and certain articles, matters, and things on the premises, 
 were demised with power to the tenant to replace any of the 
 articles, &c. when worn out, and make any improvements in the 
 works ; and it was covenanted that at the end of the term a 
 valuation of the articles and improvements should be made, and 
 if they exceeded a certain sum, the landlord, his heirs, executors, 
 administrators, and assigns, should pay the tenant the difference. 
 The landlord died during the term, and appointed the defendant 
 his executor, and devised to him the reversion in the premises and 
 articles demised. It was held, in an action by the tenant against 
 the executor of the landlord to recover the excess, that as this was 
 a covenant relating to chattels it did not run with the reversion, 
 and that the executor was only liable on it in his representative 
 character; and that, as it appeared on the record that he was 
 executor, the judgment should be, that the plaintiff do recover the 
 debt and costs de bonis testatoris, if the defendant have so much, 
 and if not, then, as to the costs, de bonis propriis (g). 
 
 3. Against Assignee. — 1. If the covenant extends to a thing in 
 esse, parcel of the demise, as a covenant, to repair (h), to reside 
 constantly on the demised premises (i), to leave part of the land 
 demised every year for pasture (Jc), to insure premises situated 
 within the limits mentioned in the 14 Geo. III. c. 78, by which the 
 landlord is enabled to have the sum insured laid out in rebuilding 
 the premises {l), to supply the premises demised with a sufficient 
 
 (J) WoUaston v. Eakewill, 3 M. & G. See Homidge v. Wilson, 11 A. & E. 645. 
 
 297, per Tindal, C. J. ig) Gorton v. Gregory, 3 B. & S. 90 ; 
 
 (c) Collins V. Throughgood, Hob. 188. 31 L.' J., Q. B.'302 (m error). 
 
 (d) Tremeerev.Mori^on, IB. 'N. C. 89. (h) Dean of Windsor'' s case, 5 Eep. 
 
 (e) Wollaston v. Hakewill, 3 M. & G. 24, a. 
 
 297. {i) Tatem v. Chaplin, 2 H. Bl. 133. 
 
 (/) Per Bosamquet, J., Tremeere v. t.k) Coclcson v. Cock, Cro. Jac. 125. 
 
 M orison, supra; i M, & So. 615, S. 0. (I) Vernon v. Smith, 5 B. & AM. 1. 
 
446 COVENANT. 
 
 quantity of good water at a certain rate per house (m), or the Hke, 
 the thing to be done by force of the covenant is in a manner 
 annexed and appurtenant to the thing demised: it is a parcel of 
 the contract, and tends to the support of the thing demised : hence 
 it shall bind the assignee, although he he not named ; and the as- 
 signee by act in law, as tenant by elegit of a term, or he to whom 
 a lease for years is sold by force of any execution, is equally bound 
 with the assignee by act of the party [n). Where it is proved that 
 A. is tenant, and that upon his quitting the premises B. takes pos- 
 session, B. may, in the absence of evidence to the contrary, be 
 presumed to have come in as assignee of A. (o). 
 
 2. If the covenant relates to a thing not in esse at the time of 
 the demise, but to be done upon the thing demised, as a covenant 
 to build a new wall upon the thing demised ; it shall bind the as- 
 signee, if named (p). — Thus where a lease contained a demise of 
 all mines and minerals then opened or discovered, or which might 
 during the term be opened or discovered, under certain lands, 
 and also all smelting mills then standing upon the lands, with full 
 liberty to sink shafts there, and to build thereon any mills or other 
 buildings requisite for working the mines ; and the lessor afterwards 
 granted his reversion to A., who by will devised the same to the 
 plaintiffs ; it was held, that the covenant to build the new smelting 
 mill (which was implied from the language of the deed) tended to 
 the support and maintenance of the thing demised, and that the 
 assignee of the reversion might therefore sue upon it (q). Bv,t a 
 covenant to repair the demised premises, and all other buildings 
 which might thereafter be erected during the term, i.e., substan- 
 tially, a conditional covenant to repair them if erected, runs with 
 the land and binds the assignee, although he be not named (r). 
 
 3. If the covenant relates to a thing merely collateral to and not 
 in any respect concerning the thing demised, as a covenant to 
 build a house on the land of the lessor which is not parcel of the 
 demise ; or to pay any collateral sum to the lessor, or to a 
 stranger; the assignee, though named, is not bound by such 
 covenant; because the thing covenanted to be done is merely 
 collateral, and not in any respect touching or concerning the thing 
 demised (s). In order to bind the assignee, even though named, 
 it is essentially necessary, that the thing covenanted to be done, or 
 not to be done, should directly affect the nature, quality or value 
 of the thing demised, or the mode of occupying it. Hence, where 
 
 266. 
 
 (m) Jaurdain v. Wilson, 4 B. & Aid. and notes to Spencer's case, 1 Smitk 
 6. L. C. 
 
 («) eth Ee.?. Spencer's case, 5 Eep. (q) Sampson v. Easkrhy, 9 B. & C. 
 
 17, t. „ ,, „ „ 505 ; (m error) 6 Bingh. 644, S. C. 
 
 io) Doe T. Murless, 6 M. & S. 110 ; (r) Minshull v. Oakes, 27 L. J., Excli. 
 
 Doe T. WUliams, 6 B. & C. 42. 194. 
 
 (p) Spencer's case, 2nd Ees.; 'but see (s) Spencer's case; and see Maylw v. 
 
 Minshull r. Oakes, 27 L. J., Ex. 194, Buckhurst, Cro. Jac. 438. 
 
COVENANT. 447 
 
 in a lease of land, with liability to make a water-course, and erect 
 a mill, the lessee covenanted for himself and his assigns not to hire 
 persons to work in the mill who were settled in other parishes, 
 without a certificate of their settlement ; it was held, that this 
 covenant was not binding on the assignee of the term : because 
 the state of the thing demised would be the same at the end of the 
 term, whether the parish were more or less burdened with poor ; 
 and although the value of the reversion would not be so great if 
 the poor's rate were increased, yet that burden would be increased 
 by a collateral circumstance : and, the work to be done being the 
 same, whether it were done by workmen from one parish or 
 another, could not affect the mode of occupation (f). 
 
 4. If a covenant relates to personal goods, as on a demise of 
 sheep for a certain time, if the lessee covenants for himself and 
 his assigns to re-deliver the sheep at the end of the time, and the 
 lessee assign the sheep over, this covenant will not bind the as- 
 ■signee, though named, because there is not any privity (u). " The 
 covenant in this case is not collateral, but the parties, that is, the 
 lessor and assignee, are total strangers to each other, without any 
 line or thread to unite and tie them together, and to constitute 
 that privity which must subsist between debtor and creditor to 
 support an action." Per Wilviot, C. J. {x). In the case of realty 
 there subsists a privity between the lessor, and the lessee and his 
 assigns, in respect of the reversion ; but in the case of a lease of 
 personal goods, there is not any reversion,- but merely a chose in 
 action in the personalty, which cannot bind any but the covenantor, 
 or his personal representative. " To carry the lien of a personal 
 obligation over to an assignee, and to make him the object of an 
 action at the suit of a person with whom he did not originally 
 contract, he 'must in all cases be named, and there must also be 
 a privity between the assignee and the person to whom he becomes 
 engaged ; and the covenant must respect the thing leased. The 
 chose in action, which of itself is not assignable, loses that property 
 under those circumstances, and in a waiting dependent state follows 
 its principal ; and assignees of leases become liable to assignees of 
 reversions, and vice versa." Per Wihnot, C. J. {y). 
 
 A lessee of tithes covenanted for himself and his assigns not to 
 let any of the farmers occupying the estate out of which the tithes 
 arose have any part of the tithes without the consent of the lessor ; 
 the lessee assigned to the defendant, who suffered several of the 
 farmers to retain part of the tithes without the lessor's consent ; it 
 was contended, that an action would not lie against the defendant, 
 inasmuch as the covenant was merely personal and collateral, 
 
 (t) Mayor of CongUton Y. Pattison, 10 {x) In Bally v. Wells, Wilmot, 345. 
 
 East, 130. (j/) Hid. 
 
 (u) Spencer's case, Srd Ees. 
 
448 COVENANT. 
 
 binding the lessee only ; that tithes were incorporeal, lying in 
 grant, and would not, therefore, endure such an annexation of 
 covenant to them. But the court were of opinion, that there was 
 not any difference between land and tithes as to the annexation of 
 covenants ; that this covenant was not a mere collateral covenant, 
 but related to the thing demised, materially and essentially tending 
 to preserve it, and as such obligatory on the assignee being named, 
 and there being a privity in respect of the reversioner, the lessor (3). 
 Covenant by lessee against the assignees of lessor. The lessee 
 covenanted to leave all the trees he should plant during the term. 
 The lessor covenanted for himself, his executors and administrators, 
 to pay for the trees at a fair valuation, by two persons to be named 
 by each party, or their respective executors. The term expired. 
 The defendants, assignees of lessor, refused to name an arbitrator, 
 which was the breach assigned. On demurrer, it was held, that 
 the covenant to refer to arbitration did not run with the land ; and 
 therefore the assignees were not bound by it, on the authority of 
 Spencers case (a). So where a term is granted as a security for 
 money lent on mortgage, the covenant in the mortgage deed to pay 
 the money on a given day is a personal and collateral covenant not 
 running with the land (6). 
 
 Where lands are conveyed by A. to B. in fee, to the use of such 
 person as C. shall appoint, and C. covenants for himself and his 
 assigns to pay to A. a fee farm rent for the lands, and afterwards 
 C, in pursuance of his power, makes an appointment to D. ; D. 
 the appointee cannot be sued on the covenant as the assignee of 
 C. ; for the appointee has not the estate of C, but is in by the 
 original conveyance from A. (c). A covenant which runs with the 
 land, e. g. a covenant to repair, is divisible ; and will bind the 
 assignee of parcel of the estate demised, quoaA the repairs of such 
 parcel (d). So where covenant was brought by the lessor against 
 the assignee of the lessee for the non-pajrment of a year's rent ; for 
 the condition of the assignee is different from that of the lessee, 
 who is chargeable on the privity of contract, whereas the assignee 
 is chargeable on the privity of the estate, and in respect of the 
 land ; hence the rent is apportionable ; on the same principle as 
 the rent of the lessee or assignee would be in an action of debt 
 or replevin (e). 
 
 Where the lessee of a public-house covenanted for himself, his 
 executors, and assigns, with his lessors (brewers), to take all his 
 beer of them or their successors in their said trade; and the 
 lessors sold their trade and the public-house, with other premises, 
 to third persons, who removed the plant, &c., to a distance of two 
 miles, and there carried on. the business of brewers, it was held 
 
 (-;) Sally v. Wells, 3 "Wils. 25. (c) Roach v. Wadham, 6 East, 289. 
 
 (a) Gny v. Cutkbertson, i Doug. 351 {d) CmigJiam v. King, Cro. Oar. 221. 
 
 (J) Canliam v. Rust, 2 Mooro, 161. (e) Stevenson v. Lombard, 2 East, 675. 
 
COVENANT. 449 
 
 ■that the trade of the 'lessors was thereby determined ; and that 
 their assignee could not take advantage of the covenant, on the 
 assignee of the lessee purchasing beer from another brewer (/). 
 
 An assignee of a term is not answerable for the breach of such 
 covenants as were broken by the lessee before he became assignee, 
 as where lessee covenanted to rebuild within such a time, and 
 failed to do so, and then, after the expiration of the time, assigned(gr). 
 Neither is he answerable for such breaches of covenant as are 
 committed after he has assigned over the thing demised (h) ; for if 
 an action be brought against him charging him with such breaches, 
 he may plead, that before the breach was incurred, he assigned all 
 his estate and interest in the thing^demised to J. S. (i), and this 
 will be a good discharge ; and it is not necessary to show that the 
 lessor had notice of such assignment (k). An assignee cannot, by 
 assigning before action brought, defeat an action for breaches of 
 covenant running with the land, and incurred in his time, the right 
 of action being complete, and vested before the assignment (Z). So 
 an action lies against an assignee for breaches committed in his 
 time, although the lease has been determined by the re-entry of the 
 lessor under a condition to that effect, and that thereupon the 
 lessor should have the pi-emises again "as if the indenture had 
 never been made " (m). And if the lessor site the original lessee 
 on the privity of contract for breaches committed in the time of 
 the assignee, the lessee may maintain an action founded in tort 
 against the assignee, for having neglected to perform the cove- 
 nants during the time he continued assignee, whereby the lessee 
 
 (/) 2)oe V. Eeid, 10 B. & C. 849. the burthen, and giving up really the 
 {g) Grescoty. (?reen,Salk. 199; Church- heuefit also (if any) to his assignee, it is 
 wardens of St. Saviour's v. Smith, 3 Burr. not a fraudulent act. His motive for 
 1271 • 1 Bl. R. 351, S. C. parting with it, or the other's motive for 
 Ih)' Chancellor r. Poole, Dong. 764. receiving it, are not enough to make it 
 (i) An assignment to a beggar or a fraudulent, if the act done be a re^l act, 
 person leaving the kingdom, provided intended really to operate as it appears 
 the assignment be executed before his to do. Per Alderson, B., in Fogg v. 
 departure, is good, nor will such assign- BoUe, 3 Y. & C. 103. See also the re- 
 ment be considered as fraudulent, al- marks of Lord Cottenham, C, on the 
 though the assignee never takes posses- right of an assignee to relieve himself 
 sion Taylor v Shum, 1 B. & P. 21. from the obligations of a lease, in iJmcfeT/ 
 See also Lekewx v. Nash, Str. 1221, and v. Adams, 4 M. & Cr. 534. An assign- 
 Odell v. Wake, 3 Campb. 394. A frau- ment to a feme covert, where husband 
 dulent assignment is as no assignment at has not refused his consent, is sufficient ; 
 all • in that case, both at law and in for a feme covert is of capacity to pur- 
 equity the act is altogether void ; but chase of others without the consent of 
 it is a mistake to call an assignment to her husband ; and though he may dis- 
 a beggar a fraudulent assignment. If a agree and divest the estate, yet, if he 
 -nartv assign nominally only, retaining neither agree nor disagree, the purchase 
 the beneficial possession all the time, it is good. Barnfather v. Jordan, Doug, 
 is fraudulent, because, whilst he assumes 451. „ „ „, 
 to do one thing, he really does another ; (Ic) PitcUr v. Tovcy, Salk 81. 
 he retains the benefit, and by a false act (I) liarleyv. Ki7tg,J C. M. & K^ 1 8 
 endeavours to get rid of the burthen. (m) ffartslwrnev. Watson, 4 B. JN. t. 
 But if he assigns really, getting rid of 178. 
 
450 COVENANT. 
 
 sustained damage (n), upon the ground thsd,, during the continu- , 
 ance of the interest of the assignee, there is a duty on his part to 
 pay the rent and perform the covenants (o). Where an assignee 
 takes an assignment of leasehold premises, subject to the payment 
 of the'rent and the performance of the covenants contained in the 
 lease, he is not liable in covenant for the rent which the lessee 
 has Ijeen compelled to pay after he (the assignee) has assigned 
 over {p). 
 
 From the above cases it may be collected, that an assignee, in 
 order to exonerate himself from his liability under the covenants 
 in a lease, must convey all his estate and interest in the thing 
 demised. If the conveyance falls short of this; it will not amotxnt 
 to an assignment, so as to discharge the assignee from his lia- 
 bility (q). 
 
 It is not necessary that the assignee should have entered. 
 Hence a mortgagee of a lease by assignment is liable on the cove- 
 nant for rent, though he has never in fact occupied (r). The 
 assignees of a bankrupt lessee, however, are not liable for rent 
 arrear where they have not taken possession of the thing de- 
 mised (s), nor done some act to manifest their assent to the assign- 
 ment as it regards the term, and their acceptance of the estate, 
 rents, &c. (t) ; for they are not bound to take possession of a 
 damnosa hcereditas, that is, property of the bankrupt, which, so 
 far from being valuable, would be a charge to the creditors. The 
 assignees may take to the bankrupt's property or not, according as 
 it is or is not beneficial to the creditors ; and conseqtiently they 
 may do such previous acts as are necessary to ascertain whether 
 the property be beneficial or not, before they take to it(u). 
 Hence, where defendants, assignees of a bankrupt lessee, adver- 
 tised the lease for sale by auction, in which advertisement they 
 did not state that the premises belonged to them, nor for or by 
 whom they were to be sold, but only generally that there was a 
 saleable term, and no bidder offering, they declined interfering 
 any further with the property ; and it did not appear that 
 they had ever taken possession, either actually or by receiving or 
 paying any rent ; it was held, that there was not sufficient evi- 
 dence of any assent by them to accept the bankrupt's term, so as 
 
 (») Burnett v. Lynch, 5 B. & C. 589. {s) Bourdillon v. Dalton, Peake's N. 
 
 See Walker v. Bartlett, 18 C. B. 845 ; P. C. 238. 
 
 Eawoek t. Caffyn, 8 Bingh. 358. (t) Copeland v. Stevens, 1 B. & Aid. 
 
 (o) Wolveridge v. Steward, 1 C. & M. 593. 
 
 ,644. See Walker v. Hatton, 10 M. & W. (u) That the same rule applies to as- 
 
 249. , signees in trust for the beneiit of credi- 
 
 (p) Wolveridge v. Slewwrd, 1 C. & M. tors, see Carter v. Wame, 4 C. & P. 191 ; 
 
 644. cmUra, How v. Gough, 3 A. & E. 659. 
 
 (q) Walker v. Reeves, Doug. 461, n. That it applies.to the assignees of insol- 
 
 (r) Williams v. Bosanquet, 1 B. & B. vents, Lindsay v. Limherl, 2 C. & P- 
 
 238 ; Burton v. Barclay, 7 Bingh. 745. 526. 
 
COVENANT. 451 
 
 to render them responsible for the performance of the covenants 
 in his lease (x). 
 
 "The result of the various cases upon this subject is, that the 
 assignees of the bankrupt are not liable as assignees of the term, 
 unless they have done some act which unequivocally indicates to 
 the lessor that they have elected to take the benefit of the lease. 
 No general rule can be laid down as to the effect of remaining in 
 possession of the demised premises, or paying rent for them, or 
 doing any other act consistent with the supposition that the 
 assignees have not elected to take the lease as part of the property 
 of the bankrupt, for the benefit of the creditors. Each case must 
 be determined by the peculiar circumstances belonging to it." Per 
 Lord Camphell, G.3.(y). Where,* therefore, the assignees took 
 possession of an hotel, biJt only for the purpose of keeping the 
 bankrupt's furniture and goods which were upon the premises, and 
 closed the house ; paid, and submitted to a distress for, rent, but 
 protested that it was done to save the furniture and effects from 
 being sold ; kept the tap of the hotel open by a third party, but 
 for the purpose of preserving the licence ; and an action of eject- 
 ment having been brought against them, said they would resist it, 
 but the action had been commenced before the goods were re- 
 moved, so that all they might have meant was, perhaps, that the 
 ejectment would not succeed; it was held, that they were not 
 liable on the covenant in the lease (s). So where the assignees, 
 on an application to them by the plaintiff, positively refused to 
 accept the lease, although they had previously so far dealt with it, 
 as to release an under-tenant (a). But if they put up a lease to 
 sale, and accept a deposit from the purchaser, they are liable, 
 unless they show the contract rescinded (b). So where they inter- 
 fere in the management of a farm (c). 
 
 This question of election by the assignees has, however, in a 
 recent case been declared to be inapplicable to the present Bank^ 
 ruptcy Law. Vice-Chancellor Stuart, in this case (d), held, that 
 by ss. 141 and 142 of the Bankruptcy Act of 1849, a bankrupt is, 
 by force of his adjudication, divested of whatever leasehold or free- 
 hold property he may be possessed of, and that it becomes abso- 
 lutely vested in the assignees. But that they are not bound to 
 keep a damnosa hcereditas, and the 145th section gives them 
 
 (x) Turner v. Ricliardsov, 1 East, 335. assignees take possession with a view to 
 (y) Goodwin v. Nohle, 27 L. J., Q. a beneficial occupation, they are liable 
 
 B. 204. upon a tenancy from year to year, until 
 
 (a) Goodwin v. NohU. But see Han- it is terminated, the same as upon a 
 
 son T. Stephenson,\l B. & Aid. 303, where • lease. Ansell v. Robson, 2 C. & J. 610. 
 
 semile however that the assignees car- (d) Oartwright v. Glover, 2 Giff. 620. 
 
 ried on the bankrupt's trade. These sections do not seem to have been 
 
 (a) mils V. Dobie, 8 Taunt. 325. mentioned in Goodwin v. NobU. See 
 
 (6) Hastings v. Wilson, Holt, 290. Bishop v. Trustees of Bedford Charity, 
 
 {c) Thomas v. Pemberton, 7 Taunt .2 9 L. J., Q. B. 53. 
 
 206 ; Welch v. Myer, i Campb. 368. I f 
 
 G G 2 
 
452 COVENANT.- 
 
 power to renounce, but until they elect to renounce, the estate 
 ■ remains in them. Sed qucere. 
 
 As the assignee, to exonerate himself from liability, must con- 
 vey all his estate in the demised premises, so the whole interest in 
 the original lease must be conveyed, in order to make a person 
 chargeable as assignee, as will appear from the following cases : — 
 
 Lessee for lives of a messuage, under a covenant to keep and 
 deliver up in repair, conveyed all his estate and interest therein to 
 A. and his executors, to hold the same for ninety-nine years if the 
 cestui que vie should so long live, in as large, ample, and beneficial 
 way as the grantor, his heirs, &c., held the same, paying a certain 
 rent to the reversioner. On the expiration of the lives, the rever- 
 sioner brought covenant against the e^fecutors of A. for not yield- 
 ing up the messuage in repair. It was held that the action would 
 not lie ; Lord Kenyan, C. J., observing, that there were not any 
 words in the indenture, by which the freehold, of which the original 
 lessee was seised, was conveyed to the testator of the defendants : 
 that the conveyance of all the grantor's estate and interest to a 
 man and his executors, for years, could not convey a freehold ; that 
 such words meant only their interest, &c. in the legal estate thereby 
 granted ; and that the court could not give those words a larger 
 operation than the parties themselves had declared they should 
 have (e). So where in covenant for rent arrear, brought against 
 the defendant as assignee of J. S., it appeared in evidence, that by 
 the deed, under which the defendant held, the premises were con- 
 veyed to him by J. S. for a day or some days less than the original 
 term, the court were of opinion, that the action could not be 
 maintained, the defendant being an under-lessee, and not an 
 assignee of the whole term (/). The devisee of an equitable estate 
 is not liable as assignee (g). But where a lessee for years granted 
 the whole of the term to J. S. ; it was held that J. S. might main- 
 tain an action as assignee of the term against the lessor for a 
 breach of covenant ; although in the deed of assignment, the rent 
 was reserved to the lessee, with a power of re-entry in case of non- 
 payment, and although new covenants were introduced into that 
 deed Qi). 
 
 A. demised to B. for a term, B. covenanting for payment of rent, 
 and not to assign without the consent of A. The term vested by 
 assignment in C, who, upon being sued for non-payment of rent, 
 pleaded, that before the rent became due, he had assigned to D. 
 A. replied the covenant not to assign ; but the replication was 
 held bad, on the ground that the assignment itself was not void 
 
 (e) Earl of Derhj v. Taylor, 1 East, {g) The Mayor of- CarlisU v. Mam ire, 
 
 £02.. 8 East, 487. 
 
 (/) Holford V. Hatch, Doug. 183. {h) Palmier v. Edwards, Doug. 186, n. 
 
COVENANT. 453 
 
 (although a breach of covenant), and as soon as C. ceased to be 
 assignee, his obhgation to perform the covenant was at an end (i). 
 In declaring against an assignee, it is not incumbent on the 
 lessor to set forth mesne assignments; it is sufficient to state, 
 generally, that all the estate, &c., of the lessee vested in the de- 
 fendant by assignment ; for it cannot be presumed that the lessor 
 is acquainted with the particulars of the assignee's title (k). 
 
 4. Against Devisee.— By 11 Geo. IV. & 1 "Will. IV. c. 47, s. 8, in 
 the cases mentioned in that Act (see post, tit. " Debt ") creditors 
 may maintain debt or covenant {I), against the heirs and devisees, 
 or devisees of such devisees, jointly. And by the 4th section, if 
 there is not any heir-at-law, the cr^itor may bring debt or cove- 
 nant against the devisee solely (m). 
 
 VII. Of the Declaration. 
 Venue, p. 453. 
 
 As to the Statement of the Deed and its Provisions, p. 454. 
 Dependent Covenants and Conditions Precedent, p, 455. 
 Concurrent Covenants, p. 460. 
 Mutual and Independent Covenants, p. 461. 
 Preach, p. 466. 
 
 Venue. — The principle upon this subject is as follows. Where 
 the action is founded on privity of contract, it is transitory, and 
 the venue may be laid in any_ county ; but where the action is 
 founded upon privity of estate only, it is local, and the venue must 
 be laid in the county where the estate lies. Hence it is transitory 
 in actions of Lessor v. Lessee ; Lessee v. Lessor ; Assignee of Ee ver- 
 sion V. Lessee (n) ; Lessee v. Assignee of Keversion ; in the two 
 latter cases the privity of contract being transferred by the opera- 
 tion of the 32 Hen. VIII. c. 34. It is local in actions of Lessor v. 
 Assignee of Lessee (o) ; Assignee of Lessee v. Lessor ; Assignee of 
 Reversion v. Assignee of Lessee {p) ; Assignee of Lessee v. As- 
 signee of Reversion. If the locality does not appear on the 
 declaration, and no issue is raised on it, the defendant is not 
 entitled to a nonsuit, by reason of the venue being laid in a wrong 
 county (q). 
 
 The circumstance of rent being made payable in a different 
 county from that in which the lands lie, will not affect the locality 
 of an action of covenant for, non-payment of such rent (r). Where, 
 
 (i) Paul V. Nurse, 8 B. & C. 486. Hunting v. Sheldrake, 9 M. & W. 256. 
 
 (k) Pitt V. Russell, 3 Lev. 19. (n) Thursbij v. Plmt, 1 'Wms. Saund. 
 
 {I) Under the 3 & 4 "Will. & Mary, c. 237. 
 
 1 4, an action of debt only lay. Vfilson (o) Stevenson v. Lamlard, 2 East, 575. 
 
 V. Knubley, 7 East, 128. (p) Barker v. Bamer, Garth. 182. 
 
 (to) Under the 3 & 4 "Will. & Mary, c. (q) Boyes v. Bewetson, 2 B. N. C. 575. 
 
 14, a specialty creditor could not recover (r) Barker v. Bamcr, Salk. 80. 
 against a devisee if there was no heir. 
 
45d COVENANT. 
 
 however, the action is local, although it be- brought and tried in a 
 wrong county, yet the defect will be aided after verdict, by 16 & 
 17 Car. II. c. 8 (s). And by 3 & 4 Will. IV. c. 42, s. 22, reciting, 
 that unnecessary delay and expense is sometimes occasioned by 
 the trial of local actions in the county where the cause, of action 
 has arisen, it is enacted that " in any action depending in any of 
 the superior courts, the veniie in which is by law local, .the court 
 in which such action shall be depending, or any judge of any of 
 the said courts may, on the application -of either party, order the 
 issue to be tried, or writ of inquiry to be executed, in any other 
 county or place than that in which the venue is laid ; and for that 
 purpose any such court or judge may order a suggestion to be 
 entered on the record, that the trial may be more conveniently 
 had or writ of inquiry executed, in the county or place where the 
 same is ordered to take place." Such an application, however, 
 cannot be made till after issue joined (t). The Common Law Pro- 
 cedure Act, 1852, allows (sect. 41) "the joinder of different causes 
 of action in the same suit, provided they be by and against the 
 same parties and in the same rights, and where two or more of 
 the causes of action so joined are local and arise in different coun- 
 ties, the venue may be laid in either of such coimties," the court 
 or a judge having power in such a case to order separate trials if 
 expedient. 
 
 As to the statement of the Deed and its provisions. — It should 
 appear on the face of the declaration, that defendant covenanted 
 by deed ; such an omission being ground of error («) ; and if the 
 deed be lost, an allegation to that effect should be made, as, upon 
 the issue of non est factum, secondary evidence of the deed would 
 not, it seems, in default of such an allegation, be admissible {x). 
 Profert and oyer are no longer necessary, 1.5 & 16 Vict. c. 76, 
 s. 55; but it is provided by sect. 56, that "a party pleading in 
 , answer to any pleading in which any document is inentioned or 
 referred to, shall be at liberty to set out the whole or such part 
 thereof as may be material, and the matter so set out shall be 
 deemed and taken to be part of the pleading in which it is set out." 
 
 Every deed is supposed to be executed the same day that it 
 bears date. But though the deed appear on the face of it to have 
 been made, that is, written on one day, yet if in truth it were de- 
 livered on a subsequent day, that may be shown by averment {y). 
 A declaration stated that the deed was indented, made, and con- 
 is) Mayor of Londmi v. Cole, 7 T. E. In Eeiidy v. Siephenson, 10 East, 65, it 
 583. was held (on special demurrer) necessary 
 
 (t) Bell V. Samson, 2 C. M. & R. in pleading a lost deed, to state the siip- 
 733. posed date of, and names of the parties 
 
 (m) Moore v. Jones, Str. 814. See 15 to it. 
 & 16 Yict. 0. 76, Sched. B. Form 24. (y) Stone v. JBale, S Lev. 348 ; aec. 
 
 {x) Smith V. Woodward, 4 East, 685. Browne y. Burton, 6 D. & L. 289. 
 
COVENANT. 455 
 
 eluded on a day subsequent to the day on -which the deed itself 
 was stated on the face of it to have been indented, made, and con- 
 cluded'; it was held, that such allegation was no more inconsistent 
 with the deed, than if it had been alleged that it was sealed and 
 delivered on a day subsequent ; that it was quite immaterial when 
 it was indented, and equally so when it was made, by which might 
 be understood when it was written ; the only material word was 
 concluded, and a deed could only be said to be concluded when it 
 was delivered. The time of delivery was the important tiine when 
 it took effect as a deed : and from the case of Stone v. Bale, it 
 appeared that the delivery might be after the date {z). 
 
 In framing the declstration, it is not necessary to set fqrth the 
 provisions of the deed in its very* words (a) ; though this is not 
 unusual where the legal construction of the deed is doubtful. It 
 is sufficient to state its substance and legal effect. Neither is it 
 necessary to set forth all the provisions of the deed ; stating such 
 parts as are necessary to entitle the plaintiff to recover will be 
 sufficient (6). Hence in covenant on a mortgage deed, the court 
 were of opinion, that it was sufficient for the plaintiff to set forth 
 in his declaration, that the defendant, by a certain indenture, had 
 demised the premises therein mentioned (without stating them 
 particularly), subject, among other things, to such a jproviso ; then 
 setting out the substance of the covenant ,(for the payment of the 
 money), and the breach (for the non-payment) (c). If jbhe deed on 
 which plaintiff declares contain a proviso, operating by way of 
 defeasance of the covenants, the plaintiff is not obliged to state 
 such proviso fei his declaration ; if the defendant means to rely on 
 it, it is incumbent on him to show it {d). It is sufficient to say 
 " whereas by a certain indenture, &c.," without a direct affirniation, 
 that by such an indenture defendant covenanted (e). 
 
 Conditions precedent (f).—li A. covenants to do, or to abstain 
 from doing, a certain act, in consideration of the prior performance 
 of some act or covenant on the part of B., A.'s covenant is termed 
 a dependent covenant, because B.'s right of suing A. for a breach 
 of this covenant depends upon the prior performance, or that 
 which the law considers equivalent to performance, of the act or 
 covenant to be performed by B., and the prior act or covenant, on 
 
 {z) Hall V. Oazenove, 4 East, 477. out the whole lease verbatim, it was re- 
 
 (os) 1 "Wms. Saimd. 233, n. (2). ferred to the master to strike out the 
 
 {b) In Bundass v. Lord Weymouth, superfluous matter in the declaration 
 
 Cowp. 655, the court said they would with costs. 
 
 animadvert upon any future instancp of (c) Dundass v. Lord Westmeath, Cowp. 
 
 putting parties to the enormous expense 656. 
 
 of setting out deeds at length, or supfer- (d) Elliott v. Blake, 1 lev. 88. 
 
 fluous parts of them. And in Price v. (e) BuUivant v. Holman, Cro. Jao. 537. 
 
 Fletcher, Cowp. 727, where the plaintiff (/) See the decisions in "Assumpsit," 
 
 in an action for breach of covenant for under same heading, which involve the 
 
 quiet enjoyment under a lease, had set same principle. 
 
456 COVENANT. 
 
 the part of B., being in the nature of a condition precedent, is 
 technically termed a condition precedent, the performance whereof 
 must be alleged and shown {g) by B. in order to entitle him to 
 recover damages against A. It may be remarked, that if the act, 
 undertaken to be done, is dispensed with by the other party, it is 
 sufficient so to state it on the record (A). 
 
 The following cases will illustrate the nature of a dependent 
 covenant and condition precedent, and the rules by which the 
 courts have guided their decisions on this subject : — 
 
 The plaintiff declared that the defendant by deed poll agreed 
 with the plaintiff, that he would accept of the plaintiff a quantity 
 of South Sea Stock, so soon as the receipts should be delivered 
 out by the Company, and would pay /or the same such a sum on 
 a certain day, next after the date of the deed, and then averred 
 that defendant did not pay the money at the day ; on demurrer, - 
 because the plaintiff had not averred an assignment of the stock, 
 or a tender, Pratt, C. J., delivering the opinion of the court, said, 
 that the intent of the parties appeared to be, that one should have 
 the money and the other the stock ; and not that either should 
 perform his part of the agreement, and lay himself at the mercy 
 of the other for the equivalent ; that this was not a covenant en- 
 tered into by both parties, upon which each would have his mutual 
 remedy, but it was the dfeed poll of the defendant only ; and, there- 
 fore, though upon delivery or tender of the stock, the plaintiff 
 would have his remedy for the money, yet the defendant, on the 
 other side, upon payment of the money, would ijot have any 
 remedy to compel the delivery of the stock, and therefore he 
 should not be obliged to pay the money, until the consideration for 
 which it was payable was performed: that the word pro would 
 either be a condition precedent or subsequent, as would best 
 answer the intent of the parties ; and in this case it must be a 
 condition precedent, because otherwise the intention of the de- 
 fendant to have the stock for his money, could never take effect. 
 He observed also, that the difference between a mutual covenant 
 and a deed poll was taken and allowed in Pordage v. Cole (1 Wms. 
 Saund. 320), where the court were of opinion that the defendant 
 had his remedy : " otherwise (says the book) it would have been, 
 if the deed had been the words of the defendamt only " (i). 
 
 In covenant against a lessee for not repairing, the declaration 
 stated that the defendant by indenture covenanted to repair the 
 
 (?) By the C. L. P. Act, 1852, ». 57, formance of -which he intends to contest, 
 
 the plaintiff or defendant may aver the (h) Per Buller, J., in Hotham v. East 
 
 performance of conditions precedent, India Company, Doug. 278. See an 
 
 generally, and the opposite party shall averment to this effect in Jones v. Bark- 
 
 not deny such averment, generally, hut ley, Doug. 684. 
 
 shall specify in his pleading, the con- (i) Lock v. ' Wright, Str. 669. See 
 
 dition or conditions precedent, the per- Matlock v. Kinglake, 10 A. & E. 50. 
 
COVENANT. 457 
 
 demised premises, and at the end of the term to surrender up the 
 same in good repair, the lessor (the plaintiff) finding timber suffi- 
 cient for such repairs : the breach assigned was for not repairing ; 
 plea, that the plaintiff did not find timber sufficient ; on demurrer, 
 it was adjudged, that the finding the timber was a thing in its 
 nature necessary to be done first, aud therefore a condition prece- 
 dent, the performance of which ought to have been averred in the 
 declaration (k). So where in a covenant on an indenture of lease 
 for seven years for non-payment of rent, it appeared that the lease 
 contained a proviso, that if the lessee, at the end of the first three 
 or five years, should be desirous of quitting, and should give six 
 months' notice thereof, before the expiration of the first three or 
 five years, then, from and after the expiration of the first three or 
 five years, and payment of all rents* and performance of the cove- 
 nants on the part of the lessee, the indenture should be void ; it 
 was held, that the payment of rent, and performance of the other 
 covenants, by the lessee, were conditions precedent to the lessee's 
 determining the term at the end of the first three years, and that 
 merely giving six months' notice, expiring with the first three 
 years, was not sufficient for that purpose; Lord Kenyan, C. J., 
 observing, that it had frequently been said, and common sense 
 seemed to justify it, that conditions were to be construed to be 
 either precedent or subsequent, according to the fair intention of 
 the parties, to be collected from the instrument ; and that technical 
 words, if there were any to encounter such intention (and there 
 were not in this case), should give way to that intention ; that it 
 was impossible to read this lease, without seeing, that the parties 
 intended, that the tenant should do every thing required of him, 
 before he could put an end to the lease (I). So where by a policy 
 of assui'ance against fire it was stipulated, that the assured sustain- 
 ing any loss by fire should procure from the minister, church- 
 wardens, and some reputable householders of the parish, a certifi- 
 cate of his character, and of their belief that the loss happened 
 without fraud ; it was held, that the procuring such a certificate 
 was a condition precedent to the right of the assured to recover, 
 and that it was immaterial, that the minister and churchwardens 
 wrongfully refused to sign the certificate (ni) ; Lord Kenyan observ- 
 ing that the court was called upon to give effect to a contract made 
 between two parties, and that, if from the terms of it they could 
 discover the intentian of the parties to be, that the procuring the 
 certificate by the assured should precede his right to recover, they 
 were bound to give judgment accordingly (n). 
 
 (k) Thomas v. Cadwallader, Willes, a good defence, even although it he with- 
 
 496. held hy collusion with the defendant. 
 
 {1} Porter v. Shepherd, 6 T. R. 665. The plaintiff's remedy in such a case 
 
 Ace. Friar v. Grey, i H. L. C. 565. heing hy action for the tort. Milner v. 
 
 (to) Where the obtaining a certificate is Field, 5 Exch. 829. 
 
 a condition precedent, the want of it is [n) Worsley v. Wood, 6 T. E. 710. 
 
458 COVENANT. 
 
 A policy of insurance contained a stipulation that " the sum to 
 be paid by this association to any suffering member for any loss or 
 damage shall in the first instance be ascertained by the committee. 
 A stipulation then followed, that any difference arising between 
 the parties should be referred to arbitration. The House of Lords 
 held, that the ascertainment of the loss by the committee, or by 
 arbitration, was a condition precedent to a cause of action (o). , So 
 where the stipulation was that the loss after the same shall be 
 adjusted shall immediately be paid {p). ■ 
 
 So where in covenant on a charter-party to recover the value of 
 a ship against defendant, to whom she had been let to freight for 
 the purpose of carrying governpient stores to America, the declara- 
 tion stated a covenant, that, if the ship were taken during the time 
 she was in his Majesty's service, and it should appear to a court- 
 martial that the master and ship's company had made the utmost 
 defence they were able, the value of the ship should be paid by 
 the defendant ; and then averred a capture, the master and ship's 
 company having made the utmost defence they were able, and that 
 it would have appeared to a court-martial, &c., if the defendant 
 had thought proper to have had an inquiry made in that respect 
 by a court-martial. The defendant pleaded, that it had not ap- 
 peared, &c. On demurrer to the plea, the court gave judgment 
 for the defendant ; observing, that the charter-party annexed an 
 express condition, that it should appear to a court-martial, &c., and 
 therefore the plaintiff was bound to show that it had appeared,, or 
 that it arose from the default of the defendant that it had not (q). 
 So where in covenant on a charter-party of affreightment, whereby 
 the defendant agreed to pay to the plaintiff at a certain rate for 
 deals " delivered at Liverpool, &c. ; the freight to be paid, one- 
 fourth in cash on her arrival, and the remainder by an acceptance 
 on London at four months' date," the declaration averred, that 
 before the ship's arrival at Liverpool, the ship was wrecked, whereby 
 the deals were obliged to be put on shore for the preservation 
 thereof; which deals the defendant afterwards accepted, whereby 
 he became liable to pay to the plaintiff a proportionable part of 
 the freight for the carriage of the said deals : a plea, that no part 
 of the said deals was delivered at Liverpool, was held good (r) ; 
 Lawrence, J., observing, that " when a ship is driven on shore, it is 
 the duty of the master either to repair his ship, or to procure 
 another, and having performed the voyage, he is then entitled to 
 his freight ; but he is not entitled to the whole freight, unless he 
 perform the whole voyage, except in cases where the owner of the 
 goods prevents him ; nor is he entitled pro raid, unless under a 
 
 (o) Avery V. Scott, 5 H. of L. C. 811. (q) Davis v. Mure, cited 1 T. E. 642. 
 
 (p) Elliott V. Soyal Exchange Asmr- (r) Cook v. Jennings, 7 T. E. 381. 
 
 ame Company, L. E. 2 Ex. 237. See Ace. Liddard v. Lopez, 10 East, 625. 
 cases there cited. 
 
COVENANT. 450 
 
 new agreement. Perhaps 'the subsequent receipt of these goods 
 by the defendant might have been evidence of a new contract 
 between the parties ; but here the plaintiff has resorted to the 
 original agreement, under which the defendant only engaged to 
 pay in the event of the ship's amval at Liverpool. That event has 
 not happened, and therefore the plaintiff cannot recover in this 
 form of action " (s). 
 
 By charter-party the freighter covenanted to pay to the owner 
 freight at so much per ton per month, for six months at least, and 
 so m proportion for less than a month, or for such further time as 
 the ship might be in the service of the freighter, until her final 
 discharge, loss, capture, or being last seen or heard of: so much of 
 the freight as might be earned at ■the time of the arrival of the 
 ship at her first destined port abroad, to be paid within ten days 
 next after her arrival there, and the remainder of the freight at. 
 specific periods ; it was held, that this constituted one entire cove-* 
 nant, and that the arrival of the ship at her first destined port 
 abroad was a condition precedent to the owner's right to recover 
 any freight ; and that the ship having been lost on her outward 
 voyage, the owner was not entitled to recover freight at so much 
 per calendar month to the day of the loss (t). 
 
 So the cases are uniform to show that if a person undertakes for 
 the act of a stranger, that act must be done (u). If A. be bound 
 to B. to pay ten pounds to C, A. tenders to C. and he refuseth, the 
 bond is forfeited (x). If a man be bound in an obligation, with 
 condition to enfeoff B. (who is a mere stranger) before a day, the 
 obligor doth offer to enfeoff B. and he refuseth, the obligation is a 
 forfeit, for the obligor hath taken upon him to enfeoff him, and 
 his refusal cannot satisfy the condition, because no feoffment is 
 made (y). 
 
 " Where a person, by doing a previous act, would acquire a right 
 to a debt, or duty, by a tender to do the previous act, if the other 
 party refuse to permit him to do it, he acquires the right as com- 
 pletely as if it had actually been done." Per Lord EUenhorough, 
 C. J. {z). So if the plaintiff has been discharged by the defendant 
 
 (s) "It is a settled rule, even in the remedy in such a case being on the deed, 
 
 case of deeds, that if there be a condi- Shack v. Anthony, 1 M. & S. 573. See 
 
 tion precedent in a deed, and it is not further on the apportionment of freight, 
 
 performed, and the parties proceed with Abbott on Shipping, (6th edit.) 392, et 
 
 the performance of other parts of the seq. ; Ward v. Pelton, 1 East, 507 ; 
 
 contract, although the deed cannot take Christy v. Row, 1 Taunt. 300 ; Ritchie v. 
 
 effect, the law will raise an implied as- AtMnson, 10 East, 295. 
 
 sumpsit. Upon this ground freight is (t) Gibbon v. Mendez, 2 B. & Aid. 17. 
 
 daily recovered in actions of assumpsit (u) Per Lawrence, J., Worsleyv, Wood, 
 
 on implied promises, substituted for the 6 T. R. 710. 
 
 charter-parties by deed. " Per Our. in (x) 1 Inst. 208, b. 
 
 Bum V. Miller, i Taunt. 748. But this (y) 1 Inst. 209, a. 
 
 cannot be done where the requirements (z) Smith v. Wilson, 8 East, 443. 
 of the deed have been complied with, the 
 
460 COVENANT. 
 
 from the performance of the condition (a). So where the plaintiff 
 has been prevented from the performance by the neglect and 
 default of the defendant (b). 
 
 From the preceding cases it may be collected, that wherever 
 there is a condition precedent on the pai-t of the plaintiff, perform- 
 ance, or that which is equivalent to performance, must be alleged 
 and proved, otherwise the action cannot be supported ; and, conse- 
 quently, the defendant may plead non-performance of the condition 
 precedent, in bar of the action ; or, if the averment of performance 
 be entirely omitted, the defendant may take advantage of it on 
 demurrer. 
 
 Concurrent Acts (c). — Where reciprocal acts or covenants are to 
 be performed by each party at the same time, they are technically 
 termed concurrent acts or covenants ; and in this case, as well as 
 'in the case of dependent covenants, one party cannot maintain an 
 action against the other, without averring performance, or that 
 which is equivalent to performance, or at all events a readiness and 
 willingness to perform the acts or covenants to be performed on 
 the plaintiff's part. As where A. covenanted that he would, on or 
 before a certain day, convey land to B., by such conveyance as' 
 B.'s counsel should advise ; in consideration of which B. cove- 
 nanted to pay A., at or upon the execution of the conveyance, a 
 certain sum of money ; it was held, that A. could not maintain 
 covenant against B. for non-payment of the money without show- 
 ing that he had conveyed ; or that he was ready at the day to have 
 conveyed, what he had covenanted to do, and that he had doae 
 every thing which lay upon him to do for that purpose, but that 
 he was prevented from so doing by some act, or omission, or 
 neglect, on the part of the defendant (d). But where it was agreed 
 by specialty between A. and B. that B. should pay A. a sum of 
 money for his lands on a particular day, it was held to be an inde- 
 pendent covenant, and that A. might bring an action of covenant 
 or debt for the money before any conveyance by him of the land(e). 
 So where the defendant by a distinct instrument, e. g., a promissory 
 note, agrees to pay the money on a particular day (/). 
 
 In covenant for not accepting stock of the Hudson's Bay Com- 
 pany, at the Company's house, on a certain notice, the plaintiff 
 averred that he gave notice to the defendant to come there and 
 accept the stock, and that the plaintiff was ready there at the day, 
 
 {a) Laird v. Pirn, 7 M. & "W. 474. CompmyY. Sinnoit, 8 E. & B. 347. 
 
 (6) Hotham v. East India Company, (c) See ante, "Assumpsit," under same 
 
 1 T. R. 645. The rule as to the ueces- heading. 
 
 sity of stating, in the first instance, the (d) Hm/rd v. Wadham, 1 East, 619. 
 
 matter of excuse for the non-perform- (e) Pordage v. Oole, 1 Wms. Saund. 
 
 ance of a condition precedent has not 319. Ace. Mattocks. Kinglake, 10 A. & 
 
 been altered by the C. L. P. Acts. The E. 60. 
 
 conditions and the excuses mu.st not he (/) Spillerv. Westlake, 2 B. &Ad. 155. 
 averred in a general form. Lcyndon Duck 
 
COVENANT. 4G1 
 
 and offered to transfer it, but that the defendant did not come to 
 accept It, nor had paid the price agreed, &c. ; upon demurrer the 
 declaration was held ill, for where the party to whom the act is to 
 be done does not come to the time and place appointed, the other 
 ought to show that he came at the last time which the law has 
 appointed for doing the act, and if he came there before he ouo-ht 
 to show that he continued there to the last time ; and that, as the 
 stock could only be transferred when the Company's . house was 
 open, which was at stated hours of the day, the plaintiff should 
 have averred the usage of the Company in that respect, and that 
 he came there at the proper time and stayed there till the house 
 was shut ((/). 
 
 Mutual and Independent Covenants. — Where covenants are 
 mutual and independent, one party may maintain an action against 
 the other for a breach of covenant, without averring a perforruance, 
 or any thing equivalent to a performance, of the covenants on his 
 part; and the defendant cannot plead non-performance of such 
 covenants on the part of the plaintiff in bar of the action Qi). 
 
 The plaintiff, who was master of a vessel, covenanted to make 
 use of the same in the coal trade, for the defendant's service ; and 
 also covenanted amongst other things that he would pay all the 
 seamen's wages yearly; in consideration whereof, the defendant 
 covenanted to pay the plaintiff 42L every month ; the non-pay- 
 ment whereof was the breach assigned. The defendant pleaded, 
 that the plaintiff did not pay the seamen according to his cove- 
 nant. On demurrer, it was insisted by the plaintiff, that these were 
 mutual covenants, and that though the words were " in consider- 
 ation thereof," yet, in the nature of the thing, this could not be a 
 condition precedent, for the payment of the seamen, by the plaintiff, 
 was to be yearly, of the plaintiff, by the defendant, monthly ; so 
 that from the manner of covenanting it was impossible the per- 
 formance of the act to be done by the plaintiff should be necessary 
 to entitle him to an action against the defendant for not doing the 
 act he had covenanted to do. Judgment for the plaintiff (i). 
 
 The plaintiff, in consideration of 250?. paid by the defendant, 
 and a further sum of 250?. to be paid in the manner thereinafter 
 mentioned, covenanted that he would, with all possible expedition, 
 teach the defendant a certain method of bleaching materials for 
 making paper, and would also permit him to use a patent which 
 the plaintiff had taken out for that purpose ; in consideration 
 whereof the defendant covenanted that he would, on or before the 
 2oth of February, 17.94, or sooner, in case the plaintiff should 
 
 (g) Lcmoashire v. KillingwortJi, Lord as showing what evidence is necessary in 
 
 Eaym. 686. Although performance of such a case, 
 
 conditions may now be averred in general (A) Dawson v. Myer, Str. 712. 
 
 terms, yet the above case is still useful {%) liussen v. Coleby, 7 Mod. 236. 
 
463 COVENANT. 
 
 before that time liave sujEficiently taught defendant the bleaching 
 process, pay the plaintiff the further sum of 250^. Demurrer, that 
 it was not averred that the plaintiff had instructed defendant in the 
 manner of bleaching the materials. Lord Kenyan, C. J., delivering 
 the opinion of the court, said, " Whether these kinds of covenants 
 be or be not independent of each other, must certainly depend on 
 the good sense of the case. — ' Where there are mutuail promises, yet 
 if one thing be the consideration of the other, there a performance 
 is necessary, unless a day is appointed for performance.'. Per 
 Holt, C. J., Salk. 113. 'If a day be appointed for the payment 
 of the money, and the day is to happen before the thing can be 
 performed, an action may be brought for the payment of the 
 money, before the thing be done,' ib. 171. Upon the authority of 
 these cases, the judgment of the court must be in favour of the 
 plaintiff, if, upon the true construction of the deed, a certain day 
 be fixed for the payment of the money, and the thing to be done 
 may not happen until after. The plaintiff in this case covenants 
 with all possible expedition, miot by any fixed ti/me, to instruct the 
 defendant in bleaching linen, &c. ; and in consideration pf the 
 plaintiff's covenants, the defendant covenants, that he will, on or 
 before the 2oth day of February, or sooner, in case the plaintiff 
 should before that time have instructed the defendant, pay him the 
 further sum of 2501. — The intent of the parties appears to be that 
 the payment might be accelerated, but should not in any event be 
 delayed." Judgment for plaintiff (/c). In a subsequent case(^), 
 Kenyan, C. J., speaking of Campbell v. Janes, said, " The instruc- 
 tion to be given was not to be, and could not, in the nature of 
 the thing, be performed at the same time with the payment of the 
 money by the defendant, for which a certain time was limited, 
 whereas no time was limited for giving the instruction ; " and 
 Lawrence, J., observing on this case, said that "the instruction 
 might, consistently with the plaintiff's covenant, as well be given 
 after as before the time specified for the payment of the money." 
 So where, in a farming lease, the defendant (the lessor) covenanted i 
 to erect within eighteen months certain farm-buildings, " the whole 
 of which were to be left to the superintendence of the lessee (the 
 plaintiff) and the lessor's son," it was held that the covenant to 
 erect the buildings was an absolute one, and that the stipulation 
 to leave the work to the superintendence of the parties named was 
 not a condition precedent to the doing of the work (m). 
 
 Unless the non-performance alleged in breach of the contract 
 goes to the whole root and consideration of it, the covenant broken 
 is not to be considered as a condition precedent, but as a distinct 
 covenant, for a breach of which the party injured may be com- 
 pensated in damages. The first of this class is the case of Baane 
 
 {k) CampUll v. Jones, 6 T. R. 570. (I) Glazebrook-v. Woodrow, 8 T. E. 370. 
 
 (m) Jones v. Cannock, 5 Exoh. 713. 
 
COVENANT. 463 
 
 V. Eyre (n), which was as follows : — The plaintiff sold to the de- 
 fendant an estate in Dominica, with the negroes, under the usual 
 covenants for title, in consideration of a sum in gross and of an 
 annuity which the defendant covenanted to pay, " he the plaintiff 
 well and truly performing all and singular the covenants, &c. in the 
 said indenture contained." In bar to an action of covenant for 
 the arrears of the annuity, the defendant pleaded that the plaintiff 
 had not full power, title, &c. to sell the said plantation and negroes. 
 The court said, it would be strange if such a defence were to be 
 allowed, when, if any one negro on the plantation were proved not 
 to have been the property of the plaintiff, it would bar his action 
 for the annuity ; and per Lord Mansfield, G. J., " where mutual 
 covenants go to the wliole of the consideration on both sides, they 
 are mutual conditions, the one precedent to the other ; but where 
 they go only to a part, where a breach may be paid for in damages, 
 there the defendant has a remedy on his covenant, and shall not 
 plead it as a condition precedent " (o). " The judgment of the 
 court (in Boone v. Eyre) went on the ground that, in the form the 
 breaches were assigned, the plea did not necessarily go to the whole 
 of the consideration ; but if the plea had been, that the plaintiff 
 had not any title to the plantation, he did not know that it would 
 not have been held sufficient" (p). " The substantial part of the 
 agreement being the conveyance of the property in respect of 
 which the annuity was to be paid, the court held it to be no 
 answer to an action for the annuity to say, that the plaintiff had 
 not a good title in some of the negroes, which were iipon the plan- 
 tation : because all the material part of the covenant had been 
 performed; and the plaintiff had a remedy upon the covenant 
 for any special damage sustained for the non-performance of the 
 rest (q). The above rule has been frequently recognised (r). 
 
 In Ritchie v. Atkinson, 10 East, 295, the master and the freighter 
 of a vessel agreed, that the ship should proceed- to St. Petersburgh, 
 and there load a complete cargo of hemp and iron, and proceed 
 therewith to London, and deliver the same on being paid freight, 
 at a certain rate per ton. It was held, that the delivery of a com- 
 plete cargo was not a condition precedent, but that the master 
 might recover freight for a short cargo delivered in London at the 
 stipulated rates per ton, the freighter having his remedy in damages 
 for such short delivery. "Where freight was covenanted to be 
 paid in consideration of several things, one of which was the sailing 
 
 (n) Eeported, but imperfectly, in 2 Bl. Stavers v. Curling, 3 B. K C. 368. 
 
 E. 1312, and 1 H. Bl. 273, n. This case (p) Per Lawrerux, J., Glazebrooh v. 
 
 will be found among the paper books of Woodrow, 8 T. R. 374. 
 
 Ashhurst, J., A. P. B. No. 41, Dampier, (q) Per Le Blanc, J., S. 0. 
 
 MSS L I L ('■) See per Litttedale, J., m Franklin 
 
 (o) 1 k'Bl. 273, n. It must be borne v. Miller, 4 A. & E. 605 ; per Tindal, 
 
 in mind that the above rule is only one of C. J., in The Fishmongers' Company v. 
 
 the means of discoTering the intention of Bobertson, 5 M. & G. 197 ; Carpenter v. 
 
 the contracting parties. Per Tindal, 0. 3., CmsweZZ, 4 Bmgh. 409. 
 
464 COVENANT. 
 
 with the first convoy ; it was held, that as the object of the contract 
 was the performance of the voyage, which in this case had been 
 performed, the sailing with the first convoy was not to be consi- 
 dered as a condition precedent, but as a distinct covenant, for the 
 breach of which the party injured might be compensated in 
 damages (s). It was held, in the same case, that the covenant for 
 the right delivery of the cargo was satisfied by the delivery of the ' 
 entire number of chests, and that the deteriorated state of their 
 contents afforded no answer to the action for the recovery of the 
 freight, the defendant having a cross action to recover damages for 
 that. So where the plaintiff covenanted with defendants, that he 
 would proceed to the Southern whale fishery, and procure a cargo 
 of sperm oil, or as great a proportion as might be, under all cir- 
 cumstances, in his power to obtain, would return to London, and 
 at his own cost deliver the cargo, would obey instructions, be frugal 
 of provisions, and not dispose of any of them without accounting 
 for the same, and would not smuggle or trade, or permit any on 
 board to do so : the defendants covenanted, on the performance of 
 the hefore-mentioned terms and conditions on the part of the 
 plaintiff, to pay him a certain proportion of the net proceeds 
 of the cargo; it was held, that the plaintiff's covenants were 
 independent, and that the performance of them was not a con- 
 dition precedent to the plaintiff's right to recover his stipulated 
 remuneration (<). 
 
 But where in a memorandum of charter it was agreed that a 
 vessel should proceed to Trieste and there load a full cargo, and 
 . being so loaded should proceed to a port in the United Kingdom, 
 and deliver^the same, upon payment of freight at a certain rate, 
 &c. ; " the vessel to sail from England on or before the Mh of Feb- 
 ruary then next ; " it was held, that the sailing on or before the 
 4th of February, was a condition precedent {u) ; and this, although 
 the ship be prevented from sailing by the act of God, and there 
 be a stipulation in the charter-party to this effect, " Eestrictions 
 of princes, dangers of the seas, the act of God, &c. throughout 
 this charter-party, always excepted " («). Secus, if the stipulation 
 be, that the ship shall sail with all convenient speed, no particular 
 day being fixed ; unless by the breach of such stipulation the object 
 of the voyage be wholly frustrated (y) ; which must be pleaded (2). 
 So where the charter was of a ship from London to Madeira 
 and the Cape of Good Hope, and thence to Bombay and back ; 
 the plaintiff claimed damages from the defendant for not loading 
 the ship with a cargo of cotton at Bombay. Instead of proceeding 
 by the direct and usual course from the Cape to Bombay, the 
 
 (s) Davidson T. Gwynne, 12 East, 389. 893. 
 
 (t) Stmiers v. Curling, 3 B. K C. 355. (y) Tarrahochia v. EicMe, 1 H. & N. 
 
 (m) Glakolm v. Says, 2 M. & G. 257. 183. 
 
 Ace. Oliver v. Fielden, i Exch. 135. (s) Clipsham v. Vertue, 5 Q. B. 265. 
 {x) CroocJccwU v. Fletclier, 1 H. & X. 
 
COVENANT. 465 
 
 captain made a deviation to the island of Mauritius ; and in con- 
 sequence of such deviation, the defendant's agents at Bombay re- 
 fused to find a cargo. The jury v^ere directed to consider, whether 
 the deviation was of such a nature and description as to deprive 
 the freighter of the benefit of the contract into which he had 
 entered ; and if such was their opinion, the defendant was excused, 
 •by the act of the plaintiff's captain, from furnishing a cargo. The 
 jury determined the question in the aflBrmative, and the court held 
 the direction to be right (a). 
 
 Defendant by charter-party covenanted to load a ship at Jamaica 
 with a complete cargo of sugar, and to pay freight for the same at 
 the rate of 10s. 6cZ. per cwt. The agent of the defendant tendered 
 to the captain a cargo, but insisted upon his signing bills of lading 
 for it, at the rate of 10s. per cwt. The captain refused to take it on 
 board on those terms. Lord Mlenborough held, that the covenant 
 to load a complete cargo had been broken, and that the defendant 
 was liable for dead freight (b). 
 
 By a charter-party a ship was described to be of the burden of 
 two hundred and sixty-one tons, and the freighter covenanted to 
 load a full and complete cargo ; it was held, that the loading of 
 goods equal in number of tons to the tonnage described in the 
 charter-party was not a performance of this covenant ; but that the 
 freighter was bound to put on board as much goods as the ship was 
 capable of carrying with safety (c). Where the ship was described 
 in the charter-party as " of the measurement of one hundred and 
 eighty or two hundred tons or thereabouts," to an action for not 
 loading, the defendant pleaded that the ship was of a measurement 
 greatly and unreasonably exceeding two hundred tons or there- 
 abouts, wherefore the defendant did not load ; it was held, that the 
 statement was matter of description only, and did not amount to a 
 warranty (d). In such a case it would, it seems, be a good plea that 
 the excess of size was unreasonable, and that the size of the ship 
 was a material part of the contract ; which would be a question for 
 the jury (e). 
 
 By a charter-party the freighter agreed to pay for the ship 2001. 
 per month, for six months certain, and so in proportion for any 
 longer time that she might be in his em.'ploy ; the ship was to be 
 kept in repair by the owner. Before the termination of the time 
 repairs were necessaiy, which occupied twenty-eight days ; it was 
 held, that the freighter was not entitled to deduct those days in 
 calculating the period for which he was to pay freight (/). 
 
 Although by the law of England freight, strictly so called, does 
 not become due till the termination of the voyage, yet, if the 
 parties expressly stipulate that all or part of the freight shall be 
 
 {a) Freeman v. Tmjlor, 8 Bingh. 124. (e) Per Martin, B., -S. C. See Ollive 
 
 (6) Hyde v. Willis, 3 Campb. 202. v. Booker, 1 Exch. 416. 
 
 (c) Hunter V. Fry, 2 B. & Aid. 421. (/) RifUy v. Scai/e, 5 B. & C. 167. 
 
 [d) Barker v. Wiiidli; 6 E. & B. 675, 
 
 VOL. I. H H 
 
40G COVENANT. 
 
 paid by anticipation, "and it is so paid, it cannot be recovered bact 
 on' the non-completion of the voyage {g). ' : ■ . ■ 
 
 It renlains only to add a sirnilar observation to that which 
 ■was made ante, tit. "Assumpsit," vi& that therei are not. any 
 precise technical words required to constitute a condition pre- 
 cedent, or a dependent or independent covenant ; whether a condi- 
 tion be precedent or subsequent, or a covenant, be dependent or' 
 independent, must be gathered from the words and nature of the 
 agreement, which is to be construed according to the intention of 
 the parties, as far as that can be collected from the instrument (h) ; 
 to which intention, when once discovered, all technical forms of 
 expression must give way (j) ; and, however transposed the cove- 
 nants may be Qc), their precedence must depend on the order of 
 time in which the intent of the transaction requires the perform- 
 ance. When it is once established, that the stipulation of one 
 party is a condition precedent to the performance of the covenant 
 by the other party, it follows as a necessary consequence, that an 
 action cannot be maintained, unless performance, oi* that which 
 the law considers as equivalent to performance, be averred (which 
 may now be done quite generally) and proved. But where a, right 
 of action is once vested in the plaintiff, liable, howevpr, to be 
 divested by the non-performance of a condition subsequent, that is 
 matter of defence only, and must be shown by the defendant (Q. 
 
 _ Of the Breach. — The breach assi^ed ought to be co-extensiye 
 with the import and effect of the covenant : but, where the Cove- 
 nant is general, the breach may be assigned as generally as the 
 covenant: and itis sufficient, if it negative the words of the cove- 
 nant ; as where, in covenant on an indenture of lease, that defen- 
 dant had full powfer and lawful authority to demise, the breach 
 assigned being, that defendant, at the time of making the said 
 indenture, had not full power and lawful authority to demist the 
 premises according to the form and effect of the indenture, it was 
 resolved, that the assignment of the breach was good; because it 
 had pursued the words of the covenant negatively, and that it lay 
 more properly in the knowledge of the lessor what estate he him- 
 self had in the land, than in the lessee, who was a stranger to it ; 
 and, therefore, that the defendant ought to have shown what 
 estate he had in the land at the time of the demise, whereby it 
 might have appeared to the court, that he had full power and 
 authority to demise (m). So where the declaration stated that the 
 
 jg) De SilvaU v. Kendall, 4 M. & S. (i) Per Tindal, C. J., in Fishmongers' 
 
 37; Sawnders v. X)rew, 3 B. & Ad. 450. Co. v. Boberison^ 5 M. & G. 197. 
 
 See further on the subject of conditions, (h) Per Lord Mansfield, C. J. , in King- 
 
 Blackwell v. Nash, Str. 535 ; Wyvill v. ston v. Preston, cited Doug. 691. 
 
 Stapleton Siv. 615 ; Terry v. Duntze, 2 (I) ffotham v. East India Company, 1 
 
 H. Bl. 
 
 T. E,. 
 
 (h) See ff(wrison v. Great Northern [m) Salmony. Bradshaw, 9 Eep.60,b. 
 
 Railway, 12 C. B. 676. ' "^ ' , 
 
COVENANT. 407 
 
 plaintiff by indenture let a house to the defendant's testator, who 
 covenanted to repair it well during the term, and at the end of the 
 term to leave it well repaired ; and the breach assigned was, that 
 the lessee did not leave it well repaired at the end of the term ; 
 an exception was taken, because the declaration did not show in 
 what point the house was not well repaired : but it was overruled ; 
 for, the breach being according to the covenant, it was sufficient ; 
 but if the defendant had pleaded, that ' at the end of the term he 
 delivered it up well repaired, then if the plaintiff will assign any 
 breach, he ought particularly to show in what point it was not 
 well repaired, so as the defendant might give a particular answer 
 thereto (n). In an action by a master against his servant, on a 
 covenant not to buy or sell withouMhe master's leave, within two 
 years, the breach assigned was, that defendant had diversis diebus 
 et vicibus, between such a day and such a day, sold to H., and to 
 several other persons unknown, goods to the value of 100?. lb 
 was moved in arrest of judgment, that the breach was uncertain as 
 to the times and persons ; but Holt, C. J., said, that in cove- 
 nant (o) it was sufficient if a general breach was assigned ; and 
 that the breach in question was certain enough ; for it was so 
 described, that if another action were brought, the defendant 
 might plead a former recovery for the same cause, and aver this to 
 be the same selling ; and Gould, J., agreed, that, the action being 
 only for damages, it was well enough (jp). 
 
 Plaintiff declared that defendant covenanted to allow him 2s. for 
 every quire of paper he should copy, and assigned for breach, that 
 he copied four quires and three sheets, for which 8s. ^d. was due, 
 which defendant had not paid. On writ of error, after verdict and 
 judgment for plaintiff, it was moved that there could not be any 
 apportionment in this case, for the covenant was to allow plaintiff 
 2s. for copying a quire, but not 'pro raid, for which cause the 
 judgment was reversed (q). But it seems that on demurrer this 
 objection would not avail the defendant, because in that case the 
 plaintiff might remit his claim for the odd sheets, and enter up 
 judgment for the residue, in conformity to the rule laid down in 
 Indedon v. Crips, Salk. 658, recognized in Bucldey v. Kenyan, 
 that where the sum demanded does not depend on the deed itself, 
 but upon matter extrinsic, there may be a remittitur ; because the 
 variance is not inconsistent with the deed. In covenant the breach 
 assigned was for non-payment of the rent on different days, which 
 amounted to a certain sum, and the plaintiff had made a mistake 
 in calculating the sum ; it was held good ; because in this action 
 
 Ace. Muscat r. BalUtt, Cro. Jac. 369 ; (o) Secus in debt on Ijond to perforin 
 
 Brigstock v. Stannion, Ld. Eaym. 106 ; covenants, or for a penalty on a statute ; 
 
 Proctor V. Burdet, 3 Lev. 170 ; Boscawen there a precise breach must be shown. 
 
 V. Cook, 1 Eaym. 107 ; BawUns v. Yin- BrigstocTc v. Stannion, Ld. Eaym. 107. 
 
 cent. Garth. 124. (p) Farrow \. Chevalier, Salk. 139. 
 
 Vk) Hcmcock v. Field, Cro, Jac. 170. (?) Needier v. Guest, Aleyn, 9. 
 
468 COVENANT. 
 
 the whole shall be recovered in damages, and the plaintiff shall 
 not have damages according to his summing, but according to the 
 matter (r). The plaintiff declared on an indenture of demise for 
 years of certain coal-mines, reserving a fourth part of the coal 
 raised, or its value in money, at the election of the lessor ; but if 
 the fourth part fell short of the annual value of 400^., then reserv- 
 ing such additional rent as would make up that annual sum, to be 
 rendered on the first of every month in each year of the term, by 
 equal portions ; and that the plaintiff elected to be paid in money; 
 the breach assigned was that 900?. of the rent reserved for two 
 years and three inonths was in arrear. On demurrer, it was ob- 
 jected that,'the rent being reserved yearly, the breach was not well 
 assigned, inasmuch as it included a fraction of the year ; but the 
 court overruled the demurrer, observing, that it could not be sus- 
 tained on the construction of the covenant ; for, though it spoke of 
 an annual sum of 400?. to be made up in case the proportion of 
 coal reserved should fall short of that ,sum, yet the rent was to be 
 rendered monthly. But, even admitting it to be •& yearly rent, the 
 excess for three months might be remitted, and judgment given 
 for the residue (s). 
 
 Where lessee covenanted for himself and his assigns to plant a 
 certain number of trees every year, and the breach was, that 
 defendant had neglected to do it ; it was held sufficient without 
 negativing that his assigns had done it, for the court will not in- 
 tend an assignment (i). 
 
 VIII. Of the Pleas. 
 1. Accord and Satisfaction. 
 
 Accord with satisfaction is a good plea in discharge of damages 
 for covenant broken (u), the damages being unliquidated (v), but, 
 it is not a good plea before breach (x) ; for accord with satisfaction 
 before breach, unless it be by deed, and amount in effect to a 
 release (y), is nothing more than a dispensation, which cannot be 
 of a deed by parol (z), unless by the effect of sect. 83 of the Com- 
 
 (r) Farrer v. Snelling, 1 Roll. Rep. {v) Harris v. Goodwyn, 2 Scott. N. R. 
 
 335. 466. 
 
 (s) BueUey t. Kenyan, 10 East, 139. fe) Spencsv. EeaUy, 8 Excli; 668. 
 
 (t) Gyse V. Ellis, Str. 228. (y) Mayor of Berwick r. Oswald, 1 E. 
 
 («) Smith V, TrowsdaU, 3 E. & B. & B, 295. 
 
 83. {z) May v. Taylor, 6 M. & G. 202, n. 
 
COVENANT. 469 
 
 mon Law Procedure Act, 1854, which allows equitable defences to 
 be set up (a). 
 
 In covenant against an assignee for not repairing a house, the 
 defendant pleaded accord between him and the plaintiff, and execu- 
 tion thereof, in satisfaction and discharge of the want of repairs ; 
 on demurrer, it was objected, that this action of covenant was 
 founded upon the deed, which could not be discharged except by 
 matter of as high a nature, and not by any accord of matter in pais; 
 but it was resolved by the court, that the plea of the defendant 
 was good; and this distinction was taken: — Where a duty 
 accrues by the deed, and is ascertained at the time of making the 
 ■writing, as by covenant, bill, or bond, to pay a sum of money, in 
 that case, the duty, which is certUn, takes its essence and opera- 
 tion originally and solely by the writing, and therefore it must be , 
 avoided by matter of as high a nature, although the duty be merely 
 in .the personalty. But where no certain duty accrues by the deed, 
 but a wrong or subsequent default, together with the deed, gives 
 an action to recover damages, which are only in the personalty, for 
 such wrong or default, accord with satisfaction is a good plea ; as, 
 in this case, where the covenant does not give the plaintiff, at the 
 time of making it, any cause of action, but the tort or default in 
 not repairing the house, together with the deed, gives an action to 
 recover damages for the want of reparation ; and the action is not 
 founded merely on the deed, but on the deed and the subsequent 
 wrong ; which wrong is the cause of action, and for which damages 
 shall be recovered; and in every action where compensation is 
 demanded by way of damages only, accord executed is a good 
 bar (6). So a collateral agreement by parol cannot be pleaded to 
 invalidate a claim arising upon a deed. Hence to debt on bond, 
 conditioned for the performance of an award, a parol agreement 
 between the parties to waive and abandon the award cannot be 
 pleaded (c). So a plea of leave and licence to an action of covenant 
 is bad (c?). " Nothing can discharge a covenant to pay on a certain 
 day but actual payment or tender on that day, although, if the 
 party afterwards chooses to receive the money, that may be pleaded 
 by way of accord and satisfaction," per Parke, B. (e). 
 
 The plaintiff being seised in fee of a messuage and lands, one 
 parcel of which lay contiguous to the land of one E. P., con- 
 veyed the said parcel of land to E. P. in fee, who thereupon 
 covenanted for herself and her assigns, that she would pay one- 
 third part of all the taxes and assessments imposed on the said 
 messuage and land ; the parcel of land came to the defendant by 
 
 (a) Olerk v. laurie, 1 H. & K. 4-58. See TJwmpson v. Brown, 7 Taimt. 656. 
 
 (b) Blake's case, 6Rep. 43, \s. Preston (d) Sellers v. Bickford, 8 Taunt. 31. 
 V. Christmas, 2 Wils. 86. (e) Poole v. Tmibridge, 2 M. & W. 223. 
 
 (c)' Braddick v. TJiompson, S East, 3U. See Massey v. Johnson, 1 Ex. 263. 
 
470 , COVENANT. 
 
 assignment, who neglected to pay the one-third part of the taxes 
 for several years. The plaintiff having declared for a breach of 
 covenant, in the years 175.9, 1760, 1, 2, 3, 4, 5 and 6, the defend- 
 ant pleaded, that in Mich. Term, 1766, he commenced an action 
 against the plaintiff, and one K. J., for certain trespasses committed 
 by them upon the lands and goods of the defendant ; and there- 
 upon, afterwards, it was agreed (not saying by deed), that the 
 defendant should put an end to his suit, and that the plaintiff and 
 E. J; should pay a certain sum of money, and costs ; and that the 
 plaintiff should relinquish all damages and demands which he 
 then had against the defendant; the plea then averred that the 
 defendant did not further prosecute his suit against the plaintiff 
 and K. J. On demurrer to this plea, it was objected, that a cove- 
 nant to pay money which was by deed, could not be discharged 
 without deed: and of this opinion was the court, and gave judgment 
 for plaintiff (gf). So where a lessee covenanted to yield up to his 
 lessor at the end of the term all erections set up during the term 
 on the demised premises, which covenant he broke by removing a 
 certain greenhouse, a plea to an action for suoh breach, stating 
 a parol agreement between the lessor and lessee, that, if the latter 
 would erect the greenhouse, he should be at liberty to remove it 
 at the expiration of the term, was held bad Qi). So where in cove- 
 nant against an administratrix for breaches of covenant contained 
 in an indenture miade by her testator, and committed both by him 
 in his lifetime and by her since his death, she pleaded that she 
 took out administration at the request of the plaintiff, and upon 
 his promise not to sue her, as administratix or otherwise, for any 
 breaches of the covenants contained in the said indenture : the 
 plea was held bad (i). 
 
 2. Hvicthn (Jc). 
 
 To covenant for rent arrear, the lessee may plead that he was 
 evicted, by the lessor, from the demised premises, and kept out of 
 possession until after the rent in question became due ; for an 
 eviction occasions a suspension of the rent (l). But a mere tres- 
 pass will not ; for where to covenant for rent arrear for a dwelling- 
 house the defendant pleaded that the lessor had taken away a 
 ■pent-house, fixed to the dwelling-house, and part of the demised 
 premises ; on demurrer, the court held, that the facts stated in the 
 defendant's plea being a mere trespass, for which the defendant 
 might have a remedy by action, would not operate as a suspension 
 of the rent (m). Although rent is suspended by an entry into 
 
 ig) Sogers V. Payne, MS. ; 2 "Was. 376, See Samford v. Cutcliffe, Yelv. 124. 
 
 S. C. briefly stated. See further 6 M. & (J) What is, see Upton v. Townend, 17 
 
 S. 262, note (o), and Outram v. Ralston, 0. B. 30. 
 
 2 Keb. 51. (I) Dalston v. Eeeve, Lord Eaym. 77. 
 
 (h) West V. JBlakeway, 2 M. & G. 729. (m) Roper v. Lloyd, T. Jones, 148, 
 
 (i) Harris v. Goodwin, 2 M. & G. 405. cited in Hunt v. Cope, Cowp. 242. 
 
COVENANT. 471 
 
 part (n),^ and expulsion therefrom (o), yet on a demise of a mes- 
 suage with the appurtenances, the covenant to rejpair is not sus- 
 pended by an entry into the back yard, the lessee remaining in 
 possession of the messuage {p). 
 
 It is to be observed, that if a tenant would excuse himself from 
 payment of rent upon an eviction by a stranger, he must show that 
 such stranger had a good title to evict him : and in order to give 
 the plaintiff a proper opportunity of controverting such title, the 
 defendant must show particularly how it arises ; for, if it were 
 sufficient to allege that the stranger had a good title, a single issue 
 could not be taken on it ; and, as the legality, as well as the fact 
 of the title, would be complicated together, the jury would be en- 
 tangled with questions of law, wMch are proper for the considera- 
 tion of the court only. To avoid this inconvenience, it is necessary 
 that the title should be specified (g). 
 
 3. Illegal Purpose. 
 
 All the decisions show, that at common law, a contract entered 
 into to effect an illegal purpose is void, and cannot be enforced ; 
 and it makes no difference that the contract is under seal. Hence 
 where to covenant for non-payment of rent, it was pleaded that 
 the 25 Geo. III. c. 77, makes it. illegal to boil turpentine in any 
 warehouse nearer to any other building than seventy-five feet, 
 and that the premises demised were within that distance, and let 
 for the express purpose of being so used (r) ; this was held a good 
 plea, although the lease did not mention the purpose for which it 
 was executed, nor was it averred that the unlawful purpose had' 
 been carried into effect ; for, it having been pleaded that such was 
 the purpose, it might have been proved by evidence dehors the 
 lease, had issue been joined on the fact (s). 
 
 4. Infancy. 
 
 At the common law, infants are not bound by covenants which 
 operate to their disadvantage. Hence a defendant may insist on 
 his non-age, as a defence to an action of covenant ; but this de- 
 fence must be pleaded specially. 8 PI. R. Hil. T. 1853. The 
 5 Eliz. c. 4, s. 42 (t), whereby infants are enabled to bind them- 
 selves apprentices, has not altered the common law as to the 
 binding force of covenants entered into by infants, at least where 
 the covenants are collateral covenants. This point, which was 
 
 ' (n) Dorrell y. Andrews, Hob. 190. {r) This is, it seems, essential. Feret 
 
 (o) Eeynolds v. Buckle, Hob. 326. v. Hill, 15 C. B. 207. 
 
 (p) SneUing v. Stag, Bull. :ff. P. 165. (s) The Gaslight and CoU Company x. 
 
 (a) Per Lord Hardviicke, C. X, in- Turner, 6 B. N. C. 324. 
 
 Jordan v. Twells, B. R. M. 9 Geo. II. {t) Amended by 54 Geo. III. c. 96. 
 
 MSS. and Ca. Temp. Hardw. 172. 
 
472 COVENANT. 
 
 formerly doubted (u), was fully established by Gilbert v. Fletcher, 
 Cro. Car. 179 (x). There, in covenant against an apprentice for 
 departing from the plaintiff's service without licence, within the 
 time of his apprenticeship, the defendant pleaded, that at the 
 time of making the indenture he was within age. On demurrer, 
 judgment was given for the defendant ; the court being unanimous 
 that, although an infant might voluntarily bind himself an appren- 
 tice, and if he continued an apprentice for seven years, might 
 have the benefit to use his trade ; yet, neither at the common law, 
 nor by 5 Eliz. c. 4, did a covenant or obligation of an infant, for 
 his apprenticeship, bind him ; nor did any remedy lie against an 
 infant, upon such covenant {y). By the custom of London, an 
 infant may bind himself by covenant in an indenture of ap- 
 prenticeship (z). 
 
 Covenant upon an indenture of apprenticeship by the master 
 against the father ; breach, that the apprentice absented himself 
 from the service ; plea, that the son faithfully served until he came 
 of age, and that he then avoided the indenture ; it was held that 
 this was no answer to the action, for that the covenant by the 
 father was absolute, that the apprentice should serve during the 
 term (a). It is a good plea to an action by the father against the 
 master for not teaching, &c., that the apprentice absented himself 
 and never returned (6) ; although, if he does return within a reason- 
 able time, even after having misconducted himself, the master is 
 bound to perform his covenant (c). 
 
 5. Limitations, Statute of. 
 
 By 3 & 4 Will. IV. c. 42, s. 3, all actions of debt for rent upon 
 an indenture of demise, all actions of covenant or debt upon any 
 bond or other specialty, &c., shall be commenced and sued within 
 twenty years after the cause of such action or suit, but not after. — 
 Covenant for rent arrear(c?), or for non-payment of the arrears of 
 a rent-charge (e), may be brought within the time limited by 
 the foregoing section, and is not limited to six years by 3 & 4 
 Will. IV. c. 27, s. 42 (/); but only six years' arrears of a fee-farm 
 rent granted by letters patent can be recovered, no action of debt 
 or covenant lying on such letters (g). See post, tit. "' Debt," VIII. 
 
 (u) Fleming v. Pitman, "Winch. 63 ; (d) Paget v. Foley, 2 B. IST. C. 679. 
 
 Hiitt. 63. (e) Strachan v. Thomas, 12 A. & E. 
 
 {x) Lylly scase, 7 Mod. 15, ace. 5-16. 
 
 {y) Ace. WMttingham v. mil, Cro. (/) See on the construction of tlie.ie 
 
 Jao. 494. two statutes in equity, Hunter v. Nock- 
 
 {z) Born v. Chandler, 1 Mod. 27] ; olds, 1 Mao. & G. 640 ; 19 L. J., Ch. 177 ; 
 
 Anon., 1 Lev. 12. Hodges v. Croydon Canal Company, 3 
 
 (a) Cuming v. Mill, 3 B. & Aid. 59. Beav. 86 ; Sinclair v. Jackson, 17 ibid. 
 
 (b) Hxiges v. Humphreys, 6 B. & C, 405. 
 
 ^^\ ,„. , . , ^ „ to) Ilumphrey v. Gcry, 7 C. B. 567. 
 
 (c) Wmstone v. Linn, 1 B. & 0. 460. 
 
COVENANT. 473 
 
 G. Nihil habuit in tenementis. 
 
 If a lease be by indenture, the lessee is estopped from pleading 
 nil habuit : and if the plaintiff declare on the indenture, and the 
 defendant pleads that the lessor nil habuit in tenementis, the plain- 
 tiff, instead of replying the estoppel, may demur ; because the es- 
 toppel appears on the record (h). Covenant was brought by the 
 assignee of a reversion for non-payment of rent. The declaration 
 stated that J. P. was seised in fee^ demised by indenture to the 
 defendant, and afterwards assigned the reversion to the plaintiff. 
 Plea, that before the demise and assignment of the reversion to 
 the plaintiff, J. P. conveyed the premises to J. S. in fee, and tra- 
 versed, that at any time after that Conveyance J. P. was seised in 
 fee. On demurrer it was held, that this amounted to a plea of nil 
 habuit in tenementis, which was not to be allowed, where the 
 demise was by indenture ; and, although the plaintiff was an 
 assignee yet he might take advantage of the estoppel, because it 
 ran with the land (i). So where in covenant by lessor on an 
 indenture of lease for not repairing, the lessee pleaded, that the 
 lessor had an equitable estate only in the thing demised, on 
 demurrer, the plea was held bad (k). 
 
 It is an universal rule that a tenant shall not be permitted to set 
 up any objection to the title of his landlord, under whom he holds: 
 this is not a mere technical rule, but one founded in public con- 
 venience and policy. Hence a lessee of land in the Bedford Level 
 cannot object to an action by his landlord for a breach of covenant, 
 in not repairing, that the lease was void by the 15 Car. II. c. 17. 
 for want of being registered. The act meant, for the protection of 
 titles, that leases and conveyances, within this district, should be 
 registered, that every person interested in the inquiry might know 
 in whom the title to such land was ; and, therefore, as against 
 persons who have been deceived by the omission to register, or 
 even as against those who, without being deceived, knew that the 
 act had not been complied with, and relied on it, the legal objec- 
 tion might prevail' at law; but not as between the parties them- 
 selves to the lease, between whom the act was not meant to 
 operate (I). So where in an action of covenant for rent, brought 
 by the assignees of a lessor (a bankrupt), the defendant pleaded, 
 that the lessor nil habuit, &c. ; the plea was held bad, on de- 
 murrer (m). So the assignee of a lessee cannot plead that the 
 lessor did not demise (n). 
 
 It may be observed that, in the preceding cases, the want of title 
 did not appear on the face of the declaration ; and it seems that, in 
 
 {h) Palmer v. MMns, Str. 81S. (m) Parler v. Manning, 1 T. E. .537. 
 
 (i) Palmer v. EUns, supra. (n) Taylor v. Needham, 2 Taunt. 27S ; 
 
 (k) Blakfi V. FosUr, 8 T. R. 487. Avdine v. Whisson, 4 M. & G. 801 ; see 
 
 (i) Hodson V. Sharpe, 10 East, 350. Oooch v. Goodman, 2 Q. B. 580. 
 
474 COVENANT. 
 
 order to give a party the benefit of an estoppel, in all cases where 
 it is necessary to set forth a title, a good title must appear on the 
 face of the declaration ; for in Nohes v. Awder, Cro. Eliz. 373, 436, 
 it was resolved, by all the judges, that, although they_ would not 
 intend a lease to be good by estoppel only, yet, where it appeared 
 on the face of the declaration to be so, the assignee of such a lease 
 could not maintain an action for the breach of any of the covenants 
 contained in the lease (o). So where covenant was brought against 
 a lessee for years, on an indenture of lease, and it appeared on the 
 declaration, that the lease was* executed by a tenant for life, that 
 the plaintiff, the reversioner, who was then under age, was named 
 in the lease, but that the lease had not been executed by him until 
 after the death of the tenant for life, judgment was given for the 
 defendant, on the ground that the lease was void by the death of 
 tenant for life : BuUer, J., observing, that the court could not 
 proceed on the doctrine of estoppel in this case, because it was 
 admitted by the plaintiff, on the pleadings, that he did not execute 
 until after the death of the tenant for life (p). So where the 
 plaintiff declared, that by deed made between her as attorney for 
 J. S., and the defendant, she demised a house to the defendant, and 
 that he covenanted to pay the rent to J. S., and then assigned a 
 breach in the non-payment of the rent, to the damage of the 
 plaintiff (the attorney). It was objected, on demurrer, that the 
 lease . was void, because, the plaintiff acting only as attorney to 
 J. S., it should have been made a lease from him, and in his 
 name (q), and that the lease being void, the covenant to pay the 
 rent was void also. U contra it was insisted that, the instrument 
 being under seal, the defendant was estopped from saying the 
 plaintiff did not demise. But the court held, that, it appearing 
 on the declaration that the lease was void, because it was not made 
 in the name of J. S., whose house it appeared to be, and that the 
 plaintiff only made it as his attorney, there could not be any 
 estoppel, and then the covenant to pay the rent was void, and con- 
 sequently the plaintiff could not maintain the action (r). 
 
 Where a lease, by indenture, takes effect in point of interest, 
 which interest may be co-extensive with the lease in point of 
 duration, but in fact determines before it, the lease may then he 
 avoided, and the parties are not estopped from showing the facts 
 which determined the lease ; as where A., lessee for the life of B., 
 makes a lease for years, and afterwards purchases the reversion in 
 fee ; B. dies ; A. shall avoid his own lease ; for he may confess and 
 avoid the lease, which took effect in point of interest, and deter- 
 mined by the death of B. (s). So where covenant was brought by 
 the plaintiff, as heir in reversion in fee to his father, on an indenture 
 
 (o) See Co. Litt. 352, h. (r) Fmnfdn v. Small, Str. 705. 
 
 (p) Ludford v. Bm-her, 1 T. R. 90. (s) 1 Inst. 47, b. Ace. Tre.forCs case, 
 
 (q) See Wil/cs v. Bacic, 2 East, H2 ; 6 Kep. 15, a; Doe v. Seciton,, 2 C. M. & 
 
 Berkeley v. Hardy, S B. & C. 355. K. 728. The reason of the case in the 
 
COVENANT. 475 
 
 of lease for years, made to the defendant by the father, the defend- 
 ant pleaded, that the father was tenant for life only, and that the 
 lease had determined by his death ; on demurrer, judgment was 
 given for the defendant : for that, though, during the father's life, 
 the lessee would have been estopped from saying that the father 
 had not the reversion in him, yet on his death the lease was at an 
 end, and the lessee was not estopped from pleading the truth by 
 confessing and avoiding the lease {t). So where the .declaration 
 stated, that the plaintiff and his wife demised certain premises to 
 the defendant for years, yielding and paying to him and her, her 
 heirs and assigns, a yearly rent, with a covenant to pay the same 
 to him and her, her heirs and assigns, and then averred that 
 the wife died, and afterwards rent became due to the plaintiff : the 
 defendant pleaded that the premises were the estate of the wife, 
 and that the plaintiff had nothing in them but in right of his wife ; 
 that she died, leaving J. S. her heir, whereupon all the estate of the 
 plaintiff ceased, and J. S. threatened to enter and eject defendant, 
 unless he attorned, whereby he was compelled to attorn, and 
 became tenant to J. S. It was held, on demurrer, that the plea 
 was good, and that, some interest having passed by the lease from 
 the plaintiff and his wife, it could not work by estoppel ; and that 
 the defendant was therefore entitled to show that the plaintiff"s 
 interest had ceased [u). 
 
 7. Noil est factum. 
 
 There is not any general issue to an action of covenant, but the 
 defendant may plead that the deed (on which the plaintiff has 
 declared,) is not his deed(a;). This plea puts in issue the execution 
 of the deed in fact only, which it is incumbent, therefore, on the 
 plaintiff to prove. If there be a subscribing witness to the deed, 
 and it is one to the validity of which attestation is requisite, 
 the execution must be proved by such witness (y). But payment 
 of money into court on one of the breaches assigned in the decla- 
 ration di^enses with proof of the execution of the deed, although 
 one of the pleas be the plea of non est factum (z). By 10 PI. E. 
 H. T. 1853, "In actions on specialties and covenants, the plea of 
 non est factum shall operate as a denial of the execution of the 
 deed in point of fact only, and all other defences shall be specially 
 pleaded, including matters which make the deed absolutely void, 
 as well as those which make it voidable." 
 
 In covenant, the declaration stated a joint demise by husband 
 and wife. Plea, non est factum. It appeared in evidence, that 
 
 text is, tecause tenant for life lias a free- & N. 668, (m error). . r, ^on 
 
 hold, which is a greater estate, and the {u) Sill v. Saunders, 4 B. & t- "^tf- 
 
 lease will not require any estoppel, if the (x) Com. Law Proo. Act, 1852, Sched. 
 
 life endure. Per SoU, 0. J., CHlmanv. B. 38. ■,„,. ,r 
 
 ffoure, Salk. 275. (2/) See post, "Debt on Bond "Non 
 
 (t) Brudnell v. Rolerts, 2 "Wils, 143. est factum." 
 See Weld v. Baxter, 11 Exch. 816 ; 1 H. (:) Randall v. Lynch, 2 Campb. 357. 
 
476 COVENANT. 
 
 the husband was tenant for life, with remainder to the wife for life, 
 and that they had jointly demised to the defendant. A motion 
 was made for a new trial, on the ground,. that the demise stated 
 was an impossible one : for the' husband alone had the power of 
 demising, and the wife could only confirm; but the court dis- 
 charged the rule : BlacJcstone, J., saying, " The issue is, that there 
 is no such deed as stated in the declaration ; if, in fact, such a 
 deed appears, the defendant, who is in possession under it, shall 
 not question the title of the plaintiffs to make such demise, and 
 thereby evade the performance of what he himself has stipulated." 
 And Wares, J., said, on the issue of non est factum in covenant, 
 the deed only must be proved (a). 
 
 An allegation of a demise being by indenture, imports that the, 
 demise is by an instrument in writing and under seal; consequently 
 to a declaration in covenant upon an indenture of lease by the 
 lessor against the assignee of the lessee, a plea, that the indenture 
 was not signed by the plaintiff or by any agent authorized by him 
 in writing, is bad (6). 
 
 The declaration (in covenant) stated, that the plaintiff sued the 
 defendant B., the then chairman of the board of directors of a joint- 
 stock company, and set forth an agreement between the plaintiff 
 and the company, sealed with the seal of one J. S., a former 
 chairman, for and on behalf of the company. It was held, that 
 covenant could not be maintained against the defendant (c). 
 
 If the plaintiff in his declaration states the covenant by itself 
 in its own absolute terms, without the qualifying context which 
 belongs to it, this being an untrue statement, in point of substance 
 and effect, of the deed, will entitle the defendant to a nonsuit on 
 the ground of variance (d) ; but it is enough to • state truly that 
 part which applies to the breach complained of, if that which is 
 omitted do not qualify that which is stated (e). The declaration 
 set forth a covenant to repair generally. The deed, when produced, 
 contained an exception of fire and other casualties. This was held 
 to be a fatal variance (/). 
 
 8. Ifon infregit Gonventionem (g). 
 
 The plea of non infregit conventionem, althoiigh formerly bad 
 on special demurrer (A), was held to be aided by verdict (i), and 
 
 (a) Friend v. Easlabroofc, 2 W. Bl. (</) By 11 Geo. I. c. 30, s. 43, in ac- 
 
 1152. tions upon policies of insurance under 
 
 {b) Aveline v. Whisson, 4 M. & G. 301. the common seal of either the Koyal Ex- 
 See 8 & 9 Vict. 0. 106, s. 3, post, "DeU," change or London Assurance Companies, 
 "For Use and Occupation." the defendants may plead that "they have 
 
 (c) Ball V. JBambridge, 1 M. & G. 42. not broke the cowmamte in such policy con- 
 
 (d) Howell Y. Richards, 11 East, 633 ; tained, or any of them." 
 
 ante, p. 512. (h) Hodgson v. The East India Com- 
 
 ic) Tempest v. Fawling, 13 East, 20. pany, 8 T. R. 278. 
 (/) TempanyY.Biirnand,iC!aarg\i.'i.O. [i) Taj/Zor v. iVceti/wm, 2 Taunt. 278. 
 
COVENANT. 477 
 
 would, therefore, since the abolition of special demurrers (k), be 
 unobjectionable (l). It raises a substantial issue, e. g. in an action 
 for non-repair, whether there was a want of repairs or not (m). 
 
 9. Payment of Money into Court. 
 
 Money may be paid into court in this action ; C L. P. Act, 
 1852, s. 70 ; see ante, p. 165, with the form of pleading. It is no 
 answer to an action of covenant for rent, no particular place for 
 payment being mentioned in the deed, that the defendant was on 
 the demised premises, on the day when the rent fell due, ready to 
 pay, if the plaintiff had come to receive it, and that he had always 
 since been ready, &c., concluding b]^ payment of the amount into 
 court {n). 
 
 10. Performance. 
 
 If all the covenants be in the affirmative, the defendant may 
 plead, generally, performance of all: but, if any be in the nega- 
 tive, to so many he must plead specially, (for a negative cannot be 
 performed,) and to the rest generally. So if any of the covenants 
 be in the disjunctive, the defendant must show, which of them he 
 hath performed. So, if any are to be done of record, he must show 
 that specially, and cannot involve it in general pleading (o). So if 
 a covenant be partly affirmative and partly negative, as where the 
 words of the covenant were, that defendant decederet, procederet, 
 et non deviet; — defendant having pleaded performance generally, 
 the pleg, was held bad (p). It has been held that to plead per- 
 formance otherwise than in the terms of the covenant was bad on 
 general demurrer ; sed qucBre (g). 
 
 11. Release. 
 
 k contract under seal cannot be varied or discharged by a parol 
 contract. In the case of a covenant the whole matter is under the 
 seal of the party ; and the contract into which he has entered can 
 be discharged only by an instrument of the same nature as that by 
 which the contract was created (r). 
 
 If a man covenant to build a house or to make an estate, and, 
 before the covenant broken, the covenantee releases him by deed 
 
 (k) Com. Law Proo. Act, 1852, s. 61. (?) Scudamorev. Stratton,lB.&'P.i55. 
 
 a) And see Com. Law Proc. Act, 1852, {r) PerTindal, C. J. , ^^^West.v. Blake- 
 
 „ 7B way, 2 M. & G. 751. The rule is the 
 
 ' (m) Gilhert v. Martin, 1 Lev. 11 i. same, generally, in equity, althoughunder 
 
 (n) Hcddam v. Johnson, 8 Exch. 689. particular circumstances reliel may be 
 
 (o) 1 Inst. 303, b. The same rule holds obtained. See Major v. Major, 1 Drew, 
 
 in debt on bond, conditioned for the 165 ; Pmro^ v. //ams, 11 Hare, 161 ; 
 
 performance of covenants. Cropwd v. Money v. Jordan, 2 De U M. & ^- ^^^' 
 
 Peachy, Cro. Eliz. 691. and in cases of specific performance notes 
 
 ip) Laughwdl v. Palmer, 1 Sid. 87, to Woollam v. Mean, 2 Tud. L. O. 4Ui 
 
 scdqmcre. (2nded.) 
 
478 COVENANT. 
 
 from all actions, suits, &c., this does not discharge the covenant 
 itself; because, at the time of the release, there was not any duty 
 or cause of action in being (s). So to covenant for non-payment of 
 rent the defendant cannot plead &, release, by the plaintiff, of all 
 demands, at a day before the rent in question became due (t) 
 But a release of all covenants is a good discharge of the covenant 
 before it is broken (u). 
 
 In covenant by the assignee of feoffee against feoffor for a breach 
 of covenant to make further assurance (in not levying a fine), the 
 defendant pleaded a release from the feoffee, which release bore date 
 after the commencement of the action by the assignee ; it was 
 held, that although the breach was in the time of the assignee, yet 
 if the release had been by the covenantee, from whom the plaintiff 
 derives, before any breach or before the suit commenced, it had 
 been a good bar to the assignee ; but, being in the time of the 
 assignee, and the action having been actually commenced by him, 
 and so attached in his person, the covenantee could not release this 
 action, wherein the assignee was interested (v). 
 
 An insolvent debtor was formerly held not to be released under 
 the acts then in force from the payment of the arrears of an 
 annuity becoming due, after his discharge, on a covenant made 
 before (w). But by 1 & 2 Vict. c. 110, s. 80, the discharge of an 
 insolvent is extended to sums payable by way of annuity, or other- 
 wise, at any future time or times, by virtue of any bond, covenant, 
 or other securities. The act does not apply to debts payable on a 
 contingency (ac), and which are incapable of valuation (y), e.g. pre 
 miums of insurance which a mortgagee has paid on the default of 
 the mortgagor, and after his discharge, in accordance with a cove- 
 nant to that effect (z), nor to sums paid on behalf of the insolvent, 
 and after his discharge (although due before (a)), by his surety (6). 
 
 12. Set-of. 
 
 A set-off must be pleaded (c). Unliquidated damages, arising 
 from the breach of other covenants to be performed by the plain- 
 tiff, cannot be pleaded by way of set-off (d). To covenant on an 
 indenture of lease for non-payment of rent, the defendant pleaded, 
 that he covenanted to repair, and to surrender in good repair, 
 " casualties by fire and tempest excepted ; " that a stack of chim- 
 neys belonging to the house had been thrown down by a tempest, 
 
 (s) 1 Inst. 292, b. (a,) Lawrence v. Walher, 3 Dowl. 614. 
 
 (t) Henn y. Hmison, 1 Lev. 99. {y) Brown v. Fleetwood, 5 M. & "W. 19. 
 
 {,u) 1 Inst. 292, b. (x) Bennett v. Burton, 12 A. & E. 657. 
 
 {!') Middlemore v. Goodale, Cro. Car. (a) Abbott v. Bruere, 5 B. N. 0. 698. 
 
 603 ; 2 EoU. Abr. 411 ; "Eelease," (D.) (6) BocJcen v. Browne, 4 B. N. C. 400. 
 
 Pl- 11. S- 0. (c) 10 PL R. Hil. T. 1853. 
 
 (w) Cotterel v. HooTce, Doug. 97 ; Maries (d) Howlet v. Strickland, Cowp. 56. 
 V. Upton, 7 T. K. 305. 
 
COVENANT, 479 
 
 which had damaged the house so much that it would soon have 
 hecotne uninhabitable, if the defendant had not immediately- 
 repaired it ; that he had been obliged to lay out, in the repairs, a 
 sum of money (exceeding the amount of the rent ia arrear,) which 
 the plaintiff became liable to repay to him, and that he was ready 
 to set off the same. On demurrer, it was held, that the plea could 
 not be supported ; for, admitting that the defendant could maintain 
 an action against the plaintiff (his landlord), yet the sum to be 
 recovered could only be ascertained by a jury ; and consequently, 
 the damages being uncertain, they could not be set off in the 
 present action (e). 
 
 IX. Evidence. 
 
 The evidence to be adduced of course depends upon the plead- 
 ings. The most usual plea, viz., that the deed is not the deed of 
 the defendant, has been already discussed. It remains only to 
 remark, that the plaintiff can recover only secundum allegata et 
 probata. Hence, where the plaintiff covenanted for a sum of 
 money to build a house within a certain time, and, in an action 
 for non-payment of the money, averred, that the house was built 
 within the time ; it was held, that evidence that the time had been 
 enlarged by parol agreement, and the house finished within the 
 enlarged time, did not support the declaration (/). So where the 
 breach assigned was, that the defendant had not used the premises 
 in a husband-like manner, but on the contrary had committed 
 waste. Plea, that the defendant had not committed waste. At 
 the trial, the plaintiff offered evidence to show, that the defendant 
 had used the premises in an unhusband-like manner, which how- 
 ever did not amount to waste : the judge rejected the evidence ; 
 being of opinion, that on this issue it was not competent to the 
 plaintiff to prove anything which fell short of waste, and this 
 opinion was afterwards confirmed by the court (g). So in an 
 action on a covenant to keep and deliver up premises in repair, 
 the breach assigned was, that the defendant did not repair or 
 
 (c) Weigall v. Waters, 6 T. E. 488. in assumpsit the action would lie on the 
 
 (/) Littler v. Holland, 3 T. E. 590. original agreement, and the acceptance 
 
 The remedy in such a case, if the work of the house would be (semble) evidence 
 
 has been accepted, being by an action of a waiver of the condition precedent, 
 
 upon a qiiomtum meruit for work, labour, even if it were one. Eipley v. M'Clure, 
 
 &c. LvAMS V. Godvnn, S B. N. C. 737 ; 4 Bxch. 345 ; or upon a new agreement, 
 
 see Legge v. Harloch, 12 Q. B. 1015 ; or, the same as the original one, except in 
 
 if the finishing of the house by a certain the one particular of the time of perform- 
 
 time be not a condition precedent to the ajice ; Stead v. Dawter, 10 A. & E. 57 ; 
 
 payment of the money, by averring per- but in eovenant no parol waiver or sub- 
 
 ibrmanoe of all conditions precedent ge- stitution would be valid, ante, p. 477, 
 
 nerally, lesiving the defendant to set up and Sugd. V. & P. 219 (13th ed.) 
 
 the nonfinishing of the house by the {g) Harris v. Mantle, 3 T. E. 307 ; 
 
 agreed date in his plea, and then de- Havikes v. Orton, 5 A. & E. 367, ace. 
 murring. Under the same circumstances 
 
480 COVENANT. 
 
 deliver up in repair, hut, on the contrary, suffered the premises to 
 be ruinous and in decay, for want of necessary reparations, &c., 
 and at the end of the term left them so out of repair ; it was held, 
 that under this breach the lessor could not recover for voluntary 
 Avaste, as by removing windows, &c. (Ji). So e converso on a decla- 
 ration alleging voliontary waste only, the plaintiff cannot recover 
 for permissive waste (i). 
 
 X. Damages — Judgment. 
 
 Damages. — Defendant, by a settlement made on his marriage, 
 conveyed estates upon certain trusts, and covenanted with the 
 trustees to pay off incumbrances on the estates, to the amount of 
 19,000?., within a year; it was held, that on his failing to do so, 
 the trustees were entitled (at law) to recover the whole 19,000Z. in 
 covenant, though no special damage was laid or proved {f). So 
 where, the plaintiff and defendant being joint makers of a promis- 
 sory note, the defendant as principal and the plaintiff as his surety, , 
 the defendant covenanted with the plaintiff to pay the amount to 
 the payee of the note on a given day, but made default, it was held 
 in an action on this covenant, that the plaintiff was entitled tO re- 
 cover the whole amount by way of damages, though he had not in 
 fact paid it (Jc). In the above cases there was a distinct covenant 
 to pay a sum certain ; and it is the same where the sum, though 
 not specified, is ascertainable, e. g. a covenant to pay the debts of 
 A. B. (T) ; but in ordinary covenants of indemnity, where the 
 damages are unliquidated, the actual damage sustained (which is 
 a question for the jury) can only be recovered (m). 
 
 Defendant had conveyed premises to the plaintiff under a cove- 
 nant for good title. An action was afterwards brought against the 
 plaintiff, by a party having better title, and the plaintiff compro- 
 mised it for a large sum. It was held, that in a,n action for breach 
 of the covenant for good title, the plaintiff might recover the whole 
 sum so paid, and also his costs as between attorney and client, in 
 the compromised suit, a covenant for title being a contract of in- 
 demnity (to) ; and this, although he had not given any notice of 
 that suit to the defendant, for the only effect of want of notice in 
 such a case is to let in the party called upon for an indemnity, to 
 show that the plaintiff has no claim in respect of the alleged loss, 
 or not to the amount alleged, or that he made an improvident 
 
 (h) Mga v. Pemierion, 12 M. & W. (m) Walker v. £roadhurst,8%xck.8i9. 
 
 187. (m) Such a contract extends to " all 
 
 (i) Martin v. Gilliam, 7 A. & E. 5i0. such charges as necessarily and reason- 
 
 U) LetKbridge v. Myttm, 2 B. & Ad. ably arise out of the circumstances under 
 
 772. which the party charged became respon- 
 
 W Loosemon v. Radford, 9 M. & W. sible." Per Pollock, C. B., Smith v. 
 
 857. Howell, 6 Exch. 737. See per Parke, 
 
 {!) Carr y. Soberls, 5 B. & Ad. 7S. ?,., Tindal v. Bell, 11 M. & W. 232. 
 
COVENANT. 481 
 
 bargain, and that the defendant might have obtained better terms, 
 if the opportunity had been given him (o). A lessee having a 
 covenant by the lessor for quiet enjoyment defended unsuccess- 
 fully an action of ejectment by a person claiming under the lessor ; 
 the lessee gave notice to his lessor of the action, of which the latter 
 took no notice. In an action on the covenant it was held that the 
 lessee was entitled to recover aU the costs of the ejectment, as well 
 as damages for the loss of th§ land and the value of a conservatory 
 he had erected (p). But where premises were demised to the 
 plaintiff, who covenanted to repair and subsequently underlet the 
 premises in question to a person, who entered into a similar cove- 
 nant with him to repair, and the original lessors brought an action 
 against the plaintiff for non-repair,^and recovered ; it was held, 
 that the plaintiff could not recover over from his lessee, as damages, 
 the costs which he had incurred in defending the former action 
 brought against him by his lessors (q). 
 
 Judgment. — The judgment is for the recovery of the damages 
 sustained (r). If the defendant has judgment against him upon 
 nil dicit, confession, or demurrer, a writ of inquiry shall be awarded 
 to inquke of the damages (s). Where the breach was assigned on 
 two covenants, the plaintiff having a good cause of action on one 
 only; and there was a verdict for the plaintiff on both, and 
 damages entirely assessed, it was held that the plaintiff could not 
 have judgment (t). Covenant was brought against two defendants 
 for not building a house ; one suffered judgment by default, the 
 other pleaded performance, which was found for him : it was held, 
 that the plaintiff could not have a writ of inquiry or judgment 
 against the defendant who had suffered judgment by default ; be- 
 cause, the covenant being joint, and the performance of it having 
 been established by the verdict, it appeared that the plaintiff had 
 not any cause of action (u). 
 
 If on the whole record it appears, that the defendant has com- 
 mitted a breach of the covenant declared on, although the plaintiff 
 states his real gravamen informally, judgment cannot be arrested ; 
 for, however defective the pleadings are, the court are bound ex 
 officio to give such judgment as the law requires them to do. 
 Thus, where A. declared that B., before her intermarriage with C, 
 covenanted with him to leave certain matters to arbitration, and to 
 abide by the award, and then averred that after the making of the 
 indenture and the intermarriage of the defendants, the arbitrator 
 
 (o) Smith V. CompUm, 3 B. & Ad. 407. 6 Ex. 737. 
 
 See ShoH v. Kalloway, 11 A. & E. 28. {r) Townesend, 2 Bk. Judg, 55. 
 
 (p) Ralph V. Crouch, L. K. 3 Exch. (s) Barker v. Thorold, 1 Wms. Saund. 
 
 44 ; 37 L. J. Ex. 8. 47. 
 
 (?) Walker v. Hatton, 10 M. ,& W. (i!) Anon., Cm. Eliz. 685. 
 
 249. He should, it seems, have suffered («) Porter v. Harris, 1 Lev. 63. 
 judgment by default. Bmiih v. Howell, 
 
 VOL. I. I ' 
 
482 COVENANT. 
 
 awarded B. to pay a certain sum ; assigning for breach the non- 
 payment of the sum so awarded ; it was held, that, although the 
 plaintiff could not recover, on the breach assigned, for the non- 
 payment of the sum awarded, because by the marriage the autho- 
 rity of the arbitrator was countermanded, yet that as by the 
 marriage B. had put it out of the power of the arbitrator to make 
 an award binding upon her, her covenant to abide the award was 
 broken, and judgment ought not to }ie arrested (x). But where 
 the declaration stated that the defendant covenanted to abide by 
 an award, but subsequently refused to pay the sum awarded, and 
 the defendant pleaded that before the award he revoked the autho- 
 rity of the arbitrator, it was held that the defendant was entitled 
 to judgment ; and the case of Charnley v. Winstanley was dis- 
 tinguished, for in that case there was a good breach of covenant 
 disclosed, though informally, in the plaintiff's declaration, whereas 
 here it only appeared from the defendant's plea, that he had broken 
 his covenant (y) ; and it is a general rule that the court can only 
 give such judgment as the law requires upon the whole record, 
 with respect to the cause of action there stated. It will not pick 
 out of various parts of the record a different cause of action from 
 that for which the plaintiff proceeds (z). 
 
 (a) Charnley v. Winstanley, 5 East, (s) Per Lord Denman, C. J., Bead v 
 
 266. Baldrey, 6 A. & E. 469. 
 
 (y) Marsh v. BulUel, 5 B. & Aid. 607. 
 
483 
 
 CHAPTER XIV. 
 
 DEBT. 
 
 PAGB 
 
 T. Of the Action of Debt, and in ivhat Cases it may he 
 
 trmi/ntained . 484 
 
 II. Debt on Simple Contract 
 
 III. Debt on Bond .... 
 Of the Pleas .... 
 
 1. Non est factum, and Evidence thereon 
 
 2. Accord and Satisfaction . 
 
 3. Duress .... 
 
 4. Illegal Consideration 
 
 Irnmoral 
 
 In Restraint of Trade, &c. 
 
 Gaming . 
 
 Sale of Office 
 
 Simony ... 
 
 Resignation Bonds 
 Infancy .... 
 Payment, and Evidence thereon 
 Release .... 
 Set-off 
 
 . . 485 
 
 . 488 
 
 . . 490 
 
 . 490 
 
 . . 496 
 
 . 497 
 
 . . 498 
 
 . 498 
 
 . . 498 
 
 . 502 
 
 . . 503 
 
 . 506 
 
 . . 608 
 
 . 511 
 
 . . 512 
 
 . 514 
 
 . . 518 
 
 11. Debt on Bail-bond 519 
 
 . . 524 
 
 . 525 
 
 . . 526 
 
 V. Bebt on Bond, with Condition to perfm^m Covenants 527 
 
 VI. Bebt on Bond of Ancestor against Heir . . . 531 
 
 Pleas, Riens per Descent ....... 532 
 
 Of the lAahility of the Heir 534 
 
 Of the Liability of Devisee . . . . . . 535 
 
 Judgment ......... 536 
 
 Execution ......... 536 
 
 5. 
 6. 
 
 7. 
 
 Bebt on Bail-bond 
 
 Assignment of, under 4 Ann. c. 16 
 
 Declaration by Assignee 
 
 Of the Pleas .... 
 
 VII. Bebt on Judgment 
 Costs 
 
 VIII. 
 
 537 
 
 539 
 
 Bebt for Bent Arrear 539 
 
 Declaration ......... 540 
 
 Pleas 541 
 
 Eviction 542 
 
 I I 2 
 
484 DEBT. 
 
 PAOE 
 
 VIII. Debt for Bent Arrear — (continued.) 
 
 Nil habuif in tenementis ...... 544 
 
 Payment ^44 
 
 Statute of Limitations 545 
 
 For Use and Occupation ....... 545 
 
 Against Tenants holding over, for Double Value . . 546 
 
 Against Tenants holding over, for Double Bent . . . 549 
 
 IX. Debt for Penalties 550 
 
 Pleas 553 
 
 Damages 554 
 
 Bribery, &c. ......... 554 
 
 I. Of the Action of Debt, and in what Cases it may be 
 maintained. 
 
 An action of debt lies for the recovery of a sum certain upon 
 simple contract, bond, otter specialty, or record ; for rent arrear (a) ; 
 upon a statute by the party grieved, or common informer. If a 
 statute prohibit the doing an act under a certain penalty, but does 
 not prescribe any mode for recovering the penalty, the party en- 
 titled may recover the penalty by action of debt (&). Debt also 
 lies for the recovery of a sum of money due under an award (c) ; 
 ior an amercement in a court leet (d), or coxirt baron (e) ; for a fine 
 upon admittance to a copyhold (/). So on the decree of a colonial 
 court for payment of the balance due on a partnership account (g) ; 
 even though the colonial court be a court of equity only ; if the 
 decree be one simply ascertaining a balance, and ordering payment 
 of it by the defendant to the plaintiff (A). So on a decree of the 
 Court of Session in Scotland, ordering the payment of costs in- 
 curred in a divorce suit there (i). But debt will not, it seems, lie 
 for money ordered to be paid by a decree of a court of equity in 
 this country for interest and costs on a bill filed* for a specific 
 performance (k). 
 
 An absolute covenant to pay a sum certain on a given day is a 
 good foundation for an action of debt. Hence, debt lies on an 
 absolute covenant by A. to pay on a certain day a sum certain due 
 from B. on mortgage (l). So where the plaintiff declared in debt 
 on a deed, whereby the defendant covenanted to pay the plaintiff 
 so much per hundred for every hundred stacks of wood in such a 
 place, and bound himself in a penalty for the performance : it was 
 
 (a) Newcomb v. Haney, Cartli. 161. (/) Wheeler v. Manor, 1 Sid. 58. 
 
 (b) 1 Roll. Abr. 598, pi. 18, 19. (g) Henley v. Soper, 8 B. & C. Iff. 
 
 (c) Adm. 2 Saund. 66. (4) Henderson v. Henderson, 13 L. J., 
 
 (d) Wicker v. Norris, Bull. N. P. 167. Q. B. 274 ; 6 Q. B. 288. 
 
 It must be proved at the trial that the (i) Rmsell v. Smyth, 9 M. & V. 810. 
 
 defendant was an Inhabitant, as well at \jc) Carpenter v. Thornton, 3'B. & Aid. 
 
 the time of the amercement as of the 62 ; hut see the remarks of Lord Dennuim, 
 
 offence. lUd. C. J., in Henderson v. Henderson. 
 
 (e) Hodsen v. ffarridge, 2 Saund. 66. {1} Evoms v. Jones, 5 M. & W. 295. 
 
DEBT. 485 
 
 averred, that there were so many stacks, which amounted to a sum 
 exceeding the penalty, for which sum the plaintiff brought his 
 action. It was objected that the proper form of action was cove- 
 nant, and not debt ; but 'per Our., the plaintiff may have covenant 
 or debt at his election ; for, the rate being certain, when the de- 
 fendant has the wood, the agreement becomes certain, for which 
 debt lies (m). 
 
 But it is quite a different case where there is a collateral and 
 independent covenant to pay the debt of another person on non- 
 performance by him ; as where an action was brought on a cove- 
 nant, by which the defendant, jointly with another, undertook to 
 secure the payment of an annuity issuing out of land, it was held, 
 that th^ defendant was only suable in covenant, and not in debt, 
 the primary duty of payment being on the terre-tenant {n). So 
 where the covenant declared on was, that A. and B. (a stranger to 
 the deed), or one of them, would pay, it was held that this was, in 
 effect, a covenant by A. to paj' on default of B., and that debt 
 would not lie against A. (o). Where, however, in a similar case B. 
 was a party to the deed, it was held that such a covenant was, in 
 effect, a joint and several covenant by A. and B. to pay, and there- 
 fore that debt would lie against A. (p). 
 
 In the action of debt, the plaintiff is to recover the sum m 
 nv/mero, and not a compensation in damages, as in those actions 
 which sound 'in damages only ; such as assumpsit, &c. (q). The 
 damages given in the action of debt, for the detention of the debt, 
 are merely nominal. 
 
 II. Debt on Simple Contract. 
 
 Debt lies upon a simple contract, either express or implied (r), 
 to pay a sum certain (s). "Where goods are sold for ready money, 
 and payment is made accordingly, no debt arises : and such pay- 
 ment is therefore, it would seem, provable under the general 
 issue (t). It is safer, however, to plead payment in such a case (u). 
 Debt lies by the payee against the maker of a promissory note, or 
 by the drawer of a bill payable to himself against the acceptor (x), 
 or by the indorsee of a bill against his immediate indorser (y) ; for 
 an action of debt will lie, where the debt has been transferred from 
 one party to a bill to another between whom privity exists (z) ; but 
 
 (m) IngMewv.Cripps,U.'RaYm.&U. in any case except where debt lies." 
 
 (n) Randall v. Rigiy, 4 M. & W. 130. Hard's case, Salk. 23. See ante, p. 81. 
 
 o) Harrison v. Matthews, 10 M. & W. («) Busseyy. Barnett, 9 M. & W. 312. 
 
 ygg ' (m) Littleckild v. Banks, 7 Q. B. 739. 
 
 (p) Caldwell V. Beclce, 2 Exch. 318. (x) Hatch v. Tribes 11 A. & E 702. 
 
 (a) Bull N P 167 (2/) WatUns v. Wake, 7 M. & W. 488. 
 
 (r) Speake v. Richards, Hob. 206. («) See Priddy y. Henbrey, 1 B. & C. 
 
 .(s) "Indebitatus assumpsit will not lie 674. 
 
486 DEBT. 
 
 where there is no privity between the parties, debt cannot be 
 maintained; hence, debt does not lie for the indorsee against the 
 acceptor of a bill of exchange (a) ; for, though the acceptance binds 
 by the custom of merchants, yet it does not create a debt between 
 the acceptor and any parties to the bill subsequent to the drawer. 
 So where the drawer of a bill indorses it in blank, and delivers it 
 to A., who transfers it by delivery, and without a fresh indorsement 
 to B., B. cannot maintain an action of debt on it against the drawer, 
 for in such a case there is no privity of contract (6). Debt will not 
 lie on a promissory note payable by instalments until the last day 
 of payment be past, for a contract to pay a certain sum on several 
 days of payment is considered as one contract, and for one contract 
 there should be but one action (c). Nor will it lie for a wager, for 
 there is no consideration (d). 
 
 Debt lies upon a foreign judgment ; as upon a judgment of the 
 Supreme Court of Jamaica ; and, in an action of this kind it is 
 not necessary for the plaintiff to state the grounds of the judgment, 
 the judgment being of itseli primd facie evidence of a simple con- 
 tract debt (e) (see ante, p. 84) ; and the pendency of an appeal is 
 no bar to an action upon the judgment (/). To support an action 
 on a foreign judgment it used not to be sufficient to prove the 
 judge's handwriting subscribed to it ; the seal affixed thereto must 
 also have been authenticated (g) ; or evidence must have been 
 given that the court had not any seal ; and then the judgment 
 might have been established by proving the signature of the 
 judge Qi). A copy of a foreign judgment, purporting to be signed 
 by the clerk of the court, and certified by him to be true, accom- 
 panied by the certificate of a notary public of his being the clerk 
 of the court, and by another certificate of the governor, under the 
 seal of the island, that the person so certifying was a notary public, 
 was held insufficient (i). But now, by 14 & 15 Vict. c. 99, s..7, 
 " all judgments, decrees, orders, and other judicial proceedings of 
 any court of justice in any foreign state, or in any British colony, 
 and all affidavits, pleadings, and other legal documents filed or 
 deposited in any such court, may be proved either by examined 
 copies or by copies purporting either to be sealed with the seal of 
 the foreign or colonial court to which the original document be- 
 longs ; or in the event of such court having no seal, to be signed 
 
 {a) Povidl V. Ancell, 3 M. & G. 171. twcen the parties by the law of the 
 
 (h) Lewin v. Edwards, 9 M. & W. . place. 
 
 720. ig) Eenry v. Adaij, S East, 221 ; but 
 
 (c) Rudder v. Price, 1 H. Bl. 547. see A.7ion., 9 Mod. 66, that the common 
 
 (d) Bovey v. Castleman, Ld. Eaym. seal of a foreign court authenticates 
 69. itself. 
 
 ■ (e) Walker y. Witter, "Doug, 1. {h) Alvesr. Bvmbury, i^Cam^h.ii. 
 
 (f) Mwiroe v. PilUngton, 31 L. J. Q. (i) Appleton v. Lord Braybrooh, 6 M. 
 
 B. 81 ; 2 B. &S. 11. A plea of judgment & S. 34 ; and see Broum v. Thornton, 6 
 
 recovered must show that the judgment A. & E. 191 ; A Uvon v. Fumivall, 1 C. 
 
 so recovered is final and conclusive be- M. & B. 277. 
 
DEBT, 487 
 
 by the_judge,_and such judge shall attach to his signature a state- 
 ment in writing on the said copy that the court whereof he is a 
 judge has no seal, which copies shall be admitted in evidence with- 
 out any proof of the seal or signature or of the judicial character 
 of the person appearing having made such signature and state- 
 ment." In debt on the judgment of an inferior court the decla- 
 ration must contain an averment, that the cause of action arose 
 within the jurisdiction of the inferior court, otherwise it will be 
 bad on demurrer (j). It will not suffice to allege that the plaintiff 
 recovered his damages within that jurisdiction, 
 
 It is not necessary that the sum claimed in the declaration 
 should be the same as that indorsed on the writ. The sum 
 claimed may be more (7c) or less (Z)*than that indorsed. But it is 
 advisable to indorse the real sum due, for if the sum indorsed be 
 so much more than the sum due as to mislead the defendant and 
 prevent him from settling the action, proceedings might be stayed 
 after the four days, on payment of the real debt with costs of the 
 writ only (w) ; if it be less, proceedings would be stayed on pay- 
 ment of the sum indorsed and costs within four days, unless an 
 amendment were allowed, which would be at the costs of the 
 plaintiff. 
 
 "With every declaration (unless the writ has been specially 
 indorsed under the provisions contained in the 25th section of the 
 C. L. P. Act, 1852), delivered or filed, containing causes of action 
 such as those set forth in Sched. B. of that act, and numbered 
 from 1 to 14 inclusive " (i. e., the indebitatus counts), " the plaintiff 
 shall deliver or file full particulars of his demand under such claim, 
 where such particulars can be comprised within three folios, and 
 where the same cannot be compi-ised within three folios, he shall 
 deliver or file such a statement of the na,ture of his claim, and the 
 amount of the sum or balance which he claims to be due, as may 
 be comprised within that number of folios ; " 19 R G. H. T. 1853. — 
 The rule is not imperative ; but if the plaintiff omit to deliver 
 particulars, he will not be allowed for them in costs, if afterwards 
 called for and delivered. 
 
 Where in debt on simple contract the defendant to part of the 
 declaration pleads payment or set-off of a certain sum, he must 
 prove payment or set-off of that sum in order to entitle him to an 
 entire verdict on that plea (%). So, if he plead payment or set-off 
 to the whole declaration he must prove enough to cover the plain- 
 tiff's real demand (o). But the pleas may be taken distributively, 
 and the issue found for the defendant as to the amount proved to 
 
 (Pi Rmd V. Pope, 4 Tyrw. 403 ; 1 C. (m) Elliston v. Jiobinson, 2 Cr. & M. 
 
 M & R 302 343. 
 
 \k) Bowdidge v. Slaney, 2 B. K C. (n) Cousins v. Paddon, 2 C. M. & B. 
 
 142 fi^O. 
 
 {I) M'QuilUn V. Cox, 1 H. Bl. 249. (o) falcon v. Bmm, 2 q. B. 314. 
 
488 DEBT. 
 
 be paid or due from the plaintiff to him, and as to the residue for 
 the plaintiff (p). And now, by s. 75 of the C. L. P. Act, 1852,— 
 " Pleas of payment and set-off, and all other pleadings capable of 
 being construed distributively, shall be taken distributively, and if 
 issue is taken thereon, and so much thereof as shall be a sufficient 
 answer to part of the causes of action proved shall be found true 
 by the jury, a verdict shall pass for the defendant in respect of so 
 much of the causes of action as shall be answered, and for the 
 plaintiff in respect of so much of the causes of action as shall not 
 be so answered." 
 
 But if several pleas are pleaded, each to the whole declaration, 
 which, though separately insufficient, when taken together, cover 
 the whole cause of action, the entire verdict should be entered for 
 the defendant (g). The defendant, however, cannot for this purpose 
 call in aid a defence arising after action brought. Therefore, where 
 to declaration in debt the defendant pleaded to the whole declara- 
 tion, 1. never indebted ; 2. set-off; 3. as to 4?., parcel, &c., payment 
 after action brought ; and 4. to the whole declaration a defence 
 under the Tippling Act, and the set-off proved was less than the 
 plaintiff's claim as it stood at the commencement of the suit, but 
 exceeded it if the payment of the 4il. after action brought was 
 taken into account, it was held that the plaintiff was entitled to a 
 verdict with nominal damages on the plea of set-off (r). 
 
 III. Beht on Bond. 
 
 If a bond be dated on a day certain, with a penalty conditioned 
 for the payment of a lesser sum, and no day be fixed for the pay- 
 ment of the lesser sum, such sum is payable on the day of the date; 
 and if an action be brought upon the bond, the court will refer it 
 to the master to compute principal, interest and costs, and, on pay- 
 ment of the same, will stay the proceedings under 4 Ann. c. 16, 
 s. 13 (s). Interest will become due on such bond, although not 
 expressly reserved, and is to be computed from the day on which 
 the money secured by the bond becomes payable, viz. the day of 
 the date it) ; but if the obligor receive the principal he cannot 
 afterwards recover the interest (u). 
 
 The above section enacts, — " That if at any time pending an 
 action upon any such bond," (i. e. a bond " which hath a condition 
 or defeasance to make void the same upon payment of a lesser 
 sum at a day or place certain,") " with a penalty, the defendant 
 
 to Cousins V. Paddon, 2 C. M. & R. . See Nose v. £acoii, Cro. Eliz. 798. 
 
 560. (t) FarquJiar y. Morris, supra. 
 
 iq) Per AUerson, B., in Kilner v. (u) Dixon v. Parkes, 1 Esp. 109 ; but 
 
 Bailey, 5 M. & W. 385. see Lumlctj v. Musgrcme, 4 B. N. C. 9 ; 
 
 (r) Spradbery v. Gillam, 6 Exch. 422. Bellier v. Franklin, 1 Sta. 291. 
 
 (s) Farquha/f v. Morris, 7 T. p. 124. 
 
, DEBT. 489 
 
 shall bring into the court, where the action shall be depending, all 
 the principal money and interest due on such bond, and also all 
 such costs as have been expended, in any suit or suits in law or 
 equity (v), upon such bond, the said money so brought in shall be 
 deemed and taken to be in full satisfaction and discharge of the 
 said bond, and the court shall and may give judgment to discharge 
 every such defendant of and from the same accordingly." — This 
 section does not authorize a plea of payment into court, but only 
 a summary application to the court (w). The " principal money " 
 mentioned, means the sum due by the condition ; but where that 
 is payable by instalments, and default is made in the payment of 
 one instalment, even through inadvertence (x), the bond is for- 
 feited, and the court will not stay praceedings on payment of the 
 instalment and costs {y) ; but although judgment may thus be 
 entered up for the whole, execution will be stayed on payment of 
 the instalment (or interest) and costs {z). Secus, if the whole be 
 made due on the non-payment of one instalment, or interest (a). 
 
 Where the condition is general, to pay a sum of money with 
 interest, no demand is necessary (b) ; but if by the condition the ' 
 money is payable on demand, a demand must be proved (c). At 
 law the penalty is the debt, and interest cannot be recovered be- 
 yond it (cZ), except under special circumstances, as where the obligor 
 has, by vexatious proceedings, delayed the obligee from recover- 
 ing (e). In an action upon the bond, interest cannot be recovered 
 beyond the penalty (/) ; but, after judgment recovered, transit in 
 rem judicatam ; the nature of the demand is altered, and in an 
 action on the judgment, it is competent to the jury to allow in- 
 terest to the amount of what is due, although such amount exceed 
 the penalty of the bond and costs of the judgment; and in this 
 respect there is not any difference between a foreign judgment and 
 a judgment in a court of record here {g). 
 
 If a person be bound to pay a sum certain on several days, the 
 obligee cannot maintain an action of debt until the last day be 
 past (h). But upon a bond with a penalty conditioned to pay 
 
 (v) See Lock v. JShermer, Ca. Temp. (/) Wilde r. Clarkson, 6 T. E. 303. 
 
 Hardw. 116. (.9) M'Olun v. DunHn, 1 East, 436. 
 
 (w) England v. Watson, 9 M. & W. (A) Rudder y. Price, 111. Bl. 647. But 
 
 333. on a covenant or promise to pay a sum of 
 
 (x) Vansandaa v. , 1 B. & Aid. money by instalments, an action of cove- 
 
 214. nant or assumpsit will lie immediately on 
 
 (y) Tighe v. Crafter, 2 Taunt. 387. the non-payment of tlie first instalment, 
 
 (2) Massen v. Touchet, 2 W. Bl. 706. for the covenant or promise is broken as 
 
 \a) Oo%olett V. Hansforth, 2 W. Bl. often as there is a default in payment. 1 
 
 938. Inst. 292, b. ; Milles v. Milles, Cro. Car. 
 
 (J) Gibhs V. Southam, 5 B. & Ad. 911. 241. So if money is awarded to be paid 
 
 (c) Carter v. Sing, 3 Campb. 459. at different days, assumpsit will lie on 
 
 (d) Braiiscomb v. Scarbrough, 6 Q. B. the award for each sum as it becomes 
 13. The rule is the same in equitv. due, tolies quoties. Coolce v. Whorwood, 
 Bugkes v. Wynne, 1 My. & K. 20. 2 Wms. Saund. 337. The same rule 
 
 (e) Grant v. Orant, 3 Sim. 340. See holds in respect of duties which touch 
 Bam on Assets, 701. the realty. 1 Inst. 292, b. 
 
490 DEBT. 
 
 several sums of money at different days, debt will lie immediately 
 on default of payment at either of the days, for the condition is 
 thereby broken, and consequently the bond becomes absolute (i). 
 And this rule holds, although the condition of the bond does not 
 expressly provide, " that in default of payment at any of the said 
 times, the bond shall be in force " {k). If A. enter into a bond to 
 pay money on two several contingencies, the obligee may maintain 
 debt on the happening of either contingency (Q. If an instalment 
 of an annuity, secured by bond, be not paid on the day, the bond 
 is forfeited, and the penalty is the debt in law, for which judgment 
 may be entered, which shall stand as a security for the growing 
 arrears of the annuity (m). 
 
 It would not seem necessary to state in the declaration the 
 place of date of a bond, even if made abroad (n) ; such an action 
 being transitory (o) : and the statement formerly held sufficient in 
 such cases : e. g. " at Amsterdam in Holland, to wit in the parish 
 of St, Mary in London " (p), not being traversable (q). 
 
 Of the Pleas. 
 
 1. General Issue, Non est factum, and Evidence thereon. 
 
 The general issue to an action of debt on bond is non est fadwm,, 
 because the action is grounded upon the specialty. By 10 PI. K. 
 H. T., 1853, " in actions on specialties and covenants, the plea of 
 non est factum shall operate as a denial of the execution of the deed 
 in point of fact only, and all other defences shall be specially 
 pleaded, including matters which make the deed absolutely void, 
 as well as those which make it voidable." — Thus coverture or lunacy 
 at the time of the execution, or, that the bond was delivered as an 
 escrow, or, that the defendant was made to execute it when he was 
 so drunk that he did not know what he did, must be pleaded 
 specially. 
 
 It is not now necessary to make profert of any deed mentioned 
 or relied upon in pleading, nor, if made, does it entitle the opposite 
 party to oyer (Common Law Procedure Act, 1852, sect. 55) ; but a 
 party pleading in answer to any pleading in which any document 
 is mentioned or referred to, is at liberty to set out the whole or 
 the material parts thereof, which matter is to be taken as 
 part of the pleading in which it is set out, sect. 56. If the deed 
 be misrecited or not truly set out, the opposite party ought, it 
 would seem, to pray to have the bond and condition, or either (as 
 
 (i) CoaUs V. Hewit, 1 Wils. 80. (o) Brown v. Sedges, cited 1 Str. 614. 
 
 (le) Coates v. Hewit, ubi sup. (p) Dutch West India Company v. 
 
 (I) Sayer v. Glmn, ] Lev. 64. Moses, 1 Str. 612. . 
 
 (m) Judd V. Evans, 6 T. E. 399. {q) And see Com. Law Proc. Act, 1852. 
 
 (n) Houriet v. Morris, 3 Campb. 303, Sohed. A, form 4, 
 
DEBT. 491 
 
 the_ case may be), enrolled (or, semble, himself to set them out 
 ipsissimis verbis), and then demur (r), or move to quash the 
 plea (s). 
 
 Upon the issue of non est factum, the plaintiff must prove the 
 ex^ecution of the bond by the defendant. Proof that one, who 
 called himself D., executed, is not sufficient, if the witness did not 
 know it to be the defendant (t). Upon this issue, the question is, 
 whether it was the plaintiff's or defendant's deed respectively at the 
 time it is pleaded as such (u). Thus, where to a plea of release of 
 the defendant, the plaintiffs replied non est factum, on which issue 
 was joined, it was held, that the issue was proved for the defend- 
 ant, by the production of the deed in a cancelled state, which had 
 operated as a release, it having been Cancelled by the releasee after 
 plea pleaded but before issue joined (x). An objection that the bond 
 was executed by the defendant in a name other than his own, and 
 other than one by which he was known at the time of the execu- 
 tion, (if available at all,) is not available to the defendant under the 
 plea of non est factum {y). 
 
 To prove the execution of a bond, the sealing and delivery must 
 be proved. Proof of the sealing only is not sufficient. Hence, in 
 a case {z) where the jury found that the defendant sealed the bond 
 and cast it upon the table, and the plaintiff took it without any 
 other delivery, or any other thing amounting to a delivery, the 
 court were of opinion, that this was insufficient ; observing, that it 
 was not like the case which had then lately been adjudged (a), 
 where the obligor had sealed the bond, and cast it upon the table, 
 saying, " This will serve," which was held a good delivery ; 
 because, from the expressions used by the obligor, it appeared to 
 be his intention that it should be his deed. If the obligor says to 
 the obligee, " It is sufficient for you," or, " Take it as my deed," 
 or the like words, it is a sufficient delivery (b). In Talbot v. Hodson, 
 7 Taunt. 250, however, it was held, that evidence of signing by the 
 party by whom the deed purported to be sealed and delivered, was 
 evidence sufficient to warrant the jury in inferring the sealing and 
 delivery. 
 
 If a person deliver a writing sealed to the f arty to whom, it is'made, 
 as an escrow, that is, to be his deed upon certain conditions, that is 
 an absolute delivery of the deed, being made to the party him- 
 
 (r) Com. Dig. Pleader, P. 1 ; Ferguson (m) Whd'gdale's case, 3rd Ees. 5 Ecp. 
 
 V. Maehreth, i T. E. 371, n. 119 ; Michael v. ScorkwUh, Cro. Eliz. 
 
 (s) Kepp V. Wiggett, 6 C. B. 280. It 120. 
 
 was held in Ounter v. Smith, Peake Ad. (x) Todd v. Smlij, 11 M. & "W. 1. 
 
 Ca. 1, that where the plaintiff omitted to (y) Williams \. Bryant, 5 M. & "W. 
 
 take either of these courses, and replied 447. . 
 
 generally, the defendant was entitled to (z) Ohamterldin v, StmtQn, Cro. Eliz. 
 
 a verdict for the variance, under the plea 122 ; 1 Leon. 140. 
 
 of non est factum. {a) 1 Inst. 36, a, 
 
 (t) Memot V. Bates, Bull. N. P. 171. (b) Ibid. 
 
493 DEBT. 
 
 self (c). But a deed may be delivered to a stranger as an escrow {d). 
 It is not necessary that the delivery of a deed as an escrow should 
 be by express words ; although it is in form an absolute dehvery, 
 yet if it can reasonably be inferred from the facts attending the 
 execution, that it was delivered, not to take effect as a deed until 
 a certain condition was performed, (which is a question of fact for 
 the jury (e),) it will operate as an escrow (/). Where, therefore, A. 
 agreed to let premises to B. for a term of years, B. paying lOOZ. 
 for the fixtures, and a lease was prepared and engrossed, but B. 
 only paid 501. down, and it was then agreed that B. should be let 
 into possession as tenant from year to year, on the terms of the 
 intended lease, until he paid the balance of the 100?. ; at the same 
 time A. signed, sealed, and delivered the lease, without using any 
 words qualifying the delivery in any way, retaining it, however, in 
 his own possession ; it was held, that the circumstances warranted 
 an inference, in fact, that it was agreed between the parties at the 
 time of the execution of the instrument, that it should not operate 
 as a lease until the payment (g). 
 
 Where a party to any instrument seals it, and declares, in the 
 presence of a witness, that he delivers it as his deed, but keeps it 
 in his own possession, and there is nothing to qualify that, or to 
 show that the executing party did not intend it to operate imme- 
 diately, except the keeping the deed in his hands, it is a valid and 
 effectual deed ; and delivery to the party who is to take by the 
 deed, or to any person for his use, is not essential (A). So 
 delivery to a third person for the use of the party in whose favour 
 the deed is executed, where the grantor parts with all control over 
 the deed, makes the deed effectual, although the person to whom 
 the deed is so delivered be not the agent of the party for whose 
 benefit the deed is made. S. G. 
 
 The following was the law as to proving deeds before the C L. P. 
 Act, 1854 : — If there were a subscribing witness to the bond who 
 was living, who could be found, and who was capable of being ex- 
 amined, such witness was alone competent to prove the execution ; 
 because he might know and be able to explain the circumstances of 
 the transaction, of which a stranger might be ignorant. The con- 
 fession or acknowledgment of the party executing the bond would 
 not dispense with this testimony (i). Even the admission of the 
 obligor of the execution of a bond, in an answer to a bill in 
 Chancery filed for the express purpose of obtaining such admission, 
 was held insufficient without evidence to account for the non-pro- 
 
 (c) JUd. But see Oudgen v. Bessett. (g) Qudgm v. Besselt, 6 E. & B. 986. 
 
 (d) 1 Inst. 36, a. Tlie objection that it was delivered to tlw 
 
 (e) Mwrray v. Earl of Stair, 2 B. & party himself does not seem to have been 
 C. 82. argued by counsel. 
 
 (/) Bowlcer v. BurdeJcin, 11 M. & "W. (ft) Doe v. Knight, 5 B. & 0. 671. 
 
 147. (i) Ahiott V. Plmnbe, Doug. 215. 
 
DEBT. 493 
 
 duction of the subscribing witness (Ic). Nor could this rule be dis- 
 pensed with, even where the instrument was not the foundation of 
 the action, but only given in evidence collaterally. See Per Lord 
 Alvanley, C. J., in Manners v. Postan, 4 Esp. 240. And it was not 
 Sufficient ground for receiving evidence of the handwriting of a 
 witness (which would be receivable if he were dead) that he was 
 unable to attend the trial from illness, and lay without hope of 
 recovery (I). But in a case where the defendant's attorney had ad- 
 mitted the signature of the defendant, and the subscribing witness 
 to the bond. Lord Mlenborough ruled, that this must be taken as a 
 presumptive admission of all the subscribing witness professed to 
 attest, and would have been called to prove, and consequently, that it 
 was not necessary to bring proof of delivery (m). It was not necessary 
 that the subscribing witness should actually see the party execute 
 the bond ; for where the witness was in an adjoining room, and 
 the obligor, after the execution, brought the bond to the witness, 
 and said that he had executed it, and desired the witness to sub- 
 scribe his name as a witness, which he accordingly did, this was 
 held sufl&cient (n). If there were two or more subscribing witnesses, 
 it was only necessary to call one of them. 
 
 If it could be proved that the subscribing witness was at the time 
 of trial dead, or had become insane (o), or blind (p), or was absent in 
 a foreign country (q), whether domiciled abroad or only absent for 
 a temporary purpose (r), or was out of the jurisdiction of the court, 
 e. g. in Ireland (s), or was serving in the navy somewhere (t), or that 
 a commission of bankruptcy had issued against him, to which he 
 had never appeared (w), or generally that intelligence could not be 
 obtained of him, after reasonable inquiry had been made (x) (and 
 semble, that circumstances evidencing the bona fides of the trans- 
 action might render a slighter search sufficient than would be re- 
 quired under circumstances of suspicion (y),) proof of his hand- 
 writing would in such cases have been sufficient. 
 
 In debt on bond, without defence ; Willes, C. J., said, " If both 
 witnesses to the bond are dead, one would think the plaintiff ought 
 to prove the obligor's hand ; but the established rule of evidence 
 is otherwise, and it is sufficient for the plaintiff to, prove both the 
 witnesses dead, and the hand of one of them" (z). So where a 
 
 {k) Call T. Dmming, i East, 58. Bob. 262. 
 
 {l) Harrison v. Blades, 3 Campb. 457 ; (?) Coghlam, v. Williamson, Doug. 93, 
 
 Doe V. Emns, 3 C. & P. 221. Applica- (r) Pnnce v. BlackJmrn, 2 East, 250. 
 
 tion to postpone the trial sliould be (s) Hodnett v. Forman, 1 St. 90. 
 
 made in such a case. W Parlcer v. Hoskins, 2 Taunt. 223. 
 
 (m) Milward v. Temple, 1 Campb. (u) Wardell v. Fermor, 2 Campb. 282. 
 
 ,375. (k) Bmt V. Walker, 4 B. & Aid. 697. 
 
 (m) Parke v. Hears, 2 B. & P. 217. {y) Oroshy v. Perey, 1 Taunt. 364. 
 
 (0) CurrU V. Child, 3 Campb. 283. (2) Tomlins v. Talbot, London bit- 
 
 (p) Wood V. Drury, 1 Ld. Eaym. tings, C. B. M. 18 Geo. II. MS. 10 
 
 734 ; Pedler v. Paige, 1 M. & Bob. Leeds, 202, part of Sevjt. HiUs collec- 
 
 268 ; but see Crank v. Frith, 2 M. & tion in Lincoln's Inn library 
 
494 DEBT. 
 
 bond is attested by two witnesses, and one was dead, and the other 
 beyond the creach of the process of the court, proof of the hand- 
 writing of the witness that was dead was sufficient (a). And the rule 
 held, even where the party executing the deed- signed by a mark 
 only, for of secondary evidence there are no degrees (6). Lord 
 Kenyan held it necessaiy, in cases of this kind, to prove the hand- 
 writing of the obligor, as well as the handwriting of the subscrib- 
 ing witness (c). In a subsequent case, a nonsuit directed by Lord 
 Loughborough, on the ground that the handwriting of the obligor, 
 was not proved, was set aside by the court, and a new trial 
 granted (d) ; and Buller, J., held, " that the handwriting of the 
 obligor need not be proved ; that of the subscribing witness, when 
 proved, is evidence of every thing on the face of the paper, which 
 imports to be sealed by the party" (e). In neither of the above 
 cases, however, does the question of identity seem to have been 
 discussed, and the same may be said of two other cases (/), where 
 the only point made was, whether, if the subscribing witness were 
 abroad or could not be found after reasonable inquiry, evidence of 
 his handwriting was admissible, and it was held that it was. 
 Where the objection that evidence of the subscribing witness's 
 handwriting was no proof of the identity of the defendsint, was 
 taken. Lord Tenterden and Best, C. J., held that no further evi- 
 dence was required (g) ; but in an action on a promissory note, Mr. 
 J. Bayley said, — ■" It is laid down in Mr. Phillips's Treatise on the 
 Law of Evidence, that proof of the handwriting of the attesting 
 witness is in all cases sufficient. I always felt this difficulty, that 
 that proof alone does not connect the defendant with the note. If 
 the attesting witness himself gave evidence, he would prove not 
 merely that the instrument was executed, but the identity of the 
 person so executing it ; but proof of the handwiiting of the attest- 
 ing witness establishes merely, that some person assuming the name 
 which the instrument purports to bear, executed it, and it does not 
 go to establish the identity of that person " Qi). And this doctrine 
 was finally established by Whitelocke v. Musgrove, 1 Or. & M. 511, 
 where it was held, that, although the handwriting of the party need 
 not necessarily be proved (for that is but one, among many, methods 
 of proving, identity {%)), still that the naked evidence of the hand- 
 
 (a) Adamv. Kerr, 1 B. & P. 360. (i) Others are— that tlie defendant was 
 
 (V) Mitchell v. Jokmm, M. & Malk. present when the instrument was pre- 
 
 176. pared. Nelson v. WhUtal ; to prove assets, 
 
 (c) Wallis V. Lelaney, 7 T. E, 266, n. that a person learing the same cMrader 
 
 ■(d) Gough v. Cecil, 0. B. Trin. 24 as the party sued, 'e. g., as administrator 
 
 Geo. III., Serjt. Hill's MS. 21, p. 78 ; 1 of A. B., had admitted assets in an 
 
 Luders on Elections; p. 317, S. 0. answer to a bill in Chancery ; Hennell T. 
 
 (e) Adam, v. Kerr, 1 B. & P. 360. Lym, 1 B. & Aid. 182 : and see "' 
 
 (/) Cvmliffev. Seton, 2 East, 183, and so7i v. Dismore, 9 M. & W. 47 ; by ap- 
 
 Prince v. BlacTcbwrn, ibid. 250. plications for payment answered hy de- 
 
 (g) Page v. Manil, M. & M. 79, and fendant, or other acknowledgmBntS' by 
 
 Kayr. Broohrmm, ibid. 286. him; per BayUy, J., in WhiteUcke.'i. 
 
 (h) Nelson v. Whittal, 1 B. & Aid. Musgrove; that the party who is proved 
 
 19. to have executed the instniment, from 
 
DEBT. 495 
 
 writing of the subscribing witness is not sufficient to fix a defendant 
 in such case ; and that reasonable evidence must be given of the 
 identity of the party sued with the party executing the instru- 
 ment. 
 
 Thus, where in an action on a bond against H. ; plea, non est 
 factum ; the subscribing witness stated that he saw it executed by 
 a person who was introduced as H., but he could not identify the 
 person in question with the defendant, the plaintiff was non- 
 suited (k). So where, in an action against Hugh Jones, the sub- 
 scribing witness stated, that he saw the signature written by a 
 person of the name of Hugh Jones, whose occupation and resi- 
 dence he described, but that he had had no communication with 
 him since, and that the name was veifjr common in that neighbour- 
 hood ; it was held, that there was no evidence to go to the jury of 
 the identity of the defendant (I). So where the witness stated that 
 the handwriting was that of " J. S. of B., a woolstapler," but also 
 that he knew another J. S. of the same place, also a woolstapler, 
 the court inclined to think there was no evidence of the identity 
 of the defendant (m). By 26 Geo. III. c. 57, s. 38, deeds exchanged 
 in the East Indies and attested by witnesses there are made evi- 
 dence on proof of the handwriting of the parties and of the 
 witnesses, and also that the witnesses are resident in the East 
 Indies. 
 
 If the subscribing witness denied having seen the deed executed, 
 the case stood as if there had been no subscribing witness, and other 
 evidence might be admitted (n) ; e. g. by proving the handwriting 
 of the party (o). 
 
 Such was the old law upon the subject, but now, by the 0. L. P. 
 Act, 1854, s. 26, "It is not necessary to prove by the attesting 
 witness any instrument to the validity of which attestation is not 
 requisite, and such instrument may be proved by admission or 
 otherwise as if there had been no attesting witness." Bonds gene- 
 rally do not require attestation, and therefore now, in case of 
 attestation, the attesting witness need not be called. 
 
 If the bond be thirty years old or upwards, it may be given in 
 evidence without any proof of the execution {f), for it proves itself 
 without calling the subscribing witness, even if he is alive (g). 
 Some account, however, ought to be given of it, where found, &c., 
 
 his residence or other circumstances, an- {n) Talbot v. Hodson, 7 Taunt. 251. 
 
 swers the description of him in such in- (o) Fitzgerald v. Elsee, 2 Campb. 635. 
 
 stmment. Grecnshields v. Crawford, 1 (p) Bull. N. P. 255. This rule ex- 
 
 D. N. S. 439. tends to other paper writings, as well as 
 {h} Parkins v. HawTcsTiaw, 2 Sta. 239 ; deeds, e. g. old receipts. Fnj v. Wood, 
 T. Sandford, i Campb. 34, M. 11 Geo. II. _B. S. MS. ; Bertie v. 
 
 ace. Beaumont, 2 Price, 308 ; and Wynn v. 
 
 (l) Jones V. Jones, 9 M. & W. 75. Tyrwhitt, 4 B. & Aid. 376. 
 
 (m) Barkers. Stead, 3 C. B. 946. The (?) Doe v. Burdett, 4 A. & E. 19 ; 
 
 case was decided on another ground. Doe v. WolUy, SB. & C. 24. 
 
49fi DEBT. 
 
 in order to raise the presumption that it was regularly executed (r). 
 The custody to be shown for the purpose of making a document 
 evidence without proof of execution is not necessai'ily that of a 
 person strictly entitled to the possession; it is sufficient if.it is 
 produced by persons, whose possession of it may be reasonably 
 accounted for ; although their custody be not the strictly proper 
 one (s). But if there be any blemish in the bond by razure or in- 
 terlineation, the execution ought to be proved, although the bond 
 be above thirty years old, by the subscribing witness, if living, and 
 if he is dead, by proving his handwriting, in order to encounter 
 the presumption arising from the razure, &c. (t). 
 
 In the case of a joint bond, if one obligor only (or two out of 
 three (u)) be sued, he or th ey must plead the matter in abatement {x) ; 
 for advantage cannot be taken of the fact in evidence under non 
 est factutn (y), although it appear upon the declaration that there 
 are other obligors (z) ; nor can he or they it seems demur (a), for 
 the court will not intend upon demurrer that the other party or 
 parties executed the deed unless it be so averred ; Gabell v. 
 Vaughan, 1 Wms. Saund. 291, n. (1), in which latter case it would 
 seem a demurrer would lie, if it also appeared on the declaration 
 that the other parties were alive. But where it appears on the 
 record, the objection may be taken in arrest of judgment (6). 
 
 2. Accord and Satisfaction. 
 
 It appears from an obiter dictum in one case (c), that to debt on 
 bond accord and satisfaction before the day of payment is a dis- 
 charge. This however is not so, for it is clear that a bond cannot 
 generally be discharged except by matter- of as high a nature. 
 Thus, if the debt arises upon an obligation without a condition, 
 satisfaction by deed only can be pleaded (d). So one bond cannot 
 be pleaded in satisfaction of another (e). So accord and payment 
 of part before the day, with a promise to pay the residue at a 
 future day, which promise the obligee accepted in satisfaction of 
 the debt, is not a good plea ; because the promise to pay is execu- 
 ^°^y (/)> but tlie debt is certain, and, taking its essence and opera- 
 tion solely by the specialty, must be avoided by matter of as high 
 a nature (g). 
 
 (r) Governor of Chelsea Water-works v. 2614. The jury, in this case, found it 
 
 Cowper, 1 Esp. 275 ; Forbes v. Wale, 1 was the deed of both, and it appeared on 
 
 ; ^ ■ "^^- „ , the declaration that both were liviiig. 
 
 (s) I>oe V. Samples, 8 A. & E. 151 ; If one were dead, hut that fact were 
 
 CrougUon v. Blake, 12 M. & -W. 208 . omitted in the declaration, it might now 
 
 (t) CMtle V. Pound, Bull. N. P. 255. be suggested under sect. 143 of the 
 
 (u) South V. Tanmr, 2 Taunt. 254. Com. Law Proc. Act 1852 
 
 {x) Watts V. Goodman, Ld. Eaym. (c) Anon., Cro. Eliz. 46. 
 
 ^^^'^: TT, , , , , .-r. W ■^^"^^ ^■- SheffieU, Cro. Car. 254. 
 
 (y) Whelpdales ease, 5 Eep. 119, a. (e) Manhood v. Crick, Cro. Eliz. 716. • 
 
 {z) South Y. Tanmr, 2 Taunt. 254 (/) Mlston r. Baxter, Cro. Eliz. 304. 
 
 (a) Gilbert v. Bath, Str. 603. {g) Blake's case, 6 Eep. 43 b. 
 
 (b) Horner v. Moor, cited 5 Burr. 
 
DEBT. 497 
 
 But if the debt arises by the performance or breach of the con- 
 dition, and not by virtue of the bond, accord and satisfaction is a 
 good plea in discharge of the condition, and must be so pleaded [h), 
 for " though the bond is under seal, the condition is of a thing rest- 
 ing in evidence only, and may be compared to a matter in pais" (i). 
 Thus payment and acceptance (Jc) of a less sum before the day, or 
 at a different place, in satisfaction, may be pleaded in bar to the 
 sum due by the condition ; for parcel of the debt, before the day, 
 or at a different place, may be more beneficial to the obligee than 
 the whole, at the day ; and so of the gift of a horse, hawk, or robe, 
 for the value of the satisfaction is not. material (l) ; it must how- 
 ever have some value at law ; hence, a release of an equity of 
 redemption is not sufficient (m). And note the distinction between 
 covenant, and bond with a conditidfi, in this respect, for in the 
 case of a covenant the whole matter is under the seal of the 
 party, and accord and satisfaction is no answer to an action before 
 breach, see ante, "covenant;" but in a bond with a condition it 
 is not so. 
 
 3. Duress. 
 
 To debt on bond the defendant may plead, that it was obtained 
 by duress of imprisonment. This plea admits the deed, and the 
 proof of the issue lies on the defendant. If the defendant can 
 prove that he was compelled to execute the bond, when he was 
 under an arrest, without legal process, or by the process, or war- 
 rant of a person not having legal authority, it is sufficient (n). So 
 if the arrest was by warrant from a justice of the peace, on a charge 
 of felony, where there had not been any felony committed (o) ; or 
 if the defendant, having been arrested under legal process, was 
 forced by tortious usage in prison (p), it will be a duress. 
 
 The duress must be of the ^ersow of the defendant ovhis wife (q). 
 In 1 Roll. Abr. 687, pi. 3, it is said, that if a person executes a 
 deed by duress of his goods, he may avoid the deed ; and 20 Ass. 
 pi. 14, is cited, where a release made by an abbot, by duress of his 
 cattle, was held void. But in Sumner v. Feryman, cited 2 Str 
 917, it is said to have been held that a bond could not be avoided 
 by duress of goods (r). 
 
 (h) JSfeale v. Sheffield, Yelv. 192. (?) Bro. Abr. Duress, pi. 18. 
 
 \i) Per Tindal, C. J., Wcsty. BUhc- (r) ^cc. Bro. Abr Duress pL 16 , 
 
 way, 2 M. & 6. 751. Skeate v. Beale, 11 A. & E. 983 which 
 
 &) Brake v. Mitchell, 3 East, 252. was a case of <,n agn-eemmt ; ^ut it was 
 
 \l) PmiuVs case, 5 Eep. 117, a. laid down that there was ^o distmctioii 
 
 m) Preston y. Christmas, 2 Wils. 86. in this respect between a deed and an 
 
 (m) Com. Dig. Plead. (2 W. 19.) agreement not under seal. See, Uutliei. 
 
 (o) Aleyn, 92. ante, p. 100. 
 
 (p) 2 Inst. 482. 
 
 VOL. I. 
 
 K K 
 
498 DEBT. 
 
 One, who is a surety only, cannot plead that the bond was 
 obtained by duress of the principal where the bond is joint and 
 several (s), " for none shall avoid his own bond for the imprisoa- 
 ment or danger of any other than of himself only " (t). 
 
 4. Illegal Consideration. 
 
 Immoral. — A bond may be avoided, if it has been. made upon 
 an immoral consideration ; as where the condition of the bond was, 
 that the obligee and obligor should live together in a state of for- 
 nication (u). But a bond given by a single {x) or a married man {y), 
 in consideration oi past cohabitation with an unmarried woman, is 
 good ; because it shall be intended as a compensation for the wrong 
 done (z). 
 
 In Restraint of Trade (a). — With respect to bonds made in 
 restraint of trade, it may be observed, that total restraints of trade, 
 which the law so much favours, are absolutely bad, and that all 
 restraints, though only partial, if nothing more appear, are presumed 
 to be bad (b) ; but wherever a sufificient consideration appears (c), 
 either in the instrument, or (semble) by averment (d), to make it a 
 proper and useful contract, and such as cannot be set aside without 
 injury to a fair contractor, it ought to be maintained, provided the 
 restraint is limited to a particular place ; but if the restraint is 
 general, that is, not to exercise a trade throughout the kingdom, 
 the bond is void. 
 
 In debt upon bond, the condition recited, that the defendant had 
 assigned to the plaintiif a lease of a messuage and bakehouse in 
 L. Street, in the parish of St. Andrew, Holborn, for the term of five 
 years ; and provided, that the defendant should not exercise the 
 trade of a baker within that parish, during the same term ; or, in 
 case he did, should within three days after proof thereof, pay to 
 the plaintiff the sum of 501. On demurrer the court adjudged the 
 bond to be good, on the ground, that from the particular circum- 
 stances and consideration set forth, the contract appeared to be 
 lawful and useful, and that the restraint was a particular restraint, 
 founded on a valuable consideration (e). See also Chesman v. 
 Nainhy, 2 Str. 739 ; in which case the Courts of C. P., K. B., and 
 House of Lords, successively recognised the same principle, viz., 
 that contracts entered into between two persons, to restrain one of 
 
 (s) 1 EolL Abr. 687, pi. 6. (a) See p. 69, ante. 
 
 (t) Huscombe v. Standing, Cvo. Jae. (J) Mallan v. Maij, 11 M. & W. 66.5. 
 
 187. (c) The court will not enter into the 
 
 (m) Walker v. Perkins, 3 Burr. 1568. question whether the consideration given 
 
 (X) Turner v. Vaughan, 2 "Wils. 339. Is equal in value to the restraint agreed 
 
 {y) Nye v. Moseley, 6 B. & C. 133. to. Hitchcoek v. Coker, 6 A. & E. 438. 
 
 (s) Ball V. Palmer, 3 Hare, 532 ; (d) Mallan v. May, 11 M. & W. 665. 
 
 Batty V. Chester, 5 Beav. 103 ; Binning- (e) Mitehel v. Reynolds, 1 P. Wms. 
 
 ton V. Wallis, 4 B. & Aid. 650. 181. 
 
DEBT. 499 
 
 thein from setting up or exercising a particular trade or employment 
 within a certain limited district, and for a valuable consideration, 
 ■were valid in law. 
 
 Where the restraint of a party from carrying on a trade is larger 
 than the protection of the party, with whom the contract is made, 
 can possibly require, such restraint must be considered as un- 
 reasonable in law, and the contract which would enforce it must 
 therefore be void (/) : as where the stipulation entered into by 
 the defendant was not to practise as a dentist in any place where 
 the plaintiff might have been practising before the expiration of 
 his, the defendant's, service with the plaintiff (g). So a covenant 
 not to carry on the trade of a brewer " in Sheffield or elsewhere " 
 has been held to be void (h). * 
 
 A restriction general as to space, though limited as to time, falls 
 within this rule, and is illegal (i), but a restraint prohibiting a party 
 from carrying on trade within certain limits of space, though un- 
 limited as to time, may be good ; and the limit of the space'is that 
 which, according to the trade he carries on, is necessary for the 
 protection of the party by whom the contract is made (7c). In 
 GhesTnan v. Nainhy, the distance within which the obligor agreed 
 not to exercise the same trade (of a linendraper) with the obligee, 
 was half a mile only. In Davis v. Mason, 5 T. R. 118, where the 
 defendant had bound himself not to practise as a surgeon within 
 ten miles of the plaintiff's residence, the court did not think the 
 limits unreasonable. So in Mallan v. May, where the trade was 
 that of a dentist, the limits of London were held not too large. So 
 in the case of a tally-man, where the limits were the city of West- 
 minster and the bills of mortality (J). So twenty miles round a 
 place in the case of a surgeon (m) ; five miles in the case of a cow- 
 keeper, &c. {n) ; or butcher (o). In the case of an attorney, London 
 and 150 miles round was held not too large (pj ; and a cove- 
 nant not to carry on the " canvassing " book trade within 150 miles 
 of the General Post-office, or in Dublin or Edinburgh, or within 
 fifty miles of either, or in any town in Great Britain or Ireland 
 where the plaintiff might then have, or have had within the six 
 months preceding, an establishment, was held legal (g). So not 
 within 200 miles of Birmingham, in the case of a horse-hair manu- 
 facturer. Harms v. Parson, 32 Beav. 328, in which case it was 
 
 (/) Eitchcoch V. Coker, 6 A. & E. .solicitor in any part of Great Britain for 
 
 454. twenty years was enforced in equity. 
 
 ig) Mallan v. May, 11 M. & W. 653. {Jc) Ward v. Bryne, 5 M. & W. 548. 
 
 (h) Hinde v. Gray, 1 M. &. G._195. (I) Colmery. Clark, 7 Mod. 8to. ed. 
 
 Such a contract, however, is divisible ; 230. 
 
 for part of it is illegal only in the sense (m) Bayward v. Young, 2 Chitty, 
 
 of being void, and not in the sense of 407. 
 
 tainting the rest of the consideration. in) Proctor v. Sargent, 2 M. & G. 20. 
 
 Price v. Grem, 6 M. & W. 346. (o) Elves v. Crofts, 10 C. B. 241. 
 
 (i) But in Whittaker v. Mowe, 3 Beav. (p) Simn v. Grey, 4 East, 190. 
 
 383, an agreement not to practise as a (q) Tallis v, Tallis, 1 E. & B. 391. 
 
 K ic 2 
 
500 DEBT. 
 
 said that the limit of exclusion depends upon the character of the 
 business, and it will not be considered unreasonable if it was neces- 
 sary for the protection of the purchaser. But a district 200 miles 
 in diameter was held an unreasonable restriction in the case of a 
 dentist (r). So, within 600 miles of London, in the case of a 
 perfumer (s). 
 
 So a restraint unlimited in point of time, but limited as to 
 certain persons, is good : as where the condition of a bond was 
 not to trade with the persons named in the schedule thereto (<). 
 So an agreement not to supply bread, &c., to the customers " then 
 dealing at the premises" of the plaintiff (tt). So a covenant not 
 to be concerned as attorney for any person who had already been, 
 " or should from time to time thereafter be," clients of the plain- 
 tiff (a;) ; not to carry on the business of a ropemaker, except on 
 government contracts (y). 
 
 A covenant not to carry on a trade, except as an assistant to the 
 plaintiff in that trade, is good (z). A condition not to practise a 
 trade at S., or within ten miles thereof, at any time, without the 
 written consent of K. W., is not confined to the lifetime of K. W. (a). 
 In Hilton v. Echersley, 6 E. & B. 47, the condition of the bond 
 recited that the obligors, mill-owners, had, in consequence of 
 societies and combinations among their workpeople and others, 
 whereby persons, otherwise willing to work, were deterred from so 
 doing, and the legal control of the obligors' property was in- 
 juriously interfered with, agreed to carry on their works, with 
 regard to the amount of wages, the periods of engagement of 
 workpeople, the hours of work, the suspension of their works, and 
 the general discipline and management thereof, in accordance with 
 the resolutions of a majority of the obligors present at any meet- 
 ing to be convened ; on the performance of which condition, the 
 bond was to be void, otherwise to be in full force and effect. It 
 was held, in the Exch. Ch., that the bond was void, as restraining 
 each obligor's power of carrying on his trade according to his dis- 
 cretion, and for his own best advantage. So, too, in the case of 
 trades unions, their rules are illegal, in the sense that they cannot 
 be enforced in a court of law (&). 
 
 Other Instances. — It is impossible to enumerate every species of 
 illegality, for which a bond may be avoided : but before I close this 
 
 (r) HoTMr V. Graves, 7 Bingh. 735. Sauud. 155, b. 
 
 (s) PriM V. Green, 16 M. & "W. 346. (m) Bannie v. Irvine, 7 M. & G. 969. 
 
 The trae principle of admeasurement In (x) Nicholla v. Stretton, 10 Q. B. 346„ 
 
 these cases is to take the nearest mode {y) Gale v. Seed 8 East, 78. 
 
 of access ; Leigh v. Ilwid, 9 B. & C. (2) Wallis v. Day, 2 M. '& W. 273. 
 
 774 ; and the popnlousness or otherwise (a) Hastings v. Whitley, 2 Exch. 611. 
 
 of the distnct is immaterial. Mallan (b) Horiihj v. Close, 2 L. E. Q. B. 
 
 V. May. 153. 
 
 (t) Hunloche v, Blacklawe, 2 "Wms. 
 
DEBT. 501 
 
 head, I cannot forbear to mention the case of Collins v. Blantern, 
 2 Wils. 347, which underwent a long and serious discussion. It 
 was an action of debt on bond, in which the defendant was jointly 
 and severally bound with A. and B. in the penal sum of 7001., con- 
 ditioned for the payment by A. and B. and the defendant, of the 
 sum of SoOl. The defendant pleaded that A. and B., and three 
 other persons, stood indicted by John Kudge, for wilful and corrupt 
 perjury, and were to be tried at the ensuing assizes in Stafford, 
 whereupon it was unlawfully agreed, between Eudge the prosecutor, 
 the plaintiff, and the five persons indicted, that the plaintiff should 
 give Rudge his promissory note for 350?., for not appearing to give 
 evidence at the trial, and that the obligors should execute the bond 
 to the plaintiff as an indemnity to the plaintiff for giving such note : 
 concluding with an averment, that the said agreement was carried 
 into effect, and that the bond was given for the said consideration, 
 and no other. On demurrer, the court gave judgment for the de- 
 fendant on the grounds : 1st, That it was an agreement to stifle a 
 prosecution for perjury, — a crime most detrimental to the common- 
 wealth : that the promissory note was certainly void, and conse- 
 quently the plaintiff was not entitled to recover upon the bond 
 which was given to indemnify him from such note : they were 
 both bad (c), the consideration for giving them being wicked and 
 unlawful. 2ndly, That the bond was void, because it was given 
 for the purpose of tempting a man to transgress the law. 3rdly, 
 That the special matter might be pleaded ; although it was ob- 
 jected, that the law would not endure a fact in pais de hors, a 
 specialty to be averred against it, and that a deed could not be 
 defeated by anything less than a deed ; for the condition in this 
 case was, for the payment of a sum of money; but,_!;/ia^ payment 
 to be made, was grounded upon a vicious consideration, which was 
 not inconsistent with the condition, but struck at the contract itself, 
 in such a manner as showed that the bond never had any legal 
 entity ; and if it never had any being at all, then the maxim, that 
 a deed must be defeated by a deed of equal strength, did not apply 
 to this case. The averment pleaded in this case was not contra- 
 dictory to, but explanatory of, the condition. 
 
 The true meaning of the above rule, that matters dehors the 
 deed cannot be pleaded, is, that matter inciDusistent with or con- 
 trary to the deed cannot be alleged, but matter consistent with 
 the deed may (d). " Since the case of Pole v. Harrohin" _ how- 
 ever, "it has been generally understood, that an obligor is not 
 restrained from pleading any matter which shows that the bond 
 was given upon an illegal consideration, whether consistent or not 
 with the condition of the bond." Per Lord Ellenborough, C. J.(e). 
 " It is true, that you cannot add to a contract under seal any thmg 
 
 (c) S. P. admitted per Cur. in Cuth- (d) BucHerv. Millerd.i VeiiiT. 107. 
 
 ierty. ffale, 8 T. R. 382. («) Pa^ton y. Pophani., 9 East, 421, 2, 
 
503 DEBT. 
 
 to vary the contract; but you may show dehors the instniment, that 
 such contract was entered into for an illegal purpose." Per Lord 
 Ahinger, C. B. (/). In debt on bond, conditioned for the pay- 
 ment of a sum of money in case the defendant did not procure 
 I. S. then impressed, to appear and deliver himself to the plaintiff 
 when called upon : the defendant pleaded that I. S. having been 
 unlawfully impressed, the plaintiff was unwilling to discharge 
 him, unless he would agree to pay a certain sum of money, and 
 would procure the defendant to become bound ; and thereupon it 
 was unlawfully agreed, that the plaintiff should discharge I. S. on 
 the defendant becoming bound for that sum, and thei-efore the 
 bond was void. To this plea there was a demurrer, on the ground 
 that the defendant could not aver matter inconsistent with the 
 condition of the bond ; that it appeared by the condition that the 
 party was impressed, which meant legally ex vi termini. But the 
 court held the plea to be good {g). So where the condition of the 
 bond stated, that the defendants had borrowed of the plaintiffs a 
 sum of money, which was to run at respondentia interest, on the 
 security of certain goods shipped from Calcutta to Ostend. The 
 defendants pleaded, that the bond was given to cover the price of 
 goods knowingly sold by the plaintiffs to the defendants, for the 
 purpose of an illegal traffic from the East Indies, without ex- 
 pressly negativing the fact that it was borrowed, as expressed, in 
 the condition. The plea was held good, Le Blame, J., observing, 
 that after the cases, breaking in upon the old rule, had deter- 
 mined, that though the bond state nothing illegal upon the face of 
 it, the obligor may show by his plea, that it was given for an 
 illegal consideration, they had, in effect, decided, that he may 
 show an illegal consideration different from the consideration 
 stated in the condition. And when the plea states, that the bond 
 was given to cover the price of goods illegally contracted to be 
 sold and shipped, it does in effect deny that it was given for 
 money borrowed ; and it shows that the statement in the con- 
 dition was made colourably in order to cover the illegal agree- 
 ment (h). 
 
 Gaming. — Where the consideration on which the bond is given 
 is illegal by statute, the defendant may take advantage of it by 
 pleading. And if the bond contain several conditions, although 
 one of the conditions only be void by a statute, yet the whole bond 
 is void (i). Thus it was held that a deed given to secure the 
 purchase-money of land sold for an illegal object, viz., that it 
 might be sold by lottery, could not be enforced (Ic). A bond given 
 in pursuance of an agreement that a deed of apprenticeship should 
 be antedated, in order that the apprentice might be admitted to 
 
 (/) The Gaslight Company v. Turner, (A) Paxton v. Popham, 9 East, 408. 
 
 e B. N. C. 327. (i) Norton v. Symes, Moore, 856. . 
 
 {ff) Pole V. HarroKn, 3 Doug. 91. (k) Fisher v. Bridges, 3 E. & B. 642, 
 
DEBT. 503 
 
 practise as an apothecary in two years instead of five, as required 
 by statute, was held illegal (I). By 8 & 9 Vict. c. 109, s. 18, all 
 contracts or agreements by way of gaming or wagering are 
 rendered void. 
 
 Hazard, roulette, and certain other games, are declared to be 
 illegal by 12 Geo. 11. c. 28. s. 2 and 3, and 18 Geo. II. c. 34. See 
 further, ante, p. 109. 
 
 Sale of Office.— By 5 & 6 Edw. VI. c. 16, s. 2 and 3(m):— If 
 any person take any bond to receive any money, fee, reward, or 
 other profit, directly or indirectly, for any office or offices, or any 
 part of them, or to the intent that any person should enjoy any 
 office, or the deputation of any ofSce, or any "part thereof, which 
 office, or any part, shall in any wise touch the administration or 
 execution of justice ; or the receipt, controlment, or payment of 
 any of the king's money, revenue, &c., customs, &c. ; or which shall 
 touch any clerkship to be occupied in any manner of court of 
 record, wherein justice is to be ministered : every such bond shall 
 be void against the person making it. By the 4th section, offices 
 of inheritance, or of the keeping of any park, house, &c., are ex- 
 cepted. See Huggins v. Bainbridge, Willes, 241. 
 
 There were two principal reasons for making this statute {n), 
 1st, that offices might be exercised by persons of skill and in- 
 tegrity ; 2ndly, that they might take only the legal fees ; for those 
 who buy their offices will be apt to take more than their legal 
 fees, according to what is said in 3 Inst. 148, " they that buy will 
 sell." The office of registrar of an archdeaconry is an office within 
 this statute (o), because it is an office concerning the administra- 
 tion of justice. So is, it seems, the office of under-sheriff (|)). 
 Where an office is within the statute, and the salary is certain, if 
 the principal makes a deputation, reserving a lesser sum out of 
 the salary, and take a bond conditioned for the payment of such 
 lesser sum, such bond is not within the statute. So if the profits 
 be uncertain, arising from fees, if the principal make a deputation, 
 reserving a sum certain out of the fees and profits of the office, it 
 is good : for in these cases the deputy is not to pay, unless the 
 profits amount to so much ; and though a deputy, by his constitu- 
 tion, is in place of his principal, yet he has not any right to the 
 fees, which still continue to be the principal's ; so that, as to him, 
 it is only reserving a part of his own, and giving away the rest to 
 another ; but where the reservation or agreement is not to pay out 
 of the profits, but to pay generally a certain sum, which must be 
 
 (I) Prole V. Wiggins, 3 B. N. C. 240. (o) Woodward v. Foxe, 3 Lev. 289. 
 
 (m) As to what offices are within the {p) Browning v. Halford, Freem. 19 ; 
 
 statute, see Ste.rry v. Clifton, 9 C. B. but the sale of such office is expressly 
 
 110. ' forbidden by 3 Geo. I. c. 15, s. 10, under 
 
 in) Per Willes, C. J., Layng v. Payne, a penalty of 500Z. 
 Willes, 573. 
 
504 DEBT. 
 
 paid at all events, a bond conditioned for the payment of such 
 sum is void by the statute (g) ; even although it appear on the 
 record that the profits of the office exceed the sum agreed to be 
 paid (r). 
 
 So where, by the condition of the bond, it appeared that A. had 
 granted to B. and C. (the son of A.) the office of registrar of an 
 archdeaconry for their lives, and the terms of the condition -were, 
 1st, that B. should permit C. to receive all the profits of the office : 
 and, 2ndly, that B. should surrender the office and profits when- 
 ever C. should require it; it was held, that this condition was 
 within the provision of the statute, and made the bond void ; first, 
 because an agreement to have all the profits was an agreement to 
 receive some profit, "which was contrary to the words of the statute; 
 secondly, because either B. must execute the office for nothing, or 
 he must take more than his legal fees ; that a person of skill, and 
 of integrity, would not execute such an office for nothing ; and if 
 he had anything for it, it must be by extortion, and by taking 
 illegal fees, and thereby the principal end of the statute would be 
 eluded. As to the condition that B. should sun-ender the office at 
 the request of C. ; the court said that it was unnecessary to decide 
 that, inasmuch as it had been held, that if any of the conditions 
 are void hy statute, the whole bond is void. They intimated, how- 
 ever, a clear opinion that this branch of the condition was void 
 also ; for the donor thereby reserved to himself an absolute power 
 over his officer, which he ought not to do. Besides, if this were 
 allowed, there would be a plain method chalked out to evade the 
 statute ; for any one by this means might sell an office for the full 
 value. For let such a condition be put in, let the bond be given 
 for the full value of the office, and let it be agreed between them, 
 that the officer shall refuse to sun-ender upon request, and then 
 the grantor will recover on the bond, and so have the full value of 
 the office (s). 
 
 An agreement by A. to sell to B. his business as a law stationer 
 and also to resign the office of sub-distributor of stamps and col- 
 lector of assessed taxes which he then held, and to use his best 
 endeavours to introduce B. into the said business and offices, was 
 held void under the above statute (f). 
 
 The 5 & 6 Edw. VI. c. 16, was extended by 49 Geo. III. c. 126, 
 to Scotland and Ireland, and to all offices in the gift of the crown, 
 or of any office appointed by the crown, and to all commissions, 
 civil, naval, or military, and to all offices, &c., under the appoint- 
 ment of the East India Company ; and the transactions prohibited 
 by the two Acts were made misdemeanors ; but by section 7, the 
 
 (?) Per Cur., Godolphin v. Tudor, {s) Layng y. Payne, WiUes, 571. 
 
 ba k. 468. (^ HopMiis v. Prcscott, i C. B. 678. 
 
 (r) GargoHh v. Fearon, 1 H. Bl. 327. » ' -^ ' 
 
DEBT. 505 
 
 sale of certain offices in the palace, and of commissions in the army 
 at the regulated prices, by authorised agents, are excepted. Under 
 the last-mentioned statute it was held, " that a bond given by a 
 lieutenant in the E. I. Company's service to repay part of the 
 money advanced by the senior captain to the major, in pursuance 
 of an agreement to that effect among the officers of the regiment 
 for the purpose of inducing the major to resign his commission, 
 was void (u). 
 
 A., through his interest with the commissioners of excise, pro- 
 cured for B. a supervisor's place in that office, and in consideration 
 thereof, B. gave a bond for the payment of 101. per ann. to A., as 
 long as B. should continue in the office. B. died, having for some 
 years omitted the payment of the anftunt ; whereupon A. brought 
 an action on the bond against the executrix of B., who filed a bill 
 in equity to be relieved against the bond, which was allowed (x) ; 
 and per Lord Talbot, C, — It is agreed on all hands that this bond 
 is good at law, wherefore the representative of the obligor is 
 obliged to come hither for relief (i/). Bonds of this nature are 
 highly to be discouraged ; merit, industry, and fidelity ought to 
 recommend persons to these places, and not interest with the com- 
 missioners, who, it is to be presumed, had they known from what 
 motive the plaintiff at law applied to them on behalf of his 
 brother, would have rejected him. The officer's giving monev to a 
 friend of the commissioners, for his interest, is altogether as bad as 
 giving money, or a bond for money, to the commissioners them- 
 selves, which undoubtedly would have been relieved against. It 
 is a fraud on the public, and would open a door for the sale of 
 •offices relating to the revenue. The taking away from the officer, 
 what the commissioners and the treasury think to be but a rea- 
 sonable reward for his care and trouble, and an encouragement to 
 his fidelity, must needs be of the most pernicious consequence, and 
 induce him to make it up by some unlawful means, such as cor- 
 ruption and extortion ; and though the excise was no part of the 
 revenue at the time of making the 5 & 6 Edw. VI., yet there may 
 be good ground to construe it within the reason and mischief of 
 the law, which is rather remedial than penal (z). 
 
 (u) Grceme v. Wroughton, 11 Exoh. to te a bar, wliicli at that time ex- 
 
 146. See R. v. Charretie, iS L. J., M. tended only to a jointure made by act 
 
 C. 100. executed in the, husband's life-time. 
 
 (x) Law V. Lav>, S P. "Wms. 391. Afterwards the 32 Hen. VIII. i;. 1, 
 
 (y) S. 0. Ca. Temp. Talb. 140. enabled a man to devise his lands ; when 
 
 (z) And see Hanningtonv. Du Chasiel, it was held, that if a man were to devise 
 
 1 Bro. C. C. 124. It is no new thing, lands to his wife in satisfaction of her 
 
 but usual, that an interest raised by a dower, and she should accept them, this 
 
 subsequent statute, should be under the would be a bar within 27 Hen. VIII. 
 
 same remedy and advantage as an in- (4 Rep. 4, a, b,) because it is within the 
 
 terest existing before. Thus, at common same equity and reason, and the diversity 
 
 law, no acceptance of a collateral reoom- is in the manner only, not in the thing. 
 
 pense could bar a wife of her dower ; but See Lane v. Cotton, Salk. 17. 
 
 the 27 Hen. VIII. c. 10, made a jointiu-o 
 
506 DEBT. 
 
 Svmony.— Simony is the corrupt presentation' lof a pdrson to an 
 ecclesiastical benefice for money, &c. Every contract tnade for or 
 about any matter or thing, which is prohibited and made unlawful 
 by any statute, is a void contract, although the statute itself doth 
 not mention that it shall be so, but only inflicts & penalty on the 
 offender ; because a penalty implies a prohibition, though there 
 are not any prohibitory words in the statute. Hence, in the case 
 of simony, although the 31 Eliz. c. 6, only inflicts a penalty by way 
 of forfeiture, and does not mention any avoiding of the simoniacal 
 contract, yet it has been always held, that such contracts, being 
 against law, are void (a). 
 
 By 31 Eliz. c. 6, s. 5 : — If any person or persons (6), or bodies 
 corporate, shall, for money, reward, gift, profit, or benefit, directly 
 or indirectly, or for or by reason of any promise, agreement, 
 grant, bond, covenant, or other assurance of or for any money, &c., 
 directly or indirectly, present or collate any person to any benefice 
 ■y^ith cure of souls, dignity, prebend, or living ecclesiastical, or 
 bestow the same for any such corrupt consideration, every such 
 presentation, &c., and every admission, institution, investiture, and 
 induction thereupon shall be void (c), and it shall be lawful for the 
 crown to present, &c., to such benefice, &c., for that one turn only; 
 and every person, &c., that shall give or take such money, &c., or 
 take or make any such promise, &c., or other assurance, shall 
 forfeit double the value of one year's profit of such benefice, &c. (c?), 
 and the person so corruptly taking, &c., such benefice, &c., shall 
 thenceforth be adjudged disabled to enjoy the same (e). 
 
 By sect. 6 : — If any person shaU for money, &c. (other than for 
 lawful fees), or for any promise, &c., or other assurance for money, ' 
 &c., directly or indirectly admit, institute, instal, induct, invest, or 
 place any person in any benefice with cure of souls, dignity, pre- 
 bend, or other living ecclesiastical, every such offender shall forfeit 
 double the value of one year's profit of i such benefice, &c., and the 
 same benefice, &c., shall be void, and the patron, &c., shall present 
 or collate unto the same, as if the party so admitted, &c., were 
 dead.r— The 7th section provides, that no title to confer or present 
 by lapse, shall accrue upon any voidance mentioned in the Act, 
 but after six months next after notice given of such voidance, by 
 the ordinary to the patron. By the 8th section : — If any incum- 
 bent of any benefice, with cure of souls, shall corruptly resign or 
 
 (a) Per Bolt, C. J., in Bartlett y. Secus, in an action for rent; CooJce v. 
 
 Ftooj- Garth. 252. Zoxley, 5 T. R. 4. ; or where the oocu- 
 
 (6) Usurpers, as well as persons having pier of the laud has entered into an 
 
 title to present or ooUate, are within this agreement for the composition of tithes, 
 
 statute ; 1 Inst. 120, a ; but if the cor- Brooksby v. Watts, 6 Taunt. 333. 
 rupt presentation or collation is by an {d) i. e., the actual value as found by 
 
 usurper, then the king shall not present, the jury. 3 Inst 154 
 bat the right patron. 3 Inst. 153, 154. {e) Where the' presentee is not privy 
 
 _ (e) So as to be defence m a suit by the to the corrupt contract, he shall not be 
 
 simoniacal parson tor tithes. Hob. 168. adjudged a disabled person. 3 Inst. 154. 
 
DEBT. 507 
 
 exchange the same, or corruptly take, for the resigning or ex- 
 changing the same, directly or indirectly, any pension, money, or 
 benefit, as well the giver as the taker thereof shall lose double the 
 value of the sum so given, the one moiety as well thereof as of the 
 forfeiture of double value of one year's profit to be to the crown ; 
 and the other to him that will sue for the same, by action of debt,' 
 &c., in any court of record. 
 
 In this eighth section, Lord Mansfield, C. J., thought that the 
 word " corrupt " was an emphatic word, and that if the presenta- 
 tion was pure, the resignation was not corrupt ; but the rest of the 
 court were of a different opinion, and thought every resignation 
 for money was corrupt; and upon this construction they held, that 
 a bond, given to an incumbent, seauring to him an annuity of 
 equal value with the profits of the benefice upon his resignation, 
 in order that another person might be presented, who might give 
 a general bond of resignation, so that the patron's son, when of 
 proper age, might be presented, was void (/). 
 
 By the 12 Ann. stat. 2, c. 12, s. 2 :— If any person shall, for 
 money or profit, or for any promise, agreement, &c., or other assur- 
 ance for money, &c., directly or indirectly, in his own name, or in 
 the name of any other person, procure the next presentation to 
 any living, &c., and shall be presented or collated thereupon, every 
 such presentation and admission, &c., shall be void, and such 
 agreement shall be deemed a simoniacal contract : and it shall be 
 lawful for the crown to present for that turn only ; and the person 
 so corruptly accepting such living shall thenceforth be disabled to 
 enjoy the same. 
 
 The statutes against simony apply only to the presentation cor- 
 ruptly procured or intended to be procured. The presentation 
 thus procured or trafficked for is forfeited to the crown, and 
 certain penalties and disabilities are inflicted on the offenders ;. 
 the statutes contain no express provision for avoiding simoniacal 
 conveyances ; but there can be no doubt that the conveyance even 
 of an advowson in fee, — which in itself is legal, — if it be made for 
 the purpose of carrying a simoniacal contract into execution, is 
 void as to so much as goes to effect that purpose; and, if the 
 sound part cannot be separated from the corrupt, is void alto- 
 gether. But if the sound can be fairly separated from the objec- 
 tionable part, it will be good ; although by the contract one entire 
 consideration was paid for the whole advowson {g). An agreement 
 for the sale of an advowson containing a stipulation that the 
 vendor should pay interest until the benefice became vacant, the 
 incumbent being a son of the vendor but not a party to the 
 contract, was held not to be simoniacal Qi). 
 
 if) Yonge v. Jones, 3 Doug. 97. This (g) Greenwood v. Bishop of London, 5 
 
 decision was in 1782, at which time Taunt. 746. 
 
 general bonds of resignation were held to (h) Sweet v. Meredith, 3 Giff. 610 ; 31 
 
 be good. L. J. Ch. 817. 
 
508 DEBT. 
 
 If a perpetual advowson be sold, when the church is void, the 
 next presentation will not pass ; and if the next avoidance only he 
 sold after the death of the incumbent, the sale is altogether 
 void (i). But the purchase of an advowson in fee, where no privity 
 of the clerk intended to be presented appears, has been held not 
 to be simoniacal ; although the incumbent was in extremis at the 
 time when the purchase was made (k). So the purchase of a next 
 presentation, although the incumbent was in extremis within the 
 knowledge of both contracting parties, but without the privity of, 
 or a view to, the nomination of the particular clerk, who was after- 
 wards presented, is not void on the ground of simony (Z). The 
 sale of the advowson of a church which is full is not simoniacal by 
 reason of the incumbency being at the time of sale voidable at the 
 election of the patron : but a conveyance under such sale will not 
 pass the right of immediate presentation (m). 
 
 An agreement entered into by a curate, as the consideration for 
 his taking the curacy, acknowledging the amount of a less sum as 
 immemorially due to the curate than really was due, with the 
 object of estopping him from insisting on his right as curate to the 
 small tithes, is simoniacal, as affording a benefit to the party pre- 
 senting (n). 
 
 If the patron takes of the clerk a bond, conditioned for the per- 
 formance of a legal act, e. g., to pay a sum of money to the son of 
 the last incumbent for a certain time (o) ; to resign when the 
 patron's nephew attains his full age (p) ; to resign on three months' 
 notice to be given by the patron, in order that the patron's son 
 may be presented, and to keep the buildings in repair (q) ; to reside 
 on the living, or to resign in case of not returning after, notice, and 
 also not to commit waste on the parsonage-house (r) ; it has been 
 held, that such bonds are good, and that they cannot be avoided 
 •on the ground of simony. 
 
 Resignation Bonds. — With respect to general resignation bonds 
 or bonds by a clergyman, conditioned to resign at the request of 
 the patron, without expressing the object for which such resigna- 
 tion was intended, the history of the law is very curious. A long 
 train of decisions, commencing with Johnes v. Lawrence (s), had 
 established that such bonds were legal. Bishop Stilhngfleet,- how- 
 ever, had, in 1698, written an elaborate discourse against these 
 
 (i) Per Cur., 6 Bingh. 17. Capel, Str. 634. 
 
 (/<:) BarreM v. Glubb, 2 W. Bl. 1052. (q) Partridge v. Whiston, i T. E. 359. 
 
 (I) Fox V. Buhop of Chester, 6 Bingh. (r) Bagslmw v. BossUy, i T. E. 78. 
 
 1- is) Cro. Jac. 248—274. ' See BaUng- 
 
 {m) Alston Y. AtUij, 7 A. & E. 289. tonY. Wood, Cro. Car. 180 ; Wafeim v. 
 
 (n) B. Y. Bishop of Oxford, 7 East, Baker, T. Eaym. 175 ; Peele v. Com. Car- 
 
 600. lisle, Str. 227 ; Windham y. Boyer, T. 27 
 
 (o) Baker Y. Mounford, Noy, 142. Geo. II. ; Hesketh v. Gray, Saj'er, 185; 
 
 (p) Per Lord Macclesfield, in Peek v. Amb. 268. 
 
DEBT. 609 
 
 decisions ; and,wliea the case o{ Ffytche v. The Bishop of London 
 occurred, Mr. J. Buller declared, that he had searched with little 
 effect to find out on what principle those decisions were founded ; 
 and that, after all the labour he had bestowed upon the subject, it 
 did seem to him that they were destitute of all sense, reason, or 
 principle. But still they were so numerous, — they had arisen at 
 so many different periods, all the judges for near two centuries 
 past had been so uniformly of the same opinion, — the law had 
 been received not only in "Westminster Hall, but through .the 
 whole kingdom as so firmly settled, and mankind had so univer- 
 sally acted upon that idea, — that he thought it would be very 
 dangerous to overturn or even to shake it. Whilst, however, the 
 courts of common law upheld these bonds, the courts of equity 
 took care that an improper use shou* not be made of them ; and 
 whenever the patron put such bond in suit for an illegal purpose, 
 e.g. to discharge himself from a claim of tithe or the like, injunc- 
 tions were granted to stay proceedings in the actions (t). The 
 validity of a general resignation bond by a clergyman was agitated 
 for the last time in Ffytche v. The Bishop of London; and, 
 although the Court of C. P. and K. B. («), as the case came respec- 
 tively before them, considered themselves as bound by the autho- 
 rities, and decided in favour of the bond, yet upon a writ of error 
 being brought in parliament, their judgment was reversed 
 (although all the judges, except Eyre, C. B., had declared their 
 opinion in favour of the bond), upon the motion of Lord Thurlow, 
 Ch., by a division of nineteen against eighteen peers. 
 
 The ground of this decision appears to have been, that such a 
 bond was simoniacal and against the 31 Eliz. c. 6, and not that it 
 was contrary to the general principles of the common law (x). 
 Hence, notwithstanding this decision, the judges afterwards, in 
 cases to which the statute againsb simony did not apply, considered 
 themselves as bound by prior authorities (3/). Therefore it was 
 held, that a bond given by a schoolmaster of an ancient public 
 school, to resign at the request of his patron, was good {z). Latu- 
 renoe, J., however, entertained considerable doubts upon this 
 question, influenced, as it appears, by the arguments which had 
 prevailed against the validity of general resignation bonds by 
 clergymen. After the case of The Bishop of London v. Ffytche, 
 special bonds of resignation, i. e., bonds of resignation in favour of 
 a particular person, or of one or two specified persons, were for 
 some time considered as not illegal (a) ; this point, however, came 
 under the review of the House of Lords, in Fletcher v. Lord 
 
 (t) Durston v. Sandys, 1 Vern. 411. ratoly. 1 East, 487, n. a. 
 
 miUard r. Stapleton, 1 Eq. Ca. Abr. 86. {y) See Bacfshaw v. Bossley, 4 T. E. 
 
 (u) 1 East, 487. 78. 
 
 ((!■) See Cuimingham's Law of Simony, (z) Lecjh v. Lewis, 1 East, 391. 
 
 in which the proceedings in the House of {a) See the opinion of Dampur, J., in 
 
 Lords are reported very fully and accu- Newman v. Newman, 4 M. & S. 71. 
 
510 DEBT. 
 
 Sondes (h). In that case Fletcher had given a bond tothe patron 
 of the living, Lord Sondes, from the condition of which it appeared 
 that the obligee. Lord Sondes, was the patron of the rectory of 
 Kettering, which rectory was then vacant by the death of the 
 incumbent ; that Lord Sondes had presented Fletcher, the obligor, 
 to supply the vacancy, and that Fletcher had agreed to resign 
 upon request, for ike sole purpose that the owner of the advovjson 
 might be enabled to present thereto either H. W. or R. W., when 
 the party to be presented should be capable of taking the same. 
 On the case being brought before the House of Lords, nine of the 
 judges delivered their opinion, three in favour of the bond, and six 
 against it, The case was adjourned; and on the 9th of April, 
 1827, Lord Eldon, Ch., delivered the decision of the House, that 
 the bond in question was void; he being of opinion that the 
 decision in The Bishop of London v. Ffytche governed the case. 
 
 In consequence of the above decision, the 7 & 8 Geo. IV. c. 25, 
 was passed, by which it was enacted, that no presentation to any 
 spiritual office made before the 9th of April, 1827, should be void, 
 on account of any agreement to resign, when some person, or one 
 or two persons, specially named, should become qualified to take 
 the office, and that the parties to the agreement should not be 
 subject to any penalties on account of the agreement ; and that 
 engagements made before the 9th of April, 1827, for the resigna- 
 tion of any benefice, &c., in favour of some person, or one or two 
 persons so specially named, should be valid, &c. The above Act 
 was retrospective merely, but in the following year the 9 Geo. IV. 
 c. 94, was passed, for rendering valid bonds, covenants, and other 
 assurances for the resignation of ecclesiastical preferments, in 
 certain specified cases ; the material provisions of which are : — 
 
 1st. The engagement must be bond fide. 2nd. The purpose 
 must be manifested in the terms of the engagement. 3rd. The 
 engagement must be entered into before the appointment to the 
 benefice. 4th. The resignation nnist be in favour of any one 
 person named and described, or if two persons are named and 
 described, each of them shall be, either by blood or marriage, an 
 uncle, son, gi-andson, brother, nephew, or grand-nephew of the patron, 
 or one of the patrons (not merely a trustee), or of one of the 
 persons for whom the patron is trustee, or of the person by whose 
 appointment the presentation is made, or of any married woman, 
 whose husband in her right shall be patron, or one of the patrons, 
 or of any other person, in whose right the presentation is made. 
 5th. The instrument, by which the engagement is entered into, 
 must be deposited within two calendar months after its date in 
 the office of the registrar of the diocese, wherein the benefice is 
 locally situate ; and shall be open to inspection, and an office-copy 
 thereof shall be admitted in evidence. 6th. The resignation must 
 
 (6) 3 Bingh. 601. 
 
DEBT. 511 
 
 refer to the engagement in pursuance of -which it is made, and 
 must state the name of the person for whose benefit it is made. 
 7th. Such person must be presented within six calendar months 
 after notice of the resignation. 
 
 The statute, however, is confined to such persons only as are 
 entitled to the patronage of the spiritual office as private property; 
 and does not extend to cases where the presentation, &c., is made 
 by the King in right of the crown, or the Duchy of Lancaster, or 
 by any ecclesiastical person, body corporate, or other person in 
 right of any office or dignity, or by any company, or trustees for 
 charitable or other public purposes. 
 
 5. Infancy. 
 
 An infant may bind himself by a single bill (c) to pay for neces- 
 saries; but if he enters into an obligation with a penalty, such 
 obligation may be avoided by a plea of infancy {d). Whether 
 such an obligation be void or voidable appears to have been 
 a veanta qucBstio (e). That the contracts of infants generally 
 axe voidable only, and not void, is clear (/); but it seems they 
 cannot be ratified after the infant comes of age, except by an 
 instrument of as high a nature as that which created the original 
 obligation {g). 
 
 Infancy cannot be given in evidence under the general issue (A). 
 Upon the principle which exempts an infant from a penalty, it has 
 been held, that a person may recover, in an action for money had 
 and received, a sum which, while an infant, he had paid in ad- 
 vance towards the purchase of a share in the defendant's trade, 
 which sum was to be retained by the defendant as a forfeiture, if 
 the plaintiff failed to fulfil an agreement to enter into partnership 
 with the defendant (i). An infant cannot give a security for 
 interest ; consequently to a bond with a penalty, conditioned for 
 payment of interest as well as principal, infancy may be pleaded 
 in bar (U). 
 
 (c) RtissbU v. Lee, 1 Lev. 86 ; see ante, atove position, does not fully bear it out. 
 152, n. («). Authorities tending to prove that such 
 
 (d) Ayliffe v. Archdale, Cro. Eliz. 920. obligation is voidable only, are Edmwnd's 
 
 (e) See Morning v. Knopp, Cro. Eliz. case, cited 1 Leon. Ill ; 2 Boll. Abr. 
 700. Authorities tending to show that 146, (A.) 4 ; Litt. s. 259 ; Perk. s. 12 ; 
 it is void are, Nov's Rep. 85 ; Belavel v. 1 Bl. Com. 466 ; Tapper v. Savenant, 3 
 Glare, Com. Dig.'Enfant (C. 2) ; Bull N. Keb. 798 ; Salk. 279, per Trehy, C. J. 
 P. 182. " If an infant become indebted (/) Ante, "Assumpsit ; " Infancy, p. 
 for necessaries, and give a bond in a 152. 
 
 penalty for the money, it will not extin- [g) Baylis v. Dineley, 3 M. & S. 477. 
 
 guish the simple contract debt ; for the {h) WMpdak's case, 2nd Kes. 5 Rep. 
 
 iond is void." The case of Ayliffe v. 119, a, and 8 pi. R. H. T. 1853. 
 
 Archdale, however, which is quoted by (i) Oorpe v. Overton, 10 Bingh. 252. 
 
 Mr. J. Buller as the authority for the (k) Fishery. Mowbray, 8 East, 330. 
 
513 DEBT. 
 
 6. Payment, p. 512. 
 
 Sohit ad Diem, p. 512. 
 Solvit post Diem, p. 513. 
 
 Payment. — At tlie common law, it was a general rule, that 
 where an action was grounded on a deed, the defendant could 
 avoid it by matter of as high a nature only, as by an acquittance 
 under seal. Hence to debt on a single bill, pajonent merely with- 
 out an acquittance could not properly be pleaded (Q ; although, if 
 it were, and issue joined thereon, and found for the plaintiff, it was 
 held to be aided by the statutes of jeofails (m). But now, by 4 
 Ann. c. 16, s. 12, where debt is brought on any single bill, pay- 
 ment of the money due thereon may be pleaded in bar. To debt 
 on bond, with a condition for the payment of money on a day 
 certain, the defendant might, even at common law, have pleaded 
 payment at the day {n) ; because such plea was in effect a plea of 
 performance of the condition merely. 
 
 Solvit ad Biem. — A plea of payment, from the language of the 
 plea when the pleadings were drawn in Latin, has obtained the 
 name of a plea of solvit ad diem. This is the proper form of plea, 
 as well where the naoney has been paid before the day, as where it 
 has been paid at the day. Indeed, in the case of a bond con- 
 ditioned for payment at a day certain, if the money has been paid 
 before the day, solvit ad diem is the only proper plea (o) ; for if the 
 defendant, agreeably to the fact, should plead payment before the 
 day, and issue should be joined thereon, and a verdict found for 
 the plaintiff, and judgment accordingly, such judgment might be 
 reversed on error ; because there would still remain a possibility 
 that the money was paid at the day, in which . case the plaintiff 
 would not have had any cause of action. Hence, in the case of 
 payment before the day, the defendant must plead a payment at 
 the day ; and then, if issue is joined thereon, proof of payment 
 before the day will be sufficient to support the defendant's 
 plea (p). Not that, in the case of a bond conditioned for payment 
 at a certain day, there can properly be any legal performance of 
 the condition but by payment at the day, but payment before the 
 day may be given in evidence on solvit ad diem,, and for this 
 reason, that the money is considered as a deposit in the hands 
 of the obligee until the day arrives, and then it is actual pay- 
 ment (g). 
 
 Where, however, a bond is conditioned for the payment of 
 money on or before such a day, the defendant may plead payment 
 before the day, if the fact be so ; and the plaintiff cannot demur to 
 
 (I) Doct. Plac. 107. Merril v. Josselyn, 10 Mod. U1. 
 
 (m) Nichol's case, 5 Raj), is, a. (p) Bond y. Hichardson, Cro. Eliz. 
 
 (») Doot. Plao. 107. 142. 
 
 (o) mims V. BroJcet, Cro. Jac. 434 ; (q) Tryon v. Carter, 7 Mod. 231. 
 
DEBT. 513 
 
 such plea, as tendering an immaterial issue; but, if no payment 
 has in fact been made, ought to reply, " that the money was not 
 paid at the day mentioned in the plea, nor at any time before or 
 after that da,y " (see 2 Wms. Saund. 48 a, note Qi) ), which will 
 bring the point to the material and proper issue, whether it has 
 ever been paid at all or not (r). But if to a bond so conditioned 
 the defendant pleads payment on the day, and issue is joined 
 thereon, and verdict for the plaintiff, a repleader must be awarded, 
 as being an immaterial issue ; for such verdict does not find any 
 breach of the condition, because the money might have been paid 
 before the day which would have been a performance of the con- 
 dition (s). 
 
 • 
 Solvit post Diem. — The bond being forfeited by the non-payment 
 of the money on the day mentioned in the condition, a payment 
 after the day could not be pleaded at the common law ; but by 4 
 Ann. c. 16, s. 12, — "Where an action of debt is brought upon any 
 bond which hath a condition or defeasance to make void the same 
 upon payment of a. lesser sum at a day or place certain, if the 
 obligor, his heirs, executors, or administrators, have, hefore the 
 action brought, paid to the obligee, his executors or administrators, 
 the principal and interest due by the defeasance or condition of 
 such bond, though such payment was not made strictly according 
 to the condition or defeasance, yet it shall and may nevertheless 
 be pleaded in bar of such action, and shall be as effectual a bar 
 thereof as if the money had been paid at the day and place ac- 
 cording to the condition or defeasance, and had been so pleaded." — 
 The meaning of this section is, that Ojny payment, which, if made 
 at the very day, would be pleadable as a defence at common law, 
 may, if made after the day and before action, be pleaded under 
 the statute {f). If the bond, therefore, is for the payment of a 
 sum of money on a certain day and interest in the meantime, there 
 being no clause that on failure of payment of interest the principal 
 shall become due, the defendant may before that time plead solvit 
 post diem to the interest alone (u). Secus, if by the non-payment 
 of interest the whole principal becomes due (x). The form of plea 
 under the statute is, that the defendant, after the day m^entioned 
 in the condition, and before the coTnmencement of the suit, paid 
 the m,oney mentioned in the condition, with interest. 
 
 A bond for the payment of money by instalments is (semble) 
 within the above -section (y). So are, it seems, annuity (z) and 
 post obit bonds (a), and bonds payable generally on a contin- 
 
 (r) Fletcher v. Eennington, 2 Burr. (x) Marriagev. Marriage, ICB. 761. 
 
 944. (y) Bonafous r. Byhot, 3 Burr. 1370. 
 
 (s) Tryon v. Carter, Str. 994. (z) Willie v. Wilks, Dougl. 520. 
 
 (t) Per Patteson, J., HodgUnaon v. {a) Murray v. Earl of Stair, 2 B. & 
 
 yatt, 1 D. & L. 668. C. 82. 
 (m) Sodgki-nson t. Wyatl, supra. 
 
 VOL. I. I'l' 
 
614 DEBT. 
 
 gency, on the happening thereof (6). The section is confined to 
 ^payments only; hence a tender and refusal of principal and 
 interest after the day, and before action brought, cannot be 
 pleaded (c). It was held on special demurrer that payment of part 
 cannot be pleaded as to so much (cZ), but on the other hand such 
 a plea has been held good after verdict (e). Where the obligee of 
 a. bond receives the whole principal after it is payable, he cannot 
 recover interest in an action on the bond, as solvit fost diem is a 
 good plea (/). 
 
 Formerly, if a bon^d had lain dormant for twenty years or more, 
 without payment of interest or other' circumstance to account for 
 the acquiescence, this was evidence sufficient, whence a jury might 
 have presumed payment ; now, by 3 & 4 Will. IV. c. 42, s. 3, all 
 actions of debt, upon any bond or other specialty, shall be com- 
 menced within twenty years after the cause of such action or suit. 
 In the case of a past obit bond, this is the death of the party on 
 whose decease the sum secured is payable (g). Where a bond is 
 conditioned for the performance of a series of acts at stated times, 
 though there may have been a forfeiture by reason of the non- 
 performance of the first act in that series, yet, if default be made 
 in the performance of subsequent acts, a new cause of action aiises 
 upon each default, and the statute runs from that (h). 
 
 In any action upon a bond which has a condition or defeasance 
 to make void the same upon payment of a lesser sum at a day or 
 place certain, with a penalty, money may, by leave of a court or a 
 judge, be now paid into court, and such payment into court be 
 pleaded under Common Law Procedure Act, 1860, s. 25. 
 
 To debt upon bond, the defendant may plead a release, by the 
 plaintiff, after the bond given; and if the release has been 
 obtained by fraud, that may be replied (i). 
 
 If there are two or more obligees, a release by one will be a bar 
 
 (6) Per Alderson, B., England -v. Wat- brouglit by the assignee in the name of 
 
 son, 11 M. &W. 333; Sobmsonv. Brovm, the obligee, the court (exercising, as it 
 
 3 C. B. 54. should seem, an equitable jurisdiction) 
 
 (c) UnderhiU \, Matthews, Bull. N. set aside the plea. In order to call upon 
 P. 171, and see Player v. Sandy, 10 the court to exercise this equitable juris- 
 ^oi- 26. diction, it must be clearly made out, that 
 
 (d) Ashbee v. Pidduek, 1 M. & "W. there has been a fraud by some person 
 ^^*- upon the plaintiff, and that the defendant 
 
 (c) Husband v. Davis, 10 C. B. 645. was a party to that fraud. In PMllips v; 
 
 (/) Dixmi V. Parhes, 1 Esp. 110. Clagett, 11 M. & W. 84, the court refused 
 
 {g) TucTcey v.- Hawhitis, 4 C. B. 655. to set aside a plea of release, where the 
 
 {h) Per hoti. Campbell, C. 3., Amott releasor had an immediate interest in the 
 
 V. Holden, 18 Q. B. 603. money sought to be recovered, and no 
 
 (i) See Graib v. UAeth, 1 T. R. 670, fraud was shown. Such a plea may be 
 
 -a. In Legh v. Legh, 1 B. & P. 447, set aside at the instance of the plaintiff's 
 
 where the obligor, after notice of the bond attorney. Wright v. Burroughe^ 3 C. B. 
 
 having been assigned, took a release from 344 ; if fraud be shown, Jones v. Bonner, 
 
 the obligee, and pleaded it to an action 2 Exch. 230. 
 
DEBT. 515 
 
 to all (k). la debt on bond, by several plaintiffs, as trustees, the 
 defendant pleaded a release from one of the plaintiffs. On de- 
 murrer, the plea was held good ; for the obligees only had the 
 legal interest, and consequently the right to release ; and a release 
 from the one was a release from the others (l). If there are two or 
 more obligors, a release to one may be pleaded in bar by the 
 other, whether the bond be joint (m), or joint and several (to), for 
 there is but one duty extending to all the obligors, and therefore a 
 discharge of one is a discharge of all. The reason why a release 
 to one debtor releases all jointly liable is, because, unless it were 
 held to do so, the co-debtor, after paying the debt, might sue him 
 who was released for contribution, and so in effect he would not be 
 released (o). But in the case of SL*joint bond, a release given by 
 the obhgee to the representative of one of the obligors, it not 
 appearing, either on the bond or condition, that two of them weire 
 sureties for the other, does not discharge the co-obligors, for, being 
 a joint bond, on the death of one obligor, it survived to the 
 others (p). 
 
 A release to one obligor is a release to both in equity, as well as 
 in law (q). It is immaterial whether the I'elease be by deed, or by 
 operation of law (r) ; for where the obligee in a joint and several 
 bond made one of two obligors his executor, who administered and 
 died ; it was held, that the surviving obligor was discharged : for 
 a personal action once suspended by the voluntary act of the party 
 entitled to it, is for ever gone and discharged (s). So where the 
 obligee in a joint and several bond made one of two obligors his 
 executor, with others, and the obligor executor administered ; it 
 was held, that the action was discharged as to all the obligors (t). 
 But where one of two obligors makes the obligee his executor, the 
 debt is not extinguished, unless the obligee has assets in his hands 
 to the amount of the sum due on the bond (u). So where one of 
 two obligors makes the obligee and another executors, and the 
 obligee refuses, the debt is not released or discharged, unless there 
 be assets, and the obligee or his executor may sue the other for 
 
 (k) 2 EoU. Abr. 410 (D) 1. tingiiishment, in equity the bond will be 
 
 (l) BayUy t. Loyd, 7 Mod. 250. considered as assets, available either to 
 
 (m) 2 Eo'll. Abr. 412, (G) pi. 4. the residuary legatee, or heir at law, as 
 
 (ra) Ibid., pi. 5; 1 lust. 232, a. the case maybe. Foxy. Fox, 1 West, 
 
 (o) Per Patteson, Z., North v. Wake- C. T. H. 162, and cases there cited. "The 
 
 \ 13 Q. B. 541. debt is considered to have been paid by 
 
 {p) Ashbee v. Pidducic, 1 M. AW. the executor to himself, and becomes 
 
 5g4_ assets in his hands. Upon this suppo- 
 
 (?) Bowery. Swadlin, 1 Atk. 294. See sition the rule in equity depends, which 
 
 Webb V. Ifewitt, 3 K. & J. 438. makes the executor accountable for the 
 
 (r) Cheetham v. Ward, 1 B. & P. 630. amount of his debt as assets." Per Lord 
 
 But a release by' will is not sufficient. Tenterden, C. J., in Freakleyy. Pox, 9 
 
 ParsoTis V. Coward, C. T. H. 357. B. & C. 134. 
 
 (s) Dorchester v. Webb, Sir "W. Jones, {t) Cheetliam v. Ward, 1 B. &. P. 630. 
 
 345 3rd*Ees See the exceptions to this See Nicholson v. Revill, 4 A. & E. 682. 
 rule mentioned, Belshawy. Bmh, 11 C. («) Wankford v. Wanhford, 1 Salk. 
 
 B. 191. Notwithstanding the legal ex- 305. 
 
 1 L 2 
 
516 DEBT. 
 
 the debt (x). So if a-sole debtor make his creditor and another 
 person executors, and the creditor neither proves the will nor acts 
 as executor, he may maintain an action against the other for his 
 demand on the testator (jj). If a feme obligee take the obligor to 
 husband, this is a release in law ; so if there be two feme obligees, 
 and one of them takes the debtor to husband (z). The like law is, 
 if two be bound in an obligation to a feme sole, and she takes one 
 of them to husband, and the husband dies, the wife shall not have 
 an action against the other obligor {a). But where a man, on the 
 day of his marriage, gave a bond to the woman to whom he was to 
 be married, by which he stipulated that his representatives should, 
 within twelve months after his death, pay to his widow or her 
 representatives, a sum of money; and the marriage took place, 
 and afterwards the husband died ; whereupon the widow brought 
 an action against the representatives of the husband, on the bond ; 
 it was held, that the marriage did not operate as a release of the 
 debt, the bond not being payable during the lifetime of the 
 obligor (6). 
 
 To a plea, that the plaintiff by a deed of release had released 
 one of two joint obligors, the plaintiff replied, that the release was 
 given at the request of the defendant (the other obligor) and on 
 the express condition that the release should not operate in his 
 discharge ; this was held bad, on the ground that it sought by the 
 introduction of parol evidence to put on an instrument under seal 
 a construction differing from the import of that instrument (c). 
 But where to a declaration on a guarantie the defendant pleaded 
 that the plaintiff had entered into a composition with the principal , 
 debtor, and the plaintiff replied that he did so with the knowledge 
 of the defendant, and xipon the agreement that it should not dis- 
 charge the defendant from his liability upon the guarantie, it was 
 held, upon a rule to arrest the judgment, that at any rate as it did 
 not appear that the reservation of the plaintiff's right was not 
 known to the other creditors, the agreement was binding on the 
 defendant {d). 
 
 A deed releasing A., one of two joint debtors, from all manner 
 of actions, suits, debts, claims, &c., but containing a reserve of 
 remedies against B., the other debtor, is construed not as a release 
 to A., for then it would operate as a release to B., which would be 
 contrary to its evident intention, but as a covenant not to sue 
 A. (e). A covenant not to sue will not operate as a release in its 
 
 (x) Dorchester v. WM, "W. Jones, 345. Broolcs v. Stuart, 9 A. & E. 854. This 
 
 (y) Rawlinson v. Shaw, S T. R. 557. would projjably be a good equitable re- 
 
 (2) 1 Inst. 264, b. plication. 
 
 (a) 21 Hen. VII.. SO. (d) Davidson v. M'Gregor, 8 M. & W. 
 
 (6) Milhourn v. Ewart, 5 T. R. 381. 755. 
 
 (c) Coolcs V. Nash, 9 Bingh. 341. Ace, (e) Price v. Barker, 4 E. &. B. 760. 
 
DEBT. 5ir 
 
 own nature, but only by construction, to avoid circuity of action. 
 Hence, if the obligee of a bond covenant not to sue one of two 
 joint and several obligors, and if he do so, that the deed of cove- 
 nant may be pleaded in bar, he may still sue the other (/) In 
 Lacy V. Kynaston, 12 Mod. 551, the distinction between the cove- 
 nant not to sue a sole obligor, and one of several obligors, is thus 
 taken : — "A. is bound to B., and B. covenants never to put the 
 bond in suit against A. ; if afterwards B. will sue A. on the bond, 
 he may plead the covenant by way of release. But if A. and b! 
 be jointly and severally bound to C. in a sum certain, and C. cove- 
 nant with A. not to sue him, that shall not be a release, but a 
 covenant only ; because he covenants only not to sue A, but does 
 not covenant not to sue B. : for the covenant is not a release in 
 its nature, but only by construction to avoid circuity of action ; for 
 where he covenants not to sue one, he still has a remedy ; and 
 then it shall be construed as a covenant and no more."— Thus, a 
 covenant not to sue one of two joint debtors will not operate as a 
 release to the other (g). So, e converse, in an action for a part- 
 nership debt, a covenant not to sue, entered into by one only of 
 the creditors, cannot be set up as a release (h). Even in those 
 cases where a covenant not to sue shall be construed to enure as a 
 release to avoid circuity of action, the covenant not to sue must be 
 a perpetual covenant, that is, a covenant not to sue at all ; a mere 
 covenant not to sue for a limited time will not have this effect (i), 
 for, as a general rule, there cannot be a suspension of a personal 
 right of action without extinguishment (Jcj. In such case the 
 party cannot plead the covenant in bar, but is put to his cross 
 action on the covenant. But, if the obligee covenant not to sue 
 the obligor before such a day, and, if he do, that the obligor shall 
 plead this as an acquittance, and that the obligation shall be void, 
 this is a suspension of the obligation, if the obligee performs the 
 condition of not suing before the day, and a release, if he does not 
 perform the condition and does sue before the day (I). 
 
 A bond was conditioned that the obligor should indemnify the 
 obhgee from all sums the latter should pay on account of the 
 obligor ; before the execution of the bond, the following memoran- 
 dum was indorsed on it, viz., "that the obligee hath given an 
 undertaking not to sue upon the bond until after the obligor's 
 death ; " it was held that the memorandum was to be taken as 
 part of the condition, and consequently that the bond was payable 
 only by the representative of the obligor after his death (m). 
 
 (/) Dean r. Newhall, 8 T. E. 168. {k) Belshaw v. Bush, 11 C. B. 191. 
 
 Ig) Hutton v. Eyre, 6 Taunt. 289 ; See ia eq^uity Norton v. Wood, 1 Russ. & 
 
 Solly V. Forles, 2 B. & B. 38. My. 178. 
 
 {h) Walmsley-v. Cooper, 11 A. &E. 216. (l) 1 Roll. Abr. 939, L. pi. 2 ; OMons 
 
 (i) 'thimhlehy v. Barron, 3 M. & W. V. Vouillon, 8 C. B. 483. 
 210 ; Ford v. Beech, 11 Q. B. 852. (m) Burgh v. Preston, 8 T. E, 483. 
 
518 DEBT. 
 
 8. Set-off {n). 
 
 At the common law, mutual debts could not be set off. This 
 inconvenience was remedied by the 2 Geo. II. c. 22, s. 13, made 
 perpetual by the 8 Geo. II. c. 24, s. 4. Section 5 of' the latter Act 
 provides, that mutual debts (o) may be set against each other, 
 "notwithstanding that such debts are deemed in lawtobeof a 
 different nature ; unless in cases where either of the said debts 
 should accrue by reason of a penalty contained in any bond or 
 specialty ; and in all cases, where either the debt for which the 
 action hath been or shall be brought, or the debt intended to be 
 set against the same, hath accrued or shall accrue by reason of 
 any such penalty, the debt intended to be set off shall be pleaded 
 in bar ; in which plea shall be shown how much is truly and justly 
 due on either side {f) ; and in case the plaintiff shall recover in 
 any such action or suit, judgment shall be entered for no more 
 than shall appear to be truly and justly due to the plaintiff, after 
 one debt being set against the other as aforesaid." 
 
 In debt upon a bail bond, brought by the officer of the Palace 
 Court, to whom the defendant had given the bond conditioned for 
 the appearance of A. B. to an action at the suit of C. D. ; the 
 defendant pleaded, by way of set-off, a greater sum due to him 
 from the plaintiff, by simple contract. On demurrer the court 
 gave judgment for the plaintiff; Willes, C. J. (who delivered the 
 opinion of the court), observing, that as this was not a bond con- 
 ditioned for the payment of money, the case was not within thfe 8 
 Geo. II. c. 24, and it was not within the 2 Geo. II. c. 22, because 
 the plaintiff did not sue in his own right, but in the nature of a 
 trustee for C. D. ; that it might as well be said, that when a 
 person sued as executor, the defendant might set off a debt from 
 the plaintiff to the defendant, in his own right, as that the defend- 
 ant could set off in the present case. He added, however, that if 
 this had been a bond to the sheriff, assigned over to the party 
 according to the statute, the court would have thought otherwise ; 
 and that the penalty must have been considered as. the debt, this 
 not being a case within the 8 Geo. II. c. 24 (g). To debt on bond 
 conditioned for the payment of an annuity to the plaintiff, the de- 
 fendant pleaded that a certain sum only was due to the plaintiff 
 on account of the annuity, and that the plaintiff was indebted to 
 the defendant in a larger sum of money, for money lent, &c., which 
 he claimed to set off; on demurrer, it was adjudged, that this was 
 a case within the 8 Geo. II. c. 24, s. 5, and that the defendant was 
 entitled to set off his debt (r). To a declaration in debt by the 
 
 (n) See generally, ante, "Assumpsit," Payntery. Walker, Bull. K P. 179. 
 " Set-off," p. 181, et seq., and as to the {p) See ante, p. 184. 
 
 pleaof set-off being divisible, o)ife, p. 488. (q) Hutchinson v. Stwrges, "Willes, 
 
 (o) Thus a debt .dije to a person in 26i. 
 right of his wife cannot be set off in an (?•) Collins v. Collins, 2 Burr. 820. 
 
 action against Hm ou his own bond. 
 
DEBT. 519 
 
 assignees of a bankrupt for money received by the defendant to 
 the use of the plaintiffs as assignees; plea, that the bankrupt 
 hefore his bankruptcy was indebted to the defendant in a greater 
 sum upon an account stated between them, and that the defendant 
 was willing to allow the plaintiffs to set off against such debt the 
 debt claimed in the declaration, was held ill on demurrer (s). 
 Such a plea to be good must show mutual debts or credits between 
 the bankrupt and the defendant [t). 
 
 Uncertain damages, or an unliquidated demand, cannot be made 
 the subject of a set-off (u). Thus, if an agreement is entered into 
 for the performance of covenants, with a penalty, and the cove- 
 nants are broken, the penalty cannot be set off. To an action for 
 money lent, the defendant pleaded articles of agreement, with 
 mutual covenants, in a penalty, for performance, and showed a 
 breach whereby the penalty became due, and offered to set off the 
 same ; on demurrer, the court held this plea not within the 
 statute ; Lord Mansfield, C. J., observing, that it was contrary to 
 the intention of the Acts that the penalty should be admitted to 
 be set off, when perhaps a very small sum was due for such 
 damages as the plaintiff had actually sustained (x). But if two 
 persons agree to perform certain work in a limited time, or to pay 
 a stipulated sum weekly, for such time afterwards as it should 
 remain unfinished, and a bond is prepared in the name of both, but 
 is executed by one only, with a condition for the due performance 
 of the work or the payment of the stipulated sum weekly, such 
 weekly payments are in the nature of liquidated damages, and not 
 by way of penalty, and may be set off by the obhgee in an action 
 brought against him by the obligor who executed {y). To an 
 action of debt on a bond conditioned for the payment of the inte- 
 rest half-yearly and the principal sum six months after notice 
 (which had not been given), a set-off equalling the interest due, 
 which accrued after the interest became due, but before suit, is a 
 good plea under the above section (z). 
 
 IV. Debt on Bail Bond. 
 
 At common law, the sheriff was not obliged to take bail from a 
 defendant an-ested upon mesne process, unless he sued out a writ 
 of mainprize ; but by 23 Hen. VI. c. 9 (a), it was enacted, th^t 
 sheriffs, under-sheriffs, bailiffs of franchises, and other lailiffs, 
 should let out of prison all persons by them arrested or being m 
 
 (s) Oroom v. MeaUy, 2 B. N. C. 138. («) This statute is (at all events since 
 
 it) Bittleston v. Timmis, 1 C. B. 389. the 4 & 6 Anne, o. 16) a geiiera.1 law, o£ 
 
 (u) Howlet V. Strickland, 1 Cowp. 56 ; which the King's Courts will take cogni- 
 
 Weigall v. Waters, 6 T. K. 488. zance, although it he not pleaded. -!>«- 
 
 {x) Nedriffy. Hogan, 2 Burr. 1024. muely. Evmis, 2 T. R. 569. See 2 Wnis. 
 
 (y) Fletcher v. Dyclie, 2 T. E. 32. Saund. 155, a. n. (d). 
 (s) Lee T. Lester', 7 C. B. 1008. 
 
5.20 DEBT. 
 
 their custody, by force of any writ, &c., in any action personal, or 
 by cause of indictment of trespass, upon reasonable surety of suffi- 
 cient persons, having sufficient within the counties where such 
 persons are let to bail, to keep their days in such place as the said 
 writs, &c., shall require ; persons in ward by condemnation, execu- 
 tion, capias utlagatum, surety of the peace, &c, or by special com- 
 mandment of any justice, excepted. And no sheriff, &c., shall 
 take, or cause to be taken or made, any obligation for any cause 
 aforesaid, or by colour of their office, but only to themselves, of any 
 person, nor by any person, which shall be in their ward by course 
 of law, but by the name of their office, and upon condition written 
 that the prisoners shall appear at the day and place contained in 
 the writ, &c. ; and if any sheriff, &c., take any obligation in other 
 form, by colour of their office, it shall be void. 
 
 By 1 & 2 Vict. c. 110, arrest upon mesne process is abolished, 
 except in certain cases. By the 3rd sect., if the plaintiff in any 
 action in which the defendant is now liable to arrest, shall show 
 by affidavit, to the satisfaction of a judge, that he has a cause of 
 action to the amount of 201., and that there is probable cause for 
 believing, that the defendant is about to quit England (6), the de- 
 fendant may, upon order of the judge, be an-ested by a writ of 
 capias, and held to bail for such sum, not exceeding the debt 
 or damages, as the judge shall think fit. By sect. 4, it is 
 enacted, — "that the defendant, when so arrested, shall remain in 
 custody until he shall have given a hail bond to the sheriff, or 
 shall have made deposit of the sum indorsed on such writ, &c., 
 according to the present practice of the said superior courts, and 
 all subsequent proceedimgs as to the putting in and perfecting 
 special bail, or of making deposit, &c., shall be according to the 
 like practice of the said superior courts, or as near thereto as the 
 circumstances of the case will admit." — The decisions under the 
 23 Hen. VI. c. 9, are, therefore, still applicable, and will now be 
 considered. 
 
 The act directs bailiffs of franchises, " cmd other bailiffs," to take 
 bail, &c. — This does not authorize sheriffs^ bailiffs to take obliga- 
 tions for the appearance of persons arrested: from the express 
 mention of bailiffs of franchises, it appears that those officers only 
 are meant, who have the return of process. When, therefore, the 
 process is directed to the sheriff, the indemnity must be to him. 
 Mogers v. Beeves, 1 T. R. 422. The marshal of the King's Bench 
 is an officer within the statute (c), but the serjeant-at-arms of the 
 House of Commons is not (d). 
 
 (6) i. e., for such a time that he is not ahove section. Zarehin v. Willan, 4 M. 
 
 likely to be forthcoming to satisfy the & W. 351. 
 
 plaintiff's execution at the period when (c) Braceiridge v. Vaughan, Cro. 
 
 he will he entitled to it in the ordinary Eliz. 66. The 1 & 2 Vict. c. 110, only 
 
 course of law. An officer in the army, mentions "sheriffs." 
 
 therefore, who is about to join his regi- (d) Norfolke- y. Elliot, 1 Lev. 209, 
 ment abroad, may be arrested under the 
 
BEBT. 521 
 
 "By force of any writ, &c. in any action personal." — Upon an 
 attachment of privilege, attachment upon a prohibition, attach- 
 ment in process upon a penal statute, the sheriff may be compelled 
 to take bail by force of this statute (e), but not upon an attach- 
 ment for contempt, issuing out of B. R. (/), or C. B. (cf), or upon 
 an attachment out of Chancery, the words " by force of any writ, 
 bill, or warrant, in any action personal," being confined to actions 
 at law (h). But although the sheriff" is not compellable to take 
 bail upon an attachment out of Chancery, yet he is not prohibited 
 by the statute from doing so ; and a bail bond so taken is good at 
 common law, and may be enforced by the sheriff {i). 
 
 " Or by cause of indictment of trespass." — The sheriff is not 
 authorized to take a bond for the appearance of persons arrested 
 by him, under process issuing upon an indictment at the quarter 
 sessions, for a trespass and assault ; because at common law the 
 sheriff could not bail any persons indicted before justices of the 
 peace ; and the 23 Hen. VI. c. 9, was not passed to enable the 
 sheriff to take bail in cases where he could not bail before ; but in 
 order to compel him to take bail in those cases, where he might 
 have taken bail, and neglected so to do. At common law, the 
 sheriff might have bailed persons indicted before him at his torn, 
 and, consequently, by this statute he was compellable to bail such 
 persons ; but the 1 Edw. IV. c. 2, having taken away the sheriff's 
 power of bailing in such cases, the 23 Hen. VI. is in this respect 
 rendered of none effect (j). 
 
 " Upon reasonable surety of sufficient persoTis." — According to 
 the opinion of Ashhurst, J. (k), a security of a lower nature than a 
 security by bond, as a simple contract undertaking, is insufficient ; 
 and the constant usage since the passing of the act has been for 
 sheriffs and other officers to take a security by bond {I). Regularly, 
 this bond ought to be taken with two or more sureties at the 
 least, the words of the statute being " surety of sufficient persons ;" 
 and the sheriff, &c. may insist upon two sureties being given ; yet 
 it has been adjudged that, as the indemnity is for the protection 
 of the sheriff, he may waive the benefit, and take a bond with one 
 surety only (m), 
 
 " Having sufficient within the counties." — Hence, if the sureties 
 
 (e) Field y. Worlchouse, Com. Eep. {k) Rogers v. Reeves, ^ T. B- 421. 
 264, If the sheriff refuses to take bail, suf- 
 (/) Anon., 1 Str. 479. ficient sureties being tendered, an ac- 
 (q) Field v. Worlhoiise, supra. tion on the case lies against him, Smith 
 (h) Studd V. Acton, 1 H. Bl. 468. An v. Hall, 2 Mod. 32 ; or debt for penal- 
 attachment out of Chancery, when for ties under the statute, Fvmts v. Mosdey, 
 non-payment of costs, is in the nature, 2 Cr. & M. 490. 
 
 not of mesne, but final process. Cobbett (l) The 1 & 2 Vict. e. 110, expressly 
 
 V. Hudson, 13 Q. B. 497. mentions " a bail bond." 
 
 (i) Morris v. Hayward, 6 Taunt. 569. {in) Drury's case, 10 Eep. 100, b. 
 (j) Bengough v. Eossiter, i T. R, 505. 
 
.523 DEBT. 
 
 tendered have not sufficient within the county, the sheriff is not 
 bound to accept them (n). 
 
 The form of surety prescribed by the statute must be strictly 
 pursued, that is : — 
 
 1st. The bond must be made to the sheriff or other officer him- 
 self. Hence a bond made to the sheriff's bailiff is bad (o). It is 
 to be observed, however, that the provisions of the statute are 
 confined to securities given to the sheriff or other officer. Hence 
 bonds given to the plaintiff are not within the statute (p) ; and 
 consequently may be taken in a different form than that prescribed 
 by the statute (5). So, also, undertakings given by the defendant 
 or his attorney, to the plaintiff or his attorney, for the appearance 
 of the defendant, are valid, and may be enforced by attachment (r). 
 
 2ndly. It must be made to the sheriff or other officer by the 
 name of his office and county (s). On error in debt on bail bond, 
 it was excepted, that it was not shown that the bond was to the 
 sheriff by the name of his office. The court were of opinion that 
 it should so appear ; but they thought that in the present case it 
 did sufficiently appear on the whole declaration, it being laid 
 solvend. eidem vicecomiti et assignatis if). 
 
 3dly. There must be a condition to the bond ; and that condition 
 must be for the appearance {xC) of the defendant at the day (a;) and 
 place mentioned in the writ, &c., and for that only. Hence, if 
 there be not any condition, or, what amounts to the same thing, if 
 the condition be impossible {y), as where the condition is for the 
 appearance of the defendant [z) at a day past (a), the bond is void. 
 So if any other condition than that prescribed by the statute is 
 expressed in the bond (&), it will be bad. 
 
 But if the bond be made to the sheriff by the name of his office, 
 and the condition express the time (c) and place of appearance (d), 
 a variance in other respects will be immaterial. As where the writ 
 was to appear before our lord the king at Westminster, and the 
 condition was to appear before his majesty's justices of the K. B. 
 
 (71) Lovell T. Plumer, 15 East, 320. (x) The writ of capias, under the 1 & 
 
 (0) Rogers v. Reeves, 1 T. R. 422. 2 Vict. c. 110, directs special hail to he 
 
 (p) Raven v. StockdaU, Gouldsb. 66 ; put in "within eight days after the exe- 
 
 Leech v. Davys, Aleyn, 58. cution thereof, inclusive of the day of 
 
 (q) Ball V. darter, 2 Mod. 304. such execution," Ijut the provisions of 
 
 (r) Per Sutler, J., Rogers v. Reeves, 1 the 23 Hen. VI. c. 9, are still applicable 
 
 T. K. 422. to the keeping of the day by so putting 
 
 (s) Noel V. Cooper, Palm. 378. in bail. Evansv. Moseley, 2 Cr. &M. 490. 
 
 (i) Symes v. Oakes, Str. 893. {y) Graham v. Crawshaw, 3 Lev. 74. 
 
 ,(u) By the effect of 1 & 2 Vict. 0. 110, (a) See note (u), supra. 
 
 the writ of capias, as the commencement (a) Samuel v. Evans, 2 T. E, 569. 
 
 of an action, is abolished, and the condi- (6) Rogers v. Reeves, 1 T. R.,418. 
 
 tion of the bail bond under that statute (c) See Evans v. Moseley, 2 Cr. & M. 
 
 is not for the appearance of the defendant, 490. 
 
 but for the putting in of special bail. id) See note (u), supra. 
 
 Chitt. Forms, 382 ^7th edit.). 
 
DEBT. 523 
 
 at Westminster (e). So wkere the writ was to appear before the 
 Barons, and the condition was to appear in the office of pleas 
 in the Court of Exchequer at "Westminster; it was held well 
 enough (/). So where the writ was returnable "wheresoever, 
 &c.," and the words " wheresoever, &c.," were omitted in the bail 
 bond {g). So where the writ was to appear wheresoever, &c., and 
 the bond was conditioned for the appearance before the king at 
 Westminster, the variance was held immaterial {h). 
 
 I 
 But where the writ was to appear before his majesty's justices 
 of the Bench at Westminster, and the condition before the king at 
 Westminster, the variance was held fatal, for they are different 
 courts (i). And where the bond (under the 1 & 2 Vict. c. 110) in 
 the condition thereof recited the delivery of the writ "to the said 
 ," and provided that " the said do cause special bail, 
 
 &c.," omitting the prisoner's name ; the bond was held void, 
 although it omitted the name in those two places only (k). 
 
 If the sheriff does not comply with the injunctions of the statute, 
 and, without the plaintiff's consent, takes a security of a different 
 kind than that prescribed therein, the courts will not afford him 
 any relief, nor interpose in his favour, for the purpose of enforcing 
 such security, on the ground of his having been guilty of a breach 
 of his duty. Hence, where a sheriff's officer took an undertaking 
 from the defendant's attorney, instead of a bail bond, for the 
 appearance of the defendant, and bail above was not duly put in, 
 and an action for an escape was brought against the sheriff, the 
 court would not relieve him, by permitting him to put in and 
 justify bail afterwards, although he offered to pay the costs of the 
 action brought against him(Z). So where the defendant's attorney 
 gave the sheriff's officer an undertaking that he would give the 
 sheriff a bail bond in due time, which he neglected to do, and the 
 plaintiff recovered against the sheriff for the escape ; the court 
 refused to proceed summarily against the attorney at the sheriff's 
 instance, to make him pay the debt and costs for his breach of 
 faith, on the ground that the sheriff had been guilty of a breach 
 of duty (m). So where the sheriff had taken a bond with one 
 security only, the court refused to set aside, even on payment of 
 costs, an attachment which had issued against him for not bringing 
 in the body (n). 
 
 As to the manner of pleading, so as to take advantage of this 
 statute, it may be remarked, that the special matter, which brings 
 
 (e) Eirlride y. DijJce, 2 Lev. 180. but soo Cro/L^ v. Siocklmj, 5 Bingli. 32. 
 
 (/) Philips V. Philips, cited 2 Str. (k) Holdm v. Raphael, 4 A. & E. 228. 
 
 1156. ^ -^ ' (^j jj^i^^^^ ^_ p^^^^_ 7 rj,_ -^ 109. 
 
 (ff) ShuttUworlh v. Pilkington, 2 Str. (m) Sedgworth v. Spicer, i East, .568. 
 
 1155. (m) R. V. Sheriff of London, 2 Bmgh. 
 
 (h) Jones v. Slordy, 9 East 55. 227. 
 (i) Rmalds v. Smith, 6 Taunt. 551 ; 
 
524 DEBT. 
 
 the case within the statute, must appear upon the record, but it is 
 sufficient if it appears on any part of it (o). 
 
 Assignvnent of Bail Bond. — If the defendant does not put in 
 and perfect bail above in due time, according to the condition of 
 the bail bond, the bail bond is forfeited {%>), unless it seems the 
 defendant has surrendered before the return of the writ {q), and 
 the sheriff has assented to such surrender (r) : and the plaintiff may- 
 take an assignment of the bail bond. This course is usually pursued, 
 if the bail below are sufficient. Before the 4 Ann. c. 16, the sheriff 
 was not compellable to assign the bail bond, though, if he had not 
 assigned it, the court would have amerced him. Another mischief 
 at common law was, that after an assignment of the bail bond, the 
 action must have been brought in the name of the sheriff, who 
 might have released the obligor (s), and thereby driven the plaintiff 
 into a court of equity. To remedy these inconveniences, it was 
 enacted by 4 Ann. c. 16, s. 20, that — If any person shall be arrested 
 by any writ, &c., issuing out of any of her Majesty's courts of 
 record at Westminster, at the suit of any common person, and the 
 sheriff, or other officer, takes bail from such person, the sheriff, or 
 other officer, at the request and costs of the plaintiff in such action 
 or suit, or his lawful attorney, shall (t) assign to the plaintiff in 
 such action the bail bond, or other security taken from such bail, 
 by indorsing the same, and attesting it under his hand and seal, in 
 the presence of two or more credible witnesses (u), which may he 
 done without any stamp, provided the assignment so endorsed be 
 duly stamped before any action brought thereupon : and if the bail 
 bond or assignment, or other security taken for bail, be forfeited, 
 the plaintiff in such action, after such assignment made, may bring 
 an action thereupon, m his own name ; and the court, where the 
 action is brought, may, by rule of the same court, give such relief 
 to the plaintiff and defendant in the original action, and to the 
 bail, as is agreeable to justice ; and such rule shall have the effect 
 of a defeasance to the bail bond. By sect. 24, the act is to extend 
 to all courts of record within the kingdom. But it does not apply 
 to proceedings in equity (x). 
 
 In Kitson v. Fagg, 1 Str. 60, the question being, whether a bail 
 bond was well assigned by an under-sheriff's clerk ? Parker, C. J., 
 said, that he had the advice of all his brethren, and they were of 
 opinion, that an under-sheriff might assign a bail bond in the name 
 of the high-sheriff, it having been the constant practice ever since 
 
 (o) Per Buller, J., in Samuel v. Evans, bail 1)011(1, it seems that an action on the 
 
 2 T. R. 576. case wUl lie against him for breach of the 
 
 (p) Harrison v. Dames, 5 Burr. 2683. duty thus imposed. 
 
 (q) Jones t. Lander, 6 T. E. 122. («) See White t. Barrack, 1 M. & W. 
 
 (r) Hamilton v. Wilson, 1 East, 383. 424. 
 
 (s) Shipley v. Craister, 2 Ventr. 131. (x) Meller r. Palfreyman, 4 B, & Ad. 
 
 (t) If the sheriff refuses to assign the 146, 
 
DEBT. 525 
 
 the 4 Ann. ; but that if the assignment was neither by the sheriff, 
 nor his under-sheriff, as in this case, it would not be good. In debt 
 on a bail bond, the defendant pleaded that there was not any 
 assignment of the bond by the sheriff or under-sheriff. It ap- 
 peared in evidence, that the bond had been assigned by one of the 
 under-sheriff's clerks. The case of Kitson v. Fagg was cited as 
 an authority to show that this was not a good assignment. But 
 Lord Mansfield, C. J., was clearly of opinion, that the seal to the 
 assignment, being the seal of office, was. sufficient to give it validity, 
 whoever had signed it {y). The assignment is good, though the 
 sheriff be out of office ; the act does not say it shall be done during 
 the shrievalty {£). 
 
 Although by this statute the court #here the action was brought 
 was expressly authorized to exercise an equitable jurisdiction, yet 
 upon the supposition that every other court, except that where 
 the original action was brought, was incompetent to exercise that 
 jurisdiction, it was formerly held, that an action on the bail bond, 
 whether brought by the assignee (a) or the officer (&), must be 
 brought in that court where the original action was commenced. 
 Now, by R G. 83, H. T. 1853, the sheriff himself may sue in any 
 court ; but the assignee must still, as formerly, bring his action in 
 the same court from which the process issued ; advantage, how- 
 ever cannot be taken of the action having been brought in a wrong 
 court, upon the plea of non est factum (c). 
 
 The assignment may be made in a different county from that in 
 which the bail bond was given, and the -venue may be laid in any 
 county. Debt upon a bail bond ; and plaintiff declares that he 
 sued out a writ directed to the sheriff of SuiTey, &c., who took 
 a bail bond, which he afterwards assigned to the plaintiff at London, 
 where the action was brought. Demurrer, on the ground that the 
 action was founded on the bond entered into by the bail, and, that 
 being laid to be done in Surrey, the action should have been there ; 
 but judgment for the plaintiff {d). 
 
 Declaration. — It is sufficient for the plaintiff to state in his de- 
 claration, that the sheriff assigned the bond to him according to 
 the statute, without adding, that " the assignment was under the 
 hand and seal of the sheriff;" and the defendant may plead, that 
 he did not assign, &g., according to the statute, on which issue 
 the plaintiff must prove that the assignment was, according to the 
 statute, under the hand and seal of the sheriff (e). So though the 
 statute requires the indorsement to be made by the sheriff in the 
 presence of two witnesses, yet it is not necessary to set forth the 
 
 {y) Harris v. Ashley, Lond. Sitt. M. (J) Donaity v. Barclay, 8 T. E. 152 ; 
 
 T. 1756, MS. but seeNewmanv. Fawcitt, 1 H. Bl. 631. 
 
 (z) Hays v. Manning, Serjt. Hill'.s (c) Wright v. Walmsley, 2 Campb. 396. 
 
 MS. vol. 29, p. 68. {d) Oregson v. Heather, 2 Str. 727. 
 
 (a) Morris v. Rces, 2 "W. Bl. 838. (e) Dawes v. Papworth, Willcs, 408. 
 
526 DEBT. 
 
 names of the witnesses in the declaration (/), or to aver that the 
 assignment was made in the presence of two credible witnesses (g'), 
 or that the indorsement was attested by two credible witnesses.(A). 
 Nor is it necessary to state in the declaration, that the defendant 
 in the original action was arrested (i), nor that the debt was sworn 
 to by the plaintiff, nor that the sum sworn to was indorsed on the 
 writ (k). 
 
 Bail to the sheriff are liable to the plaintiff's whole debt (with- 
 out regard to the sum sworn to) and costs, to the extent of the 
 penalty of the bail bond (I). After a defendant has been dis- 
 charged out of custody upon the bail bond being given, it is 
 neither in the power of the bail to render him, nor of the party to 
 surrender himself again into the custody of the sheriff before the 
 return of the writ, without the consent' of the latter (m). But the 
 sheriff may, if he pleases, accept the surrender of the party,' who 
 is willing to return into his custody, before the return of the writ. 
 And if the sheriff consents to do so, and by virtue of such sur- 
 render has the defendant in his custody at the return of the writ, 
 the court will then consider it as if no bail bond had been given : 
 and, consequently, an action cannot, under these circumstances, be 
 maintained against the sheriff for not assigning the bail bond (n) ; 
 nor can he be proceeded against for not bringing in the body, 
 although, upon being ruled to return the writ, he returned cepi 
 corpus (o). 
 
 Pleas.— To an action ,of debt by the assignee of the sheriff 
 upon a bail bond, non . est factum may be pleaded. If issue be 
 joined on non est factum, the only proof required on the part of 
 the plaintiff (supposing there is not any other plea) is proof of the 
 execution of the bail bond by the defendant (p) ; for the plea of 
 non est factum does not put in issue any other allegation in the 
 declaration ; consequently, in such' case, it is not necessary to prove 
 the writ, assignment by the sheriff, &c. 
 
 In debt on bail bond, the defendant may plead performance of 
 the condition, viz. under the 1 & 2 Vict. c. 110, that bait was put 
 in and perfected, concluding with " as by the record of the recog- 
 nizance remaining in the said court" (or the Court of Q. B. as the 
 case may he) " fully appears ;" for the recognizance being entered of 
 record, is not triable by jury, but by the record (q). If the recog- 
 nizance is not entered of record, the bond is, it seems, forfeited (r). 
 To such a plea the plaintiff may reply nul tiel record, viz. that 
 there is not any such record of the recognizance. When the record 
 is of the same court, this replication ought to conclude with giving 
 
 (/) RoUnson v. Taylor, Fort. 366. (m) Hamilton v. Wilson, 1 East, 383. 
 
 (g) Lewis v. Parkss, 3 M. & "W". 133. (n) Stamper v. Milboume, 7 T. E. 122. 
 
 (h) Leafe r. Box, 1 Wils, 121. (o) Jones v. Lamder, 6 T. E. 753. 
 
 (i) Taylor v. Clow, 1 B. & Ad. 223. {p) 10 PI. R. H. T. 1853. 
 
 (Tc) Sharps v. Ahbey, 5 Biiigli. 193. {q) Bret v. Sheppard, 1 Leon. 90. 
 
 (I) Stevenson v. Cameron, 8 T. R, 28. {r) Corbet v. Cook, Cro. Eliz. 
 
DEBT. 527 
 
 a daj^ to the defendant (s). This constitutes a complete issue of 
 fact ; and if in this case the defendant should demur to the replica- 
 tion, the plaintiff need not join in demurrer ; but if the record is 
 not produced at the day, the plaintiff may sign judgment (t). 
 When the record is of another court, the court gives the defendant 
 a day to bring it in (u). If the record is not brought into court 
 on the day, judgment of failure of record is given (x). 
 
 To an action (2/) of debt on a bail bond to the plaintiff as sheriff 
 of Middlesex, the defendant pleaded, that the action was brought 
 by the plaintiff, for the benefit of, and as trustees for, J. S. (the 
 sheriff's ofificer,) by whom the defendant had been arrested, and to 
 whom the defendant, after the return of the writ, but before the 
 sheriff had been ruled to return the sifme, paid the debt and costs, 
 which J. S. accepted in full satisfaction of the bond ; and that if 
 any da,mage had accrued for default of the defendant's appearance, 
 according to the condition of the bond, it was occasioned by the 
 default of the sheriff's officer not paying over the debt and costs to 
 the plaintiff in the action, which would have been accepted by such 
 plaintiff. It was contended, that to debt on bond the defendant 
 might plead, that it was given to the plaintiff in trust for another ; 
 so as to let the defendant into a defence which he might have 
 against the cestui que trust. The com-t, however, were of opinion 
 that the plea was bad; Lord Mlenhorough, C. J., observing, 
 that as the officer could not have released the bond, he could 
 not accept anything in satisfaction of it ; and further, that it was 
 not alleged that the bond was originally given to the sheriff in 
 trust for the officer ; nor did it appear how he afterwards came to 
 have any equitable interest in it ; consequently this was not brought 
 within the case cited. So bail cannot plead the bankruptcy and 
 certificate of their principal in their own discharge (z). 
 
 By E. G. 84, H. T. 1853, in all cases where the bail bond shall 
 be directed to stand as a security, the plaintiff shall b^ at liberty 
 to sign judgment upon it. By R. 85, proceedings may be stayed 
 on payment of costs in one action, unless sufficient reason be shown 
 for proceeding in more (a). 
 
 V. Debt on Bond, with Condition to perform Covenants. 
 
 At common law, it was usual for the obligee of a bond, with a 
 penalty conditioned for the performance of covenants contained in 
 another deed, to declare on the bond merely ; to which the de- 
 
 (s) Cnmer v. Wickdt, Ld. Eaym. 550 ; (x) See 1 Wms. Saund. 92, n. (.3). 
 
 Chitt. Forms, 458 (7th edit.) (n) Scholey v. Mearns, 7 East, 148. 
 
 (t) Tipping v. Johnson, 2 B. & P. 303 ; (s) Doyimlly v. .Vmm, 2 B. & P. 47. 
 
 E. G. 38 H. T. 1853. ' (a) See Key v. Hill, 2 B. & Aid. 598. 
 
 (k) SaTidford v. Rogers, 2 Wils. 113. 
 
528 DEBT. 
 
 fendant usually pleaded performance generally ; to- this_ the plaintiff 
 replied a breach of one of the covenants ; and upon issue joined, 
 and proof of such breach, the plaintiff was entitled not only to 
 recover the penalty, that being the legal debt, but also to take 
 out execution for the same : although the penalty far exceeded, 
 in amount, the damages which he had sustained by the breach of 
 covenant. Under these circumstances, the defendant could only 
 obtain relief through the interposition of a court of equity, which 
 would direct an issue of quantum damnificatus, and prevent any 
 execution being enforced for more than the damage actually sus- 
 tained. To prevent plaintiffs, in cases of this kind, from convert- 
 ing that power, which the strictness of the common law gave them, 
 into an engine of oppression, and to avoid the circuitous mode of 
 relief to which defendants were compelled to resort, it was enacted 
 by 8 & 9 Will. III. c. 11, s. 8, that — In actions upon any bond, or 
 penal sum, for the non-performance of any covenants or agreements 
 contained in any indenture, deed, or writing, the plaintiff may 
 assign as many breaches as he shall think fit, and the jury, 
 upon the trial of such action, shall assess not only such damages 
 and costs as have been heretofore usually done in such cases, but 
 also damages for such of the assigned breaches as the plaintiff shall 
 prove to have been broken ; and like judgment shall be entered 
 on such verdict as heretofore heth been usually done in such like 
 actions. — 
 
 This statute is not confined to cases where the bond is condi- 
 tioned for the performance of covenants in some other instrument 
 than the bond ; the condition of the bond is an agreement in 
 writing within the statute (&). Neither is the statute confined to 
 cases where there is a penalty to secure the performance of an act, 
 on the non-performance of which the obligee would be entitled to 
 recover uncertain damages : but it extends also to cases where the 
 agreement is for the payment of a certain sum ; as to bonds con- 
 ditioned for the payment of an annuity (c), or the payment of a 
 debt by yearly instalments (d). So it extends to bonds conditioned 
 for the performance of an award, although it appears that only a 
 single sum is to be paid on the bond ; for the condition being to 
 perform an award, in other words, to perform an agreement, comes 
 directly within the words of the statute (e). But as the great ob- 
 ject of the statute was to take away the necessity of applying for 
 relief to a court of equity (/), it does not extend to bail (g), or re- 
 plevin (h), or post obit (i) bonds, or to a warrant of attorney to 
 enter up judgment, given as a security for a debt on demand (k), 
 
 {!)) Collins V. CoUim, 2 Burr. 826. (h) Middkton v. Bryan, 3 M. &S. 156. 
 
 (c) Walcot T. Ooulding, 8 T. R. 126. (i) Stair v. £arl of Murray, 2 B. & C. 
 
 (d) Willaughbyv.Siointon,6'E3.ii\,, 550. 82. 
 
 (e) Welch v. Ireland, 6 East, 613. (fc) Shaw v. Marquis of Worcester,. 6 
 (/) PerTindal, C. J., 10 Bingh. 131. Bingh. 385. 
 
 (g) Moody v. Pheasant, 2 B. & P. 446. 
 
DEBT. 539 
 
 or to a bond with a penalty conditioned for the payment of money 
 at a given day, with a stipulation that on any default in paying the 
 interest, the whole sum should be demandable (J) ; for in these 
 cases the court can relieve the defendant without his being com- 
 pelled to file a bin in equity. Nor does the statute extend to 
 common money bonds, that is, bonds with a penalty conditioned 
 for the payment of a less sum of money at a day or place cer- 
 tain (m), for in cases of this kind defendants are sufficiently 
 protected against an unconscientious demand of the whole penalty, 
 by 4 Ann. c. 16, s. 13, by which it is enacted, that, if at any time 
 pending an action upon any such bond, the defendant shall bring 
 into court the principal, interest, and costs of suit, the same shall 
 be taken in discharge of the bond, and the court shall give judg- 
 ment accordingly. 
 
 The statute having been made for the protection and relief of the 
 defendants, the words, " may assign," have been construed to be 
 compulsory on the plaintiff (w) ; as have the words, "may suggest," 
 in the subsequent part of the statute, where the defendant suffers 
 judgment by default (o), or the plaintiff obtains judgment on 
 demurrer (p). But it is not necessary, though not unusual, to 
 assign the breaches in the declaration; it may be done in the 
 replication, in answer to the defendant's plea of performance {q), 
 or, if the defendant do not plead performance, by a suggestion in 
 making up the issue (r). 
 
 Debt on the usual administration bond against the surety. Plea, 
 non est factum, and issue by plaintiff, with a suggestion of several 
 breaches. A rule to show cause why some of the breaches should 
 not be struck out, or why the defendant should not be allowed to 
 suffer judgment by default, and pay one shilling damages thereon, 
 was refused ; Bayley, B., observing, that in this case, on the sug- 
 gestion, the jury were to inquire into the truth of the breaches ; 
 and that he was not aware of any case where a party had suffered 
 judgment by default on such breaches ; and it seemed to him con- 
 trary to the provisions of the statute that he should do so (s). 
 Bayley, B., added, that the present was not the defendant's only 
 course ; he might have pleaded performance, and suffered judgment 
 by default in answer to the replication (t). 
 
 If judgment shall be given for the plaintiff, on demurrer, or by 
 confession, or nihil dicit, the statute directs that the plaintiff upon 
 the roll m/iy suggest (u) as many breaches of the covenants and 
 
 (Z) James v. Thomas, 5 B. & Ad. 40. See further "Wms. Saund. i. 58, n. (1) ; 
 
 (to) Smith V. Bond, 10 Bingh. 125. ii. 187, n. (2). 
 
 (71) Hardy v. Bern, 5 T. K. 636. (s) Archbishop of Canterhury v. no- 
 lo) Roles V. Rosewell, 5 T. E. 538. lerison, 1 Or. & M. 181. 
 (p) Walcot T. Goulding, 8 T. K.. 126. («) 3 Tyrw. 419, ii., S. 0. 
 (^) Scott V. Staleij, 4 B. N. C. 724. In («) No suggestion is necessary on a 
 such a case the jury may assess damages judgment by warrant of attorney. Km- 
 without a special venire. nersley v. Mmsen, 5 Taunt. 264. 
 (r) Webb v. James, 8 M. & W. 645. 
 
530 DEBT. 
 
 agreements as lie shall think fit, upon which shall issue a writ to 
 the sheriif of that county where the action shall be brought, to 
 summon a jury to appear before the justices or justice of assize, or 
 nisi prius, of that county (x), to inquire of the truth of every one 
 of those breaches, and to assess the damages that the plaintifif 
 shall have sustained thereby; in which writ it shall be com- 
 manded to the said justices that they shall make a return thereof 
 to the court, whence the same shall issue, at the time in such writ 
 mentioned. 
 
 The only difficulty, in cases where a party obtains a judgment 
 on demurrer or by default, and is obliged to proceed under the 
 statute, respects the costs of the inquisition, which if the plaintiff 
 does not obtain, he is in a worse condition than he would have 
 been before the statute. To obviate this difficulty, Mr. Serjeant 
 Williams, in a note to Gainsford v. Griffith, (1 Wms. Saund. 38,) 
 recommends, that the judgment should be suspended until after 
 the return of the inquisition, and propofees a form of entry for that 
 purpose ; to which form, Lord Alvanley (y) said, that he did not 
 see any objection. His lordship, however, suggested another mode 
 of proceeding, that is, that an application should be made to the 
 court, to order the master to tax the costs of the inquisition, and 
 then to add them to the sum to be levied under the execution. 
 In debt on bond in the penal sum of 2,000Z., conditioned for the 
 performance of covenants, defendants suffered judgment by default; 
 whereupon the usual common law judgment in debt was entered 
 for the I'ecovery of the debt and damages ; the plaintiff then pro- 
 ceeded to suggest breaches, upon which suggestion a writ of inquiry 
 was awarded and executed, and damages and costs assessed ; after 
 which, the plaintiff entered a second judgment for the damages 
 assessed under the writ of inquiry, and further costs adjudged by 
 the court, and then entered a Temittitur as to the costs. A writ 
 of error having been brought ; it was held, that the second judg- 
 ment could not stand ; and thereupon it was adjudged, that the 
 second judgment, with the amerciament, should be reversed, and 
 that the former judgment should remain unimpeached {z). 
 
 _ In case the defendant, after such judgment, and before execu- 
 tion, shall pay into court, to the use of the plaintiff, his executors, 
 &c., the damages so assessed, together with costs of suit, the 
 statute provides that a stay of execution of the said judgment 
 shall be entered upon record ; or if, by reason of any execution 
 executed, the plaintiff, or his personal representative, shall be fully 
 paid or satisfied all such damages, with costs of suit, and all rea- 
 sonable charges and expenses for executing the said execution, 
 
 (x) By 3 & 4 Wm. IV. c. 42, s. 16, the of one of the superior courts, 
 
 wnt shall he executed hefore the sheriff, (y) Eanhin v. Broomhead, 3 B. & P. 
 
 unless otherwise ordered hy the court 612. 
 
 ■where the action is pending, or hy a judge (s) Ibid. 
 
DEBT. 531 
 
 the body, lands or goods of the defendant shall be thereupon 
 forthwith discharged from the said execution, which shall likewise 
 be entered upon record ; but, notwithstanding, in each case such 
 judgment shall remain as a further security to answer to the 
 plaintiff and his personal representative siich damages as shall be 
 sustained for further breach of any covenant in the said indenture, 
 &c. upon which, the plaintiff may have a scire facias (ci) upon the 
 said judgment against the defendant, or against his heir, terre- 
 tenant, or personal representative ; suggesting other breaches of 
 the said covenants or agreements ; and to summon him or them 
 respectively, to show cause why execution shall not be had upon 
 the said judgment : upon which there shall be the like proceeding, 
 as was in the action of debt upon^the said bond, for assessing 
 damages upon trial of issue joined upon such breaches, or inquiry 
 thereof, upon a writ to be awarded as aforesaid ; and upon pay- 
 ment or satisfaction as aforesaid of such future damages, costs, 
 and charges, all further proceedings are again to be stayed ; and 
 so toties quoties ; and the defendant, his body, lands, or goods, 
 shall be discharged o\it of execution as aforesaid. 
 
 If the plaintiff proceeds to execution, without a scire, facias, the 
 court will set aside the execution, and order the money levied 
 under it to be restored, although the new breaches have taken 
 place within a year after judgment recovered (?>). The plaintiff 
 cannot in the scire facias suggest anything as a breach that he 
 might have originally suggested (c). 
 
 The above provisions of the 8 & 9 Will. III. c. 11, are expressly 
 excepted from the operation of the Common Law Procedure Act, 
 1852, by the 96th section of that act. 
 
 VI. Debt on Bond of Ancestor against Heir. 
 
 Debt will lie against an heir, having assets by descent in fee 
 simple, on the obligation of his ancestor, wherein the heir is ex- 
 pressly bound. " The executor more actually represents the person 
 of the testator, than the heir does the person of the ancestor ; for 
 if a man binds himself, his executors are bound, though they be 
 not named : but so it is not of the heir" (d). The law considers 
 the bond of the ancestor, wherein the heir is bound, as becommg, 
 upon the death of the ancestor, the heir's own debt, in respect 
 of the assets, which the heir has in his oivn right, and holds him 
 liable upon such bond, to the value of the land descended ; " because 
 the inheritance of the ancestor, which creates a lien upon the 
 
 (a) See the form Chitt. Forms, 523 (6) Willoughby y. Smnton, 6 'E,ast, 550. 
 
 (7th edit.). It must he tested, directed (c) 2 Wms. Saund. 187 c, n (g). 
 
 and proceeded upon in the same way as (d) 1 Inst. 209, a. bee, also, Barber 
 
 writs of revivor under the Com. Law v. Fox, 2 Saund. 136. 
 Proc. Act, 1852, sect. 132. 
 
 M M 2 
 
533 DEBT. 
 
 heir, is possessed by the heir jure propria, and not alieno, as the 
 personal estate is by the executor (e)." 
 
 Although it is the debt of the defendant, because his ancestor 
 has bound him, yet he is not liable any further than to the value 
 of the land descended ; and as soon as he has paid" his ancestor's 
 debt, to the value of the land, he is entitled to hold the land dis- 
 charged (/). Where the obligor has heirs and lands on the part 
 of his father and on the part of his mother, both heirs shall be 
 equally charged (g). The possession of a tenant for years, being a . 
 rightful possession, is considered in law as the possession of the 
 heir, and therefore gives him a seisin in fact. A. seised of land in 
 fee simple, at the time of her death in the possession of a tenant 
 from year to year, died, leaving B. her heir-at-law. No rent was 
 ever paid to him, it being supposed that the land passed to a 
 devisee under the will of A. After the death of B., his son and 
 heir brought ejectment and recovered the land. It was held, that 
 B. was seised in fact of the land in question, which descended 
 from him to his son, and was therefore assets in the hands of the 
 son and heii-, liable to the bond debt of the ancestor Qi). 
 
 If the defendant is only collateral heir of the obligor, the mesne 
 descents ought, strictly speaking, to be stated in the declaration (i). 
 But this rule applies only to descents from persons seised in fee 
 simple ia possession Qc) ; and, generally, the plaintiff being pre- 
 sumed to be a stranger to the defendant's pedigree, it is not 
 necessary for him to state in the declaration how the defendant is 
 heir(Z). The Common Law Procedure Act, 1852, has moreover 
 provided, by sect. 143, that upon motions in arrest of judgment, or 
 for judgment non obstante veredicto, " by reason of the non-aver- 
 ment of some alleged material fact or facts, or material kllegation, 
 or other cause, the party, whose pleading is alleged or adjudged 
 to be therein defective, may, by leave of the court, suggest the 
 existence of the omitted fact or facts, or other matter, which, if 
 true, would remedy the alleged defect, &c." 
 
 _ Creditors by specialty should be careful to make the debtor 
 bind his heir ; as thereby they will be entitled to a priority in the 
 distribution of assets by courts of equity under the 3 & 4 Will. IV. 
 c. 104, making freehold and copyhold estates assets (m). 
 
 Of the Pleas. — To this action the heir may plead, that he has 
 not, nor had at the commencement of the suit, any lands or 
 
 _ (e) Gilb. Debt, B. 2, c. 1. The debt (i) Jenk's case, Cro. Car. 151 ; but see 
 
 IS not, however, a lien upon the land Beard v. BaslecnilU, Hob. 232. 
 from the ancestor's death, but only capa- (i) Kellow v. Rowden, Carth. 126. 
 
 ble of being made so by the suit of the (Z) Dmiham v. Stephenson, Salt. 355. 
 
 ^,1: „ ,, ,.. , . ('") See^osi, tit. "Executors," s. VI. 
 
 (/) Buckley V. NigUmgaU, 1 Str. 665. in fin. See, also, the 9th section of 1 
 
 i?{ \? ,f ■ ^'^h. '^^''^- ^ ■Will- IV. c. 47, to which a similar remark 
 
 (A) Bushby v. Dixon, 3 B. & C. 298. applies. 
 
DEBT. 533 
 
 tenements, by hereditary descent fronl the ancestor in fee simple (n). 
 This plea is termed a plea of riens per descent. " In an action 
 against the heir-at-law for a debt of his ancestor upon specialty, 
 the ground of the charge is, that he is bound as weU as the ancestor' 
 and therefore it is in the debet and detinet, as it would have been 
 against the ancestor ; and the law gives him liberty to discharge 
 himself by pleading nothing by descent, or but so much ; which 
 plea, if found false, he is charged as a person bound for the whole 
 debt, if he had but one acre (o) ; which is not the case of an exe- 
 cutor, who is charged only for so much as comes to his hand, not- 
 withstanding such plea found false." Per Lord Eardwicke, G. (p). 
 
 The common replication to the preceding plea is, that the de- 
 fendant had assets by descent in feewsimple : or a joinder of issue 
 under sect. 79 of the Common Law Procedure Act, 1852. Upon 
 this issue the plaintiff must prove assets (q) ; but proof of assets in 
 the county of A. will support an allegation of assets in the county 
 of B. ; for assets or not, is the substance of the issue, and the 
 place is named only for conformity (r). On the other hand the 
 heir may give in evidence a bond, acknowledged by his ancestor 
 to the king, and an extent thereon against the heir, [to the amount 
 of the assets descended] (s). But the extent only, without the 
 production of the bond, or an examined copy thereof, . is in- 
 sufficient (t). 
 
 Upon this issue questioiis formerly arose, whether the heir took 
 by purchase or descent ; with respect to which it was held, that if 
 lands were devised to the heir, and the devise did not make any 
 alteration, either in the tenure, quality, or limitation of the estate ; 
 i. e. if the devise conveyed to the heir the same estate as the law 
 would have cast on him by descent, then the heir took by de- 
 scent, although by the terms of the devise there was either a pos- 
 sibility of a charge {u), or an actual charge or incumbrance on the 
 lands, e.g. payment of debts (x), legacies (y), annuities or rent {z), 
 and the like ; or although there was an executory devise over, on 
 the happening of a certain event, if the quantity and quality of the 
 estate were not thereby altered (a). But now, by 3 & 4 Will. IV. 
 c. 106, s. 3, when any land shall have been devised by any testator 
 to the heir, or to the person who shall be the heir, of such testator, 
 such heir shall be considered to have acquired the land as a devisee, 
 and not by descent ; and when any land shall have been limited 
 
 (n) Dootr. pi. 181. (t) Sherwood v. Adderley, Ld. Eaym. 
 
 (o) i.e., at common law, but this is 734. 
 
 altered by the 1 WilL IV. c. 47, post, p. (m) Clerh v. Smith, Salk. 241. 
 
 534. {X) Allam v. Heher, Str. 1270. 
 
 {p) 1 Ves. sen. 212. (y) Eaymworth v. Pretty, Cro. Eliz. 
 
 (}) As to what shall be assets by de- 833. 
 
 scent, see 2 "Wms. Saund. 8 g, in notis. (z) Emerson v. InMird, Ld. Eaym. 
 
 (r) 6Eep. 47, a. 728. 
 
 (s) Eorne v. Adderley, Ld. Eaym. 734, [a) Doe v. Timins, 1 B. & Aid. 530. 
 735. 
 
534 DEBT. 
 
 by any assurance to the person, or to the heirs of the person, who 
 shall thereby have conveyed the same, such person shall Joe con- 
 sidered to have acquired the same as a purchaser by virtue of 
 such assurance, and shall not be considered to be entitled thereto 
 as his former estate or part thereof. See this statute, post, tit. 
 " Ejectment." 
 
 The language of the plea being, that the defendant had not any 
 lands by descent, at the commencement of the suit, the defendant 
 cannot avail himself of an alienation pendvng the suit, and the lands 
 so aliened will still remain charged (6). If upon issue joined on 
 the plea of riens per descent the plaintiff prove that lands came to 
 the defendant by descent, and the defendant give in evidence a 
 conveyance of the same lands by himself to a stranger, before 
 action brought, the plaintiff may, to encounter this evidence, prove 
 that the conveyance was fraudulent, and therefore void by 13 Eliz. 
 c. 5 (c). The heir cannot plead assets in the hands of the execu- 
 tors ; for it is at the election of the obligee to sue. either the heir, 
 or the executors (d). A plea by the heir that he claims to retain 
 a certain sum of money laid out in repairs, not stating them to 
 be necessary repairs, of the tenements descended, cannot be sup- 
 ported (e). And quaere, whether the plea would be aided by this 
 averment (/). 
 
 Liability of Heir under 1 Will. IV. c. 47. — ^At the common 
 law, if the heir had made a bond fide alienation of the lands 
 descended, before action brought, he was discharged (g), and he 
 might have pleaded this in bar ; consequently there was not any 
 remedy against him at law ; although in equity he was responsible 
 for the value of the land aliened (A). But now, by 1 Will. IV. 
 c. 47, s. 6 (i), the heir is rendered liable in an action of debt or 
 covenant, to the value of the land aliened before action brought 
 against him ; and such execution shall be taken out upon any 
 judgment obtained against such heir, to the value of the said land, 
 as if it was his own debt, but not beyond (k) ; saving that the land, 
 bond fide aliened before action brought, shall not be liable to such 
 execution (Z). 
 
 " By taking proper proceedings (in equity) the specialty creditors 
 may obtain payment out of the descended or devised real estate iu 
 the hands of the heir or devisee (m), but if such proceedings are not 
 
 (6) 1 lust. 102, a, b. exception of the additional remedy by 
 
 (c) GoocKs case, 5 Eep. 60, a. covenant, are almost verbatim the same 
 
 {d) 10 Hen. VII. 8, b., per Vavasour, with the 5th and 6th sections of 3 "W. & 
 
 J. C. B., and Cape's case, 1 And. 7. M. c. 14, now repealed, except as to per- 
 
 (e) Shetelworth v. Neville, 1 T. R. 454. sons who died before 16th July, 1830. 
 
 (/) 2 Wms. Saund. 7 b, n. (h). (h) Brown v. ShuTcer, 2 C. & J. 311. 
 
 (g) Termes de la Ley, V. Assets. (I) This saving extends to devisees. 
 
 (h) Per Lord Macclesfield, Ch., in Cole- Mathews v. Jones, 2 Anst. 506. 
 man v. Winch, 1 P. Wms. 777. (m) See 3 & 4 Will. IV. c. 104, post, 
 
 (i) This clause, and the 7th, with the tit. " Executors, VI." 
 
DEBT. 535 
 
 taken, the heir or devisee may aliene, and in the hands of the 
 alienee, the land is not liable, though the heir or devisee remains 
 personally liable to the extent of the value of the land aliened" {n). 
 By the 7th section it is provided, — That where debt or covenant 
 upon a specialty is brought against any heir, he may plead riens 
 per descent at the commencement of the action ; and the plaintiff 
 may reply, that he had lands, &c. from his ancestor, before the 
 commencement of the action ; and if, upon issue joined thereupon, 
 it be found for the plaintiff, the jury shall inquire of the value of 
 the lands, &c. so descended (o), and thereupon judgment shall be 
 given, and execution avfarded as aforesaid, (that is, against the 
 heir, to the value of the land, as if the same were the proper debt 
 of the heir) ; but if judgment be gijen against such heir, by con- 
 fession of the action without confessing assets descended (p), or 
 upon demurrer, or nihil dicit, it shall be for the debt and damage, 
 without any writ to inquire of the lands, &c. so descended. 
 
 Liability of Devisee under Statute. — Before the 3 W. & M. c. 14, 
 persons who had bound themselves and their heirs by bond, or 
 other specialties, used frequently to aliene the lands of which they 
 were seised in fee simple, by devise, for the purpose of defrauding 
 their creditors ; because, at common law, such lands, in the hands 
 of the devisee or alienee, were not liable to the specialty creditor. 
 To remedy this inconvenience, several provisions were made by 
 that statute {q), which was repealed by 1 Will. IV. c. 47, which, 
 reciting, that it is not reasonable that by the contrivance of 
 "debtors" their "creditors" should be defrauded of their just 
 " debts," by sect. 2 enacts, that : — 
 
 All wills, testamentary limitations, dispositions or appointments 
 then made, or thereafter to be made by any person concerning any 
 manors, lands, &c., or any rent, &c. or charge out of the same, 
 whereof any person at the time of his decease shall be seised in 
 fee simple, in possession, reversion or remainder, or have power to 
 dispose of the same by will (r), shall be deemed (only as against 
 such person and his heirs, successors, executors, &c. with whom 
 the person making such will, &c. shall have entered into any bond, 
 covenant, or other specialty binding his heirs,) to be fraudulent 
 and void. And by sect. 3 — Every such creditor may maintain 
 debt or covenant (s) upon the bonds, covenants and specialties, 
 against the heir and devisee, or devisee of such devisee, jointly (t), 
 
 (n) Per Lord Langdale, Ricliardsmi v. (r) This extends to estates pur autre 
 
 Horton, 7 Beav. 112. vie. Westfalingy. Westfaling, 3Atk. 465. 
 
 (o) If they do not, a, venire denovo-w'iO. (s) Under the 3 & 4 W. & M. c. 14, 
 
 be awarded. Brown y. Shuker, 1 C. &J. debt only could have heen maintained. 
 
 583 Wilson v. Knubley, 7 East, 128. 
 
 (o) In a plea under the statute the heir («) It is necessary to join both at law. 
 
 or devisee must show the particular lands Warren y. Stawell, 2 Atk. 125 ;in equity, 
 
 devised. Per Willes, 0. J., "Willes, 624. quaere, Bridges y. IJmxman, 16 bim. 71. 
 
 (?) See Oalton v. Hancock, 2 Atk. 432. 
 
536 DEBT. 
 
 and such devisee shall be chargeable for a false plea in the same 
 manner as the heir is, or for not confessing the lands descended. 
 By sect. 4 — If there is not any heir at law, the creditor may bring 
 debt or covenant against the devisee solely {u). The 5th section 
 contains an exception in favour of limitations, appointments, 
 devises, or dispositions made for the payment of debts {x), or for 
 raising portions for children, in pursuance of any marriage con- 
 tract bond fide made before marriage. The 8th section provides, 
 that every devisee made liable by the act shall be chargeable in 
 the. same manner as the heir (y), notwithstanding the lands, &c. 
 shall be aliened before action. 
 
 The intention of the statute was to prevent three incon- 
 veniences : 1, that the creditor should not be defrauded by a de- 
 vise ; or 2, by alienation ; 3, that the heir should not be charged 
 with the whole debt by his false plea, as, at the common law, he 
 was ; and the alteration introduced by the statute was to enable the 
 creditor to recover, after the alienation of the heir ; but then he is 
 to take proof of the value upon himself, and recover no more of 
 his debt than the value of the lands amounted to {z). The act 
 only applies to cases where a " debt," in the ordinary meaning of 
 the word, not a mere contingent liability, exists between the parties 
 in the lifetime of both ; where, therefore, A. became surety by deed 
 for the performance of covenants by B., and A. died before breach, 
 it was held that A.'s devisees were not liable under the statute (a) 
 for a subsequent breach of covenant by B. (&). 
 
 Judgment. — If the heir confesses the action, and declares with 
 certainty the assets which he has by descent, the judgment shall be 
 that the plaintiff do recover his debt and damages, to be levied of 
 the assets descended (c). If the heir confesses the action, and 
 says that he has nothing by descent but a reversion, after the 
 death of A. B., of so many acres of land, situate, &c., the plaintiff 
 may pray a special judgment, that he recover the debt and 
 damages to be levied of the said reversion, quando accident {d). 
 Formerly, if the heir pleaded riens per descent (e), or payment by 
 a co-obligor (/), and it was found against him, the judgment was 
 general ; that is, to recover the debt, and damages ; but in reference 
 to the former plea, this is altered by the statute. 
 
 Execution. — As the judgment in debt against an heir, upon 
 
 (tt) Under the 3 & 4 W. & M. c. 14, (b) Farley v. Briant, 3 A. & E. 839. 
 
 this could not be done. Hunting v. Shel- (c) Davy v. Pepys, Plowd. 438. 
 
 drake, 9 M. & "W. 256. (d) Dy. 373, b. ; per Holt, C. J., Garth. 
 
 (x) See Gott v. AtHnson, Willes, 521. 129. 
 
 iy) See ante, p. 534. (e) 21 Edw. III. 9, b. pi. 28 ; Doctr. 
 
 (») Hid. pi. 181 ; AlUn v. Holden, 2 EoU. Abr. 71, 
 
 (ffl) 3 W. & M. c. 14 ; but the provi- pi. 8. 
 sions of the 2 Will. IV. c. 47, are in this (/) Brandlin v. Miliank, Garth. 93. 
 
 respect the same. 
 
DEBT. 537 
 
 Tiens per descent pleaded and found against him, was general, so 
 was the execution ; but under the statute, if the heir pleads riens 
 per descent, the execution is limited to the value of the lands found 
 by the jury (g). Thus it was held, that the plaintiff might have 
 execution, by writ of elegit, of a moiety of all the lands of the 
 heir ; as well of those which the heir had by purchase, as of those 
 which he had by descent (h). The plaintiff, however, is not com- 
 pelled to sue out an elegit in this case (which, before the 1 & 2 Vict. 
 c. 110, might have put him to a disadvantage), but he may suggest 
 that the defendant has certain lands (describing them) by descent, 
 and pray execution against such lands ; for possibly the heir may 
 not have any other than those which he has by descent (i). And 
 now, by 1 & 2 Vict. c. 110, all the knds of the debtor, and not a 
 moiety only, may be extended under an elegit. 
 
 If the heir suffers judgment to go by default, and does not show 
 with certainty the assets descended, the judgment shall be general, 
 and the execution may be awarded against the heir as for his own 
 debt, by ca. sa. against his person ( j), or fi. fa. against his goods 
 and chattels (k). So if judgment is given against the heir upon 
 demurrer, the body of the heir may be taken in execution (I). So, 
 if the heir is condemned on any plea whatsoever (except that of 
 rieTis per descent) or by default, or without plea for any cause, the 
 practice is for the plaintiff to have execution of the body of the 
 heir, or his goods, or elegit of his lands, unless he confesses the 
 debt, and shows the certainty of the lands descended (m). 
 
 VII. Debt on Judgment. 
 
 Debt lies upon a judgment, within or after the year after the re- 
 covery (%). An action of debt may be maintained upon a judgment 
 recovered in one of the courts of the city of London by special 
 custom ; although the original action could not have been brought 
 in the superior courts (o). Debt lay on a judgment for damages in 
 a real action (p) ; for, by the judgment, the damages were reduced 
 to personalty {q). So on a judgment in scire facias on a recog- 
 nizance (r). Debt also lies upon a judgment in an inferior court ; 
 but the declaration must allege, that the cause of action in the 
 
 (g) Brown v. Shu^er, 2 C. & J. 311. Smith v. Angell, Ld. Eaym. 783. 
 
 {h) Hinde v. Lyrni, 2 Leon. 11. (n) 43 Edw. III. 2, b. „ „ ,, 
 
 (i) 2 Eoll. Abr. 71, pi. 3. (o) Mason v. NicholU, 1 Koll. Abr. 
 
 U) BarUr v. Borne, Cro. Eliz. 692; 600, (N.) pi. 8. 
 
 Trewiniard's case, Plowd. 440, b. ip) By 3 & 4 Will. IV. u. 27, s. 36, 
 
 (!c) Poxon T. SmaH, C. B. Hil. 4 Geo. all real and mixed actions, except a writ 
 
 II jig_ of right of dower, writ of dower, quare 
 
 (l) Greensmith v. BrocJchole, cited in impedit, and ejectment, are abolished. 
 
 Plowd. 440, b. (g) 43 Edw. III. 2. 
 
 (m) Davy v. Pepys, Plowd. 449, b. ; (r) Lovelesse s case, 2 Leon. 14. 
 
538 DEBT. 
 
 original suit arose within the jurisdiction of the inferior court (t) ; 
 it is not enough to allege, that the plaintiff recovered his damages 
 within that jurisdiction. Debt also lies on a foreign judgment (w). 
 Debt on judgment lies only where the judgment remains un- 
 satisfied («). Hence, where the defendant had been taken in 
 execution on a judgment, and afterwards was discharged out of 
 custody, with the consent of the plaintiff, upon entering into an 
 agreement to pay the debt by instalments, part whereof the de- 
 fendant had accordingly paid, but had failed in payment of the 
 remaining part ; it was held, that the plaintiff could not maintain 
 an action upon the judgment (y). An action of debt on a judg- 
 ment against one of several parties against whom the judgment 
 has been recovered, being founded on the consequent duty, cannot 
 be distinguished in principle from the ordinary case of an action 
 of debt against one of several joint contractors ; to which an objec- 
 tion cannot be taken on the ground of variance, but only, if at all, 
 by way of plea in abatement (z). The venue in this action must be 
 laid in the county where the judgment was given, and not in the 
 county where the original cause of action arose (a). The defendant 
 cannot plead nil debet (&). If there be not any such record«as the 
 plaintiff has declared on, the defendant must plead nul tiel record; 
 which issue is tried by producing the record itself, if it be a record 
 of that court where the action is brought, or by a certified copy 
 thereof duly sealed (c), or by a copy purporting to be certified (d): 
 
 By 10 R. G. H. T. 1853.— " Where a defendant shaU plead a 
 plea of judgment recovered, he shall in the margin of such plea 
 state the date of such judgment ; and if such judgment shall be in 
 a court of record, the number of the roll on which such proceedings 
 are entered, if any ; and in default of his so doing, the plaintiff 
 shall be at liberty to sign judgment as for want of a plea ; and in 
 case the same be falsely stated by the defendant, the plaintiff, on 
 producing a certificate from the proper officer or person having the 
 custody of the records or proceedings of the court where such 
 judgment is alleged to have been recovered, that there is no such 
 record or entry of a judgment as therein stated, shall be at liberty 
 to sign judgment as for want of a plea" (e). The above rule does 
 not, it seems, apply to judgments pleaded by executors (/). 
 
 A writ of error pending on the judgment may be pleaded in 
 abatement (g), but not in bar (h). If the defendant bring a writ 
 
 (t) Head V. Pope, 1 C. M. & E. 302. (y) Tigers v. AUrich, i Burr. 2482. 
 
 There is an exception to this rule, in case (s) Oochs v. Brewer, 11 M. & W. 51. 
 
 of a judgment of nonsuit or nonpros, in \a) Hall v. Winehfield, Hob., 196. 
 
 tho inferior court, and the defendant in (b) 11 PL E. H. T. 1853. 
 
 the court below bringing an action on the (c) 1 & 2 Vict. c. 94, s. 13. 
 
 judgment for his costs ; here it is impos- (d) 14 & 15 Vict. c. 99, s. 11. 
 
 sible to aver it, for it may have been the (e) See BroTcemUr v. Monger, 9 M. & 
 
 very cause of the nonsuit. Murray v, TV. 111. 
 
 Wilson, 1 Wils. 317. (/) Power v. Izod, 1 B. IT. C. 304. 
 
 (m) See p. 486. (g) Ahy v. Buxton, Garth. 1. 
 
 (x) Toques v. Withy, 1 T. E. 557, ^i) Rogers v. Maylwe, Garth. 1. 
 
DEBT. 539 
 
 of error, and the plaintiff bring another action on the judgment 
 and recover, he cannot sue out execution on the secdnd judgment, 
 until the writ of error be determined {%). 
 
 Costs. — The more regular, as well as the least expensive, mode 
 by_ which a plaintiff may reap the benefit of his judgment, is by 
 writ of execution ; hence, the proceeding by action on the judg- 
 ment being considered vexatious and oppressive, it was enacted by 
 the 43 Geo. III. c. 46, s. 4, that the plaintiff in such action shall 
 not recover costs, unless the court in which the action is brought, 
 or some judge of the same court, shall otherwise order. The above 
 statute extends only to judgments recovered by plaintiffs, and not 
 to actions brought by the defendant jp. the original action to recover 
 the costs of a judgment of nonsuit Qc). The object of the act, 
 however, being to prevent parties from rashly bringing actions of 
 debt on records, and so creating costs (Q, they will be allowed if 
 the proceedings have become necessary (m). By the 128th section 
 of the C. L. P. Act, 1852, execution may now issue within six years 
 from the recovery of the judgment, if the parties be alive, with- 
 out revival. As after that time a writ of revivor or an action on 
 the judgment must be brought, and in the former case the plaintiff 
 would be entitled to his costs, (sect. 131), there seems no reason for 
 refusing them in the latter (n). 
 
 VIII. Debt for Bent Arrear. 
 
 If a lease be of lands or tenements for years (o), or at will (p), 
 rendering rent, debt lies for the recovery of rent arrear, by the 
 common law. So if a lease be for life, debt lies for the an-ears by 
 the' common law after the estate of freehold is determined (g) ; and 
 by 8 Ann, c. 14, s. 4, though a lease for life be continuing, any 
 person having rent due on such lease may bring debt for the same, 
 in the same manner as if due upon a lease of years. But debt does 
 not lie by the grantee or devisee of an annuity against the grantor 
 or devisee of the land, either at the common law, if the grantee or 
 devisee takes a freehold (r), or by the statute, for that only applies 
 to cases between the lessor and lessee (s). So if land be conveyed 
 by A to B., his heirs and assigns, to the intent that C, his heirs 
 and assigns, may receive a yearly rent thereout, C. cannot bring 
 debt for the rent against B. {t) ; unless there is an absolute cove- 
 nant by B. to pay it (u). 
 
 (i) Taswell v. Stone, 4 Burr. 2454; (o) Litt. s. 58. 
 
 Benwellv. Black, 3 T. R. 643. (p) IM. s. 72. 
 
 {k) Bennett Y. Neale, 14 East, 343. (q) 1 Roll. Abr. 596, pl-,11. 
 
 (I) Per Tindal, C. J., Fraser v. Moses (r) Kelly v. Clubhe, 3 B. & B- IdU. 
 
 1 D. N. S. 705. (s) WeW v. Jiggs, 4 M. & S 113. 
 
 (m) Garnwell v. Baker, 5 Taunt. 264. (t) Randall v. R^gby, 4 M. & W. 130. 
 
 (n) Gray on Costs, 168, 169. («) Varley v. Leigh, 2 Exoh. 44b. 
 
540 DEBT. 
 
 At common law, if a person seised of rent-service, rent-charge, 
 rent-seek, or fee-farm, in fee-simple or fee-tail, died, and there was 
 rent arrear, neither his heir nor executor could maintain an action 
 of debt for such rent {x) : the heir was not competent to sue, 
 because he was a stranger to the personal contracts of his ancestor ; 
 and the executor was incompetent, inasmuch as he did not repre- 
 sent his testator as to any contracts relating to the freehold and 
 inheritance. To obviate this, it was enacted by 32 Hen. VIII. 
 c. 37, s. 1, that an executor or administrator of any person seised 
 of such rents in fee, in tail, or for life, might maintain debt against 
 the person who ought to pay the same, and his personal repre- 
 sentative (y). As to what persons are within this statute, see post, 
 tit. " Distress," IV. The devisee (z) however, or assignee (a) of rent, 
 reserved on a lease for years and disconnected with the reversion, 
 might maintain debt for the rent, or for the arrears thereof (6), at 
 the common law, and, it seems, without attornment (c) ; but by the 
 4 Ann. c. 16, s. 9, attornment is not necessary. 
 
 The action must be brought against the persons who took the 
 profits when the rent became in arrear, or against their executors 
 or administrators (d). If A. make a lease for life, or a. gift in tail, 
 reserving a rent, that is a rent-service within the 32 Hen. VIII. c. 
 37 (e). The act is remedial, and extends to the executors of all 
 tenants for life (/). If a lessee for years assign over the term, re- 
 serving a rent, he may maintain debt for such rent arrear, although 
 he has not any reversion (g). 
 
 Declaration. — It is a general rule, that, whenever an action is 
 founded on a deed, the deed must be declared upon. But the 
 action of debt, for rent arrear, forms an exception to this mle ; for 
 in this case it is not necessary to declare upon the deed (h). Debt 
 for rent, by the lessor against the lessee, may be brought either 
 where the land lies, or the deed was made (i) ; but debt by the 
 grantee of the reversion against the lessee (k), or by the lessor 
 against the assignee of the term (T), or by the grantee of the rever- 
 sion against the assignee of the term (m), is maintainable on privity 
 of estate only ; it is consequently local, and must be brought in the 
 county where the lands are. If the venue is laid in the wrong 
 county, advantage may be taken of it on demurrer (ri), if it appear 
 on the face of the record; otherwise it should, it seems, be 
 
 (x) 1 Inst. 162, a. (e) Ibid. 
 
 {y) The action is local, and must be (/) Hool v. Bell, Ld. Eaym. 172. 
 
 brought where the land lies ; Bull. N. P. (g) Newamib v. Harvey, Carth. 161. 
 
 177 ; hut under 3 & 4 "WUl. IV. c. 42, s. (h) Atty v. Parish, 1 Bos. & Pull. N. 
 
 22, may, under certain circumstances, be E. 109. 
 
 tried in any county. {fi Patterson v. Scott, 2 Str. 776. 
 
 (2) Ards V. WatUn, Cro. Eliz. 637. (7c) Bord v. Cudmore, Cro. Car. 183. 
 
 (a) BoMns v. Cox, 1 Lev. 22. (I) Per Cur. in Patterson v. Scott. 
 
 (b) Colborne v. Wright, 2 Lev. 240. (m) Barker v. Darner, Garth. 183. 
 
 (c) Rivis V. Watson, 5 M. & W. 266. (n) 2 Lev. 80 ; 1 Wils. 165. 
 
 (d) 1 Inst. 162, b. 
 
DEBT. 541 
 
 pleaded (o). Debt for rent against an executor of lessee is tran- 
 sitory (p), if it is for arrears in the testator's lifetime ; but where 
 it is for rent accrued in the executor's time, it must be -where the 
 land lies ; for in this case, the executor is charged as assignee on 
 the privity of estate, and not on the privity of contract (q). 
 
 If A. demises land by indenture to B. for years, yielding rent, 
 and B. dies, making C. his executor, the lessor may have debt 
 against the executor for the rent reserved and arrear, after the 
 death of the lessee, although the executor never entered nor 
 agreed ; for the executor represents the person of the testator, and 
 the testator by the indenture was estopped and concluded during 
 the term to pay the rent upon his own contract ; and, therefore, 
 although the rent is higher than tke profit of the land, yet the 
 executor cannot waive the land, but, notwithstanding that, he shall 
 be charged with the rent (r). So Wyndham, J. (s), said, that an 
 executor cannot waive a term, so as not to be charged for the rent, 
 if he has assets : for he is bound to perform all the contracts of the 
 lessor, if he has assets, be the rent above the value of the land or 
 not : which was not denied. And Kelynge, J., said, that he could 
 not so waive it, but that he should be charged in the detinet, on 
 which the assets would come into question. And if he continues 
 the possession, he shall be charged in respect of the reception of 
 the profits, whether he has assets or not : to which Twysden, J., 
 agreed. But he may plead the special matter, viz. that he has no 
 assets, and that the land is of less value than the rent (t). 
 
 Pleas. — In debt for rent, upon a demise of land, if the rent 
 be reserved by deed the defendant may plead non est factum ; if 
 without deed, non dimisit, or nothing in arrear, or that the defend- 
 ant never entered. The plea of nil debet shall not be allowed in 
 any action ; 11 PI. K. H. T. 1853. In debt for rent, against the 
 lessee (u), or his personal representative (x), an assignment before 
 the rent became due cannot be pleaded in bar of the action ; for 
 the privity of contract remains notwithstanding the assignment : 
 but an assignment and an acceptance by the lessor of the assignee 
 as his tenant may be pleaded in bar, either by the lessee (y) or his 
 personal representative (z) ; for the lessor may charge the lessee or 
 assignee at his election, but when he has determined his election 
 by accepting rent from the assignee, he cannot afterwards resort to 
 the lessee, for the privity of estate is destroyed (a). Upon this 
 principle it was held, that debt would not lie against the lessee for 
 
 (o) Boyes v. Hewetson, 2 B. N. C. 675. (.u) Walker's case, 3 Eep. 22, a. 
 
 (p) Gilb. Debt, B. 2, c. 2. (x) Eelierv. Casebert,! Lev. 127. 
 
 (?) Oormel v. Lisset, 2 Lev.- 80. iy) Mwrsh v. .Brace, Cro. Jac. 334. 
 
 (r) Howse v. Welstm-, Yelv. 103. («) Marrow v. Turpin^ Cro. Eliz. 715 
 
 s) Helier v. Caselert, 1 Lev. 127. (a) Per Bayley, J., Thomas v. Cook, 2 
 
 (t) BmingsTiv/rst v. 8peerman, Salk. B. & Aid. 121 ; Damson v. Gent, 1 H. & 
 
 297. N. Hi, ace. 
 
543 DEBT. 
 
 rent accruing after his bankruptcy, when he had ceased to occupy 
 the premises, and the assignee was in possession under the com- 
 missioners' assignment, the lessor's assent to such assignment being 
 virtually included in the statute authorizing it, and being equivalent 
 to an express assent (b). 
 
 Eviction.-^ln debt, as in other remedies for rent arrear, an evic- 
 tion may be pleaded in bar, for that occasions a suspension of the 
 rent ; but care must be taken that an eviction (c), or such facts as 
 amount in law to an eviction, be stated in the plea ; for if a mere 
 trespass {d ), or an illegal ouster (e) only, be stated, the plea will be in- 
 sufficient. See post, tit. " Replevin." If there be eviction from the 
 land, or the lease determine before the legal time of payment, no rent 
 shall be paid ; for there shall never be any apportionment in respect 
 of part of the time, as there shall be in respect of part of the land (/). 
 Hence, at common law, if a tenant for life made a lease for years, 
 rendering rent at Easter, and the lessee occupied for three quarters 
 of a year, and in the last quarter before Easter the tenant for life 
 died : in this case there was not any apportionment of rent for the 
 three quarters of a year. Now however by 11 Geo. 2, c. 19, s. 15 
 — Where a tenant for life dies before or on the day on which the 
 rent is reserved or made payable, upon any lease of lands, &c., 
 which determines on the death of such tenant for life, his personal 
 representative may, in an action on the case, recover from the 
 under-tenant of such lands, &c., if the tenant for life die on the day 
 on which the same was made payable, the whole, or if before such 
 a day, then a portion of such rent, according to the time the tenant 
 for life lived, of the last year, or quarter of a year, or other; time in 
 which the said rent was growing due, making aU just allowances, 
 or a proportional part (g). By the 4 & 5 Will. IV. c. 22,' s. 1, 
 rents reserved on leases of lands, &c. which have been and shall 
 be made, and which leases determine on the death of the person 
 making the same (although such person was not strictly tenant for 
 life thereof), or on the death of the life for which, such person was 
 entitled to such hereditaments, are to be considered as within the 
 foregoing provision. And by sect. 2, — 
 
 (J) Wadham v. Marlowe, 8 Eaat, 314, tionment in case where the lessor enters 
 
 n. But assumpsit lies against a lessee upon the lessefe, in part, they are to be 
 
 from year to year upon his agreement to understood where the lessor enters law 
 
 pay rent during the tenancy, notwith- fully, as upon a surrender, forfeiture, or 
 
 standing his bankruptcy, and the occu- such like, where the rent is lawfully ex- 
 
 pation of his assignees during part of the tinct in part." 1 Inst. 148, b. "If there 
 
 time for which the rent accrued. Boot v. be lawful eviction from part by an elder 
 
 Wilson, 8 East, 311, unipost "Use and title, it is clear that the rent is appor- 
 
 Occupation." tioned only, and not suspended." Per 
 
 (c) Swntv. Cope, Cowp. 242. Cur., Neah v. Mackeiaie, 2 C. M". & R. 
 
 {d) Reynolds Y. Buckle, Hob. 326. 84. 
 
 (e) VocUll T. Bamcastell, Moor. 891. {g) See Bothered v. Woolley, 5 Tyrw. 
 
 (/) Clrni's case, 10 Rep. 128, a. 522. 
 "Where our books speak of an appor- 
 
BEBT. 543 
 
 " All rents-service reserved oii any lease by a tenant in fee, or for 
 any life interest, or by any lease granted under any power (L) (and 
 which leases, shall have been granted after the passing of this act, 
 16 June, 1834), and all rents-charge and other rents, annuities, pen- 
 sions, dividends, moduses, compositions, and all other payments of 
 every description, in G. B. and I., made payable, or coming due at 
 fixed periods under any instrument that shall be executed after the 
 passing of this act (i), or (being a will or testamentary instrument) 
 that shall come into operation after the passing of this act, shall be 
 apportioned so and in such manner that on the death of any person 
 interested in any such rents, annuities, &c., or in the estate, fund, 
 office, or benefice, from or in respect of which the same shall be 
 issuing or derived, or on the deterroination by any oilier ineans 
 whatsoever of the interest of any such person, he or she and his or 
 her executors, administrators, or assigns, shall be entitled to a pro- 
 portion of such rents, annuities, &c., according to the time which 
 shall have elapsed from the commencement or last period of pay- 
 ment thereof respectively (as the case may be), including the day 
 of the death of such person, or of the determination of his or her 
 interest, all just allowances and deductions in respect of charges on 
 such rents, &c., being made ; and that every such person, his or 
 her executors, administrators and assigns, shall have such and the 
 same remedies at law and in equity for recovering such apportioned 
 parts of the said rents, &c. when the entire portion, of which such 
 apportioned parts shall form part, shall become due and payable, 
 and not before, as he, she, or they would have had for recovering 
 and obtaining such entire rents, annuities, &c.j if entitled thereto, 
 but so that persons liable to pay rents reserved by any lease or 
 demise, and the lands, &c. comprised therein, shall not be resorted 
 to for such apportioned parts specifically as aforesaid, but the entire 
 rents of which such portions shall form a part shall be received 
 and recovered by the person or persons, who if this act had not 
 passed would have been entitled to such entire rents : and such 
 portions shall be recoverable from such person or persons by the 
 parties entitled to the same under this act, in any action or suit at 
 law or in equity." By sect. 3, the above provisions are not to apply 
 to cases in which it shall be expressly stipulated that no apportion- 
 ment shall take place, or to sums payable on policies of assurance. 
 
 The above section does not, it seems, apply to cases where the 
 landlord by his own act determines the tenancy, e. g. by bringing 
 ejectment, but only to those where the rent continues and is to be 
 apportioned between the individual who was entitled when it began 
 to accrue, and another who has come in as remainder-man or re- 
 versioner, or otherwise (k). Lord Cottenham, 0. (Q, held, that the 
 
 (h) See loch v. De Burgh, 4 De G. & 312. rr „ io d * w wo 
 
 Sn; 470 (k) OUershaw. v. Holt, 12 A. & I!,. 590. 
 
 (i) See Knight v. BougUon, 12 Beav. [1) In re MarUy, 4 M. & Cr. 484. 
 
544 DEBT. 
 
 statute does not apply to rents, payable by tenants from year to 
 year, which have not been reserved by an instrument in writing ; 
 and Wigram, V. C. (m), held, that the death of the person inte- 
 rested in the rent or other payment — the event on which the 
 apportionment is to take place — must be understood as a death 
 occasioning the determination of the interest ; and therefore that 
 the act does not apply to any cases except those in which the 
 interest of the party' entitled to the rents, annuities, or other 
 periodical payments, determines by death or some other means, so 
 that there is no apportionment of rent as between the heir and 
 personal representative of a tenant in fee (ji). 
 
 Nil habuit in tenementis. — If the plaintiff declares upon an 
 i/ndenture of lease, the defendant cannot plead nil habuit in 
 tenementis, or non dvmisit ; because the defendant, by the execu- 
 tion of the counterpart of the indenture, is estopped from contro- 
 verting either the power of the plaintiff to demise or the actual 
 demise (o) : but otherwise it is, where the demise is by deed 
 poll (2>), or by parol. In debt for rent reserved upon a lease by 
 indenture, if the defendant pleads nil habuit in tenementis, the 
 plaintiff need not reply the estoppel, but may demur ; because, the 
 declaration being on the indenture, the estoppel appears on the 
 record (g). But if the plaintiff will not rely on the estoppel; but 
 takes issue on the plea of nil habuit, &c., he waives the estoppel, 
 and the jury shall find the truth (r). A declaration in debt on a 
 demise for rent, stated that the plaintiff by deed demised to de- 
 fendant certain premises, to which the defendant pleaded that the 
 plaintiff did not by deed demise the premises. It appeared that 
 since the rent became due the deed was cancelled by the mutual 
 consent of both parties. It was held that the cancelled deed was 
 evidence in proof of this issue (s). If to debt on a demise without 
 deed, the defendant pleads nil habuit in tenementis, the plaintiff 
 ought, it seems, strictly, to show in his replication what estate he 
 had in the premises. But it is, it seems, sufificient if he replies, 
 " that he had a good and sufficient title," or joins issue under the 
 79th sect, of the Common Law Procedure Act, 1852, for the defect 
 in the replication will be aided by the verdict (t). Nil habuit in 
 tenementis cannot be pleaded in debt for use and occupation (u). 
 
 Payment. — " Where rent is reserved generally, the proper place 
 for payment, the place appointed by law, is the land out of which 
 it issues " {x). It is, therefore, it seems, a good plea to an action of 
 
 (m) Brown v. Amyot, 3 Hare, 173. (r) Trevivan v. Lawrence, 1 Salk. 277. 
 
 (n) Ace. re Clulow, 3 K. & J. 690. (s) Lord Ward v. LumUy, 5 H. & N, 
 
 (o) GUb. Debt, B. 3, c. 3. 656 ; 29 L. J. Ex. 372. 
 
 {p) Adm. Lewis v. Willis, 1 Wils. 314 ; (i) QUI v. Glasse, Yelv. 227. 
 
 but qucere, if there has been occupation («) Curtis v. Spitly, 1 B. N. C. 15. 
 
 under the deed ; Cwrtisy. Spitty ; and see (x) Per Bayleij, J., Rowe v. Ymmg, 2 
 
 Taylor v. Needham, 2 Taunt. 278. B. & B. 234. 
 
 (?) Healh v. Yerni^en, 3 Lev. 146. 
 
DEBT. 545 
 
 deU for rent, where no particular place of payment is mentioned in 
 the deed, that the defendant Avas on the demised premises for a 
 sufficient time next before the setting of the sun on the day when 
 the rent became due to allow for the counting of the money, ready 
 to pay the rent if the plaintiff had come to receive it, and that he 
 has always since been ready to pay the same, concluding by pay- 
 ment of the amount into court {y). 
 
 Statute of Limitations. — By 21 Jac. I. c. 16, s. 3, actions of 
 debt for arrearages of rent shall be commenced and sued within six 
 years next after the cause of such actions. The statute is a good 
 defence to a yearly tenant who has not within the last six years 
 occupied the premises either actually or constructively, or paid 
 rent, or done any act from which a tenancy can be inferred,'although 
 the tenancy has not been determined by a notice to quit (z). It is 
 confined to actions for arrears of rent, upon a demise without deed, 
 and does not extend to cases of rent reserved by specialty (a). By 
 the 3 & 4 "Will. IV. c. 27, s. 42, no arrears of rent or of interest in 
 respect of any money charged upon or payable out of any laud or 
 rent, or any damages in respect of such arrears of rent or interest, 
 shall be recovered by any distress, action, or suit, but within six 
 years next after the same shall have become due, or next after an 
 acknowledgment of the same in writing shall have been given to 
 the person entitled thereto or his agent, signed by the person by 
 whom the same was payable or his agent. By the 3 & 4 Will. IV. 
 c. 42, s. 3, all actions of debt for rent upon an indenture of demise 
 shall be commenced and sued within twenty years after the cause 
 of such actions or suits, but not after. 
 
 Whether the former of the two statutes of William applied, when 
 passed, to all rent, and the latter only established an exception in 
 the case of rent due on an indenture of demise, or whether the 
 former statute applied only to rents for which a real remedy (by 
 assize) would formerly have lain (which latter seems the' better 
 opinion (&),) the effect of the conjoint enactments is, that no more 
 than six years' arrears of rent or interest in respect of any sum, 
 charged on or payable out of any land or rent, can be recovered by 
 distress, action or suit, other than and except an action of covenant 
 or debt for rent on a specialty, in which case the limitation is 
 twenty years (c). 
 
 Debt for Use and Occupation (d). — In the case of a demise, not 
 by deed, the action of debt for use and occupation has been substi- 
 tuted for the ancient method of declaring in debt for rent. This 
 
 (y) Aim. BaldaueY. Johnson,' 8 'Ejxah. (c) Hunter v. Nockolds, 1 Mao. & G. 
 
 689 ; .secMS in covenant, JW(^. " 663. See owiic, "Covenant," Statute of 
 
 {z) Leigh v. Thornton, 1 B. & Aid. 625. Limitations, p. 472. 
 (a) Freeman v. Sta/yij, Hutt. 109. (d) See post, tit. " Use and Occupa- 
 
 (6) Gramt v, Ellis, 9 M. & W. 113. tion." 
 
540 DEBT. 
 
 action lies at the common law, and is not _ defeated by proof of a 
 demise not under seal (e), reserving a certain rent (/). 
 
 The generality of the form of declaring, permitted in the action 
 for use and occupation, renders it very convenient ; for it has been 
 held, that a declaration in debt, not setting forth any demise of the 
 premises, nor for what term or what rent they we're demised, nor 
 how long the defendant' had occupied them, nor when the sum 
 claimed to be due for the use and occupation became due, nor for 
 what space of time, is sufficient to enable the plaintiff to recover for 
 use and occupation (g). So where the declaration omitted the place 
 where the premises were situated (A). Hence the action is transi- 
 tory and not local (i). The inconvenience resulting to the de- 
 fendant from this general form of declaring, is remedied by 
 permitting the defendant to call on the plaintiff for the particulars 
 of his demand. But where the lands were misdescribed in the 
 particulars of demand, but it was proved that the defendant held 
 but one parcel of land of the plaintiff, so that he could not 
 have been misled, it was held to 'be no objection to the plaintiff 
 recovering (Jc). 
 
 Debt for Double Value. — By 4 Geo. II. c. 28, s. 1, — If tenants 
 for life, lives, or years, or other persons coming into possession 
 of any lands, &c. under, or by collusion with, such tenants, shall 
 wilfully hold over after' the determination of their term, and after 
 demand made, and notice in writing given, for delivering the pos- 
 session thereof, by their landlord or lessors, or persons entitled to 
 the reversion or remainder of such lands, &c. or their agents (Z) ; 
 such persons so holding over shall, for the time they shall so hold 
 over, pay to the persons kept out of possession, their executors, 
 administrators, or assigns, at the rate of double the yearly value 
 of the lands, tenements and hereditaments so detained, for so long 
 time as the same are detained, to be recovered by action of debt, 
 whereunto the defendant shall be obliged to give special bail, 
 against the recovery of which penalty there shall not be any relief 
 in equity. — 
 
 " I am aware that a tenant for half a year, or a smaller portion 
 of a year, may, for some purposes, be considered and denominated 
 a tenant for years. But this is a penal statute, and to be construed 
 strictly. I cannot therefore include a tenant from, week to week 
 in the description of tenants for life, lives, or years : and I do not 
 remember any instance of a tenant for a less time than a year 
 
 («) By 8 & 9 Vict. o. 106, s. 3, all {g) Stroud v. Rogers, supra. 
 
 leases ' ' required by law to be in writing " {h} Kmg v. Fraser, 6 East, 348. 
 
 are void, unless made by deed. (t) Egler v. Marsden, 5 Taunt. 25. 
 
 (/) Gibson V. Kirk, 1 Q. B. 350. The (k) Dairies v. Edwards, 3 M. & S. 380. 
 
 first case in which it was determined, (l) A receiver under the Court of 
 
 that an aotiiju of debt might be main- Chanceryis an agent within the statute, 
 
 tained for use and occupation, was (S^roufZ Wilkinson v. Colley, 5 Ban: 2694; and 
 
 V. Hogers, 6 T. E. 62, in notis. see PooJe v. Warren, 8 A. & E. 582. , 
 
DEBT, 
 
 547 
 
 being held within the statute." Per Lord Ellenborough, C. J. (m) 
 As to a tenancy by the quarter, qucere (n). 
 
 A tenant who holds over, under a fair claim of right, will not 
 be considered as wilfully holding over within the meaning of the 
 statute : though it may be decided eventually that he had no 
 ' right (o). To be liable he must hold over wilfully and contuma- 
 ciously, and with a consciousness that he has no right to do so (p). 
 Where, on receipt of a notice to quit by two joint tenants (g), one 
 of them, who did not occupy, said " he had nothing to do with the 
 land ; " it was held that this statement was not admissible to rebut 
 the presumption of wilfulness (r). 
 
 In WiUdnson v.^Colley, 5 Burr. 2694, the court, considering this 
 as a remedial law in favour of lan^ords, the penalty being given 
 to the party grieved, held, that a notice to quit in writing included 
 a demand. On the authority of this case it was held, by three 
 judges, that where a woman, tenant from year to year, had received 
 a written notice to quit, and before the expiration of the year 
 married, it was not necessary for the landlord to make a demand 
 on the husband, in order to entitle him to maintain an action 
 against the husband, on the statute, for wilfully holding over. 
 Chambre, J., differed from the other judges, conceiving that a 
 demand ought to be made, upon the party against whom a penal 
 action is brought (s). Ifote. — In a case of this kind the husband 
 may be sued alone, and it is not necessary to join the wife for con- 
 formity, the husband being in possession of the estate at the time 
 when possession is to be delivered, and consequently the offence 
 being committed by him ; for the offence, which consists in not 
 complying with the demand to deliver possession at the time when 
 it ought to be complied with, is not complete until the day for 
 delivering possession arrives (s). A notice and demand in writing 
 are necessary, although the tenancy is at an end by the expiration 
 of the term without any notice ; and, notwithstanding the order in 
 which the words stand in the statute, from which it would seem that 
 the notice ought to be given afte?- the determination of the term, 
 yet the notice may be given before the expiration of the term (t). 
 The demand and notice, however, may also be given afterwards, 
 e. g. six weeks afterwards, the landlord not having in the mean 
 time done any act to recognize the continuance of the tenancy ; 
 but the landlord will be entitled to double the yearly value only 
 from the time of such notice and demand {u), and cannot recover 
 the single value as on an implied tenancy for the time between 
 
 (to) Lloyd V. Sosbee, 2 Campb. 453. (semUe) liable for the holding over of his 
 
 (n) See Wilkinson v. Sail, 3 B. K C. co-tenant without his assent. Draper v. 
 
 508. Crofts, 16 M. &, W. 166. 
 
 (o) Wright v. Smith, 5 Esp. 203. (r) Hirst v. Horn, 6 M. & W. 393. 
 
 (p) Swinfer v. Bacon, 6 H. & N. 846 (s) Lake v. Smith, 1 N. E. 174. 
 
 (in error) ; 30 L. J., Ex. 368. (<) Cutting v. Derby, 2 Bl. B. 1075. 
 
 iq) One of two joint tenants is not (u) Cobb v. Stokes, 8 East, 358. 
 
 N V 2 
 
548 DEBT. 
 
 the expiration of the tenancy and the notice. The right to recover 
 double value is not vraived by the landlord giving a second notice 
 after the expiration of the first (x). 
 
 To ascertain the amount which the tenant holding over is to 
 pay under the statute, the value of the soil itself, and every thing 
 which, by having been attached to it, becomes part of the soil, 
 must be estimated ; and that value is what an occupier would give, 
 and the landlord would otherwise have received, for the use of the 
 freehold and every thing connected with it, during the time that 
 the possession is withheld; but where the plaintiff, being the 
 owner of a woollen-mill and steam-engine, let to the defendant a 
 room in the mill, together with a supply of power from the steam- 
 engine, by means of a revolving shaft in the room ; it was held, 
 in an action for double value under this statute, that in estimating 
 such double value, the value of the power supplied could not be 
 included (y). 
 
 One tenant in common may maintain an action on this statute 
 without his companion, for double the jeaxlj value of his 
 moiety (z). He must indeed sue alone, if there has been no joint 
 demise (a). 
 
 An action on this statute may be brought after a recovery in 
 ejectment. The defendant, after having held of the plaintiff a farm 
 for fourteen years, received a regular notice to quit on the 12th of 
 Maj', 1806, and the possession was then demanded of him ; but he 
 held over till the 7th of February, 1807 ; whereupon the plain- 
 tiff brought ejectment and recovered possession ; and afterwards 
 brought an action of debt upon the statute for double the yearly 
 value of the premises, in the interval between the expiration of the 
 notice to quit (which was the day of the demise in the ejectment), 
 and the time of recovering the possession under the ejectment. It 
 was objected, on the part of the defendant, that the plaintiff having 
 recovered the premises by the ejectment, and thereby treated the 
 defendant as a trespasser, the action of debt upon the statute, in 
 which, as it was said, the defendant was proceeded against as 
 tenant, could not be maintained; but, per Lord Ellenhorough, 
 C. J., there is no incongi-uity in the landlord's bringing this action 
 for the double value after a recovery in ejectment. The legislature 
 considered that, in many cases, the single value might not be a 
 compensation to the landlord for having been kept out of possession 
 by the misconduct of the tenant, and therefore they gave him double 
 the value. It has no reference to any antecedent remedy which 
 the landlord had to recover possession by ejectment, but is cumu- 
 lative. The two actions are brought diverso intuitu; the ejectment 
 is in order to get possession of the premises wrongfully withheld ; 
 the action of debt for the double value is in order to indemnify the 
 
 (a;) Messenger v. Annstrong, 1 T. E. 53. (s) Cutting v. Derly, 2 Bl. Eep. 1077. 
 
 ^) Robinson V. Learoyd, 7 M. & W. 48. (a) WilJciiison v. Ifall, 1 B. N. C. 713. 
 
DEBT. 549 
 
 landlord for the wrong. The other judges concurred with the 
 C. J. (6). 
 
 In Ryal v. Mcki 10 East, 48, the plaintifF declared in the first 
 count for double the yearly value ; and in the second for use and 
 occupation. The defendant pleaded the general issue to the first 
 count, and to the second a tender of the amount of the single rent, 
 and paid the money into court, which the plaintiff took out, but 
 proceeded to trial. It was contended, on the part of the defendant, 
 that the acceptance of the tender, which must be taken to be an 
 admission by the landlord, that the defendant held the premises 
 as tenant, and that he received the tender as rent, operated as a 
 waiver of .the penalty. But the court held, that the plaintiff was 
 not estopped from taking the morifey as part of the larger sum 
 claimed, and that going on with the suit showed that he did not 
 mean to take it in satisfaction of the lesser sum. 
 
 Debt for Double Eent.—Bj 11 Geo. II. c. 19, s. 18— If any 
 tenant shall give notice of his intention to quit the premises holden 
 by him, at a time mentioned in such notice, and shall not deliver 
 up the possession thereof accordingly, then such tenant, his exe- 
 cutors, or administrators, shall, thenceforward, pay to the landlord 
 double the rerlt which he should otherwise have paid, to be 
 levied (c), sued for, and recovered at the same times and in the 
 same manner as the single rent could ; and such double rent shall 
 continue to be paid , during all the time such tenant shall so con- 
 tinue in possession. 
 
 A tenant for a year under a parol demise is a tenant within this 
 statute (d) ; but a weekly tenant, it seems, is not (e). There would 
 be an incongruity in applying the remedy given by this statute for 
 double rent after the remedy by ejectment, which treats the person 
 in possession as a trespasser and not as tenant. Per Lord Ellen- 
 borough, C. J., 9 East, 314. The notice need not be in writing (/). 
 But it must be a valid notice,, such as would entitle the landlord 
 to bring ejectment (gr). And there must be some fixed time men- 
 tioned in it. A notice that the tenant will quit as soon as he 
 can get another situation will not enable the landlord to recover 
 under the statute, although he can prove that the tenant had got 
 another situation. Farrance v. Elkington, 2 Campb. 591. A tenant 
 who, after having given, notice to quit, holds over for a year and 
 then pays double rent, under the above statute, is not liable to an 
 action for double rent if he quits at the expiration of such year 
 without giving a fresh notice, for the double rent is payable only 
 
 (J) Sotdshy V. Nevmg, 9 East, 310. (e) Sullivan v. Bishop, 2 C. & P. 359. 
 
 (c) i. 6., by distress. This remedy was if) Timmins r. Rowhson, 3 Buvr 
 pursued in Timmins v. Mowlison. 1603. . -a s, rt 
 
 (d) Timmins v. RowUson, 3 Bury. (g) Johisone v. Huddlestme, 4 B. & L/. 
 1603. 922. 
 
550 DEBT. 
 
 while he continues in possession Qi). By the acceptance of a single 
 rent the landlord, it seems, waives his right to recover double rent 
 under the statute (-i). 
 
 By 3 & 4 Will. IV. c. 42, s. 3 — All actions for penalties, damages, 
 or sums of money, given to the party grieved, by any statute now 
 or hereafter to be in force, shall be commenced and sued within 
 two years after the cause of such actions or suits. 
 
 IX. Debt for Penalties. 
 
 By 31 Eliz. c. 5, s. 2 — In any declaration or information the offence 
 against any penal statute shall not be laid to be done in any other 
 county but where the contract or other matter alleged to be the 
 offence was in truth done (Ic), and every defendant in such action, &c., 
 may allege that the offence was not committed in the county where 
 such offence is alleged, which, being tried for the defendant, or if 
 the plaintiff be thereupon nonsuit in his information or suit, the 
 plaintiff shall be barred in that action or information. By sect. 5, 
 all actions brought for any forfeiture upon a penal statute, whereby 
 the forfeiture is limited to the Ki/ng only, shall be brought within 
 two years next after the offence committed. And all actions 
 brought for any forfeiture upon a penal statute, (except the statute 
 of tillage,) the benefit whereof is limited to the King and the pro- 
 secutor, shall be brought by any person that may lawfully pursue 
 the same within one year after the offence committed ; and, in 
 default thereof, the same shall be brought for the king, at any time 
 within two years after that year ended. And if any action shall 
 be brought after the time before limited, the same shall be void. 
 Provided (sect. 6), that where a shorter time is limited by any 
 penal statute, the action shall be brought within that time. 
 
 This statute extends to all actions brought upon penal statutes, 
 whereby the forfeiture is limited to the king, or to the king and 
 the party, whether 'mode before or since the statute (J), but not to 
 actions of debt brought by the party grieved (m) (which however 
 must, by the 3 & 4 Will. IV. c. 42, s. 3, be commenced and sued 
 within two years of the cause of action), or, it seems, as to the 
 time limited for bringing the action, to cases where the whole 
 penalty is given to the common informer (n), and therefore it does 
 apply where a moiety of the penalty is given to the poor of the 
 parish (o). If any offence prohibited by any penal statute be also 
 an offence at common law, the prosecution of it as an offence at 
 
 (h) Booth T. MMfarlme, 1 B. & Ad. (I) Ba/rUr v. TiUon, 3 M. & S. 434. 
 
 90^- (m) Fife v. Sousfidd, 6 Q. B. 100. 
 
 (i) Gilder v. Gildde, cited Cowp. 245. \n) I Show. 354, in notis. 
 
 {k) See Smith v. Bond, 11 M. & "W. (o) Frederick y. Loohip, 4 Burr. 2018. 
 
DEBT. 551 
 
 common law is not restrained by this statute. The defendant may 
 take advantage of this statute on the general issue, and need not 
 plead it {p). In actions brought on penal statutes, it is incumbent 
 on the plaintiff to show that an action was commenced within the 
 limited time (g). 
 
 By 21 Jac. I. c. 4, s. 1 — All offences against any penal statute, 
 for which any common informer may ground a popular action, bill, 
 plaint, suit, or information, before justices of assize, justices of nisi 
 pri/us or gaol delivery, justices of oyer and terminer, or justices of 
 peace in their general or quarter sessions, shall be commenced, 
 sued, prosecuted, tried, recovered, and determined by way of 
 action, plaint, bill, information, or indictment, before the justices of 
 assize, &c., of every county, city, ^., having power to determine 
 the same, wherein such offences shall be committed, and not else- 
 where save only in the said counties ; and the like process shall be 
 as in actions of trespass at common law ; and all informations, 
 actions, &c., by the attorney-general, or other officer, or common 
 informer, in any of the courts at Westminster, for any of the said 
 offences, penalties, or forfeitures shall be void. By sect. 2 — The 
 offence shall be alleged to have been committed in the county 
 where such offence was in truth committed ; and if, on the general 
 issue, the plaintiff or informer shall not prove the offence, and that 
 the same was comm^itted in the county in which it is laid, the defen- 
 daut shall be found not guilty. By the 3rd section— No officer in 
 any court of record shall receive, file or enter of record any infor- 
 mation, bill, &c., grounded upon a penal statute, until the informer 
 has first taken an oath (to be entered of record) before some_ of the 
 judges of the court, that the offence was not committed in any 
 other county than where, by the said information, bill, &c., the 
 same is supposed to have been committed, and that he believes in 
 conscience, that the offence was committed within a year before 
 the information or suit, within the same county. 
 
 The above statute does not extend to subsequent penal laws (r) ; 
 consequently, in an action founded on the 12 Ann. c. 16 (against 
 usury), it is not necessary that there should be an affidavit that the 
 offence was committed in the county where, and within a year 
 before, the action was brought (s). "Wherever, by any act m force 
 at the time when this statute passed, the informer might have sued 
 by action or information in the inferior courts, as well as in the 
 courts at Westminster, he is now confined to sue in the former ; 
 but, as the statute does not give any new jurisdiction to the inferior 
 courts (t), the party may still sue in the courts at Westminster tor 
 
 (p) 21 Jac. I. c. 4, s. 4, infra. v. Bobson, cited in Garlmd v. mirtm, 
 
 (g) Maugham V. WaHcer, Feake'a !!(. Andr. 292. „ o*., insi 
 
 P. C. 163 -.i.e., if the general issiie " by (s) French r.Ooxm,i Sti. 1081. 
 
 statute," is pleLded. "^ " - ««^^''- Carth. 466, Ga, 
 
 (r) Hick's case, Salk. 373 ; R. v. OalU, 
 Salk. 372; Ld. Eaym. 370; Messenger 
 
 P. C. 163 ; i.e., if the general issiie " by (s) ^«"«V„'' n \^ Trr- a'nrlnml 
 
 statute," is pleLded. («) iZ. v. (?«Z&, Carth. 466 , (?«.?«<«J 
 
 (r) Hick's case, Salk. 373 ; R. v. Oalle, v. Buriou, 2 Str. 1103. 
 
552 DEBT. 
 
 all penalties, which could not, before the passing of that statute, 
 have been recovered in the inferior courts (u). Hence, an informer 
 may bring an action of debt in the courts at Westminster on the 
 1 Jac. I. c. 22, s. 14, for the recovery of the penalties for selling 
 leather, which has not been searched and sealed; because this 
 statute gives no jurisdiction to the inferior courts to distribute the 
 penalties, but only to inquire of the premises ; which inquiry means 
 in their accustomed manner, namely, by indictment or presentment 
 at common law (cc). This statute applies to those penal statutes 
 only, on which proceedings may be had before the justices of 
 assize, justices of the peace, &c. (2/). 
 
 By the 4th section (of the 21 Jac. I. c. 4) defendants are per- 
 mitted to plead the general issue, and give the special matter in 
 evidence ; and this section, it has been held, applies to subsequent 
 statutes (z). By 21 PL R H. T. 1853, the defendant must in such 
 a case insert in the margin of the plea the word " by statute," to- 
 gether with the year or years in which the act or acts he relies on 
 was passed, and also the chapter and section, specifying whether it 
 is a public act or not, " otherwise such plea shall be taken not to 
 have been pleaded by virtue of an act of parliament." 
 
 By 18 Eliz. c. 5, s. 1 (made perpetual by 27 Eliz. c. 10), every 
 informer, upon any penal statute, shall sue in proper person, or by 
 his attorney. Hence an infant cannot be a common informer ; for 
 he must sue by prochein a/my or guardian (a). By the 3rd section, 
 no informer shall compound with any person that shall offend 
 against any penal statute, for an offence committed, but after 
 answer made in court to the suit, nor after answer, but by order 
 or consent of the court. Leave, however, cannot be obtained at 
 nisi frius (b). In cases where part of the penalty goes to the 
 crown, leave shall not be given to compound unless notice shall 
 have been given to the proper officer, but in other cases it may. 
 118 R. G. H. T. 1853. The consent of the crown, however, 
 must be obtained (c). 
 
 This statute extends to suits by common informers only, and not 
 to those by the party grieved (d). It extends, however, as it seems, 
 to subsequent penal statutes, as well as to those which were in 
 being when it was made (e). A common informer cannot sue for a 
 less penalty than the statute gives ; if he do, though he has a 
 verdict, judgment will be arrested ; e. g. if a common informer 
 were to sue for the single value of money won at play, the .statute 
 (9 Ann. c. 14, s. 2) giving the treble value (/). 
 
 (m) Morgan v. lAtte, 1 Chitt. 381. (c) R. v. GiUs, 3 Dowl. 345. 
 
 (x) Shipnum v. Heniiest, 4 T. R. 109. (d) VogUad's case, 2 Leon. 116 ; 2 
 
 {y) Leigh v. Kant, 3 T. R. 362. Hawk. P. C. (8th ed.) 372. See, also, 
 
 (2) Lord Spencer v. Swmmell, 3 M. & sect. 6 of the statute. 
 ^'^■, ^^t'. „„. ^ „ .. ^ («) Williams v. Drewe, WUles, 392. 
 
 (a) Maggs v. Ellis, Bull. N. P. 196. (/) CmningJmm v. Jiennet, Bull. N. P. 
 
 (6) 1 Wms. Saund, 312, h, n. (1). 196. 
 
DEBT. 553 
 
 Of the pleadings in Actions founded on Penal Statutes. — The 
 exceptions in the enacting clause of a statute, which creates an 
 offence, must be negatived by the plaintiff in his declai-ation (g), 
 or it would be held bad on demurrer Qi) ; but if there be a separate 
 proviso, although in the same section, that need not be negatived 
 in the declaration, but is a matter of defence, and the other party- 
 must show it to exempt himself from the penalty (i) ; a fortiori, 
 therefore, if the proviso is in a subsequent section Qc), or in a sub- 
 sequent statute (l). A saving proviso, may, however, it seems, be 
 given in evidence on the general issue ; because, if the party is 
 within the proviso, he is not guilty on the body of the act on 
 which the action is founded (m). 
 
 A recovery in another action for* the same offence must be 
 pleaded specially, in order to give the plaintiff an opportunity of 
 replying nul tiel record, or that it was a fraudulent recovery {n) ; 
 and in this plea, it should be stated that the plaintiff in the other 
 action had priority of suit ; otherwise the plea will be bad on 
 demurrer (o). To this plea of a prior recovery, the plaintiff may 
 reply that the recovery was had by covin ; and if the covin be 
 found, the plaintiff shall recover, and the defendant shall be impri- 
 soned for two years (p). No release of any common person shall be 
 available to discharge a popular action (q). The defendant may, it 
 seems, since the Common Law Procedure Act^ 1852, s. 81, plead 
 several matters to an action on a penal statute (■)"). 
 
 In an action on a penal statute, it was moved by the defendant 
 that the plaintiff' should give security to pay the costs, upon affi- 
 davit that he was a poor man. But the court refused the motion ; 
 for, the statute having given him power to sue, it is a debt duo to 
 him ; but if it appeared that the action was brought in a feigned 
 name, they would oblige the real prosecutor to give security Cs). 
 The court will grant a new trial, after verdict for the defendant, in 
 a penal action, o.to account of a mistake or misdirection of the 
 judge (t) ; but it is a settled rule not to grant a new trial in such a 
 case on the ground that the verdict is against evidence («), or, it 
 
 {g) Spieres v. Parker, 1 T. E. 141 ; per com-ses open to the defendant, either to 
 
 Alderson, B., Simpson v. Beady, 12 M. & demur, or to plead the general issue, and 
 
 ■W. 740. show himself within the exception ; for 
 
 (h) dill V. Scrivens, 7 T. R. 27. After it seems doubtful whether even under the 
 
 verdict, however, the omitted facts might general issue, "by statute," such evi- 
 
 perhaps be suggested under sect. 143 of dence could be given. ThibauUv. Gibson, 
 
 the Com. Law Proc. Act, 1852. 12 M. & W. 88, aud cases supra. 
 
 {i) Steel V. Smith, 1 B. & Aid. 94. (») Bredon v. Earman, 2 Str. 701. 
 
 ik) Per Erie, J., Van Soven's case, 9 (o) JacJcsonv. Gisling, Bull. N. P. 197. 
 
 Q. B. 684. (P) i Hen. VII. o. 20. 
 
 (l) PilkiJigton v. Cooke, 16 M. & "W. (?) Ibid. 
 
 615 (r) See lleyrick v. Foster, 4 T. U. 701. 
 
 {in) Pelly v. Rose, 12 M. & "W. 435. (s) Shinleyy. Roberts, Bull. N. P. 196. 
 
 But, semble, that this applies only to cases And see Gregory v. Elvidge, 2 Dowl. 259. 
 
 where the proviso in fact amounts to ah (*) Wilson v. Rastall, 4 T. E. 753. 
 
 exception, and should be stated in the («t) Greeny. Hall, 9 Exch. 24/. 
 declaration ; thus practically leaving two 
 
554 DEBT. 
 
 seems, on any other ground than a misdirection of the judge in 
 point of law (x). 
 
 Damages. — It is a general rule that damages cannot be given in 
 a popular action for detention of the debt, no interest attaching in 
 the plaintiff before the recovery thereof; and if judgment be entered 
 for damages as well as the debt, it will be reversed pro tanto : or 
 if the costs and damages be incorporated together, the judgment 
 will be reversed as to both (y). 
 
 Bribery, &c. — By the 17 & 18 Vict. c. 102 (z), all the previous 
 statutes on the subject of bribery, treating, &c. are repealed. By 
 section 2 of that statute, — 
 
 Every person who shall, directly or indirectly, give, lend, or 
 agree to give or lend, or shall offer, promise, or promise to procure, 
 or to endeavour to procure, any money or valuable consideration for 
 any voter, or for any person on behalf of any voter, or for any other 
 person in order to induce any voter to vote, or refrain from voting, 
 or shall corruptly do any such act on account of such voter having 
 voted or refrained from voting at any election (a) : or, 2ndly, — who 
 shall, directly or indirectly, give or procure, or agi-ee to give or 
 procure, or offer, promise, or promise to procure or to endeavour to 
 procure any office, place, or employment for any voter, or for any 
 person on behalf of any voter, or for any other person, in order to 
 induce such voter to vote, or refrain from voting, or shall corruptly 
 do any such act on account of any voter having voted or refrained 
 from voting at any election : or, — :3rdly, — who shall, directly or in- 
 directly, make any such gift, loan, offer, promise, procurement or 
 agreement to any person, in order to induce such person to procure, 
 or endeavour to procure, the return of any person to serve in Parlia- 
 ment, or the vote of any voter at any election : or, — 4thly, — ^who 
 shall, in consequence of any such gift, loan, &c., procure, or engage 
 or endeavour to procure the return of any person or the vote of any 
 voter : or, — Sthly, — who shall advance or pay, or cause to be paid 
 any money to the use of any other person with the intent that such 
 money or any part thereof shall be expended in bribery at any 
 election, or who shall knowingly pay any money to any person in 
 discharge or repayment of any money wholly or in part expended 
 in bribery at any election : shall be guilty of bribery, and shall 
 forfeit lOQl. to any one who shall sue for the same, with fuU costs 
 of suit. But the above enactment is not to extend to any money 
 paid for any legal expenses bond fide incurred at an election. 
 
 (k) Brooh V. Middkton, 10 East, 268. after an election is evidence from wliioli a 
 
 (y) Oummg t. SibUy, i Burr. 2489. jury would be justified in inferring aa 
 
 (z) Continued hy 21 & 22 Vict. c. 87. agreement for it previous to the giving of 
 
 For punishment of candidate guilty of the vote. Per Lord Campbell, 0. J., R. 
 
 bribery, see 31 & 32 Vict. c. 125. v. Thwaites, 1 E. & B. 704. 
 (a) The receipt of money by a voter 
 
DEBT. 555 
 
 It has been held in the Irish conits that the jury may find for 
 the plaintiff upon the uncorroborated evidence of the plaintiff, 
 although he may have rendered himself liable under the statute (6)' 
 that the judge is not bound to tell the jury that the defendant is 
 entitled to the benefit of a doubt, by analogy to the practice in 
 criminal cases (c). 
 
 In Cooper v. Slade (d), it was held, that a letter which desired a 
 voter to come from H. to C. to vote at the latter place for a par- 
 ticular candidate, and in the postscript of which were these words, 
 " your travelling expenses will be paid," was evidence of bribery 
 within the above section. It appeared that this postscript was 
 added after a discussion in the defendant's committee-room, as to 
 whether travelling expenses were ISgal or not. The defendant 
 was present at the discussion, and gave his opinion that the pay- 
 ment of travelling expenses was legal, but the postscript was not 
 added by the defendant's own act, or by his direct command. 
 These facts were held to be evidence that the letter was vnt-itten 
 by his du-ection and authority. And now by 21 & 22 Vict. c. 87, 
 s. 1, the payment of travelling expenses is declared to be illegal. 
 
 By the 9th section the penalties are recoverable only in the 
 superior courts. By the 14th section no person is liable to any 
 penalty under the Act, unless the action is commenced within one 
 year after the offence has been committed and the defendant 
 summoned or served with process within that time (unless he has 
 absconded), and any prosecution or suit, &c., must he carried on 
 without any wilful delay (e). It is incumbent, therefore, on the 
 plaintiff to show that the action was commenced within that 
 period, either by the record, or in case it does not appear on the 
 face of the record, then by the production of the writ. When in 
 an action under section 14 the plaintiff did not declare for eleven 
 months after the issuing of the writ, it was held that there had 
 been "wilful delay." Such delay cannot be pleaded, but is only 
 ground for an application to the court to stay the proceedings (/). 
 
 Under an allegation that the defendant gave the money, evi- 
 dence is admissible that the defendant gave the voter a card, 
 which the voter presented to another person, who thereupon gave 
 him money ; and it is competent to the plaintiff to prove that the 
 defendant, on the same day and at the same place, gave cards to 
 other persons besides those named in the declaration, in order to 
 establish the defendant's guilty knowledge of the effect the giving 
 of the cards had {g). 
 
 In a declaration for penalties under, this statute, it is now, by 26 
 
 (6) McOlony v. Wright, 10 Irish C. L. (e) See Petrie v. White, 3 T. E. 5. 
 
 U. 514. ( /■) Tm/lor v. Yerqette, 7 H. & N. 143 ; 
 
 (c) Mageer. Mark, 11 Ir. C. L. E. 449. 30 L. J. Ex. 401. 
 
 [d) 27 L. J., Q. B. 410. (g) Webb v. Smith, 4 B. C. N. 373. 
 
556 DEBT. 
 
 Vict. c. 29, s. 6, " ia any indictment or information for bribery or 
 undue influence, and in any action or proceeding for any penalty 
 for bribery, treating, or undue influence," suflicient to allege that 
 " the defendant was, at the election at or in connection with which 
 the offence is intended to be alleged to have been committed, 
 guilty of bribery, treating or undue influence, as the case may 
 require." In Davy v. Baker, 4 Burr. 2471, a declaration charging 
 that the defendant "received a gift or reward," following the 
 words of the statute, and not specifying the particular kind of 
 reward, was held bad in arrest of judgment (h). 
 
 {h) But the omitted facts might (semJfe) Com. Law Proc. Act, 1852. See Baker 
 now be suggested under sect. 143 of the v. Rush, 15 Q. B. 870. 
 
657 
 
 CHAPTER XV. 
 DECEIT. 
 
 I'AGB 
 
 I. Of ilie Action of Deceit 5517 
 
 II. Of the Action for Fraudulent Misrepresentation 
 
 against Persons not Parties to the Contract . . 559 
 
 III. Of Warranty . . . . • 5g5 
 
 Express .... ... . . 565 
 
 Warranty of Horses . . . . . . . 568 
 
 Im/plied ......... 573 
 
 I, Of the Action of Deceit. 
 
 An action of deceit may be maintained against any one who 
 deceives by a wilfully false assertion and thereby injures another 
 person, in any contract, who has placed a reasonable confidence in 
 him. And this deceit may be either express or implied ; as if a 
 man sell cloth to another, knowing it to be badly fulled {a) ; so if 
 an innkeeper sell wine which he knows to be corrupt (6). " Is it 
 not true that in every bargain there is a covenant ? for if I buy of 
 you a horse, although there be not an express warranty of sound- 
 ness, yet if the horse be unsound I shall have writ of trespass on 
 my case, and shall aver that you sold me the horse, knowing it to 
 be unsound." Per Paston, J., 20 Hen. VI. 35, a. So if a party 
 knowingly allows another to enter into a contract with him under 
 a delusion as to material facts which he might have, but does not, 
 remove (c). So if there be any duty imposed by law upon a 
 person to communicate certain facts to one who is negotiating 
 with him (d). So where a sample of goods is fraudulently ex- 
 hibited to deceive the buyer, whereby the plaintiff is induced to 
 purchase the commodity, which turns out of very inferior quality 
 and value (e). In cases of this kind, however, which are grounded 
 merely on the deceit, it is essentially necessary that the knowledge 
 of the party, or, as it is termed, the scienter, should be aven-ed in 
 the declaration, and also proved. 
 
 (a) 1 EoU. Abr. 90, (P.) pi. 3. Emmerton v. Matthews, 31 L. J. Ex. 
 
 (6) 9 Hen. VI. 63, b. But in the 139. 
 
 particular case of vintners, brewers, (c) Hill v. Gray, 1 Sta. 434; Joiies v. 
 
 butchers, and cooks, the selling of un- Keene, 2 Moo. & Rob.. 348. 
 
 wholesome meat or drink is actionable, {d) SeelCeaiesy. Earl of Cadogan, 10 
 
 it seems, without fraud, if it prejudice C. B. 491. 
 
 anyone, for it is a criminal offence. But (c) Per Lord Ellenborougli, Meyer v. 
 
 see Bivmbij v. Bollett, W M, & W. 644 ; Eoertli, i Campb. 22. 
 
558 DECEIT. 
 
 1. The scienter must be averred in the declaration : — 
 
 For where, in an action of deceit, it was stated in the declara- 
 tion that the defendant had sold certain goods as his own to the 
 plaintiff, when in truth they were the goods of another person : it 
 was held, that this declaration would not maintain the action, for 
 want of an averment, that the defendant sold the goods sciens 
 that they were the goods of another person (/). So where the 
 declaration stated that the defendant, being a goldsmith, and 
 having skill in precious stones, sold a stone to the plaintiff for a 
 sum of money, affirming it to be a Bezoar stone, whereas in truth 
 it was not a Bezoar stone : after judgment for the plaintiff, it was 
 adjudged (on error) that the declaration was bad, because it was 
 not averred that the defendant knew it not to be a Bezoar stone, 
 or that he warranted it to bo a Bezoar stone (g). 
 
 2. The scienter must be proved : — 
 
 In an action on the case, for selling a horse as defendant's own, 
 when in truth it was the horse of A. ; it appeared that the defen- 
 dant bought the horse in Smithfield, but had not taken the usual 
 precaution of having the horse legally tolled ; ' yet as the plaintiff 
 could not prove that the defendant knew that the horse belonged 
 to A. (h), the plaintiff was nonsuited ; for the scienter or fraud is 
 the gist of the action where there is not a warranty ; if there be a 
 warranty, then the party takes upon himself the knowledge of the 
 title to the horse, and also of his qualities (i). So where the 
 declaration stated that the plaintiff bargained with the defendant 
 to buy of him a musket, as a sound and perfect musket, for the 
 price of two guineas and a half, and that the defendant, hnoimig 
 the musket to be unsound and imperfect, sold the same to the 
 plaintiff as a sound and perfect musket, &c. : Lord Kenyan, C. J., 
 held it to be necessary that the scienter should be proved {j). 
 
 It is to be observed, that actions for the breach of an express or 
 implied warranty bear a strong resemblance to these actions of 
 deceit : but this distinction between them ought to be attended 
 to ; that in 'actions of deceit, the gravamen is the deceit, and the 
 gist of the action is the scienter ; but in the action for breach of 
 wari'anty, the gravamen is the breach of warranty ; and where the 
 plaintiff' declares for such breach, it is not necessary to allege the 
 scienter, nor, if alleged, to prove it (Jc). 
 
 (/) Dale's case, Cro. Eliz, 44. tion might perhaps be held good as an 
 
 (g) Chandelor v. Lopus, Cro. Jac. 4. informal one upon a warranty. 
 
 The principle of this case has been frc- iji) Or rather that it did not belong to 
 
 quentlyaffirmed, but on the /ads of it the Mm. 
 
 decision •would perhaps now be different, (i) Sprigwell v. Allen, 2 East, 448, n. 
 
 for,every affirmation at the time of a sale (j) Dowding v. Mortimer, 2 East, 
 
 is a waiTanty, if so intended, Power v. 450, n. 
 
 Barham, 4 A. & E. 473, and the declara- {]c) Williamson v. A llison, 2 East, 446. 
 
DECEIT. 559 
 
 II. Of the Action for Fraudulent Misrepresentation against 
 Persons not Parties to the Contract (l). 
 
 Where a person, with a design to deceive and defraud another, 
 makes a false representation of a matter inquired of him (or 
 volunteers the false information, as in the case of the prospectus of 
 a joint-stock company, issued to the public (m,)) in consequence of 
 which the person to whom the representation is made enters into 
 a contract, and thereby sustains an injury, an action of deceit will 
 lie at the suit of the party injured, against the party making the 
 fraudulent misrepresentation, although such party be a stranger to 
 the contract, from the entering into which the plaintiff was damni- 
 fied (n). This was for the first time decided in the case of Pasley 
 V. Freeman, 3 T. R. 51, which came before the court on a motion 
 in arrest of judgment. The declaration stated, " that the defen- 
 dant, intending to defraud the plaintiffs, persuaded them to deliver 
 certain goods to one F. upon credit, and for that purpose falsely 
 and fraudulently asserted that F. was a person safely to be trusted, 
 &c„ whereas, in truth, F. was not a person safely to be trusted, 
 and the defendant well knew the same, &c." The question was, 
 whether the action could be maintained, and the court, Grose, J., 
 diss., was of opinion that it might. 
 
 The principle of this case was confirmed and somewhat extended, 
 by the case of Langndge v. Levy (o), which was an action for 
 falsely and fraudulently warranting a gim to have been made by 
 Nock, and selling it as such to the plaintiff's father for the use of 
 himself and sons, one of whom, the plaintiff, confiding in the 
 warranty, used the gun, which burst and injured him; Parke, B., 
 in delivering the judgment of the Court of Exchequer, said, — " As 
 there is fraud, and damage the result of that fraud, not from an 
 act remote and consequential, but one contemplated by the de- 
 fendant at the time as one of its results, the party guilty of the 
 fraud is responsible to the party injured "(p). In that case, said 
 Lord Ahinger, C. B., in Winterhottom v. Wright, 10 M. & W. 
 114, — " the gun was bought for the use of the son, the plaintiff in 
 
 ij) " It is a veiy old principle of equity, tractiiig parties, as was observed by Grose, 
 that, if a representation be made to J., in Pasley v. Freeman, and proceeded 
 another person going to deal in a matter upon the breach of a promise, either ex- 
 of interest iipou the faith of that repre- press or implied, that the fact misrepre- 
 sentation, the former shall make that re- sented was tnie, and in these respects they 
 presentation good, if he knows it to be differ from that case and the subsequent 
 false." Per Lord Eldon, 6 Ves. 182. cases decided on the authority of it. See 
 Ace. Button Y. Rosdter, 7 De G. M. & G. per Lord Eldon, 3 V. & B. lio. 
 18 ; and see per Cottenliam, C, Elair v. (o) 2 M. & W. 519 ; (on error) 4 M. & 
 Bromley, 2 Pliill. 360. W. 337. 
 
 (m) Gerhard v. Bates, 2 E. & B. 476 ; (p) That in such a case no action 
 
 Clarice v. Dixon, 6 0. B. (N. S.) 453; would lie upon the warranty alone, and 
 
 28 L. J., C. B. 225. in the absence of fraud, see Longmeid v. 
 
 (n) The old cases were confined to Holiday, 6 Exch. 761. 
 fraudulent assertions by one of the con- 
 
560 DECEIT. 
 
 that action, who could not make the bargain himself, but was 
 really and substantially the party contracting : " and fer Alder- 
 son, B., — "The principle of that case was siiiiply this, that the 
 father having bought the gun for the very purpose of being used 
 by the plaintiff, the defendant made representations by which he 
 was induced to use it. There a distinct fraud was committed on 
 the plaintiff; the falsehood of the representation was also- alleged 
 to have been within the knowledge of the defendant who made it, 
 and he was properly held liable for the consequences." "The 
 ground of the decision in Langridge v. Levy, was that the false 
 representation was made by -the defendant with a view that it 
 should be acted upon in the manner that occasioned the injury"(g'). 
 So a false report by managers addressed to shareholders in order 
 to influence the market value of shares, renders them liable to 
 actions at the suit of persons induced thereby to become share- 
 holders (r). When directors in discharge of th^ir duty of making 
 reports, fraudulently, for the purpose of misleading others, repre- 
 sent the company to be in a different state to which they know it 
 to be, and the persons to whom it is addressed act upon it, that is 
 a misrepresentation of the company (s). So where the defendant, 
 being about to sell a public house, falsely represented to B., who 
 had agreed to purchase it, that the receipts were 1801. a month, 
 B. having to the knowledge of the defendant communicated this 
 statement to the plaintiff, who became the purchaser instead of B. ; 
 it was held, that an action was maintainable for the deceit by the 
 party eventually injured (t). 
 
 In cases of this kind it is not necessaiy that the defendant should 
 have derived any advantage from the deceit ; or that he .should 
 have colluded with- the person who did derive the advantage {u) ; 
 but there must be fraud in the defendant, in order to support the 
 action (x) : for in a case where there was not any fraud or deceit 
 in the party making the representation, although he had incau- 
 tiously asserted that to be within his own knowledge, which in 
 strictness he could not be said to have known, but had reasonable 
 and probable cause only to believe (y), viz. the solvency of a certain 
 person ; it was held {diss. Kenyan, C. .7.) that the action was not 
 maintainable (z). 
 
 " Fraud may consist as well in the suppression of what is true as 
 in the representation of what is false." Per Ghamhre, J., 3 B. & P. 
 371. The defendant having had a credit lodged with him by a 
 foreign house, in favour of one T. to a certain amount, upon an 
 
 (g) Per Wood, V.-C, Barry v. Cross- per Lord Ormiworth. 
 
 key, 2 J. & H. 1. (i!) PUmore v. Mood, H B. N. C. 97. 
 
 (r) Scott V, Dixon, Q. B., cited 29 L. {u) Pasley v. Freeman, 3 T. E. 61. 
 
 J., Ex. 62 ; Bedford v. Bagshaw, i H. & {x) Tapp v. Lee, 3 B. & P. 367. 
 
 N. 538. \y) This is necessary ; Shrewsbury v. 
 
 (s) National Exchange Company v. Blount, 2 M. & G. 475. 
 
 DreiD, 2 Macqueen, H. of L. Cases, 155, («) Haycrafl.Y. Creasy, 2 East, 92. 
 
DECEIT. 561 
 
 express stipulation, that there should be previously lodged iu the 
 defendant's hands goods to treble the amount, and having been 
 applied to, by the plaintiffs, for information respecting the respon- 
 sibility of T., answered, that he (defendant) did not know anything 
 of T., except what he had learned from his correspondent, but that 
 he had a credit lodged with him to a certain amount by a respect- 
 able house, which he held at the disposal of T., (omitting to mention 
 the stipulation on which the foreign house had given T. credit,) and 
 that, upon a view of all the circumstances which had come to the 
 defendant's knowledge, the plaintiffs might execute T.'s order, viz. 
 for the sale and delivery of goods upon credit, with safety. It was 
 held, that there was a material suppression of the truth by the 
 defendant, and evidence sufficient for the jury to find fraud, which 
 was the gist of the action ; although af the time when the defendant 
 made the representation, he added, that he gave the advice without 
 prej udice to himself (a) . It is not necessary for the plaintiff to show 
 that the false statement of the defendant was accompanied with an 
 intention to injure the plaintiff (6). 
 
 The plaintiff being about to furnish the defendant's son with 
 goods on credit, inquired of the defendant whether his son had, as 
 he asserted, 800?. of his own property ; the defendant answered 
 that his son's statement was " perfectly correct," as he "advanced" 
 him the money ; the fact being, that the defendant had lent his 
 son 300Z. on his promissory note. The son having afterwards 
 become insolvent, it was held, that this was a misrepresentation 
 for which the defendant was liable in damages ; for, the statement 
 being false within the defendant's knowledge, fraud might be 
 inferred (c). 
 
 Where a bill was presented for acceptance at the office of the 
 drawee, when he was absent, and A., who lived in the same house 
 with the drawee, being assured by one of the payees that the bill 
 was perfectly regular, was induced to write on the bill an accept- 
 ance as by the procuration of the drawee, believing that the ac- 
 ceptance would be sanctioned, and the bill paid by the drawee ; 
 but the bill was dishonoured when due: the indorsee, having 
 sued the drawee, was nonsuited on the above facts. The indorsee 
 then brought an action against A. for falsely and fraudulently re- 
 presenting that he was authorized to accept by procuration ; and 
 although the jury negatived fraud in fact, yet it was held, that A. 
 was liable, for there was a fraud in law (d). In the foregoing case, 
 there was a direct assertion of that which the defendants knew to 
 be untrue ; but, in order to constitute fraud for which this action 
 will lie, it 'is not necessary to show that the defendants knew the 
 fact they stated to be untrue ; it is enough that the fact is untrue, 
 
 (o) Eyre v. Dunsford, 1 East, 318. (c) OorhettY. Brmm., 8 Bingh. 33. 
 
 (V FosUr V. OharUs, 7 Bingh. 105. Kd) PolUll v. Waller, 3 B. & Ad. 114. 
 
 vol. I. ° ° 
 
563 DECEIT. 
 
 if they communicated that fact for a deceitful purpose (e) ; and 
 had (semble) no reasonable or well-gi'ounded belief of its truth (/). 
 
 But where the party making the representation does not know 
 it to be untrue, and there is no fraud in fact, the action cannot he 
 maintained (g). Fraud in law consists in knowingly asserting that 
 which is false in fact to the injury of another Qi). Confusion seems 
 to have arisen from not distinguishing between what is fraud in 
 law, and the motives for actual fraud. It is a fraud in law if a 
 party makes representations which he knows to be false, and injury 
 ensues. Although the motives from which tlie representation pro- 
 ceeded may not have been bad, the person who makes such repre- 
 sentation is responsible for the consequences (i). Thus, in Pothill 
 V. Walter^ fraud in fact was negatived. If a representation be 
 untrue in fact, and not believed to be true by the party making it, 
 and made for a fraudulent purpose, it is both a legal and a moral 
 fraud (j). " It is settled law that, independently of duty, no action 
 will lie for a misrepresentation unless the party making it knows it 
 to be untrue, and makes it with a fraudulent intention to induce 
 another to act on the faith of it, and to alter his position to his 
 damage " (Jc). 
 
 In a recent case before Vice-Chancellor Wood, he said that the 
 principles by which, in the administration of justice, the limits of 
 responsibility for the consequences of a false representation are to 
 be ascertained are these : First, every man must be held responsi- 
 ble for the consequences of a false representation made by him to 
 another (l) upon which that other acts, and so acting is injured or 
 damnified. Second, every man must be held responsible for the 
 consequences of a false representation made by him to another 
 upon which a third person acts and so acting is injured or damni- 
 fied ; provided it appear that such false representation was made 
 with the direct intent that it should be acted on by such third 
 person in the manner that occasions the injury or loss. Third, but 
 to bring it within the second principle the injury must be imme- 
 diate, and not the remote consequence of the representation thus 
 made (m). 
 
 In the case of Udell v. Atherton (n), the question was whether 
 a principal who has had the benefit of a contract made by 
 his agent is responsible for a deliberate fraud committed by the 
 latter in the making of the contract, by which fraud alone 
 
 {e) Taylor v. AsMon, 11 M. & W. 414. (j) Taylor y. AsAton, 11 M. & "W. 401. 
 
 (/) Shrewsbury v. Blount, 2 M. & G. (Ic) Per Parke, B., Thorn v. Bigland, 
 
 «5. 8 Exch. 731. 
 
 {g) Freeman v. Balcer 5 B. & Ad. 797 ; (I) It is presumed that this means a 
 
 Ormerod v. Hiith, 14 M. & W. 65. representation that he knows to be false, 
 
 (7j) Per Crmwell, J., Crawshay v. or at any rate does not believe to be 
 
 Thompson, 4 M. & 6r. 387. true. 
 
 (i) Per Tindal, C. J,, Foster \. Charles, Im) Barry v. CrosTcev, 2 J. & H. 1. 
 
 6 Bing. 396. („) 7 H. & N. 172. 
 
DECEIT. . 563 
 
 the contract was obtained, the principal having neither authorized 
 nor known of the fraud of the agent. The Court of Exchequer 
 were equally divided upon the question, Pollock, C. B., and Wilde, 
 B., being of opinion that he was liable in an action of deceit, 
 Martin and Bramwell, BB., that he was not, although the con- 
 tract might have been avoided so long as it was executory. Wilde, 
 B., based his judgment on the ground that the principal having 
 adopted the sale made by the agent, and received the price, was 
 responsible for the fraud committed by the agent in making the 
 contract. In an action against a bank for the fraud of their 
 manager, Willes, J., in delivering the judgment of the Exchequer 
 Chamber, approved of Wilde, B.'s, judgment in Udell v. Aiherton, 
 and said, that no sensible distinction., could be drawn between the 
 case of fraud and any other wrong, as to which the general rule is 
 that the master is answerable for such wrong if committed in the 
 course of his service and for his benefit ; that although he has not 
 authorized the particular act, yet, as he has put his agent in his 
 place as to a class of acts, he must be answerable for the manner 
 in which the agent conducts himself in doing his business (o). 
 
 By 9 Geo. IV. c. 14, s. 6, — "No action shall be brought whereby 
 to charge any person upon or by reason of any representation or 
 assurance made or given, concerning or relating to the character, 
 conduct, credit, ability, trade, or dealings of any other person, to 
 the intent or purpose that sucb other person may obtain credit, 
 money, or goods upon {sic), unless such representation or assurance 
 be made in writing, signed by the party to be charged therewith " 
 — This provision was framed to prevent an evasion of the Statute 
 of Frauds, 29 Car. II. c. 3, s. 4, which had prevailed since the de- 
 cision in Pasley v. Freeman, ante, p. -559. Parties who were thereby 
 prevented from suing as upon " a special promise to answer for the 
 debt, default, or miscarriage of another person," because there was 
 not any guarantee in writing, brought actions on the misrepresen- 
 tation. But this provision is not confined to cases under the Statute 
 of Frauds, whicb is not mentioned in the act till afterwards {f). A 
 representation made by the defendant alone, who was in pai-tner- 
 ship with two other persons, that the firm was trustworthy, is a 
 representation as to the credit of others within the meaning of the 
 statute, and must be in writing, to make it binding (g). 
 
 In Lyde v. Barnard, 1 M. & W. 101, the foregoing section of 
 the 9 Geo. IV. c. 14, was very fully discussed. It was an action 
 for falsely representing that the life interest of Lord E. T. in 
 certain trust funds was charged with only three annuities, whereby 
 the plaintiff was induced to advance to the said Lord E. T. 999?., 
 
 (o) Barmch v. The English Joimt Stock (p) Per Tiiidal, C. J., Devaux v. 
 
 Bank, 36 L. J., Ex. 149 ; L. E. 2, Ex. SUinMUr, 6 B. IS. C. 88. 
 259. {q) Devaux v. Steinkeller, 6 B. N, C. 84. 
 
 2 
 
564 . DECEIT. 
 
 for the purchase of an annuity secured by his covenant, &c., and 
 also by an assignment of his life interest in the said fund ; whereas 
 the defendant well knew that the said interest was charged, not 
 only with three annuities, but also with a mortgage for 20,000Z. 
 The representation having been made by parol, Lord Abinger, C. B., 
 at the trial, nonsuited the plaintiff, on the ground that the case was 
 within the statute. On motion for a new trial, the court was 
 equally divided : Lord Abinger and Gurney, B., conceiving the 
 case to be within the statute, relying on the word " ability " therein ; 
 Parke, B., and Alderson, B., considering the case not within the 
 statute, on the ground that the representation was directed not to 
 the general " ability " of Lord E. T., but to the facts connected 
 with a specific security, and were quite irrespective of his general 
 solvency or otherwise. A representation that money might safely 
 be lent to A., because the title deeds of an estate which A. had 
 just bought were in the defendant's possession, and that nothing 
 could be done without the defendant's knowledge, was held to be 
 a representation as to the ability of A. within the statute (r). 
 
 An action wiU lie under the above section for a false representa- 
 tion in writing, although the plaintiff might have been partly 
 influenced by subsequent oral representations of the defendant, if 
 the jur);- are satisfied that the plaintiff was substantially induced 
 by the written representation to give the credit (s). Evidence that 
 the representation was not in writing, signed, &c., is admissible 
 under the general issue (t). 
 
 In ordinary cases, the person who makes a representation of the 
 credit of a third person is not liable beyond the value of the goods 
 then furnished on the faith of the representation (u) : but circum- 
 stances may exist which will render him liable for losses arising 
 from subsequent dealings within a reasonable time ; as where A. 
 made an inquiry of B. as to the circumstances of C. with respect 
 to opening an account with him as a general customer (v). 
 
 Although there is no exclusive ownership of the symbols which 
 constitute a trade mark apart from their application to a vendible 
 commodity, yet the exclusive right to make such application is a 
 property for the invasion of which a remedy is given at law by an 
 action in the nature of deceit (x). 
 
 (r) Swan v. Phillips, 8 A. & E. 457. J., 199 Chanc. See Me Andrew v. Bas- 
 is) Tatton V. Wade, 18 C. B. 371. sett, 33 L. J., 568 Chanc. The Merohan- 
 {t) TwrnleyY. M'Gregor, 6 M. & G. 46. dise Marks Act, 1862 (25 & 26 Viet. o. 
 (u) Se Graves v. Smith, 2 Camph. 533. 88), by s. 11 enacts, that a conviction 
 {i>) Hutchinson v. Sell, 1 Taunt. 668. under that act is not to affect any ciril 
 (x) The Leather Cloth Compcmy v. The remedy. 
 American Leather Cloth Company, 33 L. 
 
DECEIT. 565 
 
 III. Of Warranty. 
 
 Express. — " By tlie civil law every person is bound to warrant a 
 thing that he sells or conveys, although there be no express war- 
 ranty : but the common law binds him not, unless there be a war- 
 ranty, either in deed (express) or in law (implied); ior, caveat 
 em/ptor." 1 Inst. 102, a. 
 
 In an action by a shipowner against a charterer for not loading 
 an agreed cargo, the defence being the failure of the performance 
 of a condition precedent, the following propositions were laid down 
 by Vaughan Williams, J., in delivering the judgment of the Ex- 
 chequer Chamber: — 1. In policies of insurance and charterparties, 
 the word " warranty " is synonymous with condition. 2. A " repre- 
 sentation " is a statement or assertion made by one party to the 
 other before or at the time of a contract of some matter or circum- 
 stance relating to it. 3. Although a representation is sometimes 
 contained in the written instrument, it is not an integral part of 
 the contract ; and consequently the contract is not broken, though 
 the representation proves to be untrue ; nor (with the exception of 
 the case of policies of insurance, at all events marine policies which 
 stand on a peculiar anomalous footing) is such untruth any cause 
 of action, nor has it any efficacy whatever, unless the representa- 
 tion was made fraudulently, either by reason of its being made 
 with a knowledge of its untruth, or by reason of its being made 
 dishonestly with a reckless ignorance whether it was true or un- 
 true. 4. If the Court should determine that the descriptive state- 
 ment in a written instrument is a substantive part of the contract, 
 and not a mere representation, the question arises whether that 
 part of the contract is a condition precedent, or only an independent 
 agreement, a breach of which will not justify a repudiation oi the 
 contract, but Vill only be a cause of action for compensation in 
 damages. • 5. The true doctrine is that, generally speaking, if the 
 descriptive statement was intended to be a substantive part of the 
 contract, it is to be regarded as a warranty, that is to say, a condi- 
 tion on the failure or non-performance of which the other party 
 may, if he be so minded, repudiate the contract in toto, and so be ' 
 reheved from performing his part of it, provided it has not been 
 partially executed in his favour. If, indeed, he has received the 
 whole or any substantial part of the consideration for the promise 
 on his part, the warranty loses the character of a condition, or to 
 speak perhaps more properly, ceases to be available as a condition, 
 and becomes a warranty in the narrower sense of the word, viz., a 
 stipulation by way of agreement for the breach of which a com- 
 pensation must be sought for in damages (y). 
 
 Where a party in possession of a personal chattel sells it, and at 
 the time of sale affirms it to be his own, when in truth it belongs 
 
 (y) Behn v. Burness, 3 B. & S. 752. 
 
566 DECEIT. 
 
 to another, the vendee naay recover a compensation in damages for 
 such injury as he can prove that he has sustained in consequence 
 of this affirmation being false; for the possession of a personal 
 chattel is a colour of title, and it is but a reasonable confidence 
 which the vendee places in the vendor, when he affirms it to be his 
 own {z). So where the defendant, having goods in his possession, 
 represented to the plaintiff, an auctioneer, that he was entitled to 
 dispose of them, in consequence of which the plaintiff, at his 
 request, sold them by auction, and paid over the proceeds to the 
 defendant, and the true owner subsequently recovered their value 
 against the plaintiff; it was held, that there being an express war- 
 ranty of title, the plaintiff might recover against the defendant on 
 an implied contract of indemnity (a). 
 
 But where the affirmation is (as it is termed in some of the 
 books) a nude assertion, that is, where the party deceived may 
 exercise his own judgment ; as where it is mere matter of opinion, 
 or where he may make inquiry into the truth of the assertion, and 
 it becomes his own fault from laches, that he is deceived ; in this 
 case an action cannot be maintained (6). As if A., being possessed 
 of a term for years, offers to sell it to B., saying that a stranger 
 would have given him a certain sum of money for the term, whereas, 
 in truth, that sum had not been offered to him, an action will not 
 lie, although B. was, by such affirmation, deceived in the value (c). 
 So, an action of deceit cannot be maintained by the seller of his 
 share in a trade, against the buyer, who has persuaded him to sell 
 it, at a certain price, by a representation that certain partners, 
 whose names he will not disclose, are to be joint purchasers, and 
 that they will give no more ; although in truth they had authorized 
 the defendant to purchase it, doing the best he could, and although 
 the defendant charged them with a higher price than ^^ g^-ve id). 
 
 It is said that a general warranty will not extend to guard 
 against defects that are plainly and obviously the objects of one's 
 senses, as if a horse be warranted perfect, and want either a tail 
 or an ear (e), but it is conceived that this is a rule of evidence, and 
 •not of law. It would, of course, be very strong evidence that the 
 warranty being general in terms, was not intended by the parties 
 to cover a defect that must have been obvious to the purchaser if 
 he had used his eyes. But the purchaser might prefer to rely on 
 the warranty of the seller, rather than his own observation. If 
 
 (2) Crosse, v. Gardner, Carth. 90. See See mr Tindal, C. J., MwUnqs v. Bell, ' 
 
 Sims V. Marryat, 17 Q. B. 281. It was 1 C. B. 959. 
 
 usual formerly, in cases of this kind, to (J) Bayly v. Merrel, Cro. Jac. 386. 
 
 declare in tort for the deceit; per TiwrfaZ, (c) 1 Roll Abr 101 PI 16 
 
 O.3.,MargetsmiY.Wright,imig\.&05; (d) Vernon v. Key'es, i Taunt. 488; 
 
 but assumpsit IS now the commoner form, Ex. Oh 
 
 M^fn F^J'^^' ^P^^'^^ ■^- Py^' 3 («) Blackstone, vol. 3, p. 165. Bayly 
 
 ixj} ^ . , „. V. ifcrreZ, Cro. Jac. 367, See ifararfsm 
 
 (a) Adcmson v. Jarms, i Bmgh. 66. v. Wright, 7 Bingh. 605. 
 
DECEIT. 5^7 
 
 this were so, the sale of a horse, sound and free from all blemish, 
 might be broken by a patent defect. In accordance with this was 
 the case of Butterjield v. Burroughes (/), which was on a warranty 
 of a horse to be sound. Breach, want of an eye. The jury having 
 found for the plaintiff, it was moved in arrest of judgment that 
 the want of an eye is a visible thing, whereas the warranty only 
 extended to secret infii-mities. To this it was answered and re- 
 solved, that the warranty might have extended to this defect, and 
 must be intended to have done so, since the jury had found that 
 the defendant did warrant. When the action is for the deceit, the 
 fact of the defect being apparent would of course be very cogent, 
 but not conclusive evidence that the purchaser was not deceived 
 by the misrepresentation. There would in such a case be no cause 
 of action unless the representation was made in such a manner as 
 to induce the purchaser to forbear examining the article purchased, 
 and it would seem to be a question for the jury whether he was 
 actually led to make the purchase by the device of the seller (g). 
 
 If a ship is sold with all faults, the seller is not liable to an 
 action in respect of latent defects which he knew of without 
 disclosing at the time of sale, unless he used some artifice to dis- 
 guise them, and prevent their being discovered by the purchaser (/i). 
 But such a proviso must be understood to refer to such faults as a 
 vessel may have consistently with its being the thing described. 
 Where, therefore, a ship was sold as a eopper-fasteiied vessel, " to 
 be taken with all faults," it was held to apply only to such faults 
 as " a copper-fastened vessel " might have, and therefore that if 
 it was not a copper-fastened vessel the warranty was broken (i). 
 
 Upon a sale of pictures, a bill of parcels of " Four Pictures, 
 Views in Venice, Canaletti, 160^.," is evidence from which a jury 
 is at liberty to infer a warranty, that the pictures were painted by 
 that artist (k). 
 
 On a sale of goods, if the sale-note do not contain a stipulation 
 that the goods are equal to a sample, parol evidence is inadmissible 
 to make such stipulation part of the contract (l). So if, before or at 
 the time of the sale, a sample of the goods has been exhibited to the 
 buyer, but the written contract or the sale-note merely describes 
 the goods as of a particular denomination, this is not a sale by the 
 sample (m). So if a representation be made before a sale, of the 
 quality of the thing sold, with full opportunity for the purchaser to 
 inspect and examine the truth of the representation, and a contract 
 of sale be afterwards reduced into writing in which that represen- 
 tation is not embodied, no action lies against the vendor on the 
 
 (/) Salk. 211. (i) Shepherd y Kfn, 5 B. & Aid. 240. 
 
 (g) Per Lord Mlenborough, 0. J., in {k) Power v. ^arham,i A. & E. 473. 
 
 Vefnon v. Keyes, 12 East, 637. (i) Meyer v. Everth, 4 Campb. 22. 
 
 (A) Bagleh^le r. Walters, 3 Camp. 154 ; W Gard^mr v. Gray, 4 Campb. 144, 
 
 Taylor v. Bulleii, 5 Exoh. 779. 2'os*: 
 
568 DECEIT. 
 
 ground that the article sold is not answerable to that represen- 
 tation, whether the vendor knew of the defects or not (n). But, 
 where the warranty is implied by law, evidence of its breach is ad- 
 missible, although there is a written contract (o). And where the 
 defendant gave the plaintiff a verbal warranty, and subsequently, 
 upon pajonent of the price, a receipt, as follows, " bought of G. P. 
 a horse, for the sum of 71. 2s. 6d. ; " it was held, that this was a 
 mere memorandum, and not intended by the parties to contain the 
 terms of the contract, and, therefore, that evidence of the verbal 
 warranty might be given (jp). 
 
 Upon a treaty for the sale of hops, by sample, the seller assured 
 the purchaser that sulphur had not been used in their growth, and 
 thereupon a contract of sale was entered into. After the hops had 
 been inspected, weighed, and delivered, the buyer discovered that 
 sulphur had been used. The jury having found that the represen- 
 tation had been made, and was false (but without fraud), and that 
 the buyer had entered into the contract entirely on the faith of 
 that representation, it was held that the conti-act was conditional on 
 sulphur not having been used, and that as sulphur had been used, 
 the defendant was at liberty to reject the hops as soon as he dis- 
 covered it, although they corresponded with the sample {q}. 
 
 Where there is a particular express warranty, such warranty is 
 not to be extended by implication (r). An action will lie for a 
 breach of warranty, though the purchaser has ■ not paid for the 
 article bought (s). 
 
 Of the Warranty of Horses. — As actions are more frequently 
 brought for the breach of warranties upon the sale of horses than 
 upon the sale of any other chattel, the following remarks will be 
 chiefly directed to that subject : — A horse being an animal subject 
 to secret maladies, which cannot be discovered by a mere trial and 
 inspection, it is usual, and in all cases prudent, for the buyer of a 
 horse to require from the seller a warranty of its soundness : for if 
 a horse, having a secret malady, is sold without a warranty of sound- 
 ness, and without any fraud on the part of the seller, the purchaser 
 is without a remedy. Formerly, indeed, it was a current opinion, 
 that a sound price given for a horse was tantamount to a warranty 
 of soundness ; but it was observed by Qrose, J. (t), that when that 
 doctrine came to be sifted, it was found to. be so loose and unsatis- 
 factory a ground of decision, that Lord Mansfield, C. J., rejected 
 it, and said, that there must either be an express warranty of 
 soundness, or fraud in the seller, in order to maintain the action. 
 
 («) PicJiermgY.Dowson, 4 Taunt. 779. (N. S.) 844 ; 31 L. J., C. P. 29. 
 (o) Shepherd v. Pybits, 3 M. & G. 868. {r) Dickson v. Zizinia, 10 C. B. 602 ; 
 
 (p) Allen V. Pmk, 4 M. & W. 140. but see further, p. 675. 
 Qee per Parhe, B., 2 Exch. 97. (s) Bro. Abr. Deceit, pi. 34. 
 
 (q) Bcmnerman v. White, 10 C. B. {i) Parkinson v. Zee, 2 East, 322. 
 
DECEIT. 569 
 
 The advantage arisiag to the buyer, from an express warranty of 
 soundness, is this — that such warranty extends to every kind of 
 soundness, known and unknown to the seller ; and if the warranty 
 be false, the buyer has a remedy against the seller, to recover a 
 compensation in damages. 
 
 " To be sold, a black gelding, five years old ; has been constantly 
 driven in the plough — ^warranted ;" it was held, that the warranty 
 applied to soundness only (^^). " Eeceived of B. £ for a grey 
 foui"-year old colt, warranted sound ; " it was held, that the warranty 
 was confined to soundness only, and that the preceding statement, 
 as to the age, was matter of description only, for which the party 
 was not answerable, unless it were shown to be false within his 
 knowledge (v). • 
 
 A horse was sold at a public auction, warranted six years old 
 and sound, and one of the conditions of sale (w) was, " that the pur- 
 chaser of any horse warranted sound, who should conceive the 
 same to be unsound, should return him within two days ; otherwise 
 he should be deemed sound." Ten days after the sale, the plaintiff 
 discovered that the horse was twelve years old, and offered to 
 return him, but the defendant refused to receive him, and there- 
 upon the plaintiff sold the horse, and brought an action on the 
 warranty against the seller. It was held, that the action might be 
 maintained; Lord Kenyon, G. J., observing, "that the question 
 turned on the condition of sale, which, in his opinion, ought to be 
 confined solely to the circumstance of unsoundness ; that there was 
 good sense in making such a condition at a public sale ; because, 
 notwithstanding all the care that could be taken, many accidents 
 might happen to the horse between the time of sale and the time 
 when the horse might be returned, if no time were limited. But 
 the circumstance of the age of the horse was not open to the same 
 difficulty " (cc). 
 
 The rule as to unsoundness is, that if at the time of the sale the 
 horse has any disease, which either actually does diminish the 
 natural usefulness of the animal, so as to make him less capable of 
 work of any description, or which in its ordinary progi-ess will 
 diminish the natural usefulness of the animal ; or if the horse has, 
 either from disease or accident (whether such disease be congenital 
 or arises subsequently to its birth (y) ), undergone any alteration of 
 
 (u) Bichardsony.Brown, IBingh.Sii. the torses were sold. Ace. Bywaterv. 
 
 (v) Budd T. Fairmaner, 8 Bingh. 4.8. Richardson, ^ A. & E. 508 ; where the 
 
 (w) laMemardY.Aldridge,Z'&s'p.m, conditions of sale were not particularly 
 
 where the conditions of sale were con- referred to. Such a defence must be 
 
 tained in a printed paper pasted up under pleaded, and is not evidence under the 
 
 the auctioneer's box, and the auctioneer general issue. Simrt v. Hyde, 8 M. & 
 
 at the time of the sale announced that the W. 723. 
 
 conditions of sale were as usual, Lord (a;) Bvchanan v. Pamshaw, 2 1. K. 
 
 Kenyon, C. J., held, that this was a suffi- 745. 
 
 cient notice to all persons who cameto (y) Holyday v. Morgan,.^?, h. J., y. 
 
 the sale, of the conditions under which B. 9. 
 
570 DECEIT. 
 
 structure, that either actually does at the time, or in its ordinary 
 effects will, diminish the natural usefulness of the horse, such horse 
 is unsound. Per Parlce, B. {z). 
 
 Roaring is a malady which renders a horse less serviceable for a 
 permanency, and therefore an unsoundness (a). But, it seems, it 
 is not sufficient to show that a horse emits a loud sound in breath- 
 ing, for that may be a bad habit merely ; the noise must be shown 
 to proceed from some disease or organic defect, which makes the 
 horse incapable of performing the usual functions of a horse (6). 
 A nerved horse is unsound (c) ; so is a chest-foundered (d). So if 
 the horse has a bone spavin in the hock (e). Crib-biting, which 
 has not yet produced disease, or alteration of structure, is not an 
 unsoundness within a general warrant (/) : but it is a vice under 
 a warranty that a horse is sound and free from vice (g). Mere 
 badness of shape Qi), though rendering the horse incapable of work, 
 or more liable to become lame at some future time, e.g. "curby 
 hocks " (i), is not unsoundness. But a warranty of soundness is 
 broken by a malformation existing from the birth, which at the 
 time of the sale renders the horse less fit for reasonable use ; as an 
 extraordinary convexity of the cornea of the eye, producing short- 
 sightedness, in consequence of which the horse is liable to shy {Jc). 
 A temporary lameness rendering a horse less fit for present service 
 at the time of sale, is a breach of a warranty of soundness; and 
 it will be no defence that he afterwards recovered (l). So if a 
 horse has at the time of sale a cough, although that may be 
 either temporary or prove mortal, he is unsound (m) ; for a man 
 who buys a horse warranted sound, must be taken as bujring him 
 for immediate use, and has a right to expect one capable of that 
 use, and of being immediately put to any fair work the owner 
 chooses (u). But as the purchaser is not entitled to return the 
 horse on the breach of warranty (see post, p. 576), temporary 
 maladies producing no permanent deterioration of the animal, 
 would give, generally speaking, a right to damages merely 
 nominal. Some splints cause lameness, others do not, and the 
 consequences of the spHnt are not apparent at the time, like the 
 loss of an eye, or any visible blemish or defect, to a common 
 observer. In an action upon a warranty, in which the defendant 
 
 (z) Coatee v. StepJiens, 2 M. & Bob. 157. 299. 
 
 {a) Onslow v. Barnes, 2 Stark. N. P. (i) Brown v. ElHngton, 8 M. & W. 
 
 C. 81. 132. 
 
 (6) Bassetl t. Collis, 2 Campb. 523. (k) Holliday v. Morgan, 1 E. & E. 1. 
 
 (c) Best v. Osborne, E. & Mo. 290. (I) Elton, v. Brogden, i Campb. 281. 
 
 (d) Atterbury v. Fairmaner, 8 Moore, (m) Elton v. Brogden : lAddard v. 
 32. Kain, 9 Moore, 356 ; Coates v. Stevens; 
 
 (e) Watson v. Benton, 7 C. & P. 85. but see Bolden v. Brogden, 2 M. & Rob. 
 (/) Broennenburg v. MayeocJc, Holt, 113. 
 
 630. (n) Per Parlce, B., in Coates v. Stevens, 
 
 (g) Scholefield v. Robb, 2 M. & Rob. 2 M. & Rob. 167 ; Kiddell v. Bumard, 
 
 210. 9 M. & "W. 668. 
 {h} Dickinson v. Pollett, 1 M. & Eob. 
 
DECEIT. 571 
 
 warranted the horse to be sound, -wind and limb, " at this time ; " 
 that is, at the time of the warranty made : the jury found a 
 verdict for the plaintiff. The judge requested the jury to tell him, 
 whether the horse was sound; or, if they believed him to be 
 unsound, whether that unsoundness arose from the splint, the 
 existence of which was known to the plaintiff at the time of the 
 sale. The jury, in answer, said, that although the horse exhibited 
 no symptoms of lameness at the time when the contract was made, 
 he had then upon him the seeds of unsoundness arising from, the 
 splint. The court, on motion for a new trial, sustained the verdict, 
 thinking that, by the terms of the warranty, the parties meant 
 that this was not a splint at that time which would be the cause 
 of future lameness, and that the jurykhad found that it was ; and 
 consequently that the warranty was broken (o). 
 
 A horse dealer cannot maintain an action upon a contract for 
 the sale and warranty of a horse, made by him upon a Sunday (^). 
 But a person who makes such a contract, not in the exercise of his 
 " ordinary calling," may (q). The defendant was the proprietor of 
 a stage-coach, and a horse-dealer. The plaintiff's son was tra- 
 velling on a Sunday in the defendant's coach, and then made a 
 verbal bargain for a horse at a price exceeding 101., the defendant 
 warranting him to be sound. The horse was delivered to the 
 plaintiff on the following Tuesday, and the price then paid ; there 
 was no evidence to show that the plaintiff or his son knew at the 
 time when he made the bargain that defendant was a horse-dealer. 
 An action having been brought for a breach of the warranty ; it 
 was objected, that the bargain having been made on a Sunday, 
 was void within the 29 Car. II. c. 7, s. 1. But it was held that 
 there was not any complete contract on the Sunday, as it then 
 rested in parol, nor until the Tuesday when the horse was de- 
 livered to and accepted by the plaintiff. But, assuming the con- 
 tract to be complete on the Sunday, as the purchaser had no 
 knowledge of the fact that the vendor was exercising his ordinary 
 calling, he might recover (r). 
 
 Where a horse is sold with a warranty of soundness for a certain 
 sum, part of which is paid at the time of sale, if the horse prove 
 unsound, and the sum paid be equal to the value of the horse, the 
 seller cannot recover the remainder (s). Plaintiff sold the defend- 
 ant a horse with a warranty of soundness ; the defendant gave the 
 plaintiff a bill of exchange for the price : the defendant discovering 
 the horse to be unsound, tendered him to the plaintiff, but he 
 refused to take him back again. An action having been brought 
 by the plaintiff against the defendant on the bill, the defendant 
 
 (o) MargetsonY. Wright, 8 Blngh. 454. ()•) Bloxsmwx. Williams, 3 B. & C. 
 
 {p) Fmnell v. Bidley, 5 B. & C. 406. 232. 
 
 (2) Druryv. Defontaine, 1 Taunt. 131. (s) King v. Boston, 7 East, 481, n. 
 But see Sinith v. Sparrow, 4 Bingh. 84. 
 
572 DECEIT. 
 
 proved that the plaintiff, at the tvrm of sale, knew that the horse 
 was unsound. It was held, that the plaintiff could not recover ; 
 for it was clearly a fraud, and a person cannot recover the price of 
 goods sold under a fraud (t). 
 
 Where the contract of warranty is still open, it is essentially 
 necessary that the plaintiff should declare on the waiTanty.and 
 not merely for money had and received, to recover the price of the 
 horje (u). In an action for money had and received to recover 
 back the price of a horse, sold as a sound horse, and which proved 
 to be unsound, it appeared in evidence, that there had been a 
 warranty of soundness at the time of the original contract of sale ; 
 but in a subsequent conversation, when the plaintiff objected that 
 the horse was unsound, the defendant said, that if the horse were 
 unsound he would take it again, and return the i^oney. It was 
 held that the action for money had and received would not Ue ; 
 because this was no other than a mode of trying the warranty, 
 which could be by a special action on the case only ; Lord Mien- 
 borough, C. J., observing, "that the subsequent conversation was 
 not to be considered as an abandonment of the original warranty, 
 which the defendant still insisted had been performed ; but rather 
 as a declaration, that, if the warranty were shown to be broken, he 
 would do that which is usually done in such cases, take back the 
 horse and repay the money. Then, where any question on the 
 warranty remains to be discussed, it ought to be so in a shape 
 to give the other party notice of it, namely, in an action on the 
 wan-anty " (x). 
 
 A Avarranty by one not intrusted to sell, but merely to deliver 
 the article, and bring back the price, is not even pri'nid facie evi- 
 dence to bind the principal (y). The servant of a private owner 
 entrusted on one particular occasion, not at a fair or other public 
 mart, to sell and deliver a horse, is not therefore by law autho- 
 rized to bind his master by a warranty. The buyer, therefore, 
 taking such a warranty, takes it at the risk of being able to prove 
 that the servant had in fact his master's authority for giving it. 
 Upon the master refusing to abide by the servant's unauthorized 
 warranty, the buyer may, however, repudiate the purchase (2). 
 But there is a distinction between the case of the servant of a pri- 
 vate owner and that of a servant of a horse-dealer ; and in the case 
 of the latter giving an unauthorized warranty, the master would 
 be bound thereby (a). It would seem that in the case of a sale by 
 
 (i) Lewis V. Oosgrave, 2 Taunt. 2. 692 ; 30 L. J., 223 C. P. This over- 
 
 (u) Weston v. Downes, Doug. 23. rules Eelyear v. Havike, S Esp. 72. 
 (x) Payne v. Whale, 7 East, 274. (a) Fenn t. Harrison, 3 T. E. 757 ; 
 
 {y) Woodin v. Burford, 2 Cr. &,M. Bank of Scotland v. Anderson, 1 Dow., 
 
 392 ; Fairmamr v. Budd, 7 Bingh. 574. P. C. 40. 
 {z) Brady v. Todd, 9 C. B. (N. S.) 
 
DECEIT. 573 
 
 the servant of a private owner, at a fair or a public mart, the law 
 would in like manner imply an authority to warrant (b). 
 
 It is usual to insert the warranty in the receipt for the price of 
 the horse ; in such case, the receipt, if duly stamped with a receipt 
 stamp, will be evidence of the warranty. It does not require an 
 agreement stamp (c). And if, on the face of such receipt, it appear 
 that money was the consideration paid for the horse, it will not be 
 competent to the defendant to prove a different consideration, in 
 order to take advantage of a variance (d). So where the declara- 
 tion stated (in substance) the sale of a horse warranted sound, by 
 the defendant to the plaintiff for 311., and then alleged as a breach 
 that the horse was unsound ; it appeared in evidence, that the 
 defendant agreed to sell his horse for Hfeirty guinea.?, but agreed, at 
 the same time, that if the plaintiff would take the horse at that 
 value, he, the defendant, would purchase of the plaintiff's brother 
 another horse for fourteen guineas, and that the difference only 
 should be paid to the defendant. The witness described it as one 
 deal between the parties, and that, but for the latter consideration, 
 he did not believe that the bargain,would have been made. It was 
 objected, that the proof varied from the contract as laid, and 
 showed rather a contract for the exchange of horses, paying the 
 diffei'ence in money, than an entire money payment for the horse in 
 question. But the court overruled the objection ; Lord Ellen- 
 borough, C. J., observing, that the parties agreed to consider the 
 brother's horse as fourteen guineas, in their mode of reckoning the 
 payment for the defendant's horse ; but still the consideration for 
 the latter was thirty guineas, and the defendant received thirty 
 guineas in money and value (e). But where the declaration stated 
 that the defendant warranted a horse to be sound, and the proof 
 was, that the defendant warranted the horse to be sound every- 
 where except a kick on the leg, it was held that this was a quali- 
 fied, and not a general warranty, and consequently that there was 
 a variance (/). But such a variance is amendable, if the defence 
 does not depend upon the qualification {g). 
 
 Implied Warranty. — The general rule of the common law in 
 matters of bargain and sale is caveat emptor, and if a purchaser 
 buys an inferior or useless article, without taking an express 
 warranty, he is, in the absence of fraud, remediless. If a man sell 
 a horse with a secret malady, without warranting it to be sound, 
 he is not liable, that is, if there be no fraud {h). " In the bargain 
 
 (6) Alexander v. Oiison, 2 Campb. («) Hands v. Burton, 9 East, 349. Ace. 
 
 555, per Lord Ellenhorough. See Brady Saxty v. Wilhin, 11 M. & W. 622. 
 V. Todd, 9 C. B. (N. S.) 592 ; Hoviard (/) Jones v. Gowley, 4 B. & C. 445. 
 
 V. Shephard, 36 L. J., C. P. 42. (g) Ifemming v. Parry, 6 C. & P. 580 ; 
 
 (c) Shrine v. Elmore, 2 Campb. 407. Mash v. Sensham, 1 M. & Eob. 442. 
 
 (d) Brown v. Fry, Devon Summ. Ass. (h) 1 Roll. Abr. 90, (P.) pi. 4. 
 MS. 1808. 
 
574 DECEIT. 
 
 and sale of an existing chattel, by which the property passes, the 
 law does not (in the absence of fraud) imply any warranty of the 
 good quality or condition of the chattel so sold " (i). Thus where 
 hops were sold by sample, with a warranty that the bulk of the 
 commodity answered the sample ; it was held, that the law did not 
 raise an implied warranty that the commodity should be merchant- 
 able, though a fair merchantable price was given, and that the 
 seller was not answerable, though the goods turned_ out to be un- 
 merchantable, in consequence of a latent defect which existed in 
 the commodity at the time of the sale, but which was unknown to 
 the seller, arising from the fraud of the grower, from whom he had 
 purchased, and not from any fraud in the seller ; Orose, J., and 
 Lawrence, J., laid great stress upon the fact that the seller was not 
 the grower of the hops, and that the purchaser, by the inspection 
 of the sample, had as full an opportunity of judging of the quality 
 of the hops as the seller himself (k). So a meat salesman, who sells 
 a carcase with a latent defect of which he knows nothing, nothing 
 being said at the time of the sale about the quality of the meat, 
 does not, as a matter of law, impliedly warrant that the carcase is 
 fit for human food {I). 
 
 To this rule, however, there are many exceptions;, as where a 
 person is employed to make a specific chattel, there the law implies 
 a contract on his part that it shall be fit for the purpose for -which 
 it is ordinarily used (m). So where goods are ordered fpr a specific 
 purpose from a person in a particular department of trade (n). So 
 where goods of a particular denomination are sold, e.g., "waste 
 silk" (o), " Shining' s Swedes" {f), " Calcutta linseed" {q), "steam 
 coals " (r), there is an implied condition that they shall correspond 
 to the description of them ; and this although the seller, at the 
 time of contracting, expressly decline all responsibility as to the 
 quality, and the buyer has had an opportunity of inspecting it, 
 and no fraud is suggested (s) ; and further, where the buyer has no 
 opportunity of inspecting the goods, they must not only answer the 
 specific description, but also be merchantable under that descrip- 
 tion (t). So where goods "now on passage from Singapore," were 
 sold, this was held a warranty that they were then on board (u). 
 
 {i) Per Parhe, B., Barr v. Gibson, i J., Exoli. 294. 
 M. & W. 399. The rule is the same on (o) Gardiner v. Gray, i Campb. 144. 
 
 the demise of real property, in which case Ip) Allan v. Lake, 18 Q. B. 560. 
 
 the law implies no condition that it is lit (q) Wieler v. Schilizzi, 17 C. B. 619. 
 
 for the purpose for which it is let. Hart (r) Pacific Steam Navigation Compamj 
 
 y. Windsor, 12 M. & W. 68. v. Lewis, 16 M. & W. 783, 
 
 (i) Paridnson v. Lee, 2 East, 314. (s) Josling v. Kingsford, 13 ' C. B. 
 
 (0 EmmeHon r. Matthews, 31 L. J., (IT. S.) 447. 
 C. P. 139. (t) Jones v. Just, L. R. 3, Q. B. 197 
 
 (m) Bull V. EoUson, 10 Exch. 342 ; Bigge v. ParMnsm, 7 H. & N. 955 ; 32 
 
 Bluett V. Osborne, 1 Sta. 384. L. J., Ex. 301. 
 
 (n) Per Parke, B., Sutton v. Temple, (u) Qorrissen v. Perrin, 27 L. J., 0. 
 
 12 M. & W. 64. See Sayers v. London P. 29. 
 and Birmingham Flint Glass Co., 27 L. 
 
DECEIT. 575 
 
 So where there is a well-known and received usage of a trade, 
 such usage is impliedly included in the contract, unless it is ex- 
 cluded, expressly by, or impliedly as being inconsistent with, the 
 terms of the contract (v) ; but such usage must be clearly and' dis- 
 tinctly proved to exist, and to be so general and notorious that 
 parties dealing in the market must be presumed to have been 
 aware of it ; and, in order to bind persons who were not aware of 
 it, it must be reasonable (a;). It is usual, in the sale by auction of 
 drugs, if they are sea-damaged, to express it in the broker's cata- 
 logue, drugs which are re-packed, and the packages which are 
 discoloured by sea-water bearing an inferior price, although not 
 damaged. The defendants, who had purchased some sea-damaged 
 pimento, re-packed it, and advertise^ it • in catalogues. The ad- 
 vertisements stated that it might be viewed before the sale, but 
 did not notice that it was sea-damaged or re-packed. The defen- 
 dants afforded little facility for viewing it, but they exhibited 
 impartial samples of the quality, and sold it by auction. It was 
 held that this was equivalent to a sale of the goods, as and for 
 goods that were not sea-damaged, and that an action lay for the 
 fraud (y). 
 
 If an order is given for a thing, stated to be for a particular 
 purpose, (as copper for sheathing ships, that is, a particular copper, 
 prepared in a particular manner,) which the manufacturer supplies, 
 he impliedly undertakes that it shall answer the purpose for which 
 it is supplied, and this although the purchaser has inspected it (z). 
 So where A., after inspection of the separate parts, bought of B. 
 soap frames, which were by the contract warranted to be " new 
 frames, with all nuts and bolts complete and perfect," and the decla- 
 ration alleged that the plaintiff warranted the frames to be fit for 
 making soap, and at the trial it was proved, and found by the jury 
 that though new, and having the proper number of nuts and bolts, 
 the frames were not reasonably fit for the purpose of making soap, 
 it was held that the evidence sustained the declaration (a). But 
 where the order was, " send me your patent hopper and apparatus 
 to fit up my brewing copper, with your smoke-consuming furnace," 
 it was held, that as the purchase was of a well-defined and known 
 machine, it was the buyer's concern whether it answered the purpose 
 for which he wanted to use it or not (b). It is a distinction well 
 founded both in reason and on authority, that if a party purchases 
 an article upon his own judgment, he cannot afterwards hold the 
 vendor responsible, on the ground that the article turns out to be 
 unfit for the purpose for which it was required ; but if he relies upon 
 
 {v) Spartali v. JSnioi:e, 10 C. B. 221 ; (a) Mallan v. Radloff, 17 C. B. (N. S.) 
 
 19 L. J., 0. P. 294. 588. 
 
 {x) Orissell v. Brisiowe, L. K. 3, C. P. (i) Chanter v. HopTcins, 4 M. & W. 
 
 129. 399 ; Pridmux v. Bunmtt, 1 C. B. (N. S.) 
 
 (y) Jones v. Bowden, 4 Taunt. 847. 613. 
 
 (a) Jones v. Bright, 5 Bingh. 538. 
 
576 DECEIT. 
 
 the judgment of the seller, and informs him (c) of the use to which 
 the article is to be applied, 'the transaction carries with it an implied 
 warranty, that the thing furnished shall be fit and proper for the 
 purpose for which it was designed {d ). 
 
 But where there is an express warranty, such warranty is not to 
 be extended by implication. Uxpressum facit cessare taciturn. 
 Thus where the plaintiff bought a cargo of Indian corn, then 
 shipped at a foreign port, for a certain price, including freight 
 and insurance to Cork, Liverpool or London, and it was agreed 
 that the quality of the corn should be equal to the average of ship- 
 ments of that ai-ticle in that year, and had been shipped in good 
 and merchantable condition, it was held, that there was no im- 
 plied agreement that the corn should be in a proper condition /ot 
 a foreign voyage (e) ; but an express warranty does not exclude a 
 warranty which, in the absence of the express one, would have 
 been implied by law (/). 
 
 It seems that there is no implied warranty of title on the sale 
 of a personal chattel, the maxim of caveat emptor applying to 
 title as well as quality {g) ; but there are so many exceptions to 
 the rule, that they have well nigh eaten it up, so that there may 
 be difficulty in finding cases to which the rule would practically 
 apply (A) ; for if the vendor, by word or conduct, or from the mere 
 circumstances under which he sells an article, gives the purchaser 
 to understand that he is the owner, he will be considered to have 
 warranted his title to them ; thus, a warranty may be inferred from 
 usage of trade, or from the nature of the trade being such, that 
 the person carrying it on must be understood to engage, that the 
 purchaser shall enjoy that which he buys as against all persons, 
 e. g., where articles are bought in an ordiiiary retail shop (i) ; and, 
 it seems, that executory contracts are an exception to the above 
 rule, on the same grounds as it would be implied under similar 
 circumstances, that a merchantable article was to be supplied ; for 
 "unless goods which the party could enjoy as his own, and make 
 full use of, were delivered, the contract would not be performed" (i). 
 But where a sale takes place under circumstances in which there is 
 as it were a tacit disclaimer of warranty of title, it is clear that the 
 purchaser buys them at his peril, as where a man buys an unre- 
 deemed pledge (/c), or goods sold under a,fi. fa. (I), or a distress for 
 poor rates (m). 
 
 (c) This is, it seems, necessary, and the (g) Morley v. Attenhorough, 3 Ex. 500 : 
 
 mere knowledge by the defendant of the see authorities there cite^. 
 
 purpose to which the article supplied was (A) Sims v. Marryat, 17 Q. B. 291, 
 
 intended to be applied is not (semble) ■per Lord Camphell. 
 
 sufficient. Shepherd v. Pyhus, 3 M. & G. (i) Morley v. Attenloroiigh, 3 Exch. 
 
 868. 500 ; Mcholz v. Bmmister, 17 C. B. 
 
 {d) Per Tindal, C. J., Brovm v. (N. S.) 708 ; 34 L. J., C. P. 105. 
 
 Edgington, 2 M. & Gr. 289. (k) Morley v. Attmbormgh. 
 
 (e) Dickson r. Zizmia, 10 C. B. 602. (I) Chapman v. Speller, 14 Q. B. 621. 
 
 (/) Siggev.Pa/rUnson,7 H. ScN. 955, (m) Bagmley v. Hawley, L. R. 2, C. 
 
 in error. P. 627. 
 
DECEIT. 577 
 
 A person contracting, without authority, as agent for a named 
 principal, is held to have warranted that he was authorised to enter 
 into the contract (w). 
 
 In contracts of marine insurance there are implied warranties in 
 the larger sense of the word, i.e., conditions, by not complying with 
 which the assured precludes himself from taking any advantage of 
 his contract. Thus, there is an implied condition that the assured 
 has not concealed any material fact from the underwriter, that the 
 ship is seaworthy (except in time policies), and that the ship shall 
 not deviate. 
 
 Where an article is warranted, and the warranty is not complied 
 with, the vendee has four coui'ses, ^ny one of which he may 
 pursue. — 
 
 1st. He may, in certain cases, refuse to accept the article. 
 Although the vendee of a specific chattel, delivered with a war- 
 ranty, has not a right to return it, the same reason does not apply 
 to cases of executory contracts. Where an article, for instance, is 
 ordered from a manufacturer, who contracts that it shall be of a 
 certain quality, or fit for a certain purpose, and the article sent as 
 such is never coTnpletely accepted by the party ordering it ; in this 
 and similar cases, the party ordering may return it as soon as he 
 discovers the defect, provided he has done nothing more in the 
 meantime than was necessary to give it a fair trial : but there is 
 no authority to show that he may I'eturn it, where he has done 
 more than was consistent with the purpose of trial (o). So where 
 the article delivered or tendered is not the article sold (p). And 
 the same principle would seem to apply to goods sold by sample, 
 if on delivery, but before acceptance, they are found not to corre- 
 spond with the sample, provided, however, the property in them 
 has not passed to the vendee (q). Where there is an agreement 
 to take a horse back, if on trial he shall be found faulty, though 
 it is accompanied with an express wari-anty, yet it is incumbent on 
 the purchaser, if he discovers any fault, to use due diligence in 
 returning the horse ; for a trial means a reasonable trial (r). 
 
 2ndly. He may, if he wishes to rescind the contract, as soon as 
 the unsoundness or defect is discovered, return or tender the horse 
 or other article to the seller, with that view (s). It was formerly 
 held, that this was a matter of right, and entitled the purchaser to 
 recover the price originally paid (t) ; but it is now settled, that you 
 
 (m) CoUenv. Wright, 8 E. & B. 647. tract and recover back the money from 
 (o) Per Lord Tenterden, C. J., Street v. the seller. Campbetl v. Fleming, 1 A. & 
 
 — „, 2 B. & Ad. 456, except where the E. 40. „ , „ -xt n ^o. 
 
 vendor has been guilty of fraud. Ibid. (p) Young v. Vole, 3 B. n. 0. Ui. 
 
 But if a party he induced to purchase an (q) Dawson v. Golhs, i-^^-"- °ii- 
 
 article by fraudulent misrepresentation of (/•) Adam v. Richards, 2 H. BI. 57d. 
 
 the seller, and after discovering the fraud, (s) Caswell v. Coare, 1 Taunt. 6b7. 
 
 continue to deal with the article as his (t) See Curtis v. Hannay, 3 Esp, 83. 
 own, he cannot after that rescind the con- 
 
578 DECEIT. 
 
 cannot treat a contract as rescinded on the ground of a breacli of 
 warranty, except there was an original agreement that the party 
 should be at liberty to rescind in such case (as in the case of a 
 horse taken on trial), or unless hoih parties have consented to 
 rescind it (u). If the seller refuses to receive back the horse, the 
 purchaser should sell it, as soon as possible, for the best price that 
 cam be procured ; for the purchaser is entitled to recover for the 
 keep of the horse for such time only as would be required to sell it 
 to the best advantage (v). 
 
 Srdly. He may accept it, and bring a cross action on the war- 
 ranty. " I take it to be clear law, that if a person purchases a 
 horse which is warranted, and it afterwards turns out that the horse 
 was unsound at the time of the warranty, the buyer may, if he 
 pleases, keep the horse and bring an action on the warranty, in 
 which he will have a right to recover the difference between the 
 value of a sound horse and one with such defects as existed at the 
 time of the warranty {x) ; and the seller will be liable in such 
 an action notwithstanding any length of time which may have 
 elapsed (j/) ; for "no length of time elapsed after the sale will alter 
 the nature of a contract originally false. Neither is notice neces- 
 sary to be given ; though the not giving notice will be a strong 
 presumption against the buyer, that the horse at the time of sale 
 had not the defect complained of, and will make the proof on his 
 part much more difficult " (0). And it is expedient in all cases to 
 give notice as early as possible of the unsoundness or defects com- 
 plained of 
 
 4thly. He may, without bringing a cross action, use the breach 
 of warranty in reduction of damages in an action brought for the 
 price, and may give evidence of such breach under the general 
 issue (a). Where an action was brought for the price of cinque- 
 foin seed sold by the plaintiff to the defendant at so much per 
 quarter, and warranted to be good new growing seed ; the defence 
 was, that it did not correspond with the warranty. It was proved, 
 that, soon after the sale, the seed had been examined and tasted by 
 a person of skill, who declared it not to be good growing seed ; the 
 defendant, however, did not communicate this to the plaintiff, or 
 return the seed, but aftd^Tvards sowed part and sold the residue, 
 which was not paid for, the purchaser declaring he would not pay 
 for it, because it had proved wholly unproductive. It was held, 
 that the defendant was not bound to return the seed without using 
 
 (m) Per Lord Lyndhwrst, C. B., Com- Lattimore, 9 B. & C. 265. 
 
 ^e)-fov. i)emi!o», 1 Cr. & M. 209 ; i^osiej- V. (z) Per Lord LougUonugh, C. J., 
 
 Smith, 18 C. B. 156; Bannerman v. Fielder v. StarMn, 1 H. Bl. 17. Ace. 
 
 White, 10 C. B. (N. S.) 844. Pateshall v. TranUr, 3 A. & E. 203, 
 
 {V) Ace. Per Lord Denman, C. J., where the buyer had kept the horse 
 
 Chesterman v. Zamb, 2 A. & E. 132. eight months. 
 
 {x) Per Lord Eldon, C. J., in Curtis (a) Cmmns v. Paddm, 2 C. M. & E. 
 
 V. Hannay, 3 Esp. 83. 547. 
 
 {y) Per Littledale, J., in Poulfcn v. 
 
DECEIT. 579 
 
 it, and that by keeping it he had not precluded himself from in- 
 sisting on the breach of warranty as a defence to the action ; and, 
 the jury having found for the defendant on this point, and, there 
 not being any evidence to show that the seed was of any value, the 
 court refused to disturb the verdict (6). The cases have established, 
 that a breach of the warranty may be given in evidence in miti- 
 gation of damages, on the principle of avoiding circuity of action ; 
 and there is no hardship in such a defence being allowed, as the 
 plaintiff ought to be prepared to prove compliance with his war- 
 ranty, which is part of the consideration for the specific price agi-eed 
 by the defendant to be paid (c). " In all those cases of goods sold 
 and delivered with a warranty, and work and labour, as well as the 
 case of goods agreed to be supplied ^cording to a contract, it is 
 competent for the defendant, not to set off, by a proceeding in the 
 nature of a cross action, the amount of damages which he has sus- 
 tained by breach of the contract, but simply to defend himself by 
 showing how much less the subject-matter of the action was worth, 
 by reason of the breach of contract ; and to the extent that he 
 obtains, or is capable of obtaining, an abatement of price on that 
 account, he must be considered as having received satisfaction for 
 the breach of contract, and is precluded from recovering in another 
 action to that extent ; but no more " (cf ). But a consequential and 
 subsequent damage and loss must be the subject of a cross action (e). 
 
 Declaration. — The ancient method of declaring, in cases of war- 
 ranty, was generally in tort ; but it was not necessary to charge the 
 scienter, or, if charged, to prove it. Williamson v. Alison, 2 East, 
 446. Of late years, however, it has been found more convenient to 
 declare in assumpsit, the propriety of which practice was established 
 in the case of Stuart v. Wilkins, Dougl. 18. The form given in 
 Sched. B. of the C. L. P. Act, 1852, Form 21, in reference to horses, 
 is, "that the defendant, by warranting a horse to be then sound 
 and quiet to ride, sold the said horse to the plaintiff, yet the said 
 horse was not then sound and quiet to ride." This is in accordance 
 with the old and correct form of declaring, warrantizando vendidit. 
 (See Cro. Jac. 630.) "As to the warrantizando vendidit," aaid 
 Holt, C. J., in Lysney v. Selby, Ld. Eaym., 1120, "that will be so, 
 though the warranty be before the sale, as if upon the treaty about 
 the buying of certain goods the buyer should ask the seller if he 
 would warrant them to be of such a value, and to be his own 
 goods, and the seller should warrant them, and then the buyer 
 should demand the price, and the seller should set the price; and 
 then the buyer should take time to consider for two or three days, 
 and then should come and give the seller his price, though the 
 warranty here was before the sale, yet this will be well, because 
 
 (6) Poulion V. Latlimon, 9 B. & C. 259. judgment of the court in Mmidel v. Steel, 
 
 (c) Per Lord Tenterden, C. J., in Street 8 M. & "W. 870. 
 V. Blay, 2 B. & Ad. 462. W Rondel v. Sled, mpra ■ 
 
 ■ (d) Per PwtU, B., in deliyering the Murhnlge, 15 M. & W. 598. ^ ^ 
 
080, DECEIT. 
 
 the warranty is the ground of the treaty, and this is warrantizcmdo 
 vendidit." But a warranty given after the sale, and which formed 
 no part of the bargain, is void, the consideration being past ; and a 
 receipt given a few hours after the bargain in the following form, 
 " Keceived lOl. for a colt, warranted sound," is not conclusive evi- 
 dence of the warranty having formed part of the bargain (/). So if 
 the warranty be before the sale, if it forms no part of the contract (g). 
 The C. L. P. Act, 1852, sect. 74, enacts, that " whereas certain 
 causes of action may be considered to partake of the character 
 both of breaches of contract and of wrongs, and doubts may arise 
 as to the form of pleas in such actions, any plea which shall he 
 good in substance shall not be objectionable on the ground of its 
 treating the declaration either as framed for a breach of contract 
 or for a wrong." But it must be borne in mind, that the general 
 issue in contract, Tion assumpsit, and in tort, not guilty, do not 
 raise the same defence. In an action on a warranty, the general 
 issue operates as a denial of the fact of the sale and wan-anty, but 
 not of the breach ; in an action of tort for deceit in the warranty, 
 the general issue puts in issue both the warranty and the breach, 
 but not, it would seem, the sale (h). 
 
 Da/mages. — Where the plaintiffs, the purchasers of seed barley, 
 warranted of a particular quality, resold it with a like warranty to 
 third parties, who, the crop turning out inferior, made a claim 
 upon the plaintiffs for compensation, and the plaintiffs agreed to 
 satisfy them, but no sum was fixed, it was held that the plaintiffs 
 might recover against the defendant, who had originally warranted 
 the barley to them, the amount of damages they were liahU to 
 pay to the sub-purchasers, though they had never in reality paid 
 anything, and might never be forced to pay {i). Where the plain- 
 tiff paid for tallow in advance, which on delivery turned out to be 
 inferior to the warranty, and the plaintiff resold the tallow for a 
 less sum than he had prepaid, and sued in damages for the delivery 
 of inferior tallow, it was held, that, in apportioning the damages, 
 the sum the plaintiff had prepaid could not be taken into account, 
 but that the true measure was, the difference between the value in 
 the market of tallow of the quality contracted for at the time of 
 the delivery, and the amount made by the resale of the tallow 
 actually delivered Qc). In an action for a breach of warranty of a 
 horse (or other goods), the plaintiff cannot recover as special 
 damage the loss of a bargain for resale, though the contract of 
 resale, at a profit, had been actually completed before the un- 
 soundness (or other defect) was discovered (J). 
 
 (/) Fairmamr v. Budd, 7 Bingh. 574. Dawson, 1 M. & R. 552. 
 And see West v. Jachson, 16 Q. B. 280. (i) Mandall v. Boper, 27 L. J., Q. B. 
 
 {g) Hopkins v. Tanqueray, 15 C. B. 266.. 
 30. (k) Loder v. KekuU, 27 L. J,, C. P. 27. 
 
 (A) Pleading Eules, 1853 ; Speneer v. (l) Cla/re v. Maynard, 6 A. & E. 619. 
 
581 
 
 CHAPTER XVI. 
 DETINUE (a). 
 
 PAGE 
 
 I. Of the Action of Detinue, and in what Cases it may 
 
 be vnaintained 581 
 
 II. Of the Pleadings and Evidence 583 
 
 III. Of the Judgment 584 
 
 I. Of the Action of Detinue, aTid in what Gases it may be 
 Tnaintained. 
 
 The action of detinue may be maintained by any person who 
 has either an absolute or a special property in goods against 
 another, who is in actual possession of such goods, either by de- 
 livery or finding (b), and refuses to re-deliver them. In Kettle v. 
 Bromsall, Willes, 118, it was held, that detinue would lie for 
 things lost and found, as well as for things delivered. If A. bar- 
 gains and sells goods to B. upon condition, that if A. pays B. a 
 certain sum of money at a day fixed, the sale shall be void ; if A. 
 pays the money, he may have detinue for the goods although they 
 came not to the hands of B. by bailment, but by bargain and 
 sale (c). In this action the plaintiff seeks to recover the goods in 
 specie, or on failure- thereof the value (for before the C. P. L. Act, 
 1854, it was in the election of the defendant whether he would 
 deUver the specific goods (d), or pay the value thereof (e), and also 
 damages for the detention. 
 
 It has been said that as this action proceeds on the ground of 
 property in the plaintiff, at the time of action brought, it cannot be 
 maintained, if the defendant took the goods tortiously (/), for by 
 the trespass the property of the plaintiff is divested (g). If a person 
 detain the goods of a feme covert, which came to his hands before 
 
 (a) Detinue is generally classed with plaintiff may have replevin, pi. 36. 
 actions ex contract4, but the gist of the (g) This position is cited in Com. Dig. 
 
 action is the wrongful detainer which and other books; but the opinion of 
 
 may occur where there has been no con- Vavasow, J. , to the contrary, in the 
 
 tract. Banby V. Lamb, 11 C. B. (S. S.) same case, seems to be better founded. 
 
 427. Judgment of Williams, J. See the reasoning of Anderson and PCar- 
 
 (6) 1 Inst. 286 b. burton, Js., in BisJiop v. Montague, Cro. 
 
 (c) Eateman v. Elman, Cro. Eliz. 866. Eliz. 824, to the same effect, but applied 
 
 (d) See Ast. Ent. pi. 202 ; Dalt. Shff. to the action of trover. Mills v. Qra- 
 322 ; East. Ent. 212. Mm, 1 N. E.. 140. It is to be observed 
 
 (e) Butsee^osi!, p. 584. that Brian, C. J., draws a distinction 
 (/) 9 Hen. VII. 9 a ; Bro. Abr. De- between property and right of property, 
 
 tinue, pi. .')3, per Brian, C. J. ; but the 
 
583 DETINUE. 
 
 the marriage, the husband alone must bring the action ; because 
 the property is in him at ike time of action brought (h). Plaintifi' 
 had delivered to defendant the title deeds of plaintiff's wife's 
 estate ; plaintiff afterwards levied a fine of the estate to the use 
 of his son. Plaintiff afterwards commenced an action of detinue 
 against the defendant for the deeds ; it was held, that as the muni- 
 ments of an estate belong to the person who has the legal interest 
 in it (i), plaintiff could not recover ; for at the time the action 
 commenced, the deeds were not the property of the plaintiff, but 
 of the son ; who, being the true owner, was the party to sue for 
 them (k). 
 
 Property in the plaintiff without his ever having had possession 
 is sufficient: Hence an heir may maintain detinue for an heir- 
 loom (I). So if it be enacted by a statute, that goods imported in 
 any other manner than as therein directed shall be forfeited, one 
 moiety to the king, and the other moiety to a common informer, a 
 subject may have detinue for the moiety of goods imported con- 
 trary to the provisions of the statute ; for by the illegal importation 
 the property is divested out of the owners ; and by bringing the 
 action it is vested in the plaintiff, by relation, from the time of the 
 offence committed (■?»). So if I deliver goods to A., to deliver to 
 B., B. may have detinue ; for the property is vested in him by the 
 delivery to his use (n). The goods demanded must be such as can 
 be distinguished from other property by certain discriminating 
 marks : as money in a bag (o) ; a horse ; a cow (p) ; a piece of 
 gold, value twenty-one shillings (q) ; deeds concerning the inherit- 
 ance of the plaintiff's land, if he can describe what they are, and 
 what land they concern, or if such deeds are in a chest (r) ; and 
 the like. But for money not in a bag or chest (s), or com (t), and 
 other things which cannot be distinguished from property of the 
 same kind or description, detinue will not lie. The receiver of a 
 letter has a sufficient property in the paper upon which it is 
 written to entitle him to maintain detinue for it against the sender 
 into whose hands it had come as a bailee (u). 
 
 The property in the halves of bank notes sent in payment of a 
 debt due to the receiver from a third person, with an intention on 
 the part of both sender and receiver that the other halves are to 
 follow, remains in the sender until he sends the second halves, the 
 payment being until then inchoate and conditional. It is, there- 
 
 (A) Bull. N". P. 50. (a) I Roll. Atr. 606, (C.) pi. 1. 
 
 (i) See Lord v. Wardle, 3 B. N'. C. (o) 1 Eoll. Abr. 606, (A.) pi. 1. 
 
 680 ; whether the purchase money has (p) F. K". B. 322, (A.) ed. 4to. 
 
 been paid or not ; Ooode v. Burton, 1 (q) Bull. K P. 50. 
 
 Exch. 189 ; mortgagee in fee, Newton v. • (r) 1 Inst. 286J h. ' 
 
 BecJe, 27 L. J., Exoh. 272. (s) Banks v. Whetston, Cro. Eliz. 457. 
 
 (k) Philips V. Robinson, 4 Bingh. 106. (t) 1 Inst. 286, b. 
 
 {1} Bro. Abr. Detinue, pi. 30. («) Oliver v. Oliver, 11 C. B. (N. S.) 
 
 (m) Roberts Y. Withered, 5 Mod. 193 ; 139. 
 Willcim V. Despard, 5 T. R. 112. 
 
DETINUE. 583 
 
 fore, open to the sender at any time before sending the second 
 halves, to disaffirm the transaction, and re-demand the first halves 
 from the receiver, who is liable to an action of detinue for refusing 
 to return them (x). 
 
 The gist of the action is the detainer (i/). Hence, if the bailee 
 of goods die, detinue will not lie against his personal representative, 
 unless be takes possession of the goods (z). And if there are 
 three executors, and one hath possession, detinue lies against him 
 only (a). But if, after the death of the bailee, a stranger takes the 
 goods, detinue lies against such stranger (b). The action lies, 
 though the defendant quitted the possession before action brought, 
 by delivery of the goods to another (c). But it does not lie against 
 him who never had possession of the ohattel, though it does against 
 one who once had, but has improperly parted with the possession 
 of it (d) ; or lost it through negligence (e) ; secus, against one who 
 has lost it without negligence (/). if goods be delivered to 
 husband and wife, detinue ought to be brought against the 
 husband only (g). But if they are delivered to the wife before 
 marriage, the action must be brought against husband and 
 wife {h). 
 
 From the preceding cases it may be collected, that the grounds 
 of the action of detinue are, 1. A property in the plaintiff, either 
 absolute or special (at the time of action brought) in personal 
 goods which are capable of being ascertained. 2. A possession 
 in the defendant. 3. An unjust detention on the part of the 
 defendant. 
 
 II. Of the Pleadings and Evidence. 
 
 If the action be brought for several articles, it is not necessary 
 to set forth the separate value of each in the declaration (i) ; but 
 the jury must sever the values by their verdict. "The nature of 
 the action requires that the verdict and judgment be such that a 
 specific remedy may be had for the recovery of the goods detained, 
 or a satisfaction in value for each several parcel, in case they be 
 not delivered " (j). 
 
 " The plea of non detinet shall operate as a denial of the deten- 
 tion of the goods by the defendant, but not of the plaintiff's pro- 
 perty therein, and no other defence than such denial shall be ad- 
 missible under that plea " (k). Hence, non detinet puts in issue an 
 
 fe) Smith T, Mundy, 3 E. & E. 22. (e) Sme v. Pahmr, 27 L- J-,C. P. 327. 
 
 (y) aUdstane v. Hewitt, 1 Cr. & J. 665. (/) Eoux v. Wweman, 1 F. & F. 45. 
 
 (z) 1 EoU. Abr. 607, (D.) pi. 1. (9) ^8 Edw III. 1, a. 
 
 (a) Bro. Abr. Detinue de biens, pi. 19. (A) 1 Inst. 361, b. 
 
 \b) 1 Boll. Abr. 607, (D.) pi. 2. (i) See Form 29, Sclied. B., Com. Law 
 
 (c) Com. Dig. Detinue, (A.). Proe. Act, 1852. 
 
 (d) Jon^ v!" DowU, 9 M.' & W. 19 ; (/) P««% v. ^°% 2 ^^ ^1- 853. 
 see Goodman v. Boycott, 2 B. & S. 1. W 15 PL E,. H. T. 1863. 
 
584 DETINUE. 
 
 action on adverse detention, and no other fact (I). _ If the defence, 
 therefore, be, that the goods were not the plaintiff's, or that the 
 defendant was justified in detaining them, that must be specially 
 pleaded (m). Under a plea of not possessed, the defendant cannot 
 set up a lien(w), nor a tenancy in common with the plaintiff (o). 
 Upon issue joined on such plea, it is no defence that there are other 
 persons co-tenants with the plaintiff who are not joined in the 
 action (p). A defence that the articles claimed were delivered by 
 the defendant to a third person, with the plaintiff's consent, may 
 be given in evidence under non detinet{q). Money could not 
 formerly be paid into court in this action (r), but it may now under 
 s. 25 of C. L. P. Act of 1860, by leave of the court or a judge. 
 
 III. Of the Judgment. 
 
 The form of the judgment in this action is, that the plaintiff do 
 recover the goods in question, or the value thereof, if the plaintiff 
 cannot have the goods, and his damages ; that is, damages for the 
 detention (s). The language of the judgment being in the alter- 
 native, that the plaintiff do recover the goods, or the value thereof, 
 it is incumbent on the jury to find the value, and an omission in 
 this respect cannot be supplied by a writ of inquiry of damages (t) ; 
 and is ground of error (u). If several things are demanded, the 
 jury ought to find the- value of each particular thing {x). 
 
 That the option of giving up the goods or paying the value should 
 be in the defendant being considered a hardship, it was enacted 
 by the Common Law Procedure Act, 1854, sect. 78, that the 
 court or a judge may, upon the application of the plaintiff in 
 any action for the detention of a chattel, order execution to issue 
 for the return of the chattel, without giving the defendant the 
 option of paying the value, and that, if the chattel cannot be found 
 (unless the court or judge should otherwise order), the sheriff shall 
 distrain all property of the defendant till he render such chattel, or, 
 at the option of the plaintiff, levy the assessed value ; provided 
 that the plaintiff shall, either by the same or a separate writ of 
 execution, be entitled to have levied his damages, costs and 
 interest. 
 
 (1) Clements v. Flight, 16 M. & W. 42. Moore v. Dublin and Meath Railway Co., 
 
 (in) See Richards v. Prcmkvm, 6 M. & 15 Irisli C. L. R. UO. 
 
 "W. 420. (s) Townsend's Judgments, i. 344 
 
 (w) Mason v. FamMl, 12 M. kW. 684, ii. 82—85 ; Aston's Entries, 202, pi. 8 
 overruling Lane v. Tewson, 12 A. & E. Peters v. Heyward, Cro. Jao. 681, 682 , 
 116. A plea of "lien" will be allowed Keilw. 64 b ; per Frowiclc, C. J. The 
 with pleas of "non detinet" and "not iudgment iu trover is, "that the plain- 
 possessed." Bamewall Y. Williams, 7 tiff do recover his (fama^es." Knight Y. 
 M. & G. 403. Bourne, Cro. Eliz. 116. 
 
 (o) Mason v. Famell, 12 M. & "W. 674. (t) Per Coke, J., in CUney's case, 10 
 
 (p) Broadhent v. Ledward, 11 A. & E. Eep. 119 b ; per Holt, C. J., in Herbert 
 
 209- V. Waters, Salk. 206. 
 
 (?) Anderson v. Smith, 29 L. J. , 460, Ex. («) Phillips v. Jones, 15 Q. B. 859. 
 
 (r) Allan V. Dunn, 1 H. & N. 572; \x) East. T, 3 Hen. VI. 43, a. 
 
585 
 
 CHAPTER XVII. 
 DISTRESS. 
 
 PAGE 
 
 I. Of the Nature and Origin of a Distress . . . 585 
 II. Of the Causes for which a Disti>ess may he taken . 586 
 
 III. Of the Things which may or may not be distrained . 588 
 
 IV. Who may Distrain 593 
 
 V. Of the Time at which a Distress may be taken . . 597 
 
 VI. Of the Place where a Distress may be taken . . 599 
 
 ^ VII. The Manner of disposing of Distresses, and herein of 
 
 the Sale of Distresses for Rent Arrear . . . 602 
 
 VIII. Of Pound Breach and Rescue 607 
 
 IX. Of abusing the Distress, and of Irregularity in the 
 
 Proceeding by the Party distraining . . . 609 
 
 I. Of the Nature and Origin of a Distress. 
 
 The power of distraining was given to the lord (in lieu of the for- 
 feiture of the land), for the purpose of forcing the tenant to perform 
 those services which were the consideration of his enjoyment of 
 it. Hence the distress was considered merely as a pledge, and the 
 detention thereof was justifiable only so long as the duties incident 
 to the tenure of the land remained undischarged. If the tenant 
 offered gages and pledges for the performance of the services, and 
 the lord, after such offer, persisted in detaining the distress, the 
 tenant might sue out a writ of replevin, the tenor of which was, 
 that the defendant had taken and unjustly detained the goods, 
 " against gages and pledges." This form is still preserved in the 
 proceedings in replevin, but the offer of gages and pledges has 
 fallen into disuse. The replevin was considered as so much a 
 matter of right, that if a person by deed granted a rent with a 
 clause of distress, and granted further, that the distresses taken 
 should be irreplevisable, yet they might be replevied, such a 
 restriction being against the nature of a distress (a). 
 
 Goods distrained are not liable to the distress of another subject, 
 
 {a) 1 Inst. 145, b. 
 
386 DISTEESS. 
 
 because tliey are in the custody of the law (6) ; nor to another 
 subject's execution, for the same reason (c). But an extent against 
 the king's debtor shall prevail before actual sale, notwithstanding 
 the custody of the law, on the ground of the general preference 
 allowed by law to the king's debts (d). The right of distress is not 
 so inseparable an incident to rent service that it cannot be post- 
 poned by contract between the parties (e). 
 
 II. Of the Causes for vjhich a Distress may he taken. 
 
 1. At Commmi Law. — A distress may be taken for the non- 
 performance of services, either certain or such as may be reduced 
 to certainty — e. g. to shear the sheep of the lessor within the 
 manor (/), to pay so much per yard for all marl got, and so much 
 per thousand for all bricks made (g) — viz. heriot-service Qi), rent- 
 service (i), suit-service (k), that is, suit to a hundred-court, or court- 
 baron ; for non-payment of a fine imposed on an inhabitant of a 
 manor by the steward of a court leet for refusing to take the cus-' 
 tomary bath, when elected to the office of a constable (l); for non- 
 payment of an amerciament in a court leet (m) for a nuisance (n), 
 or for an offence done in court (o) ; lastly, at common law, goods or 
 cattle damage feasant may be distrained (p). 
 
 A landlord cannot distrain unless there be an actual demise to 
 the tenant at a fixed rent. Hence, where the tenant holds under 
 an agreement for a future lease, and no lease has been executed, 
 and no rent subsequently paid, the landlord cannot distrain (q). 
 But payment of rent under such an agreement will constitute an 
 acknowledgment of a tenancy from year to year, under which the 
 landlord will be authorized to distrain (r) ; and so will an admission 
 of a charge of half a year's rent in an account between the par- 
 ties (s). Secus, where the tenant holds over after notice to quit by 
 
 (6) Bra. Distr. 75, cited by Lord C. B. (i), Litt. sect. 213. 
 
 Parker, 2 Ves. sen. 294. (k) 1 EoU. Abr. 665, E. pi. 2. 
 
 (c) Bro. 28 ; Finch, 11, cited by Lord (Z) 8 Co. 41, a ; but see per Oibbs, 
 C. B. Parker, in R. y. Coiion, Parker, C. J., Clears v. Stevens, 8 Taunt. 416; 
 120. Fktcher v. Ingram, 1 Salk. 176. 
 
 (d) R. V. Cotton, Parker, 112, recog- (m) 8 Co. 41, a. 
 
 nized in Giles v. Grover, 9 Bingh. 128, («,) Prat v. Stem, Cro. Jac. 382. 
 
 where it was held that the goods of a (o) 1 Eoll. Abr. 666, F. pi. 2. 
 
 debtor seized under a fi. fa., butnotsold, (p) 1 Inst. 142, a., 161, a. 
 
 might be taken under an extent in chief, (j) Dunk v. Hunter, 5 B. & Aid. 322 ; 
 
 or in aid. Grove y. Aldridge, 9 Bingh. Regnariy. Porter, 7 Bingh. 451; JRiseley 
 
 428 ace. v. Ryle, 11 M. & "W. 16 ; Meehelm v. 
 
 (e) Giles v. Spencer, 26 L. J., C. P. 237. Wallace, 7 A. & E. 54. 
 
 (/) 1 Inst. 96, a. (r) KnigM v. £enett, 3 Bingh. 361 ; 
 
 (gr) Damiel v. Grade, 6 Q. B. 145. Mann v. Lovejoy, Ry. & M. 355. 
 
 (A) 1 Roll. Abr. 665, E. pi. 5 ; Plowd. (s) Coxy. Bent, 5 Bingh. 185 ; BrayOi- 
 
 i'S. ^myfe v. Hitchcock, 10 M. & W. 494, ace. 
 
DISTEESS. 587 
 
 the landlord, and there is not any evidence of a renewal of the 
 tenancy (t). 
 
 By 12 & 13 Vict. c. 106, s. 129, no distress for rent levied after 
 an act of bankruptcy, upon the goods of any bankrupt (whether 
 before or after the issuing the fiat, or the filing the petition), shall 
 be available for more than one year's rent, accrued prior to the 
 date of the fiat or the filing of the petition, but the landlord, or 
 person to whom the rent is due, shall be allowed to come in as a 
 creditor for the overplus of the rent due, and for which the distress 
 shall not be available (u). — This section applies only to rent accrued 
 due before the bankruptcy (x), and is intended for th^ protection 
 of the assignees only, and not for that of mortgagees, although in 
 actual possession of the goods, upon which, therefore, if on the 
 premises, the landlord may distrain (y). The landlord must dis- 
 train in order to enforce his claim against the assignees (z) ; and 
 he retains such right until the removal of the goods (a) ; although 
 the messenger be in possession (&). If the assignees decline the 
 lease, the property remains in the bankrupt, and the landlord may 
 distrain for the rent (c) ; but he cannot prove and distrain for the 
 same rent (d). The certificate does not operate as a release of the 
 rent ; it operates only to discharge the person and goods of the 
 bankrupt, but does not affect collateral remedies (e). 
 
 2. By Prescription. — By prescription, a distress may be taken 
 for an amerciament in a court baron (/) ; for a penalty imposed 
 for a breach of a by-law {g) ; for a toll in a fair Qi). A distress 
 may be taken, where the custom warrants it, for an amerciament 
 or fine imposed by the steward of a court baron. Co. Ent. tit. 
 Replevin, pi. 1. 
 
 3. By Statute. — It would be an endless task to enumerate all 
 the statutes which give a remedy by distress ; the following, how- 
 ever, cannot be omitted : — 
 
 By 4 Geo. II. c. 28, s. 5 — Every person, body politic and cor- 
 porate may have the like remedy by distress, and by impounding 
 and selling the same, in cases of rent-seek, rents of assize, and 
 chief rents, which have been dtily answered or paid, for the space 
 of three years, within the space of twenty years before the 23rd 
 day of January, 1731, or shall be thereafter created, as in case of 
 rent reserved upon lease. — In Bradbury v. Wright, Doug. 624, the 
 
 {f) Jenner v. Clegg, 1 M. & Rob. 213; (i) Briggs v. Sowry, 8 M. & W. 729. 
 
 Wwring v. King, 8 M. & "W. 571, per (c) JBrocklekwst v. Lawes, 7 E. & B. 
 
 Lord Aiinger, C. B. 176 ; see Oarlwright v. Glover, 30 L. J. 
 
 (u) This provision is similar to the Ch. 324. 
 
 6 Geo. IV. c. 16, s. 74. (d) Exp. Grove, 1 Atk. 104. 
 
 (a) £riggs v. Sowry, 8 M. & W. 729. (e) Newton v. Scott, 10 M. & W. 471. 
 
 (y) BrockleMorstY. Lawes,"! I,. ^Kne. (/) 1 Boll. Ahr. 666, F. pi. 4. 
 
 («) Oethin v. Wilks, 2 Dowl. 189. (?) Lord Crumwe-lVs case. Dyer, 322, a. 
 
 (a) Exp. Descharmes, 1 Atk. 1 03. (h) 1 12011. Abr. 666, F. pi. 5, 6. 
 
5S8 DISTRESS. 
 
 court were of opinion that a rent reserved on a grant in fee (i) 
 made after the statute of Quia emptores, and before the 4 Geo. 11. 
 c. 28, was in its nature a rent-seek, and that it could not be 
 distrained for except under the preceding statute : in which case 
 the distrainor, in his avowry, ought to bave alleged, that the rent 
 had been duly answered or paid for the space of three years (k), 
 within the space of twenty years, before the first day of the session 
 of parliament in which this statute was made. By 11 Geo. II. 
 c. 19, s. 18, landlords may distrain for double rent, upon tenants 
 who do not deliver up possession after having given notice of 
 their intention to quit, during all the time such tenants continue 
 in possession. This statute applies to those cases only, where the 
 tenant has the power of determining his tenancy by a notice ; and 
 where he actually gives a valid notice sufficient to determine it (l). 
 
 III. Of the Thmgs which may, and the Things which may not he 
 
 distrained. 
 
 1. Of the Things which Tnay be distrained. — It may be laid 
 down as a general proposition, that all moveable chattels of the 
 tenant may be distrained for rent arrear, if they are found upon the 
 land out of which the rent issues, but nowhere else (m). Hence, 
 where the exclusive use of the land of the river Thames, in front 
 of a wharf between high and low water-mark, was demised as ap- 
 purtenant to the wharf, for the accommodation of the tenants 
 thereof, but the land itself between high and low water was not 
 demised, it was held that the lessor could not distrain, for rent 
 arrear, barges, the property of the tenant, lying in the space 
 between high and low water-mark, and attached to the wharf by 
 ropes (n). 
 
 If the cattle of a stranger are trespassers on the land of the 
 tenant, the lord may distrain them, although the stranger made 
 
 (i) A rent of this kind, prior to the distress, will be good as a rent-oharge. 
 
 statute of gida emptores, would have heen Harg. 1 Inst. 143, b, n. 5. And it seems, 
 
 properly denominated a fee-farm rent. that if such a rent were created at this 
 
 The word /ee-/arm imports every rent or day, without a power of distress, as it 
 
 service, whatever the quantum may be, must be considered as a rent-seek, it 
 
 which is reserved on a grant in fee. It is would be distrainable for under the above 
 
 not properly applicable to any rents, ex- statute. See Vigers v. Deem and Chap- 
 
 cept rent-service. Hence, since the sta- Ur of St. Paul's, 14 Q. B. 909. 
 tute of quia emptores, the granting in (k) They need not be consecutive years. 
 
 fee-farm, except by the king, is. become Micsgrave'v. Bmmerson, 10 Q. B. 326. 
 impracticable ; for, by the operatibri of (I) Johnstone v. Hudlestone, 4 B. & 0. 
 
 that statute, the grantor parting with the 922. 
 
 fee is without any reversion, and without (m) Com. Dig. Distress, B. 1!; 4 T. R. 
 
 a reversion there cannot be a rent-service. ,567, (Jorton v. Falkner, per Lord Kenyan, 
 
 Litt. sect. 216. But a grant in fee, reser- C. J. 
 viug a perpetual rent, with a power of (n) Ca^el y. Busxard, 6. Bingh. 150. 
 
DISTEESS. 589 
 
 fresh suit (p), and although the cattle be not levant and couchant (»). 
 But if the cattle of their own accord leave the land, the lord cannot 
 distrain them (q). And if the landlord either expressly or impli- 
 edly consent that the stranger's chattels shall be free from distress, 
 he is a trespasser if he distrain them (r). So a lessor cannot dis- 
 train cattle which escape from a close belonging to a stranger, into 
 the land whence the rent issues, through defect of the fences, which 
 either the lessor (s) or his tenant (t) was bound to repair.' But 
 " there is a difference between a lord distraining within his seignory, 
 and a landlord distraining for rent reserved on his own lease : for 
 the lord has nothing to do with the land or the fences, and so it is not 
 material to him whether the fences are repaired or not : but it is 
 otherwise of a landlord : for he himseJI ought to repair, or to pro- 
 vide that his tenant repairs them, else he would take advantage of 
 his own wrong. And this diversity seems to be warranted by the 
 books, Dy. 317, 318; 22 Edw. IV. 49, b. ; 7 Hen. VII. 1 ; 10 Hen. 
 VII. 21 ; 15 Hen. VII. 17. But if the cattle escape into the land 
 without any defect of the fences, or where the tenant of the land in 
 which they are distrained is not bound to repair the fences, through 
 the defect of which the cattle escape and are distrained, it is imma- 
 terial to the lord or landlord whether they are levant and couchant 
 or not"(tt). A person into whose field cattle have strayed through 
 defect of fences which he was bound to repair, cannot distrain them 
 damage feasant in another field into which they have thence got by 
 breaking through a hedge which he kept in good repair, since his 
 neglect was the original cause of the mischief (v). The grantee of 
 a rent-charge may distrain the goods of a stranger who is not 
 shown to hold by a title paramount to the rent-charge (x). 
 
 Where cattle are distrained damage feasant, and put into a suffi- 
 cient pound and escape without default or neglect of the distrainor, 
 he may maintain trespass for the damage to his land ; for otherwise 
 he would be left without remedy (y). 
 
 If the estate of a tenant at will be determined either by his own 
 death or by the act of the landlord, he or his executors are entitled 
 to reap the corn sown by him. And, therefore, such corn, though 
 purchased by another person, cannot be distrained (in case of the 
 determination of the tenancy at will) for rent due from a subse- 
 quent tenant, " for then the landlord would have nothing to do but 
 to determine the estate of his tenant at will as soon as he had sown 
 all his corn, and then to let his land to another, reserving rent upon 
 a day before harvest " {z). 
 
 (o) 7 Hen. VII. 1, b, 2, a. viU, 2 Wms. Saund. 289. 
 
 (p) 15 Hen. VII. 17, b. (») Singleton v. WilUamson,1 H. &N. 
 
 (?) 11 Hen. VII. 4, a. 410; 31 L. J., Ex. 17. 
 
 (r) Horsford v. Welster, 1 C. M. & E. (a;) Saffery v. Elgood, 1 A. & E. 191 ; 
 
 696. Johnson v. Faullcner, 2 Q. B. 925. 
 
 («) 2 Leon. 7. {y) Williams v. Price, 3 B. & Ad. 695. 
 
 (t) Dyer, 317, b, 318, a. (z) Eaton v. Souihby, Willes, 131 . It 
 (m) Per Saunders, in Poole v. Longue- will be observed that the above reasons 
 
590 DISTEESS. 
 
 Of Things which may not be distrained. — With respect to 
 those things which by law are privileged from distress, it may be 
 observed that some are privileged absolutely, and some condition- 
 ally. In the first class may be numbered, — 
 
 1. Animals ferce naturw, Y/hereoi : a. valuable property is not in 
 any person ; as bucks, does, &c. Deer kept within an inclosure do 
 not fall within this class, for they may be distrained (a). 
 
 2. Such things as cannot be restored to the owner in the same 
 plight and condition as they were in at the time of taking them (6). 
 This exemption proceeds on the ground of the distress having 
 been considered at common law merely as a pledge ; and for this 
 reason, sheaves and shocks of corn were not distrainable (c), but by 
 2 W. & M. c. 5, s. 3, — sheaves or cocks of com, or corn loose or in 
 the straw, in any barn, rick, &c., or hay, lying upon any part of 
 the land charged with the rent, may be seized, secured, and locked 
 up in the place where found, in the nature of a distress, until 
 replevied ; but the same must not be removed to the damage of 
 the owner from such place (d). — The above section extends to corn 
 whether threshed or not (e), but not to growing corn (/). 
 
 So things fixed to the freehold, e. g., furnaces, cauldrons (g), 
 kitchen ranges, stoves, coppers, grates (h), the doors or windows of 
 a house, or the like (i); on the same ground, viz., that these can- 
 not be restored in as good a plight (Jc). For a similar reason, it 
 seems, growing corn could not at common law be distrained (Q. 
 But now by 11 Geo. II. c. 19, s. 8, — Landlords, or their bailiffs, or 
 other persons empowered by them, may distrain corn, grass,, or 
 other product, growing on any part of the land demised.— -The 
 word " product," in the foregoing section, applies to such products 
 of the land only as are similar to those specified ; to all of which 
 the process of becoming ripe, and of being cut, gathered, made, 
 and laid up when ripe, is incidental. Hence trees, shrubs, and 
 plants, growing in a nursery-ground, cannot be distrained for 
 rent(m). The section does not extend to the grantee of an 
 annuity with a power of distress (n). 
 
 do not apply with any force to the case for distraining fixtures is not the amount 
 
 of the death of the tenant at will, over at which they are condemned, nor the 
 
 which the landlord can of course have no amount paid for them by the tenant, but 
 
 control. it is their value to an incoming tenant, 
 
 (a) Demies v. Powell, Willes, 47. and the amount he would pay the out- 
 
 (5) I Inst. 47, a. ; Darhy v. Harris, 1 going tenant for them, without deducting 
 
 Q. B. 895. the rent. Moore v. Drmhwater, 1 F. & 
 
 (c) Wilson V. Hucleet, 2 Mod. 61. F. 134 ; LockUy v. Pye, 8 M. & W. 133. 
 
 . (d) See Johnson v. Faulkner, 2 Q. B. (i) \ Inst. 47, a. 
 
 925. (h) Darby v. Harris, 1 Q. B. 895. 
 
 (e) Anon., Lutw. 214. (^) l Roll. Abr. 666, (H.) pi. 3. 
 
 (/) Owen V. Legh, 3 B. & Aid. 470. (m) Clark v. Gaskarth, 8 Taunt. 431. 
 
 (g) 1 Inst. 47, a. As to eatage, see Horsford v. Wehskr, 1 
 
 (h) Darby v. Zforris, 1 Q. B. 895. The C. M. & R. 699, per Parke, B. 
 
 proper measure of damages in an action (is) Miller v. Green, 8 Bingh. 92. 
 
DISTEESS. 591 
 
 3. Things delivered to a person exercising a trade (o) or employ- 
 ment, to be carried (p), wrought or manufactured in the way of 
 his trade, are not distrainable, — as cloth delivered to a tailor (g) ; 
 goods sent to an auctioneer to be sold on premises occupied by 
 him (r) ; worsted yarn sent to a stocking-weaver (s) ; a bullock sent 
 by one butcher to the shop of another to be slaughtered (t). So a 
 horse standing in a smith's shop, for the purpose of being shod, or 
 in a common inn, cannot be distrained, because it must be pre- 
 sumed that such things so found belong to strangers (u). . So 
 goods of the principal, in the hands of his factor, cannot be dis- 
 trained by the landlord of the factor's premises for arrears of rent 
 due to him from the factor ; for the advancement of trade equally 
 requires that goods should be placed iji the hands of a factor for 
 sale, as that they should be placed in the hands of a carrier for 
 carriage ; and the instances enumerated by Sir Edward Coke, 
 under the exception in favour of trade, are only put by way of 
 example (v). So goods landed at a wharf, and deposited by a 
 factor to whom they .were consigned, in a warehouse on the wharf, 
 until an opportunity for sale should arise, are not distrainable for 
 rent due in respect of the wharf and warehouse (x). So goods in 
 pawn, although they have been pledged for more than twelve months, 
 are privileged from distress (y). The proper measure of damage is 
 the value of the goods, and not the plaintiff's interest therein. 
 
 But the principle of the above exception in favour of trade is 
 not to be extended. Hence where salt was manufactured and 
 publicly sold at certain salt-works, and carried away in boats of 
 the purchasers, which came, for the purpose of being loaded with 
 it, into a cut or canal on the premises communicating with a public 
 navigation ; and the boat of A., an alkali-manufacturer, was lying 
 in the cut or canal for the purpose of receiving and carrying away 
 salt bought by A. for the purposes of his manufacture ; it was held, 
 that the boat was not privileged from distress for arrears of an 
 annuity issuing out of the land on which the salt-works were 
 erected, and granted by the manufacturer and seller of the salt (z). 
 So brewer's casks, left by the brewer ^ in a public-house until the 
 liquor contained in them has been consumed, are not exempt from 
 a distress for rent arrear in respect of the public-house (a). 
 
 (o) 1 Inst. 47 a. 1498, where the questioa was "whether 
 
 [p) CHsbourn y. Hurst, Salk. 249. a carriage standing in the yard of a livery- 
 
 iq) Simpson v. Hartopp, "Willes, 19. stable was distrainable for rent due to the 
 
 (r) Adams V. Oram, 1 Cr. & M. 380. landlord from the keeper of the livery- 
 
 (s) Wood V. Clarke, 1 Cr. & J. 484. stable?" 
 
 But the privilege is confined to the ma- (v) Oilman v. Mton, 3 B. & ±i. 76. 
 
 terials which the employer supplies, and (x) Thompson v. Mashtier, 1 Jimgli. 
 
 does not extend to the machinery by 283. _ ■, o n -a n<f v \ 
 
 which the working up is effected. S. 0. (y) Swire v. Leacii, 18 b. a. vi\. o.; 
 
 (<) Brovm v. SheviU, 2 A. & E. 138 ; 479 ; 34 L. J., C. P. 150. .^ 
 
 Gibson V. Ireson, 3 Q. B. 39, ace..' (z) Musprait v. Gregory, 3 M. & W. 
 
 («) It seems that the privilege of .., 677 {on error). - i>r ^^ w if;n 
 
 common inn does not extend to a livery- {a) Joule v. /acfaon, 7 M. « w. 'inw. 
 
 stable. See Francis v. Wyatt, 3 Burr. 
 
593 DISTRESS. 
 
 4. Goods in the custody of the law, e. g., goods distrained, 
 damage feasant or otherwise (b) ; so growing corn sold under afi. 
 fa. is protected from a distress for rent (c). But goods seized by a 
 messenger under a fiat in bankruptcy are not while in his custody 
 privileged from distress for rent due from the bankrupt to his 
 landlord, for they are not in the custody of the law (d). 
 
 By 14 & 15 Vict. c. 25, s. 2 — If any growing crops are seized 
 and sold by the sheriff under afi.fa., such crops, so long as they 
 remain on the land, may, in default of any sufficient distress of the 
 goods and chattels of the tenant, be distrained for rent, accruing 
 due after such seizure and sale, notwithstanding any sale or assign- 
 ment of them by the sheriff. This only applies to rent accruing 
 aj^er the seizure. For rent accruing before, the ordinaiy rule 
 would 'apply, that gopds in custodid legis are not distrainable ; in 
 such a case, therefore, if the sheriff had seized them under a, ft. fa., 
 no distress could be made (e). 
 
 5. Things in actual use, as a horse whereon a person is riding, 
 or an axe in the hands of a person cutting wood, &c. (/), on the 
 ground, that if in such cases a power of distress were given by law, 
 the exercise of it would frequently lead to a breach of the peace (g^). 
 As an illustration of this exemption it may be observed, that even 
 chattels damage feasant, which as a general rule may be dis- 
 trained, even though put on the land of the distrainor by a 
 stranger, and without the privity of the owner Qi), cannot be dis- 
 trained if in actual use. Thus a horse whereon a man is riding 
 cannot be distrained damage feasant (€) ; nor a horse and cart 
 damage feasant, if under the personal care of and being used by 
 any person (/c) ; for the same exemption is allowed here as in cases 
 of distress for rent arrear, and for the same reason ; lest by the 
 permission of such distress a breach of the peacp should ensue. 
 
 6. By 7 Ann. c. 12, s. 3, it is enacted and declared, that process 
 of any distress against the goods of any ambassador, or other 
 public minister of a foreign state, or of their domestic servants, is 
 void®. 
 
 _ Among those things which are privileged from distress, condi^ 
 tionally, may be numbered, — 
 
 _ 1. Beasts of the plough, which are exempt, if there be a suffi- 
 cient distress besides on the land whence the rent issues (m), on 
 
 (b) 1 Inst. 47, a ; yer ParTce, B., Kerly {h) 1 Eoll. Abr. 665, D. pi. 1. 
 
 V. Harding, 6 Exch. 238. (i) Storey v. Robinson, 6, T. E. 138; 
 
 (c) WrigU v. Dewes, 1 A. & E. 641 ; per Denison, J., in Collins v. Bennism, 
 unless left for an nnreasonaWe time after Say. 139. 
 
 it is ripe. Peacock v. Purvis, 2 B. & B. (h) Field v. Adames, 12 A. & E. 649. 
 
 362. See Bunch v. Kennington, 1 Q. B. 679, 
 
 {d) Briggs v. Sowry, 8 M. & W. 729. as to a dog. 
 
 (e) Whartmi v. Naylor, 12 Q. B. 673. (I) See Novello v. Toogood, 1 B. & 0. 
 
 (/) 1 Inst. 47, a. 564. 
 
 (g) Per Kenyan, C. J., GortoriY. Falk- (m) 1 lust. 47 a, b, 161, a. 
 
 ncr, 4 T. E. 565. > < ' 
 
DISTRESS. 593 
 
 the ground of encouraging husbandry, and also because a man 
 should not be left quite destitute of the means of getting his 
 living (n). "The landlord has a right to resort to the subjects of 
 distress which are iniTnediately available to raise the arrears of 
 rent by sale, and is not bound to take those which cannot be pro- 
 ductive till a future period (as growing crops). If there are other 
 moveable chattels to the amount of the rent and expenses, besides 
 averia carucce, he would not be justifiable in taking the latter ; 
 but if there are not (o), he has a right to take all, or so many of 
 the beasts of the plough as may be necessary with the other move- 
 able and saleable chattels to satisfy the arrears and charges " (p). 
 Beasts of the plough, however, may be distrained for the poor-rates, 
 although there are other distrainable gogds on the pi'emises, more 
 than sufficient to answer the value of the demand {q). This deci- 
 sion proceeded on the ground, that a seizure under the 43 Eliz. 
 c. 2, and similar acts, resembled a common law distress only in 
 being replevisable ; and that it was in other respects analogous to 
 a common law execution, under which any goods of the debtor 
 may be seized. 
 
 2. Implements of trade, as a stocking-frameYr), or a loom (s), 
 though not actually in use(f), if there is sufiicient distress be- 
 sides (u) ; this exemption too is in favour of trade, and on the ground 
 of the hardship of depriving a man of his only means of getting 
 his living (x). Where a threshing-machine was not in use, and 
 there was not any evidence of other goods being on the premises, 
 it was held, that the threshing-machine was not privileged from 
 distress (y). 
 
 IV. Who may Distrain (z). 
 
 The king may reserve a rent out of a franchise or matter incor- 
 poreal, as well as out of lands, and may distrain for it on any other 
 lands of the tenant not subject to the rent ; but not on such other 
 lands of the tenant as are underlet, or extended under an elegit. 
 
 M Willes 515 («) ^«''^Set v. Nias, 1 E. & E. 439. 
 
 0) Or if hehas reasonable gi-ounds (by [u) Roberts v. Jmkson, Peake Add. Ca 
 
 appraisement or otherwise) for believing 37, in wbicb case it appeared there ocm 
 
 that there will not be sufficient without other goods on the iirst floor belonging to 
 
 them. Jenner v. ToUcmd, 6 Price, 5 ; lodgers m the house, 
 
 and there is nothing (smWe) to prevent (''} ll^T^' r...„ o t«„„i, Mr 
 
 them, if taken lawfUly, from bei^g sold {yVPmton v. Logan, 9 Bingh. 676. 
 
 beforl the other goods.'' S. O. («) ^he provisions of 13 Edw I c 37, 
 
 f*)1 Per Parke B delivering iuds- that no distress shall bo taken but by 
 
 miS S^5; \M M & V44f. bdUffs sworn --^^^^^^'^^^'^ifZl 
 
 ^q) Huiihims V. Clmi^ers, 1 Burr. 579. a d^tress for rent. Beglie v. Hayne, 2 
 
 (r) Simpson v. Hartopp, Willes, 512. B. ]N. C. Hi. 
 
 (s) Gorton v. Palkner, 4 T. E. 565. 
 
 VOL. I. 
 
 (J Q 
 
594 DISTEESS. 
 
 By 22 Car. II. c. 6, the grantee of a fee-farm rent purchased from 
 the crown has the same power of distress as the king had (a). . . 
 
 By 7 Hen. VIII. c. 4, — " recoverors " of manors, lands, and ad- 
 vowsons, their heirs and assigns, may distrain for rents, services, 
 &c., and have like remedy as the reeoverees might have had (6). 
 
 By 32 Hen. VIII. c. 37, s. 1 (c), — The personal representatives 
 of tenants in fee, tail, or for life, of rent-services, rent-charges, 
 rent-seek, and fee-farms, may distrain for the arrears due at the 
 time of the death, upon the land charged with the payment, so 
 long as the lands continue in the seisin or possession of the tenant 
 in demesne (d), who ought to have paid the rent or fee-farm, or of 
 some person claiming under him by purchase, gift or descent. 
 
 This statute provides a remedy by distress where the testator 
 dies seised of a rent to him and his heirs, or for life, and where by 
 his death there was not any such remedy for the executor at the 
 common law ; hence the executor of a tenant for life of a rent- 
 charge may distrain for rent arrear under this statute (e) ; but the 
 statute does not apply to a tenant for years of a rent-charge, 
 although it be granted to the testator for years, if he Uve so long, 
 for he is still tenant for years (/), and not within the words "tenant 
 in fee simple, fee tail, or for term of lives "(g^). Nor does the 
 statute apply to ordinary cases of demise for a term by the owner 
 in fee where there is a reversion in the testator. A. seised in fee, 
 let to the plaintiff for twenty-one years, and afterwards dying seised 
 of the reversion, the defendant administered, and distrained for 
 half a year's rent due to the intestate, for which he avowed. On 
 demurrer to the avowry, it was objected that there was not any 
 privity of estate between the administrator and the lessor, and there- 
 fore the avowry, which is in the realty, could not be inaintained by 
 him. And it was observed, this was a case out of the 32 Hen. VIII. 
 c. 37, for that only gives a remedy by way of distress for rents 
 of freehold; and of this opinion the court seemed (A,). And in 
 Prescott \. Boucher, 3 B. & Ad. 849, it was held, that a person 
 who was seised in fee of land and demised it for a term of years, 
 reserving a rent, was neither " tenant in fee svmple, fee tail, or for 
 term of lives of the rent (for the utmost that could be said was, 
 that he was tenant for years of the rent, and he was not even that), 
 
 (a) Aitormy-Oeneral v. Mayor of Co- seems, on the ground that the statute 
 
 verOry, 1 P. Wms. 306. See anU, p. 588 only applied to cases where the executor 
 
 "■ I'l^'a , T had no remedy previously at the common 
 
 ?} mu" ^^- ■'■°* ^- 1*^ ^y action of debt, &o. , which in this 
 
 (c) The statute does not apply to copy- case he had. But this ground for the de- 
 hold rents. _ Applekm v. Doily, Yelv. 135. oision cannot he supported. See Premil 
 
 (d) i. e. in occupation j^e?- Bimrough, v. Boucher, 3 B. & Ad. 849. 
 
 J., Meriton v. Giliee, 8 Taiunt. 162. (g) Per TenUrden, C. J., 3 B. & Ad. 
 
 (e) Bool V. Sell, 1 Ld. Eaym. 172. 859 ; per Cm., Renvin v. WatUn. 
 
 (/) Turner v. Lee, Cro. Car. 471, (7i) Senmn v. WatMn, M. 5 Geo. II. 
 
 which case was decided principally, it B. R. MS. 
 
DISTRESS. 595 
 
 nor indeed " tenant " of the rent at all in the sense the word was 
 used in the statute, and consequently that his executor could not 
 distrain for arrears of rent accrued in the testator's lifetime. But 
 this question is set at rest by the 3 & 4 Will. IV. c. 42, s. 37, 
 which enables the executors or administrators of any lessor or 
 landlord to distrain upon the lands demised, for any term or at will, 
 for the arrear of rent due to such lessor or landlord in his lifetime, 
 in like manner as such lessor or landlord might have done in his 
 lifetime. By sect. 38, such arrears may be distrained for after the 
 end of such term or lease at will, in the same manner as if such 
 term or lease had not been ended ; provided that such distress be 
 made within six calendar months after the determination of such 
 term or lease, and during the continuaupe of the possession of the 
 tenant from whom such arrears are due. Provided also, that all 
 the powers and provisions in the several statutes made relating to 
 distresses for rent shall be applicable to the distresses so made. 
 
 By sect. 3 of 32 Hen. VIII. c. 37, — Husbands seised in right 
 of their wives, in fee, tail, or for life, of any rents or fee-farms, may 
 distrain, after the death of their wives, for arrears during their 
 wives' lifetime. And by sect. 4, — Tenants pur aiiter vie of rents 
 and fee-farms, and their personal representatives, may distrain on 
 the land chai-ged after the death of the cestui que vie, for arrears 
 due in the lifetime of the cestui que vie. 
 
 Where the testator had given the defendant authority to distrain, 
 but died before the distress was taken, and afterwards it was taken 
 in the name of the testator, and his executrix before probate re- 
 cognized and adopted the defendant's act ; it was held, that the 
 defendant might make cognizance as the bailiff of the executrix {%). 
 
 One entitled to the separate herbage and feeding of a close, for a 
 certain time, may distrain cattle belonging to the owner of the 
 close, damage feasant there during that time (/c). If a terre-tenant, 
 holding under two tenants in common, pay the whole rent to one, 
 after notice from the other not to pay it, the tenant in common 
 who gave the notice may distrain for his share (l). One tenant in 
 common may take a distress without his companions, and avow 
 solely (m). Grant of rent to testator for years, with a clause of 
 distress, that the grantee and his heir may distrain. Adjudged, 
 that the executor should distrain, and not the heir {n). 
 
 A mortgagee, after giving notice of the mortgage to the tenant in 
 possession, is entitled to such rent as shall be in arrear at the time 
 of the notice, and to the rent which accrues afterwards, and may 
 distrain for the same after such notice, if the lease under which the 
 
 (i) WhiUhead V. Taylor, 10 A. & E, &i&DoeY.Hwmiltmi,nq.^.perme,J. 
 210 (m) Willis y. PUtcher, Gro.n.\z.5ZQ. 
 
 {ic) Burt V. Moor, 5 T. R. 329. (n) Darrel v. Wilson, Cro. Eliz. 6i5. 
 
 (I) ffwrrison v. Barnhj, 5 T. E. 246, 
 
 Q Q ^ 
 
596 DISTEESS. 
 
 tenant holds be before the mortgage (o). But where the lease is 
 made by the mortgagor alone after the mortgage, and no new 
 tenancy has been created between the mortgagee and tenant, the 
 mortgagee has no remedy but by ejectment, and cannot distrain (p). 
 Nor will a mere recognition on the part of the mortgagee of the 
 tenant in possession as his tenant enable him to distrain ; there 
 must be a mutual agreement ; since " the relation of landlord and 
 tenant cannot be created without the consent of both parties " (g). 
 But a continuance in possession by the tenant after notice from the 
 mortgagee, and payment or tender of rent by the tenant to the mort- 
 gagee, is, it seems, evidence of an assent to continue the tenancy 
 on the old terms (r). Seeus, if such payment be made by the 
 tenant to the mortgagee under an authority from the mortgagor (s). 
 If a lessor, having mortgaged his reversion, is permitted by the 
 mortgagee to continue in receipt of the rent incident to that rever- 
 sion, he, during such permission, is presunvpticme juris authorized, 
 if it should become necessary, to realize the rent by distress, and 
 to distrain for it in the mortgagee's name and as his bailiff (Q. So 
 when a mortgage has been paid off by the assignee of the equity 
 of redemption, who has taken from the mortgagee an undertaking 
 to execute a reassignment of the mortgage, and has obtained his 
 authority to receive the rest, the assignee has an implied authority 
 to distrain in the name of the mortgagee (u). 
 
 If by a custom the lord is pi'ecluded from turning cattle on the 
 common during a certain season of the year, a commoner may 
 distrain the lord's cattle which are turned on during that time (a;). 
 Wherever there is a colour of right for turning cattle on a com- 
 mon, a commoner cannot, distrain, because it would be judging for 
 himself in a cause which depends on a more competent inquiry. 
 Hence, where the right of common was for two sheep for every acre 
 of land in the possession of each commoner, it was held, that one 
 commoner could not distrain the sheep of another for a sur- 
 charge {y). But where cattle are turned on the common without 
 any colour or pretence of right, as by a stranger, a commoner may 
 distrain them {z). The general rule, however, that one commoner 
 cannot distrain the cattle of another, may be superseded by a 
 special agreement; as, where A. being possessed of a quantity of 
 land in a common field, and having p, right of common over the 
 whole field, and B. having a right of common over the whole field, 
 they entered into an agreenient not to exercise their respective 
 rights for a certain term of years, and each party covenanted to 
 that effect, and during the term the cattle of B. came upon the land 
 
 (o) Moss V. Oallimon, Doug. 279. (u) Snell v. Finch, 13 C. B. (N. S.) 
 
 ip) Evans v. miott, 9 A. & E. 342. 661 ; 32 L. J., C. P. 117. 
 
 (?) Brnvm v. Storey, 1 M. & G. 117. {x) 1 Koll. Abr. 405 (A) pi. 6. 
 
 ('•) ^!>i^- {y) Kail v. Bardi ng, Burr. 2427. 
 
 (s) IVte&rv. SraTiscomSe, 5Q. B. 373. (z) Ibid 
 
 {t) Trent v. ZTimt, 9 ExcL. 14. 
 
DISTEESS. 597 
 
 of A. :— it was held, th^t A. might distrain them damage feasant, 
 for, by the operation of the agreement, B. stood in the situation of 
 a stranger -with regard to A. (a). 
 
 A tenant holding over after the expiration of his term, cannot 
 distrain the landlord's cattle, which were put on the land by the 
 landlord for the purpose of taking possession (b). Lessee for years 
 assigns his terni, reserving a rent ; he cannot distrain for such rent 
 arrear at common law, because he has not any reversion ; nor can 
 he distrain for it under 4 Geo. II. c. 28, s. 5, as a rent-seek, 
 because a rent-seek cannot issue out of a term of years (c). So 
 if termor lease for the remainder of the term (d). In such cases 
 an action of debt is maintainable (e), or assumpsit, for use and 
 occupation (/). A tenant from year to year, under-letting from 
 year to year, has a sufiScient reversion entitling him to distrain (g). 
 Although receivers appointed by the Court of Chancery have a 
 power, where necessary, to distrain for rent, and need not apply 
 first to the court for a particular order for that purpose (h), yet an 
 authority to tenants to pay rent to J. S., whose receipt shall be 
 their discharge, does not entitle J. S. to distrain (i). 
 
 In case of the goods of a tenant, from whom rent is in arrear, 
 being taken in execution under a warrant from a county court, the 
 bailiff of the county court is directed by 19 & 20 Vict. c. 108, s. 
 75, upon notice from the landlord, within five days from the seizure 
 or before the goods are removed, to distrain for the rent claimed 
 and the costs of the distress, and out of the proceeds of the sale 
 satisfy, 1. The costs of the sale. 2. The landlord's claim, not 
 exceeding one year's rent in any case. 3. The execution creditor, 
 rendering the overplus to the execution debtor. This section does 
 not authorize the bailiff to distrain the goods of a stranger which 
 are upon the premises (k). 
 
 V. Of the Ti/me at which a Distress may he taken. 
 
 As rent is not due until the last minute of the natural day, on 
 which it is reserved, it follows that a distress for rent arrear cannot 
 be made on that day (I). " One cannot distrain the same day the 
 rent grows due, but it must be the day after." Sir M. Hale, MS. 
 cited Hargr. n. 6, 1 Inst. 47, b. At the common law, therefore, 
 if a lease was made at Michaelmas for a year, reserving rent at 
 
 (a) Whiteman v. King, 2 H. Bl. 4. {g) Curtis v. Wlmler, 1 M. & Malk. 
 
 (b) Taunton v. Oostar, 7 T. R. 431. 493. 
 
 (c) V. Cooper, 2 Wils. 375 ; (h) Bennett v. Sobins, 5 C. & P. 379. 
 
 Parmenter v. Webber, 2 Moore, 656. (i) Ward v. Shew, 9 Bingh. 608 ; 
 
 {d) Preece v. Corrie, 5 Bingh. 24 ; Wheeler v. Branscom.be, supra. 
 
 Pascoe V. Pascoe, 3 B. N. C. 905. (*) Beard v. Knight, 27 L. J. Q. B. 
 
 (e) Newcomb v. Harvey, Carth. 161. 359. 
 
 (/) PoUoch V. Slacey, 9 Q. B. 1033. (?) Duppa v. Mayo, 1 Saund. 282, 
 
598 DISTRESS. 
 
 Lady-day and Michaelmas, the lessor was deprived of his remedy 
 by distress for the rent due at Michaelmas ; because he could not 
 distrain after the expiration of the term (m), though the tenant con- 
 tinued in occupation, and the rent was due before (n). But by 
 8 Ann. c. 14, ss. 6, 7,-^ Any person having any rent in arrear upon, 
 any lease for life or lives, or for years, or. at will, may distrain for 
 such arrears within six calendar months after the determination 
 of the lease, and during the continuance of such landlord's title or 
 interest, and during the possession of the tenant from whom the 
 arrears are due. Although this proviso is in terms confined to the 
 possession of the tenant, yet it has been held, .that where, the 
 tenant dies before the term expires, and his persopal representative 
 continues in possession during the remainder, and after the expira- 
 tion of the term, the landlord may distrain within six calendar 
 months after the end of the term for rent due for the whole term(o), 
 but then the tenancy must not be determined by the death of the 
 lessee ; and in case of a tenancy at will determined by the death 
 of the tenant, the landlord could not distrain on the demised 
 premises under ss. 6 & 7 (p). So where a tenant, by permission of 
 the landlord, remained in possession of part of a farm' after the 
 expiration of the tenancy, it was held, that the landlord might 
 distrain on that part within six calendar months after the expii-a- 
 tion of the tenancy ; for the operation of the statute is not confined 
 to cases of a tortious holding, or to a holding of the whole (g). 
 In Beavan v. Delahay, 1 H. Bl. 5, it was held, that the term was 
 continued by the custom of the country, for the purpose of giving 
 a right to the landlord to distrain on the premises in which the 
 waygoing crop remained (7-). " The statute of Anne applies only 
 to cases in which the tenancy has been determined by lapse of 
 time,' or perhaps by notice to quit, and not to cases where it has 
 been put an end to by the tenant's own wrongful disclaimer." 
 Per Patteson, J. (s). And " to make the statute apphcable, there 
 must be a keeping as the party's own, to the exclusion of other 
 people." Hence, where the tenant of a farm having remained a 
 few days after the expiration of his term, and after entfy by a new 
 teuant went away, leaving a cow and some pigs, but not giving any 
 further intimation of a purpose to return, or to continue holding 
 any part of the farm ; it was held, that the landlord could not 
 justify distraining the goods so left for rent arrear, under the 
 statute (t). But a termor who has underlet to a tenant cannot 
 distrain after the expiration of his interest (u). 
 
 A distress for rent arrear can be taken only during the day- 
 Cm) 1 Inst. 47, b. (r) Cfriffiths v. Pulesfon, 13 M. & W. 
 
 (n) Williams v. Stimen, 9 Q. B. 14. 358, ace. 
 
 (0) Braithwaite v. Coohsey, 1 H. Bl. (s) Doe v. Williams, 7 C. & P. 323. 
 
 465. , (t) TayUrson v. Peters, 7 A. & E. 110. 
 
 (p) Turner v. Barnes, 2 B. & S. 435. {u) Bmney. Richardson, 4 Taunt. 718. 
 
 (j) Nuttall V. Stcmmion, 4 B. & C. 61. 
 
DISTEESS. 599 
 
 time (x). "Before sun-rising or after sun-set no man may distrain 
 but for damage feasant" (y). And this is in order to give the 
 tenant an opportunity of preventing the distress by tendering the 
 rent (z). But cattle damage feasant may be distrained not only in 
 the day-time, but during the night also; otherwise they might 
 escape (a). 
 
 By 3 & 4 Will. IV. c. 27, s. 2, distresses for the recovery of any 
 rent may be made at any time within twenty years next after the 
 time at which the right to make such distress shall have first 
 accrued. But this section does not apply to rents reserved oii 
 leases for years, but only to rents existing as an inheritance dis- 
 tinct from the land, and for which before the statute an assize 
 would have lain(&). By the 42nd sewtionno arrears of rent can 
 be recovered by distress for more than six years. See " Debt for 
 Eent Arrear," Statute of Limitations. 
 
 Kent (whether the demise be by parol or deed) is a debt of equal 
 degree with a debt by specialty (c). The mere giving of a pro- 
 missory note, as it constitutes a debt of an inferior degree, cannot 
 before payment extinguish a claim for rent ; nor does the receipt 
 of such note of itself suspend the right of distraining (d). " The 
 cases in which the giving of the bill has been held not to suspend 
 the remedy on a demand by specialty or for rent may be accounted 
 for on the ground, that the legal impHcation of an assent that the 
 bill shall operate as a conditional payment does not arise, when, if 
 it did, the plaintiff would be deprived of a better, remedy than an 
 action on a biU, as in Davis v. Oyde, in which, the debt being 
 for rent, the plaintiff would part with a remedy by distress." 
 Per Maule, J. (e). But a right of distress may be postponed by 
 express agreement (/). 
 
 VI. Of the Place where a Distress may be taken. 
 
 A distress for rent-service may be taken on any part of the land 
 holden : so for a rent charged or reserved upon a lease upon any 
 part of the land out of which the rent issues. And if a house be 
 upon the land demised or charged, a distress may be taken in the 
 house, if the outer door be open (g). So it may be through the 
 
 (x) 1 Inst. 142, a. ; see Tutton v. (z) 8 Kep. 147. 
 
 DarJce; Nixon v. Freeman, 5 H. & N. (a) 1 Inst. 142 a. 
 
 647,'; 29 L. J., Ex. 271. (i) (?ra"< y- -^Ws, 9 M. & W._ 113. 
 
 iy) Mirronr, c. 2, s. 26. See also 7 (c) Oage v. Acton, 1 Salk. 326. 
 
 Eep. 7, a, that a distress for rent or ser- (d) Bams v. Oyde, 2 A. & E. 623. 
 
 vice cannot be taken in the night. See (e) BelsTiaw v. Bush, 11 0. O- ^Oo- 
 
 6 C. & P. 213, AUenburgh v. Peaple, (/) Giles v. Spenxer, 26 L. J., t. T. 
 
 where Parlce, J., ruled that no one had 237. 
 
 a right to make a distress after dark. (?) 1 Roll. Abr. 671 (HI.) pi. i- 
 
600 DISTEESS. 
 
 doors or windows (^j. "If an outward door be open, an inner 
 door may be broken in order to take a distress " (i). "But 
 a padlock put on a barn door cannot be opened by force for the 
 purpose of distraining the corn;" f&r Lord Hardwicke, C. J., 
 nor a stable, if locked (fc). So gates or_ inclosures cannot be 
 broken open or thrown down to take a distress (Z), nor can the 
 entry be made through a window fastened by a hasp(m), nor 
 by breaking a window {n) ; but it is not illegal to climb over a 
 fence, and so gaining access to the house by an open door(o). 
 Where a -distress has been once legally made, and the man in pos- 
 session quits the house for a temporary purpose, as to take refresh- 
 ment, he may, if he is refused admittance on his return, break 
 open a door {p). For a rent-service or rent-charge issuing out of 
 land, which lies in different couiities, a distress for the whole may 
 be taken in one county (g). So if a rent-charge issue out of land 
 in the possession of many tenants, a distress may be taken upon 
 the possession of one, for the whole rent, for it issues out of each 
 part (r). But where there are separate and distinct demises, there 
 must be separate distresses on the several premises subject to the 
 distinct rents, although the several premises are demised to the 
 same tenant and by the same deed (s). By 11 Geo. II. c. 19, s. 8, 
 — The landlord may distrain any cattle or stock of the tenant, de- 
 pasturing on any common appendant or appurtenant, or any way 
 belonging to the premises demised. If the lord come to distrain 
 cattle which he sees then within his fee, and the tenant or any 
 person, to prevent the lord from distraining, drive the cattle out of 
 the lord's fee into some other place, yet may the lord freshly follow 
 and distrain the cattle ; for in judgment of law the distress will he 
 considered as taken within his fee {(). A different rule holds with 
 , respect to distresses for damage feasant ; for if the owner of the 
 beasts chase them out of the soil, even with a view to evade the 
 distress, yet the owner of the soil cannot distrain them ; because 
 the beasts must be damage feasant at the time of the distress (m). 
 By 11 Geo. II. c. 19, s. 1 (a;), — If any lessee, for life, years, will 
 or otherwise, of lands or tenements, upon the demise whereof any 
 
 (h) Com. Dig. tit. Distress (A. 3). yoini distress, however, under sewm^war- 
 
 (i) Per Lord Hardwicke, C. J., in rants is not, it seems uoitZ, if one of the 
 
 Brovming v. Bcmn, Ca. Temp. Hardw. warrants be good ; Governors of Bristol 
 
 168. Poor V. Wait, 1 A. & E. 264 ; although 
 
 (k) Brown v. Glenn, 16 Q. B. 254. the distrainor might be liable for an ex- 
 
 {l) 1 Inst. 161, a. See 11 Geo. II. c. cessive distress ; 5. C. ; or in trespass, 
 
 19, s. 7, post, p. 601. Zamont v. Southall, 5 M. & W. 416. 
 
 {m) Hancock v. Austin, 14 C. B. (IT. U) 1 Inst. 161, a. 
 
 S.) 634 ; 32 L. J., C. P. 252. (u) Ibid. 
 
 (n) Attack v. Bramwell, 3 B. &S. 520. (x) This section is the same as sect. 2 
 
 (o) Eldridge v. Stacey, 15 C. B. (N. of 8 Ann. c. 14, except as to the time 
 
 S.) 458. allowed for the seizing of the goods after 
 
 (p) Bamnistery. Byde, 2 E. & E. 627. the carrying off; the statute of Anne 
 
 (?) 1 EoU. Abr. 671 (M.)pl. 10, 11. allowed only five; this statute aUows 
 
 (r) 1 Koll. Abr. 671 (M.) pi. 12. thirty days. 
 (s) Sogers v. Birkmire, Str. 1040. A 
 
DISTRESS. 601 
 
 rent is reserved, shall fraudulently or clandestinely carry off his 
 goods from such demised premises, to prevent a distress, the lessor 
 or any person empowered by him, inay, within thirty' days after 
 the cai-rying off, distrain such goods, wherever found, for the rent 
 arrear, and sell or dispose of the same, as if distrained on the 
 premises : provided (sect. 2), such goods have not been sold bond 
 fide and for a valuable consideration, before the seizure, "to a 
 'person not privy to the fraud" {y). 
 
 The rent must be due, for the landlord cannot distrain under 
 this statute before the rent becomes due (z) ; although he may on 
 the day it becomes due (a). The words are "fraudulently or clan- 
 destinely." Where, therefore, a tenant removed his goods in open 
 day, giving notice to his landlord, it was held, that although the 
 removal was not clandestine, yet if it was fraudulent the case was 
 within the statute (b). Although the removal be admitted to be 
 with a view to avoid a distress, yet it is a question for the jury 
 whether it is fraudulent or not (c). The mere removal is not of 
 itself, it seems, sufficient (d). The statute does not apply to cases 
 where the lessor has parted with his reversion (e) ; and it applies 
 to the goods of the tenant only, and not to those of a stranger (/) 
 or lodger (g) ; but it is sufficient in a plea to state that the goods 
 were the tenant's, and it is not necessary to negative the proviso 
 as to bond fide purchasers (h). 
 
 By sect. 7, — ^Any place, in which goods or chattels, fraudulently 
 or clandestinely conveyed away, are locked up or secured, so as to 
 prevent the same from being taken as a distress for rent arrear, may 
 be broken open and entered in the day time by the party distrain- 
 ing; first calling to his assistance the constable or other peace- 
 officer of the place where the goods are suspected to be concealed ; 
 and in case of a dwelling-house, oath being first made before a 
 justice of the peaceof a reasonable ground to suspect that such 
 goods are therein ; and such goods may be taken and seized, for 
 the arrears of rent, as if they had been in an open place. It is not 
 necessary that a lessor seizing goods under this section should be 
 assisted by an ordinary peace officer, a special constable appointed 
 for the. occasion is sufficient (i). Nor is it necessary that any 
 notice should be given or request made to the owner of the pre- 
 mises, whereon the goods are, before proceeding to break them 
 open (Jc) ; but the presence of a peace officer, when the breaking 
 open took place, must be both averred in the plea and proved (l). 
 
 (y) TMs section is copied from the 3rd (e) Ashmore v. Hardy, 7 C. & P. 501. 
 
 of the 8 Ann. c. 14, with the exception of (/) Thornton v. Adomis, 5 M. & S. 38. 
 
 the words in inverted commas. ((/) Postman v. Harrell, 6 C. & P. 226. 
 
 (a) Band v. Vaughan, 1 B. N. C. 767. {h) Williams r. Hoberis, 7 Exch. 618. 
 
 {a) Dibble v. Bowater, 2 E. & B. 564. {i) CartwrigU v. Smith, 1 M. & Kob. 
 
 (6) Opperman v. Smith, 4 D. & E. 33. 284. 
 
 (c) John V. Jenkins, 1 C. & M. 227. (^) Williams v. Roberts, 7 Exch. 618. 
 
 (d) Parry v. Duncan, 7 Bingh, 243. (l) Rich v. Woolley, 7 Bingh. 651. 
 
603 DISTEESS. 
 
 VII. The manner of disposing of Distresses, and herein of the 
 Sale of Distresses for Bent Arrear. 
 
 At the common law, the party distraining might have driven the 
 distress from the place where it was taken, into any other place, 
 even in a distant county. It is obvious, that the exercise of such 
 a power must have been attended with great oppression; more 
 especially, as the tenant was obliged to provide sustenance for his 
 beasts, if they were impounded in an open pound ; and the beasts 
 being driven into another county, the tenant must frequently have 
 been at a loss where to make replevin (m). A partial remedy for 
 this evil was afforded by the 52 Hen. III. c. 4, which prohibited 
 all persons from driving the distress out of the county where it 
 was taken. But the 1 & 2 Phil. & M. c. 12, has given a further 
 check to it. By this statute it is enacted, — " That no distress of 
 cattle shall be driven out of the hundred, rape, wapentake, or lathe, 
 where the distress is taken, except it be to a pound overt within 
 the same shire, not above three miles distant from the place where 
 the distress is taken ; and no cattle or other goods distrained for 
 any manner of cause, at one time, shall be impounded in several 
 places, upon- pain of forfeiting, to the party grieved, one hundred 
 shillings and treble damages." If the hundred, in which the cattle 
 are distrained, be in one county, and the hundred into which they ■ 
 are driven be in another, the venue may be laid in either county (ti). 
 Impounding in another county does not make the distrainor a 
 trespasser, though it subjects him to the above penalty (o). Where 
 lands in adjoining counties are let upon one demise, the cattle may 
 be taken to a pound in either county, but they cannot be driven 
 through an intermediate county, if the counties do not adjoin {^). 
 
 Persons distraining for rent arrear may impound or " otherwise 
 secure " the distress in such part of the land chargeable with th6 
 rent, " as shall be rrvost fit and convenient," 11 Geo. II. c. 19, s. 10. 
 Where the distrainor put his hand upon a bullock in an open field, 
 and then made a list of twenty cattle, which he delivered to the 
 tenant, leaving a man in possession, and the next morning delivered 
 a notice stating that he had distrained the twenty cattle, and had 
 " impounded them upon the premises," it was held that there 
 was a sufiicient impounding, or at all events, " securing," under the 
 statute (g). Strictly speaking, the distrainor in a dwelling-house 
 ought to select one room, and that the most convenient room (r), 
 and impound the goods therein, or remove them ; but very slight 
 evidence of consent by the distrainee, that they may remain as they 
 
 (m) 2 Inst. 106. (q) Thomas v. Harries, 1 M. & G. 695, 
 
 (n) Pope-1. Davis, 2 Taunt. 252. See post, tit. "Replevin"— "K/wfer of 
 
 (o) GimbartY. Pelah, 2 Str. 1272. Arrears." 
 
 (p) Walter T. RumballjlA. 'Bis.yra.. &Z. (r) Tfootfey. Dwrmw*, 16M. &W.149. 
 
DISTRESS. 603 
 
 were, is sufficient, e. g. an admission by the distrainee that the 
 distrainor " had acted like a gentleman " (s). So where the dis- 
 trainee thanked the distrainor for the mode in which the distress 
 had been conducted {t). A cottage may be locked up so as to ex- 
 clude the tenant altogether, if necessary to secure the distress ,(u). 
 Section 8, which empowers the landlord to seize growing crops as 
 a distress, authorises him to cut, gather and lay up the same, when 
 ripe, in barns, or other proper places on the premises, if any ; if 
 not, then in other barns or proper places, as near as may be to the 
 premises. Provided (sect. 9) that notice of the place where the 
 goods are deposited be given to, or left at the last place of abode 
 of, the tenant, within one week after the lodging of the distress. 
 
 By 5 & 6 Will. IV. c. 59, s. 4, partie^ impounding cattle are re- 
 quired to provide sufficient food for them, and may then recover 
 before a justice of the peace not exceeding double the value of 
 such food from the owner, or may, if necessary, after seven days, 
 seU the distress and recoup themselves the value of the food sup- 
 plied, rendering the ovei'plus to the owner (x). By sect. 5, where 
 animals have been impounded without sufficient food for more than 
 twenty-four hours, any person may enter the pound and supply 
 them with food, without being liable to an action of trespass or 
 other proceeding. 
 
 Distrainors are bound to see that the pound to which they take 
 the distress is in a fit and proper state to receive it, at the time of 
 impounding. It is no defence for abusing the distress by putting 
 the animals distrained in a muddy pound, that the place was the 
 manor-pound, and was generally in a proper state (y) ; and if the 
 usual pound is in unfit state, the distrainor should find another (z). 
 
 Sale of Distress for Rent Arrear. — At the common law, dis- 
 tresses for rent arrear could not be sold, but only detained as pledges 
 for enforcing the payment of such rent ; but by the 2 W. & M. 
 sess. 1, c. 5, s. 2, it is enacted, that — Where any goods or chattels, 
 (see post, p. 606) shall be distrained for any rent reserved and due 
 upon any demise, and the tenant or owner of the goods shall not 
 vAthin five days next after such distress, and notice thereof, with 
 the caiise of such talcing, left at the chief mansion-house or other 
 most notorious place on the premises charged with the rent, re- 
 plevy the same, the person distraining may, with the sheriff or 
 under-sheriff of the county, or constable of the hundred, parish, or 
 place, where the distress is taken, cause the distress to- be appraised 
 by two sworn appraisers, whom such sheriff, &c. shall swear to ap- 
 praise them truly, and after such appraisement, may sell the same 
 towards satisfaction of the rent, and the charges of the distress, 
 
 (s) Washbom v. Blach, 11 East, 405. (x) See Layton v. ffurry, 8 Q. B. 811. 
 
 (t) Tennant v. Field, 27 L. J., Q. B. 33. {^J) Wilder v. Speer, 8 A. & E. 547. 
 
 (u) Woods V. Durrani, 16 M. & W. 149. (z) Signell v. Clarice, 6 H. & K 485. 
 
604 DISTEESS. 
 
 appraisement and sale, leaving the overplus, if any, in the hands 
 of the sheriff, &c. for the owner's use. 
 
 "This statute does not affect distresses damage feasant; conse- 
 quently they remain, as they were at common law, mere pledges ; 
 and the sale of them will make the party distraining a trespasser 
 ab initio." Per Lord Hardwicke, C. J. (a). The five days are 
 reckoned exclusive of the day of distress and day of sale (6) ; and 
 a reasonable time after the expiration of the five days is allowed 
 to the landlord for appraising and selling the goods (c). But if 
 goods remain on the premises after the expiration of that time 
 without the tenant's consent (d), the distrainor becomes a tres- 
 passer (e) ; although for the mere retention of the goods, he is not 
 liable, at least in trespass (/), although he may be in trover. 
 Goods assigned to the defendant by a bill of sale, but remaining in 
 the assignor's possession, were distrained for rent, and duly ap- 
 praised, and the landlord, instead of selling them, took them at 
 the appraised price in satisfaction of the rent and charges, and 
 then gave them to the plaintiff; the defendant having followed and 
 seized them, it was held that there had been no sale under the 
 statute 2 W. & M. sess. 1, c. 5, s. 2, and therefore the property 
 remained in the defendant, notwithstanding the statute 11 Geo. II. 
 c. 19, s. 19, and that he was justified in seizing them (g). 
 
 The notice must be in writing (h), and sufficiently certain to 
 inform the tenant or the person whose effects are taken, by ex- 
 pressing what are the goods taken, and also what is the amount of 
 the rent in arrear (i). The general description, " any other goods, 
 chattels and effects on the premises, or in or about the premises, to 
 pay the rent," &c., is sufficient, for that specifies and impounds ail 
 the chattels (j) ; but " all other goods, &c. that Tnay be required in 
 order to satisfy the above rent, &c." is insufficient, for that leaves 
 it uncertain what goods are taken (k). It is not necessary to set 
 forth in the notice at what time the rent became due (l). Nor 
 does a wrong statement in the notice, of the person to whom the 
 rent is due, vitiate the distress, if in fact at the time of entry the 
 distrainor had authority to enter (m) ; for a party may distrain for 
 rent and avow for fealty {n). So where the notice is for more than 
 is actually due, but the goods distrained and sold only cover the 
 real amount, there is, in the absence of special damage, no cause 
 
 {a} Dorton v. Pickup, Sittings after (h) Wilson v. NigMingaU, 8 Q. B. 
 
 M. T. 9 Geo. II. MS. 1034. 
 
 (J) EoUnson v. WaMitigton, 13 Q. B. (i) This is not necessary at common 
 
 753. law. P6rPwr]ce,B.,Tancredy. Leylawd, 
 
 (c) Pitt V. Shew, 4 B. & Aid. 208. 16 Q. B. 669. 
 
 (d) See Fisher v. Algar, 2 0. & P. 374. (j) WaJcemam v. Lindsey, 14 Q. B. 625. 
 
 (e) Griffin-v. Scott, 2 Ld. Eaym. 1424; {k) KerTry v. Hardiiig, 6 Exch. 234. 
 LaM V. Thomas, 12 A. & E. 117, per (I) Moss v. Oallimore, Doug. 280. 
 Lord Dennvm, C. J. \m) Trent v. Hunt, 9 Exch. 14. 
 
 (/) West V. Nibhs, 4 C. B. 172. („) Gwinnett v. Phillips, 3 T. R. 645, 
 
 (g) King v. England, 4 B. & S. 782 ; per I;ord Kenyon, 0. J. 
 33 L. J., Q. B. 145. 
 
DISTRESS. 605 
 
 of action (o) ; nor does it make any difference" that it was done 
 " maliciously," for an act which does not amount to a legal injury 
 cannot be actionable, because it is done with a bad intent (p). In 
 Walter v. Bumbal, Ld. Raym. 53, it was held, that notice to the 
 owner (who was not the tenant) was good notice under the act as 
 against him ; and that he could not object that no notice had been 
 given to the tenant or left at the mansion-house, or most notorious 
 place on the premises (q). 
 
 The appraisers must be sworn before the constable of the parish 
 where the distress is taken; it will not suffice, if sworn before 
 constable of adjoining parish (r) ; although the proper constable 
 cannot be found. And the constable must attend with the ap- 
 praisers at the time the goods are app?kised, and must swear them 
 before they make their appraisement (s). If the distress be taken 
 in two counties, but impounded in one, the constable of the parish 
 where the impounding takes place, is the proper person to swear 
 the appraisers (t). The party distraining ought not to be sworn as 
 one of the appraisers, for he is interested in the business (u). The 
 appraisers must be reasonably competent, but need not be profes- 
 sional appraisers (as) ; and if the tenant dispenses with their em- 
 ployment, he cannot afterwards complain (y). In actions for selling 
 goods distrained for rent, without appraisement, the measure of 
 damages is the value of the goods sold, minus the rent due (z). 
 
 This statute, although it authorizes a sale after the five days, 
 does not take away the right to replevy, after the five days, in 
 case the distress is not sold ; for it does not contain any negative 
 words, and at common law the distress was at all times replevisable. 
 Secus after a sale ; for then the purchaser is entitled to take the 
 goods and retain them (a). 
 
 A landlord is not, it seems, entitled at common law to sell crops 
 distrained subject to a condition (in accordance with the custom of 
 the country, or the express terms of the tenancy), that they shall 
 be consumed on the farm, if, by so doing, they sell for less than 
 they othei-wise would have done (6). But as, by sect. 11 of 56 
 Geo. III. c. 50, assignees of the chattels, stock or crops of any 
 person employed in husbandry, are forbidden from using or dis- 
 posing of any such produce in any other way than the tenant might 
 have done, it seems that the landloi-d would not, since that statute, 
 
 (o) Tancred v. Zeyland, 16 Q. B. 669, («) AnOrews v. Russell, Bull. N. P. 81 
 
 OTerrulma Tayfor v. Henniker, 12 A. & (5th ed.), adm, Westwood v. Covme, 1 Sta. 
 
 E.488. 172.' 
 
 (p) Stevenson v.Newnham,13 C.B.285. (x) Soden v. Byton, 6 C. B. 427. 
 
 is) Walter v. Emibal, Ld. Kaym. 53. (y) Bishop v. Srymt, 6 0. » J^- 4|4- 
 
 See Wilsm, v. Nightingale, 8 Q. B. 1034. («) Knight v. Egerton,! Exch. 407. 
 
 (r) Avenall T. Oroker, M. & Malk. 172. (a) Jacob v. King, 5 Taunt. 451. 
 
 (s) Kemieyy. May, 1 M. & Rob. 56. . (6) Ridgway v. lord Stafford, 6 txoli. 
 
 (t) Walter v. Rumbal, Ld. Eaym. 53. 404. 
 
606 DISTEESS. 
 
 be liable for not selling the goods for the best price, if such a con- 
 dition were imposed (c). 
 
 The overplus, which is to be handed to the sheriff for the 
 owner's use, after satisfying the rent and charges, means the over- 
 plus after payment of the reasonable charges. Where the dis- 
 trainor receives from the broker the overplus, and makes no 
 objection as to the reasonableness of the charges, it is a question 
 for the jury whether he accepted such balance in satisfaction or 
 not, and if not, whether it was suflficient to satisfy the real balance 
 after deducting the reasonable charges (d). If the distrainor 
 hands over the overplus to a third party, no action for money had 
 and received can be maintained against him (e). The remedy is 
 by an action on the statute for not leaving the overplus with the 
 sheriff (/). 
 
 By 11 Geo. II. c. 19, s. 10, any person lawfully taking any dis- 
 tress for any kind of rent may impound or otherwise secure the 
 distress so made on the most fit and convenient part of the 
 premises chargeable with the rent, and nlay appraise, sell, and' dis- 
 pose of the same upon the premises, in like manner and under 
 the like dirfections and restraints as any person may do off the 
 premises by virtue of the 2 W. & M. c. 5. The 1 & 2 P. & Mi c. 
 12, s. 2, which enacts,— that no person shall take for keeping in 
 pound, impounding or poundage of any distress, above 4d for any 
 one whole distress that shall be so impounded — does not extend to 
 cases where goods are impounded xmder the foregoing section of 
 the 11 Geo. II. c. 19 (g). An appraisement on the premises under 
 the last-mentioned section does not so change the property, that 
 the tenant may not replevy them before an actual sale (h). 
 
 The sale of growing crops is not authorized by the 2 W. & M. 
 c. 5, nor by^the 11 Geo. II. c. 19, s. 8, till after appraisement, and 
 that cannot be made till they are ripe. Hence a tenant Avhose 
 growing crops have been seized, as a distress for rent, before they 
 were ripe, cannot maintain an action upon the case against the 
 landlord for selling the same before the five days, or a reasonable 
 time have elapsed, such sale being wholly void (i). 
 
 In order to prevent excessive charges by brokers and other per- 
 sons employed to make distresses on poor tenants, it was enacted 
 by .57 Geo. III. c. 93, s. 1, that no person making any distress for 
 rent, where the sum due shall not exceed 201., shall take any other 
 charges, than those mentioned in the schedule annexed to the act, 
 which are as follows : — 
 
 (o) Wihnof V. Rose, 3 E. & B. 563. {g) Child v. Chamlerlmn, 5 B. feAd. 
 
 {d) Lyon-v. TomMes, 1 M. & W. 603. 1049. 
 
 (e) Eems v. Wright, 2 H, & N. 627. A) Jacob v. King, 6 Taunt. 451. 
 
 (/) Yates V. Mastwood, 6 Exch. 805 ; (i) Owen v. Legh, 3 B. & Aid. 470.' 
 
 Evans v. Wright, 27 L. J., Ex. 50. ' 
 
DISTRESS. 607 
 
 Levying distress ........ 30 
 
 Man in possession, per day '26 
 
 Appraisement, where by one broker or more, 6d' iii 
 
 the £ on the value of the goods. 
 Stamp, the lawful amount thereof. 
 
 All expenses of advertisement, if any such . . . 10 
 Catalogues, sale and commission, and delivery of goods. 
 
 Is. in the £ on the net produce of the sale. 
 .This statute has not repealed the 2 W. & M. sess. 1, c. 5, s. 2 
 (cmte, p. 603), so as to make an appraisement by one broker suffi- 
 cient Qc). 
 
 Under the 57 Geo. III. c. 93, parti^fe aggrieved may apply to a 
 J. P. See sections 2, 3, 4, and 5. But the sixth section is general, 
 for by that — Every broker or other person making and levying 
 any distress whatsoever, shall give a copy of his charges, and of 
 all the costs and charges of any distress whatsoever, signed by him, 
 to the person on whose goods the distress is levied, although the 
 amount of rent demanded exceed 201. This section only applies 
 to persons actually interfering in making the distress, and there- 
 fore a landlord who does not personally interfere in the distress, is 
 not liable for the neglect of the broker employed by him, in not 
 delivering a copy of his, charges (I). The provisions of the above 
 statute have, by 7 & 8 Geo. IV. c. 17, been extended to distresses 
 for land-tax, assessed taxes, rates, tithes, &c., for any sum not 
 exceeding 20^. 
 
 VIII. Pound Breach and Rescue (m). 
 
 1. Of Pound Breach. — An action for a pound breach lies, where 
 a person distrains cattle damage feasant in his land, or for rent or 
 sei-vices, and puts them into the common pound, or into another 
 pound or place, which shall be said to be a lawful pound, and the 
 owner of the cattle or other person takes the cattle out of the 
 pound, and drives them where he pleases {n). If a person sends 
 his servant to distrain for rent or services, and the servant dis- 
 trains the cattle, and impounds them, and a stranger takes them 
 out of the pound, the action must be brought by the master and 
 not by the servant : for it is the master's pound (0). If a person 
 distrain cattle for damage feasant, and put them in the pound, 
 and the owner, who had convmon there, make fresh suit, and find 
 the door unlocked, he may justify the taking away the cattle. If 
 
 (Jc) Allen V. Flicker, 10 A. & E. 640. cattle are taken damage feasant, Isy 6 & 7 
 
 (l) Hart V. leacji, 1 M. & W. 560: Viot. 0. 30. , 
 (m) A summary remedy is given in (n) V. 'N. B. 10(), a. 
 
 cases of pound breach and rescue, where (0) F. W. B. 100, b. 
 
608 DISTEESS. 
 
 the owner break the pourid, and take away his goods, the party 
 distraining may have his action for pound breach, and he may also 
 take his goods that were disti-ained wheresoever he find them, and 
 impound them again (q). 
 
 A pound-keeper is bound to receive everything offered to his 
 custody, and is not answerable whether the thing were legally im- 
 pounded or not. If the cattle be wrongfully taken, the person 
 who brings the cattle is answerable, and not the pound-keeper, 
 unless it can be proved that he has transgressed the limits of his 
 duty, and assented to the trespass. When the cattle are once im- 
 pounded, he cannot let them go without a replevin, or without the 
 consent of the party. When the cattle are in the pound, they are 
 in the custody of the law ; and if the pound is broken, the pound- 
 keeper cannot bring an action, but the person who distrained 
 them (r). 
 
 2. Of Rescue. — Rescue, as far as the same relates to distress, 
 means the taking away and setting at liberty, against law, a dis- 
 tress taken (s). Rescue lies, where a person distrains for rent or 
 services, or for damage feasant, and is desirous of impounding the 
 distress, and another person rescues the distress from him(i). 
 The party distraining must be in possession of the distress, other- 
 wise there cannot be a rescue. Although rescue will not lie at 
 the suit of a person who is prevented by another from making a 
 distress, yet an action on the case will lie for the disturbance (u). 
 If a person send his servant to distrain, and rescue be made upon 
 the servant, the action must be brought by the master who sus- 
 tains the injury, and not by the servant (a;). If a distress be taken 
 without cause, as where rent is not due (j/), the owner may make 
 rescue before the distress is impounded (s). So, if the owner 
 tender the i-ent before distress is taken (a). But, after the distress 
 is impounded, the owner cannot break the pound, and take the 
 distress out of the pound : for it is then in the custody of the 
 law (6). Yet if a distrainer take the distress out of the pound for 
 the purpose of making an unlawful use of it, the owner may 
 retake his property without being liable for a rescue or pound 
 breach (c). 
 
 The action of rescue has fallen into disuse ; the usual remedy at 
 this time is by an action on the case, under 2 W. & M. sess. 1, c. 5, 
 s. 4, which enacts, that — Upon any pound breach, or rescue of 
 
 (?) 1 Inst. 47, b. (y) 1 Inst. 160, b, 
 
 (r) Badkin v. Powell, Cowp. 470, See (s) Ibid. 47, b. 
 
 2 W. & M. sess. 1, c. 5, infra. (a) Ibid. 160, b. 
 
 («) 1 Inst. 160, b. (h) Ibid. 47, b. 
 
 (0 F. N. B. 101, a. (c) Smith v. Wright, 6 H. &. W. 821 ; 
 
 (u) Ibid. 102, b. 30 L. J., Ex. 313. 
 (X) F. N. B. 101, b. 
 
DISTRESS. 609 
 
 goods or chattels distrained for rent, the party grieved shall in a 
 special action on the case, for the wrong thereby sustained recover 
 treble damages and costs against the offenders, or against the 
 owners of the distress, in case the same be afterwards found to 
 have come to their use or possession. The word treble refers to 
 costs as well as damages (d). Formerly, proof of a tender of the 
 rent after the impounding of distress, would not bar an action on 
 this statute (e). The rule was stated then : " Tender upon the 
 land before the distress (without the expenses (/) ) makes the 
 distress tortious ; tender after the distress and before the impound- 
 ing, makes the detainer and not the taking wrongful ; tender after 
 the impounding makes neither the one nor the other wrongful, for 
 then it comes too late, because then the cause is put to the trial 
 of the law to be there determined" (g). Now, however, upon the 
 equity of the statute 2 W. & M. sess. 1, c. 5, s. 2, an action is 
 maintainable if goods distrained for rent are sold after a tender 
 made within the five days, though the tender have been made after 
 the impounding (h). A plea of recaption upon a rescue must aver 
 that the recaption was on fresh pursuit (i). An action under this 
 section is not a penal one, so as to entitle the defendant to give 
 the special matter in evidence under the general issue by virtue of 
 21 Jac. I. c. 4 (;•). 
 
 IX. Of abusing the Distress, and of Irregularity in the Proceed- 
 ings by the Party Distraining. 
 
 An abuse of the distress makes the party distraining a trespasser 
 ab initio, except where it is otherwise provided by statute (k). 
 
 In trespass for breaking and entering the plaintiff's house, and 
 taking and carrying away his goods, the defendant justified the 
 taking and carrjdng away the goods, as a distress for damage 
 feasant : replication, that after the distress, the defendant con- 
 verted them to his own use : on demurrer, it was urged, that the 
 repHcation was a departure ; for it did not support the plaintiff's 
 declaration in trespass, but showed rather that he ought to have 
 brought trover on the conversion ; but the court oven-tiled the 
 objection, observing, that he who abuses a distress is a trespasser 
 ab initio, and, therefore, if in trespass, the defendant justifies 
 nomine districtionis, the plaintiff may show an abuse, and it is 
 not a departure, but will support the declaration : and so it does 
 in this case ; for the conversion is a trespass or trover at the plain- 
 tiff's election ; and the matter disclosed in the replication makes 
 
 (d) Lawson v. Story, Ld. Eaym. 19. N. 747. 
 
 See Gray on Costs, 182. (h) Johnson v. Upham, 28 L. J., Ex. 252, 
 
 (e) Ellis V. Taylor, 8 M. & W. 415. overruling ^ZZis v. Taylor, 8 M. & W. 415. 
 (/) Bennett v. Jffayes, 6 H. & N. 391. (i) Rich v. Woolley, 7 Bingh. 651. 
 
 , ig) 8 Eep. 147, a ; Singleton v. Wil- (») Oastleman v. Hicks, Car. & M. 266. 
 
 lia/ins, 5 L. T. (N. S.) 644 Ex. ; 7 H. & {k) See the statutes, infra, 
 
 n E 
 
610 DISTEESS. 
 
 good his election ; for it proves it a trespass as well as a trover (Z); 
 But where a landlord distrains for rent, amongst other thingsj goods 
 which are not distrainable in law, and the tenant payls the amoiint 
 of the rent and the costs of distress, upon which the_ distress is 
 withdrawn altogether, the tenant is entitled, in an action of tres- 
 pass, to recover only the actual damage sustained by the taking of 
 those particular goods, and not the whole amount paid by him ; 
 and in such a case the distrainor is a trespasser ab initio only as 
 to the goods which were not distrainable (m). 
 
 By 11 Geo. II. 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 dis- 
 tress itself shall not be deemed unlawful, nor the distrainor a tres- 
 passer ab initio, but the party grieved may recover satisfaction for 
 the special damage he has sustained and no more in an action of 
 trespass, or on the case, at the election of the plaintiff; and if he 
 recover, he shall have full costs. 
 
 In case for an irregular distress under the foregoing clause, it is 
 necessa.ry to state correctly to whom the rent distrained for is 
 due (n). The section says the tenant shall recover for the damages 
 he has sustained " and no more." Where therefore no actual 
 damage has been sustained no action can be maintained (o). Al- 
 though the statute gives the option, yet the tenant must pursue 
 the remedy proper under the circumstances Qo) ; trespass, if the 
 irregularity be in the nature of an act of trespass, — case, if it be 
 in itself the subject-matter of an action on the case (q). Thus 
 where the distrainor remained fifteen days on the premises, it was 
 held, that he was liable in trespass, at all events for the removal of 
 the goods (r), and, it would seem, for the remaining on the pre- 
 mises only (s). But where goods which had been fraudulently re- 
 moved off the premises of the plaintiff were retained possession of 
 by the defendant, after he had accepted the rent in arrear and the 
 charges of the distress from the plaintiff, it was held, that the mere 
 retaining possession of them was not a trespass (t). Note too, that 
 in this ease the goods had been already impounded. The tres- 
 
 (l) Qwrgrme t. Smith, Salk. 221 ; but (q) Messing v. Kemble, 2 Campb. 115. 
 
 in the case of a distress for rent, such a (r) Winterbomne v. Morgan, 11 East, 
 
 replication, since the 11 Geo. II. t. 19, 394. 
 
 would seem to be a departure. (s) Pn' Denmcm, C. J., Ladd r. 
 
 (m) Hamiey v. Pococlc, 11 M. & AV. Thomas, 12 A. & E. 126 ; Evam v. 
 
 7*0. Elliott, 5 A. & E. 142 ; Holmes v. Wil- 
 
 (n) Ireland V. Johnson, 1 B. N. C. 162. son, 10 A. & E. 503 ; Bowyer v. Cook, 4 
 
 But the rule is, that where an action is C. B. 236 ; but in the last two cases the 
 
 founded on a breach of duty, it is not original entry was a trespass, and it is 
 
 necessaryto state a. contract at all. Mar- clear that every continuation of ' an ori- 
 
 shall v. York and Newcastle Railwa/y, 11 gind trespass is a fresh trespass. Evams 
 
 C. B. 65S. V. Elliott was a case of replevin. 
 
 (o) Eodgers v. Parher, 18 C. B. 112, (t) West v. Nibhs, i C. B. 172. See 
 
 (p) Vertue v. BeasUy, 1 M. & Bob. 21. Hartley v. Moxhcm, 3 Q. B. 701. 
 
DISTEESS. 611 
 
 pass may be waived, and case brought for the consequential damage 
 by the removal, &c. of the goods (u) ; but this cannot be done if the 
 injury is to the realty (x). "There is no doubt that, where there 
 IS a direct injury, and also a consequential damage, that may form 
 the subject-matter either of case or trespass, but where there is a 
 direct injury to the soil and freehold, there is no other remedy but 
 trespass " (y). Where, however, a declaration states a wrong which 
 is a trespass, it is sufficient, even though in point of form it be 
 framed in case for the consequential injury (z). Since this statute 
 trover wUl not lie for goods irregularly sold under a distress, if 
 the whole (a), or any part (b) of the rent distrained be due at the 
 time of seizure, " for the distress, being lawful, binds the property 
 and takes the possession out of the pla«Qti£f " (c). But trover lies 
 iagainst a landlord who has unjustifiably taken a second distress, 
 although the rent is still due (d). By sect. 20 of the same statute, 
 it is provided, — That no tenant or lessee shall recover in such ac- 
 tion, if tender of amends be made before action brought. 
 
 By 17 Geo. II. c. 38, ss. 8 and 10, similar provisions are made 
 with regard to distresses for poor rates, which also ai-e not invali- 
 dated on account of any defect, &c. in the warrant of appointment 
 of overseers, or in the rate of assessment, or in the warrant of dis- 
 tress. 
 
 A party making a distress for two causes, as to one of which he 
 is justified, and entitled to notice of action, but as to the other not, 
 is liable to trespass as to the other (e). Trespass lies against a land- 
 lord who, on making a distress for rent, turns the tenant's family 
 out of possession, and continues in possession after the rent is 
 paid (/). But trespass will not lie for an excessive distress 
 merely (^f). Plaintiff brought trespass for taking an excessive 
 distress, and recovered ; but on error, it was held, that trespass 
 would not lie; the entry and distress being lawful, in part, for 
 the rent due, and the whole being one act ; and that it was not 
 like the case where there was a subsequent abuse of the dis- 
 tress Qi). 
 
 The proper remedy for an excessive distress is an action on the 
 
 (m) Smith V. Goodtoin, 4 B. & Ad. 413 ; (e) Lamont v. Smthall, 5 M. & W. 
 
 EoUand v. Bird, 10 Bingh. 16 ; Nargeth 416. 
 
 V. Nias, 1 E. & E. 439. (/) Elhertm v. Popplewell, 1 East, 
 
 (x) Hvdson v. Nicholson, 5 M. & W. 139. 
 
 437. (g) ffutchins v. Chambers, 1 Burr. 590, 
 
 (y) Weeion v. Woodcoch, 5 M. & W. except as it seems where gold or silver 
 
 594, per Parke, B. are taken, to an excess, apparent on the 
 
 (a) Hudson v. Nicholson, 5 M. & "W. face of it : as where six ounces of gold 
 
 537. and 100 otmces of silver were taken for 
 
 (a) Wallace v. King, 1 H. Bl. 13. 6s. m. ; but that proceeds on the ground 
 
 (6) Whitworth v. Smith, 1 M. & Eob, that gold and silver are of a certain and 
 
 193. known value, and the measure of the 
 
 (c) Badgers v. Parker, 18 C. B. 124. value of other things. 
 
 (d) Dawson v. Cropp, 1 C. B. 961. {h) Lynn v. Moody, 2 Str. 861. 
 
 E K 2 
 
613 DISTRESS. 
 
 case, founded on the statute of Marlbridge, 52 Hen. III. c. 4, 
 which provides, "that distresses shall be reasonable," and that 
 persons " taking unreasonable distresses shall be grievously . 
 amerced for the excess of such distresses." But a mere claim of 
 more than is due does not vitiate the distress, and no action lies, 
 in the absence of special damage, unless there is a seizure or sale 
 of more of the goods taken than is sufficient to raise the amount 
 of rent really due, with legal charges (i), in which case a plaintiff 
 would be entitled to a verdict with nominal damages, although he 
 should fail to prove any actual damage (k). And for this there 
 should be a count applicable, although perhaps the fact of seizure 
 and sale for more rent than was due may be given in evidence 
 under the common count for an excessive distress (Q. The landlord 
 is not bound to calculate very nicely the value of the property 
 seized ; he ought, however, to take care that some proportion is 
 kept between that and the sum for which he is entitled to take 
 it (m), and must exercise a reasonable and honest discretion in so 
 doing (n). To determine whether a distress be excessive, it must 
 be ascertained what the goods seized would have sold for at a 
 broker's sale (o). It is no objection that the excess consists in 
 seizing growing crops, if their probable produce is capable of being 
 estimated at the time of seizure, but the measure of damages in 
 such a case is not the value of the crops, but the inconvenience 
 and expense which the tenant sustains in being deprived of the 
 management of them, or in procuring sureties to a larger amount 
 than he would otherwise have had to provide (p). A third party 
 whose goods are taken may maintain this action (q). Thus, where 
 the goods of a tenant lodger were distrained along with the 
 tenant's, and sold first, after notice from the lodger, and the 
 tenant's goods were sufficient to satisfy the distress and charges, it 
 was held, that the lodger was entitled to sue for an excessive dis- 
 tress (r). It is no bar to such an action, that between the distress 
 and sale the parties came to an arrangement respecting the sale (s). 
 But the action cannot be maintained after a judgment recovered 
 in replevin (t). Where the plaintiff has received the taxed costs 
 of his replevin on the distress, he cannot, in the action for ex- 
 cessive distress, recover as damages the extra costs incurred by the 
 replevin (u). 
 
 If there has been some mistake as to the value of the goods, 
 
 (i) Glynn t. Thomas, 11 Exch. 870 ; 7 0. & P. 59. 
 
 French v. Phillips, 1 H. & N. 664. (p) Piggott v. Births, 1 M. & W. 441. 
 
 (Tc) OhandUr v. DouUon, 3 H. & C. {q) Pisher v. Algar, 2 0. & P. 374. 
 
 553 ; 34 L. J., Ex. 89. (r) WilMnson v. Ibbett, 2 F. & F. 300, 
 
 (I) Lucas V. TarUton, 27 L. J., Exch. per Martin, B. 
 
 2i6. (s) Sells V. Hoare, 1 Bingh. 401 ; Wil- 
 
 (m) Per Bayley, J., WillougKby v. ImghJiy v. Backhouse, 2 B. & C. 821. 
 
 Backhouse, 2 B. & C. 823. (t) Phillips v. Berryman, Trin. 23 
 
 (m) Btiilen v. Eytm, 6 C. B. 427. Geo. III. B. E. MS. 
 
 (o) Per Parle, B., in Wells v. Moody, (m) Qrace v. Morgan,, 2 B. N. 0. 534. 
 
DISTRESS. 613 
 
 and the landlord fairly supposes the distress to be of the proper 
 value at the time of levying the first distress, and he afterwards 
 finds it to be insufficient, he may then distrain for the remainder ; 
 or if the tenant has done anything equivalent to saying, " forbear 
 to distrain now, and postpone your distress to some other time." 
 In such cases the landlord may distrain a second time. But if 
 there be a fair opportunity, and there is no lawful or legal cause 
 why he should not work out the payment of the rent by reason of 
 the first distress, his duty is to work it out by the first and he cannot 
 distrain again (x). Where the distrainee, by his own wrongful act, 
 prevented the distress from having its proper operation, as by for- 
 cibly preventing the purchaser of a rick, which had been distrained 
 and sold, from taking possession of it)»it was held that a second 
 distress was justifiable (y). 
 
 (x) Bagge v. Mawby, 8 Exch. 649. (y) Lee v. Cooke, 27 L. J., Exoh. 337. 
 
614 
 
 CHAPTER XVIII. 
 EJECTMENT. 
 
 PAGE 
 
 I. Of the Nature of the Action of Ejectment . . 614 
 Of the Requisites to support an Ejectment . . . . 617 
 
 II. By whom an JEjectTnent may be brought . . . 621 
 
 III. For what Things am Hjectment ivill lie . . . . 627 
 
 IV. Of Entry 629 
 
 V. Notice to Quit 630 
 
 Requisites of . . , . . ... 635 
 
 Waiver of , 639 
 
 Waiver of Forfeiture ....... 640 
 
 Where notice is not required . . . ... 642 
 
 VI. Of the Proceeding in Ejectment 645 
 
 VII. Of the Proceedings under 15 (fe 16 Vict. c. 76, s. 210, 
 m order to obviate the Bijfflculties attending Re- 
 entries at Common Law, for Non-payment of Rent 
 
 Arrear 650 
 
 Where- the Possession is vacant ..... 653 
 
 VIII. Of the Statutes of Limitations, 21 Jac. /. c. 16 ; 3 c6 4 
 
 Will. ir.c. 27 654 
 
 IX. Of the Statute of Inheritance, 3 cfe 4 Will. IV. c. 106 . 664 
 
 X. Evidence 665 
 
 For Plaintiff 665 
 
 For Defendant 679 
 
 XI. Verdict, Judgment, &c 680 
 
 XII. Error '. 683 
 
 XIII. Of the Action for 'Mesne Profits . . . .684 
 Evidence 685 
 
 I. Of the Nature of the Action of Ejectment. 
 
 An ejectment is a possessory action, and is the ordinary method 
 by which the title to lands and tenements is tried and the posses- 
 
EJECTMENT. 615 
 
 sion recovered (a) in all cases where the party claiming title has a 
 right of entry ; whether such title be to an estate in fee, fee tail, 
 for life, or for years. From this description it should seem that, in 
 strictness, this action could be maintained for the recovery of that 
 species of property only, whereon an entry can be made. But it 
 will be found that, in a few instances, which will be more par- 
 ticularly mentioned hereafter, this action has been extended beyond 
 these limits. 
 
 After the disuse of real actions (b), questions of title to land 
 were usually tried in actions of replevin or trespass quare clausum 
 fregit; and this practice continued, until the method of trying 
 titles by the action of ejectio firrruB was introduced (c). This action 
 was commenced (without any writ) by^ declaration, which alleged 
 a lease for a given number of years from the real claimant to a 
 nominal plaintiff (generally styled John Doe), an entry on the land 
 by the nominal plaintiff under the lease, and his subsequent ouster 
 by a nominal defendant (generally styled Richard Roe) ; and at the 
 foot of such declaration was a notice addressed to the real tenants 
 in possession, warning them that unless they appeared and defended 
 the action within a specified time, they (the real tenants) would be 
 turned out of possession. It need scarcely be said that the lease 
 to John Doe, his entry on the land, and his ouster by Richard 
 Roe, were pure fictions, but the tenant in possession was not per- 
 initted by the courts to defend the action and get his name substi-- 
 tuted for that of the nominal defendant Richard Roe (who was 
 styled "the casual ejector"), without entering into what was called 
 " the consent rule," by which he bound himself to admit the 
 alleged lease, entry and ouster, and to insist at 'the trial on the 
 title only ; the question at which accordingly was, whether the real 
 claimant, on the day of the alleged demise, was entitled to demise 
 the property, i. e., whether he was then legally entitled to actual 
 possession or not. In this action, however, being originally a 
 personal one, damages only could be recovered until some time 
 between the 6th Ric. II. and 7th Edw. IV., about which time it 
 appears, from the Year-book of 7 Edw. IV., fol. 6, that it had 
 been resolved by the judges that the term, as, well as damages, 
 might be recovered {d). In consequence of this determination the 
 
 (a) In trespass quwre clausum fregU, 43 EUz., 5 Eep. 105, b , Sir E. Oolcehns 
 
 trover, and other forms of action, the title remarked, that titles of land were a< that 
 
 to land may come in question and be de- day for the most part tried m actions ol 
 
 cided, but in them damages alone can bo ejedzo firnue. , „ ,, , y,, 4.1, 
 
 recovered. Cole on Ejectment, 63. ' (d) " Until the end of Edw. IV. the 
 
 (6) By 3 & 4 Will. IV. c. 27, s. 36, all possession was not recovered in an ejectm 
 
 real and mixed actions, fexoept a writ of firmm, but only damages. Hale s HO. 
 
 right of dower, or writ of dower unde nil L. by Runmngton, Serjt ed. 1820, p. ^01 
 
 At, OT a.qu«.reimpedit, or an ejectment,) See further, on this subject, avery learned 
 
 and plaints in the nature of any such and elaborate ^°^ XT^lTr^ L^ 
 
 wi-it or action, (except a plaint for free- Doe v. Ernngton, 1 A. & E. 756 n. 1 am 
 
 bench or dower, were abolished. not aware of any Judgment for the reco- 
 
 (c) In the conclusion of Alden's case, very of the term prior to that in East. 1. 
 
616 EJECTMENT. 
 
 action became in its nature a mixed one, i. e., a real one in respect 
 of the recovery of the land, and a personal one in respect of the 
 recovery of damages. The damages, however, were merely no- 
 minal, the land being the real subject matter of dispute and the 
 law having provided another remedy for the injury sustained by 
 the claimant in being kept out of possession from the time when 
 his title accrued, to the time of recovering possession in the eject- 
 ment, viz., by an action of trespass for mesne profits ; for a further- 
 account of which, see post, Sect. XIII. 
 
 The practical procedure in ejectment has been entirely remodelled 
 by the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), 
 ss. 168 to 221. The above-mentioned fictions are wholly abolished. 
 No damages are now recoverable, except in cases between landlord 
 and tenant, under the provisions of sect. 214, and this at the option 
 of the landlord (e). The action is commenced by a writ issued by 
 the claimant, and directed to the persons in possession (either by 
 themselves or by their servants (/) by name, and to all persons 
 entitled to defend the possession of the property claimed, describ- 
 ing it with reasonable certainty {g), and containing a notice that 
 in default of appearance (within sixteen days) judgment may be 
 signed and the parties named in the writ turned out of possession. 
 By sects 172 and 173 provision is made for the appearance of 
 persons not named in the writ. By sect. 174, for limiting the 
 defence to a part of the premises claimed (h). By sect. 175, for 
 the want of reasonable certainty in the description of the premises, 
 which is not to nullify the writ {%). And by sect. 178 it is provided, 
 that on an appearance being entered, an issue may at once be made 
 up without any pleadings, " and the question at the trial shall " 
 (except in the cases of joint tenants, tenants in common, and co- 
 parceners) " be, whether the statement in the writ of the title of 
 the claimants is true or false, &c." sect. 180 ; and in the above 
 excepted cases, in addition to the above question, the further one, 
 
 14 Hen. VII. Eot. 303, a copy of the re- (i) Premises were laid in the declara- 
 
 cord of which will be found in RastaU's tion to he in the parish of Farnham, and 
 
 Entries, fol. 262, h., 253, a., ed. 1670. at the trial were proved to he in the 
 
 (e) Smithy. Tett, 9 Exch. 307. parish of Eamham Eoyal ; but it was not 
 
 (/) See QoodtitU v. Badtitle, i Taunt. shown by the defendant that there were 
 
 820. two Farnhams. Variance immaterial. 
 
 (g) It was formerly held, that the de- JDoe v. Salter, 13 East, 9. Lands wete 
 
 scription of the property ought to be made described in the declaration to be in the 
 
 with such certainty that the sheriff might parish of Westbury, in the county of 
 
 know, from the record itself, of what he Gloucester, and it was proved at the trial 
 
 was to deliver possession, but the strict- that there were two parishes of Westhury 
 
 ness of this rule wa^relaxed, on the ground in that county ; viz. Westbury upon Trym 
 
 that the sheriff was to take his informa- and Westbury upon Severn. Held no 
 
 tion from the party recovering. Portr variance ; Doe v. Harris, 5 M. & S. 326 ; 
 
 man v. Morgan, Cro. Eliz. 465 ; Cotling- although if there had been any plea in 
 
 Aawv. ^mgf, 1 Burr. 623; CojMiOTV. IFesi, abatement in ejectment, it might have 
 
 5 Burr. 2673. been a good objection on such plea ; but 
 
 (A) This was formerly done under a there are no pleadings now. Neave v. 
 
 rule of Court, M. T. 1820 ; 1 Q. B. 700, Avery, 16 C. B. 328. 
 innotis. 
 
EJECTMENT. 617 
 
 whether an actual ouster has taken place, sect. 188. By sect. 185, 
 after a finding for the claimant, judgment may be signed and 
 execution issue for the recovery of possession of the property or 
 part (as the case may be), and for costs, &c. 
 
 By sect. 11 of the County Court Act, of 1867, actions of eject- 
 ment may be brought in the county court of the district where the 
 lands are situate, when the annual value of the property does not 
 exceed 20Z., but sect. 12 provides that a judge, if satisfied that the 
 title to other land of greater annual value than the 201. would be 
 affected by the decision, may order such action to be tried in one 
 of the superior courts. 
 
 Of the Requisites to support an Ejectment. — In order to main- 
 tain ejectment, the party at whose suit it is brought must have 
 been in possession, or at least clothed with the right of possession, 
 at all events at the date of issuing the writ (Jc). 
 
 The party who has the legal estate in the lands in question must 
 prevail : hence, a party who claims under an elegit, subsequent to 
 a lease granted to a tenant in possession, cannot recover : although 
 he give notice to the tenant, that he does not intend to disturb the 
 possession, and only means to get into the receipt of the rents and 
 profits of the estate (l). In Lade v. Holford, Bull. N. P. 110, 
 Lord Mansfield, C. J., declared, "that he and many of the judges 
 had resolved never to suffer a plaintiff, in ejectment, to be non- 
 suited by a term standing out in his own trustee, or a satisfied term 
 set up by a mortgagor against a mortgagee ; but that they would 
 direct the jury to presume it surrendered." From this doctrine a 
 conclusion has been drawn, which the case by no means warrants, 
 viz., that a plaintiff in ejectment may recover on an equitable title. 
 The true meaning of the resolution delivered by Lord Mansfisld 
 is, that where trustees ought to convey to the beneficial owner, it 
 shall be left to the jury to presume that they have conveyed 
 accordingly ; or where the beneficial occupation of an estate by the 
 possessor (under an equitable title) induces a probability that there 
 has been a conveyance of the legal estate to the person who is 
 equitably entitled to it, a jury may be directed to presume a con- 
 veyance of the legal estate (m). In these cases, when a conveyance 
 is presumed, there is an end of the legal estate created by the 
 term. But where the facts of the case preclude such presumption, 
 or if there are not any premises other than the mere lapse of 
 time (n), or non-dealing with the term for a considerable period (o), 
 
 {Jc) Keilw. 130, a. Semble, also at the 682 ; Garrard v. Tuch, 8 C. B. 231 ; Mat- 
 time of its service. 15 & 16 Vict. c. 76, thews on the Doctrine of Presumption, 
 a. 181. The writ is in force for three 226. 
 months. Sect. 169. (re) Doe v. Langdon, 12 Q. B. 711. 
 
 (Z) Doe V. Wharton, 8 T. E. 2. (o) Doe v. Plowman, 2 B. & Ad. 673 ; 
 
 (m) Per Kenyon, C. J., 7 T. R. 3, and OoUrell v. Hughes, 15 C. B. 532. 
 8 T. E. 122 ; England v. Slade, 4 T. E. 
 
618 EJECTMENT. 
 
 from which a surrender of the term can be presumed (p) ; or, 
 if it appear in a special verdict (g), or special case (r), that 
 the legal estate is outstanding in another person, the party who is 
 not clothed with the legal estate cannot prevail in a court of law. 
 " The doctrine, that the legal estate cannot be set up at law by a 
 trustee against his cestui que trust, has long been repudiated." Per 
 JEUenborough, C. J. (s). 
 
 It is to be observed, that in the foregoing cases, in which a sur- 
 render was presumed, the presumption was made ia favour of the 
 party who had proved a right to the beneficial ownership ; the pos- 
 session was consistent with the existence of the surrender required 
 to be presumed, and made it not unreasonable to believe that the 
 surrender should have been made in fact. But where the court 
 was called upon to declare that the presumption ought to. be made 
 in favour of a person who had proved no right to the possession, no 
 title, no conveyance, and one who stood on mere naked possession, 
 without any evidence how or when he acquired it, and who, laid 
 before the jury only a partial statement of the ground of presump- 
 tion, the court refused to make it (t). A. devised an estate to 
 trustees for a term of years, in trust to pay annuities, and for other 
 purposes mentioned in the will, with remainder to B. ; B., eighteen 
 years after the death of A., leased the premises for lives. . In an 
 action by the lessee of B., the jury were told by the judge that they 
 could not presume a surrender of the term ; and this direction was 
 held to be right («). 
 
 By the 8 & 9 Vict. c. 11 2, however, it is now enacted, " that every 
 satisfied term of years which, either by express declaration or by 
 construction of law, shall, upon the Slst day of December, 1845, 
 be attendant upon the inheritance or reversion of any lands (a;), 
 shall on that day absolutely cease and determine as to the land 
 upon the inheritaiice or reversion whereof such term shall be at- 
 tendant as aforesaid, except that every such term of years which 
 shall be so attendant as aforesaid by express declaration, although 
 hereby made to cease and determine, shall afford to every person 
 the same protection against every incumbrance, charge, estate, 
 right, action, suit, claim and demand, as it would have afforded to 
 him if it had continued to subsist but had not been assigned or 
 dealt with after the said 31st day of December, 1845 ; and shall, 
 
 (p) Doev. nowmcm, 2 B. & Ad. 673. (q) GoodtUU v. Jmes, 7 T. R. 43. 
 
 Upon prmciple, aterm of years assigned {r) Roe v. Reade, 8 T. R. 122. 
 
 to attend the mhentance ought not to be \s) Doe v. Wroot, 5 East, 138. 
 
 presumed to be surrendered, unless there (t) Doe v. Cooke, 6 Bimgh. 174. 
 
 has been an enjoyment inconsistent with (u) Day v. Williams, 2 C. & J. 460. 
 
 the existence of the term, or some act done (x) If a term he assigned by mistake 
 
 m order to disavow the Unwe under the in trust for persons not entitled to the in- 
 
 termor, and to bar it as a continuing inic- heritance or reversion, the act haS no 
 
 rest Sugd. V. & P. (Hth edit) App. operation. J)oe y. Jom, 13 Q. B. 774. 
 
EJECTMENT. 619 
 
 for the purpose of such protection, be considered in every court of 
 law and equity to be a subsisting term." Sect. 2 enacts, — " that 
 every term of years now subsisting or hereafter to be created 
 becoming satisfied after the said 2l8t day of Becemher, 1845, and 
 which either by express declaration or by construction of law shall 
 after that day become attendant upon the inheritance or reversion 
 of any lands, shall, immediately upon the same becoming so at- 
 tendant, absolutely cease and determine as to the land upon the 
 inheritance or reversion whereof such term shall become attendant 
 as aforesaid." 
 
 The above act in effect divides satisfied attendant terms into two 
 classes: 1. Those Avhich were satisfied on or before the 31st of 
 December, 1845. 2. Terms which have*become satisfied since that 
 day. The latter are absolutely determined and extinguished for 
 all purposes ; but the former, if attendant by express declaration, • 
 may, for the purpose of protection to the person for whose benefit 
 the assignment or declaration was made, be " considered to be a 
 subsisting term," notwithstanding its extinction for all other pur- 
 poses {y). A term assigned before the 31st of December, 1845, in 
 trust for a bond fide purchaser for value without notice, will con- 
 tinue to exist for his protection if necessary, but not for the benefit 
 of the owner of the inheritance (z). A satisfied term will afford 
 no defence against the owner of the inheritance, unless the defendant 
 be equitably entitled to the benefit of the term (a). Where the 
 claimant and defendant are respectively entitled to the benefit of 
 a term, there must be a demand of possession by the trustee of the 
 term before an ejectment can be maintained in his name, especially 
 where the cestui que trusts have been in actual possession above 
 twenty years before action (&). The act does not apply to copyholds, 
 sect. 3. 
 
 The plaintiff in ejectment must recover on the strength of his 
 own title, and not on the weakness of that of the defendant (c). 
 Possession gives the defendant a right against every person who 
 cannot show a good title {d). But a lessee will not be permitted 
 to defend an ejectment against his own landlord, from whom he 
 has received possession, on a supposed defect in the title of the 
 landlord (e) ; nor if B., claiming under A., let lands for a year to 
 C, and die, and A., after the expiration of the term, brings an 
 ejectment against C, can C. dispute the title of A. (/) ;_ nor, where 
 the tenant in possession has paid the rent to the plaintiff, can a 
 
 iy). See CoUrell V, ffughes, 15 C. B. R. 110, n. . ,j n r a r,,,.,. 
 
 532 (d) Per Lord Mansfield, C. J., 4 Burr. 
 
 (z) Ibid., and see Doe v. Price, 16 M. 2487. See Damtry v. BrocUehurst, 3 
 
 & W 603 Ex'^^' 2*"'- 
 
 {a) Dee v. Mousdalc, 16 M. & W. 689. (e) Driver v. Lawrence,2j.m 1259 ; 
 
 J) Doe V. Phillips, 10 Q. B. 130. FramisY. Harvy, 4 M. & W. 331 
 
 (c) Per Cur., Marin, v. Sirachan, 5 T. (/) Parmelc v. Thompm, 7 T, R, 4§8. 
 
630 EJECTMENT. 
 
 third person come in and defend as landlord without the tenant, 
 and dispute the plaintiffs title {g). 
 
 " Neither the tenant, nor any one claiming by him, can controvert 
 the landlord's title. He cannot put another person in possession, 
 but must deliver up the premises to his own landlord " (A). This 
 rule extends to tenancies at will or on sufferance (i). As, where 
 A. let B. into possession of land under a contract of sale, which 
 subsequently went off, it was held that B. could not dispute A.'s 
 title Qi). There is not any distinction between the case of a tenant 
 and that of a common licensee. The licensee, by asking permis- 
 sion, admits that there is a title in the landlord. Hence, where 
 the plaintiff being in possession of a house, &c., defendant asked 
 leave to get vegetables in the garden, and having obtained the 
 keys for this purpose, fraudulently took possession of the house and 
 set up a claim of title : it was held, that the defendant, having 
 entered by leave of the party in possession, could not defend an 
 ejectment, but was bound to deliver up possession to the party by 
 whom she was let in, for she could not contest the title (Q. And 
 so, if a person obtains possession of premises by an arrangement 
 with the tenant, whether collusive or otherwise. Premises being 
 in possession of a tenant under an indenture of lease, a party claim- 
 ing them by an alleged title adverse to that of the lessor, and prior 
 to the lease, demanded them of the lessee, and ultimately obtained 
 possession by paying him 20Z. The landlord afterwards brought 
 ejectment against the party so in possession, the term, having been 
 forfeited by non-pajonent of rent, and there being no sufficient dis- 
 tress on the premises. It was held, that this case fell within the 
 rule whereby the tenant is precluded from contesting his landlord's 
 title (m). So also where a copyholder has been admitted to a tene- 
 ment and done fealty to the lord of a manor, he is estopped, in an 
 action by the lord for a forfeiture, from showing that the legal 
 estate was not in the lord at the time of admittance (to). 
 
 But a tenant, though he cannot dispute his landlord's title at the 
 time of the demise, may show that it has since expired (o), or been 
 parted with (p). Where the plaintiff holding an estate under a 
 lease for twenty-one years, underlet the same to the defendant for 
 a year, and the defendant held over after the expiration of the 
 twenty-one_ years, after which the plaintiff gave the defendant a 
 regular notice to quit, which not being complied with, an ejectment 
 
 ((?) Doe V. SmytU, 4 M. & S. 347 ; Doe. 3 C. B. 229 
 V. Birchmorp^K. & E. 662. See BalU (k) Doe v. Burton, 16 Q. B. 807. 
 
 V. Westwood 2 Campb. 11. (Z) Dg^ v. Baytup, 3 A. & E. 188. 
 
 •/i/n ^,'^P^''' J-. 4 M. & S. 348, (m) Doe v. Mills, 2 A. & E. 17. 
 
 5'^ .« ^■^"'■^''/•'i''" "• ^'"''™' ^ '''"g'l- (») ■»<>« V. Budden, 6 B. & Aid. 626. 
 
 45, 46. bee also Cooper V. Blandy, 1 B. (o) Downs v. Coope/r, 2 Q. B. 256; 
 
 ^.' ir ^"V* ?f.^ a distinction iu Bop- Mountnoy v. Collier, 1 E. & B. 630. 
 "'ti "h T ^ ^)^^}- ^^\ (P) -»°^ y- WcUscA, 2 Sta. 230, cited by 
 
 (I) Per Cresmell, J., m Doe v. Foster, Tindal, C. J., 4 M. & G. 162. 
 
EJECTMENT. 631 
 
 was brought ; it was held that it was competent to the defendant 
 to show, that the lessor's title had expired, and that he had no 
 right to turn him out of possession (q). So where the tenant has 
 not received possession from a person to whom, however, under a 
 misrepresentation or by mistake, he has paid rent, such payment 
 of rent will not estop the tenant from setting up the title of the 
 real owner (r). M., being seised in fee of land, mortgaged it to O., 
 but remained in possession, and afterwards demised part for a term 
 to B., who also entered ; after which M. mortgaged to H. H., after 
 this, received rent from B., and demised the other part to A. Af- 
 terwards B. and A., on notice from 0., paid O. rent. H. then 
 brought ejectment (after notice to quit) against B. and A. It was 
 held that B. as well as A. might show i%defence the prior mortgage 
 to 0., O.'s notice to them, and their payment of rent to 0. ; for, 
 although B. could not dispute M.'s title at the time of the demise, 
 yet he might show that H. had not any derivative title from M., 
 and he was not precluded by having paid rent to H., under a mistake 
 of the facts (s). 
 
 11. By whom an Ejectment may be brought (t). 
 
 Administrator (u). 
 
 Bargainee, under a commission of bankrupt (x). 
 
 Churchwardens and overseers. The 59 Geo. III. c. 12, s. 17, 
 empowers churchwardens and overseers {y), and their successors, 
 to accept and hold, in the nature of a corporation, all real property 
 belonging to the parish. But they are not by this statute made a 
 proper body corporate ; and therefore a demise to them is effectual, 
 upon their assent and entry, without their acceptance by an instru- 
 ment under seal (z). In a case where it did not appear who had 
 the legal property at the time of the act passing, but rent had 
 been paid to the churchwardens and overseers as such ; it was held, 
 that the property belonged to the parish, and that the present 
 churchwardens and overseers might recover the same, having given 
 a notice to quit, although defendant claimed to hold under a lease 
 granted by former churchwardens and overseers, for an unexpired 
 
 (2) Mgland v. Slade, i T. E. 682 ; Doe 16. See 16 & 17 Vict. c. 70. 
 
 V. Ecmsiottom, 3 M. &S. 516. See Gra- (u) Patten v. Patten, Ale. & JS. 493; 
 
 venorv. Woodhouse, 1 Bingh. 38 ; Cornish see Keene v. Dee, Ale. & N. 496, n. 
 
 V. Searell, 8 B. & C. 471 ; Brook v. Biggs, {x) 1 "Wils. 276. See 12 & 13 Vict. c. 
 
 2 B. N. C. 572. 106, s. 208. 
 
 (r) Fenrm- v. Duploch, 2 Bingh. 10. (y) There must be both for the statute 
 
 (s) Doe V. Barton, 11 A. & E. 307 ; to operate. Woodcock v. Chbson, 4 B. & 
 
 recognized in Olaridge v. Mackenzie, 4 M. C. 462. „ ,t ». -nr oon 
 
 & of 143 (») SmUh v. AdUns, 8 M. & W. 362 ; 
 
 (i) Committee of a lunatic's estate can- and see Gouldsworth v. Kmghts, 11 M. & 
 
 not bring an ejectment. Hob. 215 ; Hutt. W. 337. 
 
633 EJECTMENT. 
 
 term ; inasmuch as such lease having been gi-anted before the act, 
 it conveyed no legal interest ; and the defendant therefore might 
 be treated as a tenant from year to year, whose tenancy had been 
 determined by the notice (a). Under this act, property held for 
 the benejfit of a parish, vests in the churchwardens and overseers (6), 
 where there are not any known trustees in existence (c), nor any 
 other person in whom the legal estate is vested (d) ; and the statute 
 extends to tenements, the profits of which are applicable to the 
 purpose for which a church-rate is levied (e)'; but not to a case 
 where the trust is for special and not for general purposes, and 
 where the land for which the profits are to be applied cannot be 
 called parish property (/). So where it is held jointly by the 
 churchwardens and other persons for parish and oiAer purposes (gf). 
 Secus, where it is held by the churchwardens, &c. and corporation 
 for parochial purposes only (h). Proof that the churchwardens, 
 &c. acted as such, is primA facie evidence that they held the 
 offices (i). By the 5 & 6 "Will. IV. c. 69, ss. 8 & 9, guardians of 
 unions are incorporated, and are empowered to hold, lands, &c. for 
 the benefit of the parish, and to sue and be sued, &c. ; but although 
 this statute confers upon the guardians very extensive powers over 
 the parish property, it is quite consistent with the continuance of 
 the legal estate in other persons, and is not sufficient to divest 
 property out of the parish officers (^'). 
 
 Conusee of a statute merchant or staple. 
 
 Coparceners. Before the Common Law Procedure Act, 1852, 
 they might have sued either jointly (/c) or severally for their own 
 shares (?), but under a joiat demise by. two: or more, one of whom 
 had no title, the other or others could, not have recovered (m),. The 
 last-mentioned act, however, by sect. 180, provides, that "the 
 question at the trial shall be whether the statement in the writ of 
 the title of the claimants is true or false, and if true, then which of 
 the claimants is entitled, &c.," and the statement of the claimants' 
 title in the writ is conformable thereto, " to, the possession whereof 
 A., B., and C, some or one of them, claim to be entitled, &c." («). 
 
 Copyholders (o). A copyholder cannot make a lease for more 
 than one year without a licence, or by special custom, without in- 
 
 (a) Doe V. Terry, 4 A, & E. 274. (Jc) Boner v. Imier, Ld. Eaym. 726 ; 1 
 
 (&) Doe V. Hiley, 10 B. & C. 885. Inst. 180 b. ; Bull. K P. 107 ; 1 EoU. 
 
 (c) The Ghurchwwrdens of Deiptford v. Abr. 878, pi. 5 : see Stedman v. Bates, 
 Sketched, 8 Q. B. 394. Ld. Eaym. 64. 
 
 (d) Per Derman, C. J., Allason v. (I) Roev. Lonsdale, 12 East, 89. 
 Stark, 9 A. & E. 255. (m) Z)oe v. Pett, 11 A. & E. 842. 
 
 (e) Doe T. Hiley, 10 B. & C. 885. (m) See Elliss v. Elliss, 27 L. J., Q. B. 
 (/) Allason v. Starle, 9 A. & E. 255. 316. 
 
 (?) Uthwaitr. Elkim, 13 M. &W. 772. (d) Moore, 569 ; BoUfast v. Cld^ham, 
 
 (h) Doe V. Benham, 7 Q. B. 976. 1 T. E. 600. See the 15 & 16 Vict. c. 51, 
 
 (t) Doe V. Barnes, 8 Q. B. 1037. as to the enfranchisement of copyholds, 
 (y) Doe V. Webster, 12 A. & E. 442. 
 
EJECTMENT. 633 
 
 curring a forfeiture of his estate ; but a lease for one year is good 
 without either, and a copyholder may maintain an ejectment upon 
 it(p). If a copyholder without licence makes a lease for one year, 
 or with licence makes a lease for many years, and the lessee he 
 ejected, he shall not sue in the lord's ■ court hy plaint, but shall 
 have an ejectio firmce at the common law ; because he has not a 
 customary estate by copy, but a warrantable estate by the rules of 
 the common law(g'). A lessee for years of a copyholder may 
 maintain ejectment, though there be no custom in the manor to 
 lease, and no licence has been obtained, such lease being void only 
 as against the lord (r). An heir to whom a copyhold descends 
 may surrender before admittance, because he is in by course of 
 law, and the custom, which makes him^Jieir to the estate, casts the 
 possession upon him from his ancestor; consequently such heir 
 niay maintain ejectment before admittance (s), but the heir claim- 
 ing under a tenant-right of renewal in customary lands not of 
 inheritance, but to which the tenant is admitted for the joint lives 
 of himself and the lord, cannot maintain ejectment before admit- 
 tance (t). 
 
 The grantee of a copyhold in reversion has a good and perfect 
 title by the grant, without admittance, and may maintain eject- 
 ment on the death of the tenant for life (u). But a stranger, to 
 whom a copyhold is surrendered, has nothing before admittance, 
 because he is a purchaser. Until the admittance of the surren- 
 deree, the copyhold remains in the surrenderor, and if he die, his 
 heir may bring ejectment (x). But, after admittance, the surren- 
 deree may maintain ejectment against the surrenderor, (or even 
 before, if he be admitted before the trial (y) ), because as against 
 all persons but the lord the title of the surrenderee after admit- 
 tance is perfect as from the time of the surrender, and shall relate 
 back to it (z). A mortgagee of copyhold premises who has not 
 been admitted, cannot maintain ejectment against the tenant of 
 the mortgagor unless the relation of landlord and tenant shall 
 have Iseen established aliunde {a). Admittance of tenant for life 
 is admittance of him in remainder (&), or reversion (c), without any 
 other admittance, for they make but one estate. And the heir of 
 a devisee in remainder who has died without entry (the tenant of 
 the particular estate having been admitted) can maintain eject- 
 ment (d). But if a copyhold be surrendered to one for life, 
 
 (p) Frosel v. Welsh, Cro. Jao. 403 ; {x) Wilson v. Weddell, Yelv. 144. 
 
 Erish V. Ewes, Cro. Eliz. 717. (y) Ooe v. Mall, 16 Bast, 208. 
 
 (?) Co. Cop. s. 61, («) Holdfast v. Clapham, 1 T. R. 600. 
 
 (r) Doe V. Tresidder, 1 Q. B. 416. (a) Jtayson v. Adcock, 9 Jiir. (N. S.) 
 
 (s) Adm. per Cur. in Roe v. fficics, 2 C. P. 800. 
 
 Wib. 15, and^^er Kenyrni, C. J., in Doe (b) Auncelme v. Aimcelme, Ci-o. Jac. 
 
 V. Sellier, 3 T. E. 169. 31 ; Warsc^ v. Aiell,. 5 Mod. 307. 
 
 (0 Doe V. Clifl, 12 A. & E. 666 ; Doe (c) Doe v. Zawes, 7 A. & E. 195. 
 
 V. Thompsm, 13 Q. B. 670. {d) Doe v. Thomas, 3 M. & G. 815. 
 
 (v.) Boe V. Loveless, 2 B. & Aid. 453. 
 
624 EJECTMENT. 
 
 remainder to another in fee, if the lord is by custom to have a fine 
 from the remainderman, there is occasion for a new admittance (e). 
 And such a custom is good (/). An heir at law may devise his 
 copyhold estate, without having been admitted {g), and without 
 previous payment of the lord's fine QC). The devisee of a copyhold 
 or customary estate, which had been surrendered to the use of the 
 will, having died before admittance, it was held, that her devisee, 
 though afterwards admitted, could not recover in ejectment ; for 
 the admittance of the second devisee had no relation to the last 
 legal surrender, and the legal title remained in the heir of the sur- 
 renderor (i). So the devisee of a surrenderee for valuable con- 
 sideration, but who had never been admitted Qc). 
 
 If the copyholders of a manor belonging to a bishopric, during 
 the vacancy of the see, commit a forfeiture by cutting timber, the 
 succeeding bishop may bring ejectment (J). The lord may seize 
 copyhold land quousque, in virtue of a right which accrued to the 
 preceding lord, on default of the heir coming in to be admitted, 
 and that, although he be the devisee, and not the heir of the pre- 
 ceding lord ; but to entitle the lord to make such seizure, there 
 must be three proclamations made, at three consecutive courts (m). 
 A copyhold tenant surrendered his estate to the use of another, 
 and afterwards committed and was convicted of felony before ad- 
 mittance of the suiTenderee : it was held, that the estate was by 
 the custom forfeited to the lord (n). Where a copyholder was 
 convicted of a capital felony, but pardoned, upon condition of 
 remaining two years in prison, and the lord did not do any act 
 towards seizing the copyhold ; it was held, that at the expiration 
 of the two years, the copyholder might maintain ejectment against 
 one who had ousted him ; inasmuch as the pardon, by virtue of 6 
 Geo. IV. c. 25, s. 7, restored him to his competency, and the estate 
 would not vest in the lord without any act done by him(o). 
 Copyholds are within the statute against fraudulent conveyances, 
 27 Eliz. c. 4 (p). 
 
 Corporation aggregate (g), or sole. 
 
 Devisee (r). 
 
 _ Grantee of rent-charge, with a power to retain until satisfac- 
 tion (s). 
 
 (e) dipping v. Sunning, Moore, 465. See Dimes v. Orand Junction Canal, 9 
 
 See M. v. DuUingham, 8 A. & K. 868. Q. B. 469. 
 
 (/) Doe V. Jenney, 5 East, 522. (n) Rex v. Lady St. John Mildmay, 6 
 
 (g) Doe Y. Lau-es, 7 A. & E. 195. B. & Ad. 254. 
 
 (h) Wright v. Barnks, 3 B. & Ad. 664. (o) Doe v. Evmis, 5 B. & C. 534. 
 
 (i) Doe v. Vernon, 7 East, 8 ; Doe v. {p) Doe v. JBottriell, 5 B. & Ad. 131. 
 
 Zawes, 7 A. & E. 213, ace. (j) Carth. 390 ; 12 Mod. 113 ; Doe v. 
 
 {Jc) Matthews v. Osborne, 13 C. B. 991. Bold, 11 Q. B. 127. 
 See 1 Vict. c. 26, s. 3. (r) l Inst. 240, b. 
 
 (I) Reed v. Allen, Bull. N. P. 107. (s) 1 Saund. 112. 
 
 (m) Doe V. Trummn, 1 B. & Ad. 736. 
 
EJECTMENT. 625 
 
 Guardian m socage (t). Guardian in socage may make a lease 
 of the mfant s estate until his age of fourteen years, and upon such 
 lease the lessee may maintain an ejectment (it). Guardian in 
 socage may bring trespass or ejectment in his own name, or make 
 a lease of the land in his own name, until the infant arrive at the 
 age of fourteen (x). 
 
 Guardian appointed by deed or will, under the 12 Car. II. c. 24, 
 ss. 8 & 9, has the same interest in all respects as a guardian in 
 socage had before, except that such guardian may hold his office 
 for a longer time than the guardian in socage could ; TO0., until 
 theheir attain the age of twenty-one. The next of kin not in- 
 heritable were the persons entitled to be guardians in socage; 
 but, under the statute, the person appointed by the father shall be 
 guardian (y). * 
 
 Infant (z). 
 
 Joint Tenants. Before the Common Law Procedure Act, 1852, 
 they might either have recovered the land under a joint demise 
 from all or under several demises of the whole land from each (a) ; 
 or each might sue for his own share on his separate demise (b) ; 
 but under a joint demise by two or more, one or more of whom 
 had no title, the other or others could not have recovered (c). 
 This difficulty is now obviated by sect. 180 of that act ; see ante, 
 p. 622. 
 
 Legatee of a chattel real may maintain ejectment against the 
 executor (d) or a stranger (e) ; but the assent of the executor to 
 the bequest must, be proved (/), for until such assent the term 
 does not vest in the legatee. Such assent is a question of fact for 
 the jury (g). Slight evidence of assent is sufficient (h), but an 
 ambiguous expression ought not to be left to the jury as evidence 
 of assent (i). And the rule that slight evidence only of assent is 
 necessary is confined to cases where such assent would be rightful, 
 and is not to be implied against the executor's own acts {k). 
 
 Mortgagee (l). Where a clause in a mortgage deed operates as 
 a redemise to the mortgagor, it was held that a notice to quit 
 given by him in his own name to a tenant let into possession by 
 him before the mortgage, enabled him to recover in ejectment on 
 his own demise (m). It cannot so operate where the time is not 
 determinate {n), nor where such a construction is inconsistent with 
 
 (t) Cro. Jao. 99 ; Adm. Hutt. 16, 17. {d) Doe v. Guy, 3 East, 120.' 
 
 (m) 2 Eoll. Abr. 41, (Q.) pi. 4. (e) Young v. Solmes, 1 Str. 70. 
 
 {x).Per Cur., Ld. Eaym. 131. (/) Johnson v. Warwick, 17 C. B. 516. 
 
 {y) See Vaughan, 179, and 1 P. "Wms. (jr) Mason v. Famdl, 12 M. & W. 674. 
 
 102. See also several learned notes on (h) Dos v. Maiberley,-6 0. & P. 126. 
 
 th» subject of guardianship in Harg. Co. (i) Doe v. Harris, 16 M. & W. 517. 
 
 Litt. 88, b. {k) Tudor v. Cf'uest, 27 L. J., Exoh. 
 
 (z) Per MalUtt, J., Marcli, 143. 395. 
 
 (a) Doe V. Fenn, 3 Campb. 190. (I) Doug. 21 ; Salk. 245. 
 
 (6) DosY. Pearson, 6 East, 172. (m) Doey. Goldwin, 2 Q. B. H3. 
 
 (c) Doe V. Beck, 13 0. B. 329. (w) Doe v. Day, 2 Q. B. 147. 
 VOL. I. s 
 
626 EJECTMENT. 
 
 the obvious intention of the parties as appearing by the deed 
 itself, although a yearly rent is reserved (o). Where a railway act 
 gave a form of a mortgage by which the company were to assign 
 " the said undertaking and all and singular the rates, tolls, and 
 other sums arising, &c. ;" it was held, that by such mortgage the 
 mortgagee did not acquire a title to the land, and that he could 
 not bring ejectment as on a demise "of the said undertaking 
 and all and singular the rates, tolls, &c.," arising by virtue of the 
 Act. (p). 
 
 By 15 & 16 Vict. c. 76, s. 219 — ^Where any action of ejectment 
 shall be brought by any mortgagee, his heirs, executors, &c.,aiid 
 no swit shall he depending in equity for foreclosing or redeeni' 
 img such mortgaged la/nds, if the person having right to redeem, 
 and who shall appear and become defendant, shall, pending such 
 action, pay unto the mortgagee, or, in case of refusal, bring into 
 court, principal, interest, and costs (to be computed by the master) ; 
 the monies so paid or brought into court shall be in satisfaction of 
 such mortgage, and the court shall discharge the mortgagor or 
 defendant from the same, and, compel the mortgagee, by rule of 
 court, at the costs of the mortgagor, to reconvey the mortgaged 
 lands, and deliver up all deeds and writings in their custody re- 
 lating to the title (q). There must be an affidavit that there is 
 not any suit in equity depending. After judgment for the plain- 
 tiff in ejectment, the mortgagor prayed to bring the money into 
 court (under the 7 Geo. II. c. 20) ; but per Page and Chappie, Js., 
 the statute gives liberty to do it, pending the action : but, after 
 judgment, the action is not depending ; the application, therefore, 
 was refused (r). It may be brought in, however, after verdict (s). 
 By s. 220 (of the 15 & 16 Vict. c. 76) the statute is not to extend 
 to any case, where the party praying a redemption has not a right 
 to redeem, or where the right is disputed, &c. (t). Hence, where 
 the mortgagor has agreed to convey the equity of redemption to 
 the mortgagee, the court will not stay proceedings (u). 
 
 Overseers of the poor. See ante, p. 621. 
 
 Personal representative («). 
 
 Tenant by elegit (y). 
 
 Tenant in common may maintain ejectment against his compa- 
 nion upon an actual ouster (z). Before the C. L. P. Act, 1852, 
 
 (0) Walker v. Giles, 6 0. B. 662. Geo. II., Seqeant Leeds' MSS. 
 
 (p) Doe V. St. Helen's Railway Co., 2 (s) Doe v. CUfion, 4 A. & E. 814. 
 
 Q. B. 364 ; Harl v. Eastern Union Sail- (t) See Doe v. loucTi, 6 D. & L. 270. 
 
 way Co., 7 Exch. 246, ace. See Gardner {u) Goodtitle v. Pope, 7 T. K. 186. 
 
 V. London, Chatham, and Dover Saihuay (x) 4 Edw. III. c. 7 ; 1 Vent. 30 ; Doe 
 
 Co., 2 L. E. Chan. App. p. 217. v. Porter, 3 T. R. 13. 
 
 (?) This and the 220th sections are re- {y) Ma/rtim, v. Smith, 27 L. J., Exch. 
 
 enactments of 7 Geo. II. o. 20, ss. 1 and 3. 317. 
 
 See Sutton v. Bamlimgs, 3 Exch. 407. (z) Litt. sect. 322 ; Doe v. Eom, 8 M. 
 
 {r) WilMnson v. Trazton, B. R, M. 14 & "W. 333. 
 
EJECTMENT. 627 
 
 tenants in common could not have sued upon a joint demise (a) ; 
 except, perhaps, where a joint power of re-entry was reserved on a 
 breach of covenant in a lease (b) ; (in which case the Court of 
 Q.- B. were equally divided), but it was held that payment of rent 
 to the agent of A., B. and C. was an admission that the tenant 
 held under A., B. and C, and would support a joint demise, unless 
 it were expressly proved that they were entitled in a different 
 manner (c). These difficulties are now obviated by sect. 180 of 
 that act {d). 
 
 III. For what Things an Ejectment will Ue. 
 
 • 
 
 In general an ejectment will lie to recover the possession of any 
 
 thing whereon an entry can be made, and whereof the sheriff can 
 deliver possession. 
 
 An Ejectment will lie : — For the recovery of acres of alder 
 
 carr in Norfolk, because alder carr is a term well known in that 
 county, and signifies the same as alnetum (e) : beastgate in Suf- 
 folk (/) : bedchamber (g) : acres of bogge in Ireland (h) : 
 
 cattlegate in Yorkshire (i) : church, by the name of a messuage (/c) : 
 coalmine or saltpit (I) : de mineris carbonum in county pala- 
 tine of Durham (m): common of pasture if joined with other lands; 
 for after verdict it shall be intended such common of pasture as 
 an ejectment will lie for, viz. common appendant or appurte- 
 nant (n) : cottage (o) : acres of furze and heath, and 
 
 acres of moor and marsh (p) : house or garden (q) : part of a 
 
 house, known by the name of the Three Kings in A. (r) ; land, 
 and coalpit in the same land (s) : messuage or tenement, called 
 the Black Swan (t) ; acres of mountain in Ireland (u) : 
 
 (a) Doe V. Errington, 1 A. & E. 750. purtenant, whioTi is recoverable in eject- 
 (S) Doe V. Hamilton, 13 Q. B. 977. ment. Metcalfv. Roe, Ca. Temp. Hardw. 
 
 (c) Doe V. Graid, 12 East, 221. 167. 
 
 (d) Elliss V. Elliss, 27 L. J., Q. B. {k) Salk. 256. 
 
 316. See ante, p. 622. (J) Oomyn v. Kyneio, Cro. Jac. 150. 
 
 (e) Sao'nes v. Peterson, 2 Str. 1063. (m) Garth. 277. 
 
 (/) Bennington v. GoodtiUe, Str. 1084. (to) Newman v. Holdmyfast, 1 Str. U. 
 
 {g) 3 Leon, 210. (") ■S«^^ v. Qiles, Cro. Eliz. 818. 
 
 (h) Cro. Car. 512. (P) Oomiorv. West, 5 Burr. 2673. 
 
 (i) Ejectment .for ten acres of pasture (?) Soyston v. Sccleston, Cro. Jac. 6o4. 
 
 cattlegates, with their appurtenances, in (r) Sullivan v. Seagram, 2 Str. 695. 
 
 a close caUed, &e. in Yorkshire. Motion (s) Harebottle v. Placoeh, Cro. Jac. 21. 
 
 after verdict in arrest of judgment, on the Under the descnption of land, the owner 
 
 ground of uncertainty of description. Per of the soU may recover land ™ich is 
 
 Cur. Either cattlegate must be con- subject to a pubhc easement, such as the 
 
 sidered as pasture, and then it is synony- king's highway ; and a, waU bemg bmlt 
 
 • mous with the word pasture preceding it ; on the land shall not vitiate the descrip- 
 
 or else it must be taken for common of tion. Goodtitle v. Alker, 1 Burr. 133. 
 
 pasture for cattle, and then being after (0 1 Sidf. 295. , at 'ri 
 
 verdict it must be taken for common ap- (u) Lord Kildare v. Fislier, 1 Str. 71. 
 
 s s 2 
 
638 EJECTMENT. 
 
 orchard (x) : rectory of B., and a certain place there called the 
 Vestry (y) : stable [z] : tithes (a). 
 
 An Ejectment will not lie for : — A canonry ; for it is an eccle- 
 siastical office only (b) : a close (c) : a manor, without describing 
 the quantity and nature of land therein (d) : messuage cmd tene- 
 ment (e): messuage, garden, and tenement (/) : messuage or 
 tenement (g). But no ground for reversal on error, if demanded 
 in same count ; because when same count contains two demands, 
 for one of which action lies and not for the other, all the damages 
 shall be referred to the good cause of action (h) ; and after verdict 
 the court will give leave (even pending a rule to aiTest the judg- 
 ment on this ground) to enter the verdict according to the judge's 
 notes for the messuage only (i). Messuage, situate in Coventry, in 
 the parishes of A. and B., or one of them: held bad for uncer- 
 tainty, after verdict, and that the words " or one of them " could 
 not be rejected (k). De peci^ terrae (Z). De castro, viM et 
 terris (m). 
 
 Ejectment will not lie for things that lie merely in grant, which 
 are not in their nature capable of being delivered in execution, as 
 an advowson ; common in gross (n) ; libera piscaria (o) ; but it will 
 de ten-^ aquS, cooperta (p) ; nor will it lie pro quodam rivulo sive 
 aquse cursu, called D. (q) ; nor for pannage (r) ; nor for a tin- 
 bound (s). 
 
 Under the procedure as altered by the C. L. P. Act, 1852, there 
 are no pleadings in ejectment, but on the appearance of the de- 
 fendant an issue is at once made up, sect. 178. The property 
 must be described in the writ " with reasonable certainty," sect. 
 168 : the want of such description, however, is not to nullify the 
 writ, but is only ground for an application to a judge " for better 
 particulars of the land claimed or defended," sect. 175, which are 
 to be annexed to the record, sect. 180. 
 
 The owner of a fee granted by deed to A. and others liberty to 
 dig for tin and other metals throughout certain lands, and to raise 
 and dispose of the same ; and to make the adits, and erect the 
 sheds, engines, &c., necessary for the exercise of that liberty, toge 
 
 (x) Wright V. WheaiUy, Cro. Eliz. 854. (i) GoodtitU v. Otway, 8 East, 357. 
 
 (y) 3 Lev. 96 ; Hutchinson v. Puller, (k) GoodrigM v. Fawson, 7 Mod. 457. 
 
 2 Ld. Eaym. 1471. (I) Moor, 702, pi. 976. 
 
 (s) 1 Lev. 58. (m) Yelv. 118. 
 
 (a) Swadlmg v. Piers, Cro. Jac. 613. (n) Cro. Jac. 146. 
 
 (i) Doe T. Musgrave, 1 M. & Gr. 625. (o) Cro. Jac. 146 ; Cro. Car. 492; 8 
 
 (c) 11 Eep. 55 ; Godb. 63. Mod. 277 ; 1 Brownl. 142. 
 
 {d) Latch. 61 ; Lit. Eep. 301 ; Hetl. (p) Cro. Car. 492 : R. v. Alresfffrd, 1 
 
 146. T. E. 858. 
 
 (e) SoiY. Plowman, 1 East, 441. (q) Yelv. 143. 
 
 (/) Goodtitle v. Walton, 2 Str. 834. (r) 1 Lev'. 214. 
 
 la) Goodrighi.v. Flood, 3 Wils. 23. (s) Z>oe v. Alderson, ] M. & W. 210. 
 
 (h) Doe V. Dyeball, 8 B. & C. 70. 
 
EJECTMENT. 629 
 
 ther with the use of all waters and watercourses, excepting to the 
 grantor liberty for driving any new adit within the lands granted, 
 and to convey any watercourse over the premises granted, haben- 
 dum for twenty-one years ; covenant by the grantee to pay one- 
 eighth share of all ore to the grantor, and all rates, taxes, &c., and 
 to work the mines during the term ; on failure of the performance 
 of any of the covenants, a right of re-entry was reserved to the 
 grantor : it was held, that this deed did not amount to a lease, but 
 was a mere licence to dig and search for minerals ; and that the 
 grantee could not maintain an ejectment for mines lying within the 
 liinits of the set, but not connected with his own workings (t). 
 Although an ejectment will not lie for a liberty and privilege alone, 
 which is a mere incorporeal hereditaifltent, yet when an ejectment 
 is brought for land, and liberties and privileges are appurtenant to 
 the land, the latter may be recovered with the land, because you 
 may recover in the ejectment all incorporeal things included in 
 the demise, although an ejectment will not lie for the incorporeal 
 things alone (it). 
 
 The right to a given substratum of coal lying under a certain 
 close, is a right to land, and cannot be claimed by prescription ; 
 aliter, the right of getting coal under another's land (x). 
 
 IV. Of Entry. 
 
 An actual entry on the land was formerly necessary in one 
 case, viz. to avoid a fine (2/) ; and no ejectment could be maintained 
 till entry. Fines were abolished by 3 & 4 Will. IV. c. 74 ; and no 
 entry is now necessary in any case, not even to maintain an eject- 
 ment on a clause of re-entry for non-payment of rent (z). On 
 entry, if made, the person entering becomes legally seised accord- 
 ing to the nature of his title (a) ; or, if he enter for condition broken 
 he is in of his former estate, and the lease becomes void (6). 
 An entry upon an estate generally, is an entry for the whole ; if it 
 be for less, it should be so defined at the time (c). Where a party 
 had a right of entry upon condition broken, and a stranger entered, 
 and afterwards the plaintiff assented to such entry, it was held 
 sufficient (d). Where lands are in the possession of a receiver, 
 
 <t) Doev. Wood, 2B. &Ald. 724. But 33 d 77,,,. , o «*,. 
 
 such a licence is an inoorporealheredita- (y) Bernngton v. Parhhurst, 2 Sti. 
 
 ment, assignable: Muskett v. Ifill, 5 B. 1086. 
 
 K. C 694" inheritable, per Martin, B .) Goodr^ght v Caior, Do^S;; J J- 
 
 Martyn v. Willmms, 1 H. & N. 827 ; and, (a) See Mmett v. Earl of GuUdfo, d, 
 
 if the licensee occupies, use and occupa- H J^^ch. 19. 
 
 tion may be maintained. Jones v. Rey- J) SimondsvLawna,Cio Eh^- 239. 
 
 «M, 4^ A. & E. 808. See Daniel v. {0) Per Lord Kenyon, C. J., 3 1. K,. 
 
 ■/turns, 4 A. & E. 808. «- - ■- 
 
 (x) Wilkinson v. Prind, 11 M. & W. 
 
630 EJECTMENT. 
 
 under the Court of Chancery, an ejectment cannot be brought for 
 such lands, without leave of the court (e). 
 
 v. Rotice to Quit. 
 
 The old tenancy at will being attended with many inconveniences, 
 the inclination of the courts is to make every tenancy a holding 
 from year to year, if they cam, find any foundation fo)' it (/), as if 
 the lessor accepts yearly rent, or rent measured by any aliquot part 
 of a year : and it has been considered as more advantageous to the 
 parties, that such demises should be construed to be tenancies from 
 year to year, so long as it shall please both parties ; for in that case 
 one party cannot determine the tenancy without giving a reason- 
 able notice to quit to the other ; with respect to which it may he 
 laid down as a general rule, that half a year's notice (g), expiring 
 with the year of the tenancy, is a reasonable notice in all cases, 
 except where a different period is established, either by express 
 agreement, or the custom of particular places (h). By legal com- 
 putation half a year contains 182 days ; for the odd hours are 
 rejected. 1 Inst. 135, b. But a notice served on the 28th of Sep- 
 tember to quit on the 25th of March, although the period contain 
 only 179 days, has been held good (i). So a notice on the 29th of 
 September to quit at Lady Day following was held good (k). But 
 in Might v. Darby, 1 T. R 159, it was held, that a notice on the 26th 
 of March \o quit on the 29th of September was bad. PriwA fade 
 the word " month," except in the case of a mercantile instrument, 
 means a lunar month (I) ; and so it is at common law if the word 
 be used in a statute (m) ; but as to the latter, this is altered by 13 
 Vict. c. 21, s. 4. 
 
 A party who is let into possession, and pays rent under an agree- 
 ment for a future lease for years, which is to contain a covenant 
 against taking successive crops of corn, and a condition for re-entry 
 n b reach of covenant, thereby becomes a yearly tenant subject to 
 uch terms and condition («.). If the tenant die, his personal 
 epre sentative, having the same interest in the land which the tenant 
 
 (e) Angel v. Smith, 9 Ves. 335. See shall not be turned otit without a quar- 
 V. Lewis, 3 Hare, 472. ter's warning, nor a tenant at will over 
 
 (/) See Richardson v. Langridge, 4 40.5. without half a year's warning. De- 
 
 Taunt. 128 ; where the agreement was ihik v. Saunders, 2 Sid. 20. 
 
 held to he a tenancy at will, the premises (i) Doe v. Green, 4 Esp. 199. 
 
 being let so long as both parties liked, and {k) Doe v. Wrightman, 4 Esp. 6. See 
 
 a compensation reserved acoraing de die JR. v. Swyer, 10 B. & C. 486 ; where it 
 
 in diem, and not referrible to a year or was held that the words "Three Years" 
 
 any aliquot part of a year. ia the prohibitory clause of a charter, 
 
 (g) 13 Hen. VIII. 15, b. imported years of office, and not calendar 
 
 (h) Eoe T. Wittcmson, Harg. & But. Co. years. 
 
 Litt. 270, b. n. 1 ; Soe v. CharnocTc, (I) R. v. OhoMton, 1 Q. B. 247. 
 
 Peake's N. P. C. 4. By the custom of (m) Lacon v. Hooper, 6 T. K. 224. 
 
 London, a tenant at wiU, wider 40s. rent, (n) Soe v. Amey, 12 A. & E. 476. 
 
EJECTMENT. 631 
 
 had, will he entitled to the same notice ; that is, half a year's notice 
 ending with the year (o) ; and if a notice to quit be served on the 
 widow, who remains in possession, the landlord is entitled to re- 
 cover, unless it be shown that some other person than the widow 
 was executor or administrator (p). So if an infant becomes entitled 
 to the reversion of lands leased to a tenant from year to year, he 
 cannot maintain an ejectment, unless he has given the tenant a 
 proper notice to _ quit (g-). There is not any distinction between 
 houses and land, in this respect. Half a year's notice to quit, end- 
 ing with the year of the tenancy, must be given in both cases (r). 
 Neither will the circumstance of the rent being reserved quarterly, 
 vary the case, if the tenancy be from year to year(s). So if a 
 house be let from year to year, to cl%it at a quarter's notice, the 
 notice must be given to quit at the end of a quarter expiring with 
 a year of the tenancy (t). But if the demise be for one year only, 
 and then to continue tenant afterwards, and to quit at a quarter's 
 notice, a quarter's notice ending with any quarter will be suffi- 
 cient (w), i. e. (semble), after the expiration of the first year (v). Where 
 premises were let at a yearly rent of 4<2l. payable quarterly, the 
 tenant to hold and enjoy, &c. "until one of the said parties should 
 give unto the other six months' notice," it was held that a half- 
 yearly tenancy was established, the word " yearly " being one of 
 calculation only (x). So where premises are taken under an agree- 
 ment by which the "tenant is always to be subject to quit at three 
 months' notice," this constitutes a quarterly tenancy, which may 
 be determined by a three months' notice to quit, expiring at the 
 same time of the year it commenced, or any corresponding quar- 
 ter-day. But although the tenant under such an agreement enters 
 in the middle of one of the usual quarters, if there appears to be no 
 agreement to the contrary (e. g., by paying for the broken quar- 
 ter (y) ), he will be presumed to hold from the day he enters, 
 and the tenancy can only be determined by a notice expiring on 
 that day of the year, or some' other quarter-day calculated from 
 thence (z). An insufficient notice to quit, accepted by the land- 
 lord, will not amount to a surrender by operation of law (a), 
 
 A tenancy from year to year, so long as both parties please, is 
 determinable at the end of any year, the first as well as any sub- 
 sequent year, unless in the creation of the tenancy the parties use 
 expressions showing that they contemplate a tenancy for two years 
 at the least (6). Thus a demise, " not for one year only, but from 
 
 (o) Doe V. Porter, 3 T. E. 13 ; Parlcer (v) Thompson v. Maberhj^ 2 Campb. 
 
 V. Omstable, 3 Wils. 25. 573. ^ ^ ^„^ 
 
 (p) Bees V. Perrot, 4 C. & P. 230. (x) Doe v. Graflon, 18 Q. B. 496. 
 
 (o) Maddm v. White, 2 T. E. 159. (y) Doe v. MaUhews, 11 C. B. 6/5. 
 
 (r) Sight v. Darby, 1 T. E. 162. (z) Kemp v. Derrett, 3 Campb. 610 ; 
 
 (g) ShirUy v. Newman, 1 Bsp. 267. Doe v. Dobell, 1 Q. B. 806. 
 
 (t) Doe V. Domvan, 2 Campb. 78 ; 1 (a) Per Pwrhe, B., Doe v.Milmard, 3 
 
 Taunt. 555. M. & W. 332, and posi, pp. 636 637. 
 
 (w) Per Oliambre, J., S. C. (&) Doe v. Smaridge, 7 Q. B. 957. 
 
632 EJECTMENT. 
 
 year to year," enures as a demise for two years at least ; and con- 
 sequently, the tenant cannot be ejected after a notice to quit at the 
 expiration of the first year (c). So where land was let for one 
 year, and so on from year to year, until the tenancy should be de- 
 termined as after mentioned, with a proviso that three months 
 should be sufficient notice to be given from either party, and an- 
 other proviso that it should be lawful for either party to determine 
 the tenancy by giving three months' notice ; it was held, that the 
 tenancy was not determinable by three months' notice expiring 
 before the end of the second year (d). But where furnished apart- 
 ments were taken "for twelve months certain, and six months' 
 notice afterwards ; " it was held, that the defendant was only bound 
 to remain the twelve months certain, and that he was at liberty to 
 quit at the end of that period, by giving six months' previous 
 notice. Lord Ellenhorough, C. J., laid considerable stress upon the 
 word certain, applied to the first twelve months, which showed 
 that everything afterwards was uncertain and depended on the 
 notice (e). 
 
 If a lessee, after the expiration of the lease, holds over and pays 
 rent, the law, in the absence of evidence to the contrary, presumes 
 an agreement between the parties that the tenant shall continue 
 the possession according to the terms of the original demise, as 
 far as those are consistent with a tenancy from year to year (/) ; in 
 which case, if the landlord means to determine the tenancy, he 
 must give the tenant half a year's notice to quit, corresponding 
 with the time of the original taking. In this case, the tenancy 
 from year to year commences at the same time when the lease 
 began ; and if the tenant assign the premises, the assignee will be 
 tenant from year to year from the same time, and notice to quit 
 must be given accordingly : e. g. if the original term began from 
 Michaelmas, the notice must be to quit at Michaelmas (gr). So, 
 where there was a demise for one year and six months certain, 
 from August the 13th, " three calendar months' notice to be given 
 before determination of the said tenancy," and the tenant occu- 
 pied beyond the year and six months ; it was held, that a three 
 months' notice expiring on the 13th of August was good Qi). 
 
 The receipt of rent is evidence to be left to a juiy that a tenancy 
 was subsisting during the period for which that rent was paid ; and 
 if no other tenancy appear, the presumption is, that that tenancy 
 was from year to year. A., being tenant for life, with remainder to 
 the plaintiff in fee, on 22nd of June, 1785, demised to the defendant, 
 for twenty-one years, to commence from old Lady Day then past. 
 
 (c) Denn v. Cart-wright, 4 East, 31. i15, per ParJce, B. 
 
 (d) Doe V. Green, 9 A. & E. 658 ; R. v. (g) Doe v. Samuel, 5 Esp. 173. 
 Chawton,.! Q. B. 247, ace. (h) Doe v. DoMl, 1 Q. B. 806 ; Berrey 
 
 (c) Thompson v. Mdberly, 2 Campb. v. Lmdley, 3 M. & 6. 498, ace. But see 
 573. Doe V. Lines, 11 Q. B. 402, which wfts a 
 
 (/) See Button v. Warren, 1 M, & W. case of an under-tenant. 
 
EJECTMENT. 633 
 
 On the SOtli of September, 1785, A. died : the defendant continued 
 'in possession, and paid rent to the plaintiff for two years, on old 
 Lady Day and old Michaelmas Day; before old Mcliaelmas Day, 
 1787, the plaintiff gave the defendant notice to quit on old Lady 
 Day then next. Adjudged, per Cur., that the notice was good, 
 on the ground that payment of rent on the 5tli of April was evi- 
 dence of an agreement for a tenancy from year to year to hold 
 from that day ; although it was objected, that the interest of the 
 tenant for life having expired on the 30th of September, the notice 
 ought to have been to quit at the end of the year from that time (i). 
 In January, 1790, A. let a farm to the defendant for seven years by 
 parol. Defendant was to enter at oldjljady Day on the land, and 
 on the house on the 25th of May, and he was to quit at Candle- 
 mas. On the 22nd of September, 1792, a notice to quit at Lady 
 Day next was served on defendant. The court held, that this 
 notice was improper ; Lord Kenyan, C. J., observing, that though 
 the agreement be void by the Statute of Frauds, as to the duration 
 of the lease, yet it must regulate the terms, on which the tenancy 
 subsisted, in other respects, i. e. as to the rent, the time of year 
 when the defendant was to quit, &c. The agreement was, that 
 defendant should quit at Candlemas. If the lessor, therefore, 
 chose to determine the tenancy before the expiration of the seven 
 years, he could put an end to it at Candlemas only (k). So 
 although a lease be " void " by virtue of the 8 & 9 Vict. c. 106, as not 
 being by deed, yet the terms of the tenancy are regulated by it (f). 
 
 Acceptance of rent, as rent, by a remainder-man, will not 
 amount to a confirmation of a lease void as against him (m) ; but it 
 is an admission of a tenancy from year to year, and the lessee will 
 thereby be entitled to half a year's notice to quit (n). In order to 
 raise an implied tenancy from the receipt of i-ent, it must appear 
 that the rent was paid and received as between landlord and 
 tenant, so as to raise a presumption of an agreement for a tenancy 
 from year to year, and not as in the case of a conventionary rent, 
 where the payment is made with reference to a supposed tenancy 
 of another kind (o). Where, however, tenant in tail had received 
 an ancient rent of 11. 1 8s. 6d from the lessee in possession, under 
 a void lease, granted by tenant for life under a power, the rack- 
 rent value of which was SOl. a year ; it was held, that such tenant 
 in tail could not maintain an ejectment, without giving the lessee 
 some notice to quit, so as to make him a trespasser at the time of 
 action brought, after such recognition of a lawful possession, if not 
 as tenant from year to year, at least as tenant at will (p). 
 
 (i) Doe V. Ward, 1 H. Bl. 97. (o) ■R»fl'^« v. 5wAre, 3 East, 260 ; iJoe 
 
 (¥) Doe V. Dell, 5 T. R. 471. v. Prideaux, 10 East, 188 ; Doe v. Qmg- 
 
 {D Tress v. Savage, 4 E. & B. 36. ley, 2 Campb. 505. ,.„,„.-„ 
 
 m) Doug. 51 ; Cowp. 201, 483. (p) Dmnr. Itawhm,10J^i, 261. See 
 
 (k) Doe V. Watts, 7 T. E. 83 ; Doe v. Doe v. Jmhson, 1 B. & C. 448. 
 Morse, 1 B. & Ad. 365, ace. 
 
634 EJECTMENT. 
 
 Where the in-coming tenant enters upon dififerent parts of the 
 demised premises at different times, half a year's notice to quit, 
 with reference *to the substantial time of entry, that is, with re- 
 ference to the original time of entry on the substantial part of the 
 premises demised, is sufficient, the whole being demised at one 
 entire rent. It is not necessaiy that the notice to quit should be 
 given with reference to the time of entry on the other parts, which 
 are only auxiliary to the principal subject of the demise. Neither 
 is it necessary that separate notices to quit the other parts should 
 be given, where all the parts are demised as one entire thing. One 
 notice, given in conformity with the rule laid down, is sufficient(g'). 
 The substantial time of entry is not necessarily to be collected 
 from the rent days ; though it happened, in the case of Doe v. 
 Spence, that the tenant entered on the substantial part of the 
 premises on the day from which the rent was reckoned (r). It 
 is a question of fact for the jury to decide, which is the principal 
 and which the accessorial subject of demise ; this being found, 
 ■the judge may then determine whether the notice to quit has been 
 given in due time (s). 
 
 Where a half-yearly tenancy is established, a half year's notice 
 is sufficient (t). So where the tenancy is by the quarter, by the 
 month, or by the week, a quarter's (w), month's (x), or week's (y) 
 notice is sufficient. In a case of weekly tenancy (z), it was held 
 that a week's notice was necessary; and aemble, per Coltman, 
 J. (a), that in the case of a quarterly tenancy, a quarter's notice is 
 also necessary. " Upon the question of the necessity of a notice 
 to quit," said Parke, B. (6), " the law is clearly settled, that a 
 yearly tenancy cannot be determined without half a year's notice ; 
 but that rule cannot be applied to a weekly taking ; for the effect 
 of it would be to show that a half week's notice was necessaiy to 
 put an end to such a tenancy. I am not aware that it has ever 
 been decided that in the case of an ordinary monthly or weekly 
 tenancy, a month's or a week's notice to quit rrnost be given. — ^I 
 am of opinion, in the absence of any evidence to prove a usage to 
 that effect, that, in point of law, a week's notice to quit is not 
 implied as a part of the contract in the case of an ordinary weekly 
 taking." _ But it seems that a weekly tenancy cannot be deter- 
 mined without some notice, but it is not settled what (c). Where 
 the only evidence of the' terms on which apartments were hired 
 consisted of the following receipt : — " Keceived of A. 126?. for 
 
 , (j) Doe V. Spence, 6 East, 120. (y) Doe v. ScoU, 6 Bingh. 362 ; Doe v. 
 
 (r) Per Le Blanc, J., Doe v. WatUns, Raffan, 6 Esp. 4, 
 7 East, 557. (z) Doe v. Bayley, 5 C. & P. 67. 
 
 (s) Doe V. Howard, 11 East, 498 ; Doe (a) Toime v. Camphell, 3 C. B. 921. 
 V. Hughes, 7 M. & W. 139.' (6) ffuffell v. Armistead, 7 C. & P. 56. 
 
 (t) Doe V. Graftm, 18 Q. B. 496. (c) Jmies v. MiUs, 10 C. B. (N. S.) 788 ; 
 
 (m) Kemp V. Derrett, 3 Campb. 510. 31 L. J., C. P. 66. 
 
 (a;) Doe r. Hazell, 1 Esp. 94. 
 
EJECTMENT. 635 
 
 rent of furnished house, from the 8th of May to the 1st of August ; " 
 it was held that the jury were warranted in inferring that the hiring 
 was weekly and not quarterly (cZ). 
 
 A tenant of apartments is not justified in quitting without notice, 
 merely from a fear, however reasonable, that his goods may be 
 seized for his landlord's rent (e). 
 
 Requisites of Notice.— Although a parol notice is sufficient (/), 
 yet it is more advisable to give a written one ; if the notice was 
 attested, the witness must formerly have been called, or his 
 absence accounted for(g'). The terms of the notice should be clear 
 and definite, in order to avoid any olfjection at the trial ; for it is 
 not incumbent on a party served with an irregular notice to object 
 to it at the time of service ; it is sufficient if he object to it at the 
 trial Qi). The tenant's not objecting to the notice, however, at the 
 time of service, is primd facie evidence that his tenancy deter- 
 mined at the time mentioned (i). The courts will, if possible, so 
 construe the notice as to give effect to it (k), for it is not re- 
 quired that a notice should be worded with the accuracy of a 
 plea (I). Hence, a mere misdescription of the premises will not 
 vitiate, if the premises are sufficiently described to prevent the 
 tenant being misled, as a notice to quit " the premises you hold of 
 me, called the' ' Waterman's Arms,' " instead of the " Bricklayer's 
 Arms " (m). So where the premises were described as in parish A., 
 when they were iu fact situate in parish B. (n). So, "I desire you 
 to quit on the 25th of March, or I shall insist on double rent," has 
 been held good (o). So upon a taking from old Michaelmas to old 
 Michaelmas, a notice to quit at Michaelmas will be sufficient (p) ; 
 at least if it be proved, that the tenancy commenced at old Michael- 
 mas (g)- So a notice delivered at Michaelmas, 1795, "to quit at 
 Lady Day which will he in the year 1795," was adjudged to be 
 good ; for the intention is clear, and the words, " in the year 
 1795," may be rejected (?'). Nor is it necessary to specify the par- 
 ticular day(s). Thus a notice to quit on a certain day, "or at such 
 time as your holding shall expire next after the expiration of half 
 a year from the receipt of this notice," is good (t). But where the 
 tenancy commenced on the 11th of October, and the notice was 
 
 (d) Towne v. Camplell, 3 C. B. 921. A. & E. 353. 
 
 (e) RickeU v. Tullwk, 6 C. & P. 66. (m) Doe v. Cox, i Esp. 185. 
 
 (/) Doe V. Crick, 5 Esp. 197 ; Roe v. (n) Doe v. WilMnson, 12 A. & E. 743. 
 
 Pieree, 2 Camp. 96. (o) Doe v. Jackson, Doug. 175 ; Doe v. 
 
 (g) Doe V. Dumford, 2 M. & S. 62, Goldmn, 2 Q. B. 143; ace. sea Roberts v. 
 
 unless the defendant upon notice refuse to Hay ward, 3 C. & P. 432. 
 produce the original. Poole v. Warren, Qp) Denn v. Waine, cited Peake's Add. 
 
 8 A. & E. 582. Ca. 195. 
 
 Q) Oakapple v. Copous, 4 T. R. 361. (q) Doe v. Vime, 2 Campb. 256. 
 
 (i) Doe V. Biggs, 2 Taunt. 109. (r) Doe v. Knightley, 7 T. E. 63. 
 
 (h) See Doe v. Archer, 14 East, 245 ; (s) Doe v. BviUr, 2 Esp. 589. 
 Doe V. Church, 3 Campb. 71. (t) Hirst v. Horn, 6 M. & W, 393 ; Doe 
 
 (I) Per Patteson, J., in Doe v. Smith, 5 v. ScoU, 6 Bingh. 362. 
 
636 EJECTMENT. 
 
 on the 17th June, 1840, to quit " on the 11th of October then next, 
 or such other time as the tenancy might expire ;" it was held, that 
 this was not a good notice for the 11th of October, 1841, for that 
 if it was intended to operate as a notice for a subsequent year, 
 it should have been more distinct (u). So where the holding 
 was from Martinmas to Martinmas, and the notice was on the 21st 
 of October, 1842, to quit " on the 13th day of May next, or upon 
 such other day or time as the current year for which you now hold 
 will expire ; " it was held bad for Martinmas, 1843 (x). 
 
 It is, however, essentially necessary, that the notice should be to 
 quit at the expiration of the current year of the tenancy ; that is, 
 if the defendant hold from Michaelmas, the notice must be given 
 half a year before Michaelmas, to quit at Michaelmas; if from 
 Lady Day, at Lady Day, &c. ; for, if a notice to quit at Mid- 
 summer be given to a tenant holding from Michaelmas, or vice 
 versd, it will be insufficient {y) ; and a notice to quit at a particular 
 day is not prvmd facie evidence of a holding from that day (z) ; 
 unless it is served personally on the tenant, who makes no objec- 
 tion at the time (a). In a case where the notice (which was served 
 on the defendant on the 29th of September) was to quit on the 
 25th of March, or the 8th day of April, next ensuing, and was ob- 
 jected to on the ground that it did not express with sufiBcient 
 accuracy the end of the tenancy, and the time when" the defendant 
 was to quit, and that at all events it was incumbent on the plaintiff 
 to show that the defendant's tenancy commenced either on the 25th 
 of March or 8th of April, Lord Kenyan, C. J., ruled the notice to 
 be sufficient, and that the onus of proving the commencement of 
 his tenancy lay on the defendant (6). 
 
 Where the tenant, being applied to by his landlord respecting 
 the commencement of his holding, informs him that it began on a 
 certain day, and the landlord gives the tenant notice to quit agree- 
 ably to the information received, the tenant will be precluded from 
 contending that his tenancy commenced on a different day, even 
 though he can prove that the information which he gave his land- 
 lord proceeded on a mistake, and not from an intention to deceive(c). 
 But where a tenant from year to year, believing that his tenancy 
 determined at Midsummer, gave a written notice to^quit at that 
 time, which the landlord accepted, without making any objection 
 to it, and the tenant, having afterwards discovered that his tenancy 
 expired at Christmas, gave his landlord another notice accordingly, 
 and on possession being demanded at Midsummer refused to quit ; 
 it was held, that the tenancy was not determined by the first notice ; 
 
 («) Mills V. Goff, 14 M. & AV. 72. (s) Doe v. Oalmrt, 2 Campb. 388. 
 
 (x) Doe V. Morphea, 1 Q. B. 577, over- (a.) Doe v. Forster, 13 East, 405 ; Thomas 
 
 ruling Doe v. CuUiford, 4 D. & R. 248, v. Thomas, 2 Campb. 647. 
 
 and (semble) Doe v. Smith, 5 A. & E. (6) Doe v. Wrighiman, 4 Esp. 5. 
 
 350. (c) Doe v. Lambly, 2 Esp. 635. 
 
 (y) Doe V. Milward, 3 M. & W. 328. 
 
EJECTMENT. 637 
 
 for it was not good as a notice to quit ; and that it could not 
 operate as a surrender, by note in writing, within the Statute of 
 Frauds, being to take effect m futuro (d). A receipt for rent up 
 to a particular day is primd facie evidence of the commencement 
 of the tenancy at that day (e). Upon a parol demise, rent to com- 
 mence from the following Lady Day, evidence of the custom of the 
 country is admissible to show that by " Lady Day " the uarties 
 meant "old Lady Day" (/). ^ 
 
 It is not essentially necessary that the notice should be directed 
 to the defendant, if the terms of it show that the defendant is 
 tenant to the plaintiff, and if it is proved to have been served on 
 the defendant at the proper time (g). Neither is it necessary for a 
 landlord to give notice to any one bi*t his own tenant, although 
 such tenant may have underlet part of the demised premises Qi). 
 A., tenant from year to year to B., underlet part of the premises 
 to C A., without receiving any regular notice to quit from B., 
 gave up to him the part remaining in his own possession ; C. having 
 refused to deliver his part, was served with a notice to quit from 
 B., to whom he had never paid rent, or otherwise acknowledged as 
 his immediate landlord, but had always paid his rent to A. B. 
 brought ejectment against C. ; it was held, that the notice was 
 insufficient, B. not having given any regular notice to A., his im- 
 mediate tenant ; and A. not having given any such notice to C ; 
 and that, without one or other of such notices, C.'s interest in the 
 part underlet continued (i). 
 
 Evidence that the notice was delivered and explained to the 
 servant of the tenant at his dwelling-house, though such dwelling- 
 house be not situated on the demised premises, is presumptive evi- 
 dence that the notice came to the hands of the tenant, the servant 
 not being called (k). So a notice served upon the wife on the 
 demised premises is sufficient (I). But evidence of the notice 
 having been left at the tenant's house without any proof of its 
 having been delivered to a servant, or that it came to the tenant's 
 hands, is not sufficient (tti). Evidence of the notice being served 
 on the premises, on one of two joint-tenants, who resided on the 
 premises, is presumptive evidence that the notice reached the other 
 joint-tenant, who resided elsewhere (n). 
 
 The notice must be such that the tenant may safely act on it at 
 the time of receiving it. Therefore a notice by an unauthorized 
 agent cannot be made good by an adoption of it by the principal 
 
 (d) Doe V. miward, 8 M. & W. 328. Pihe v. Syre, 9 B. & C. 909, ace. See 
 
 (e) Per Lord Ellmborough, C. J., in Roe v. Street, 2 A. & E. 329. 
 
 Doe V. Samuel, 5 Esp. 174. (A) Jones v. Marsh, 4 T. E. 464. 
 
 (/) Doe V. Benson, 4 B. & Aid. 588. \l) Roe v. Street, 2 A. & E. 329. 
 
 (g) Doe V. Wrightman, 4 Esp. 5. {m} Doe v. Lucas, 5 Esp. 153. 
 
 (h) Roe V. Wiggs, 2 N. E. 330. See (n) Doe v. Watkins, 7 East, 551 ; Doe 
 
 Cox V. Drain, 3 Taunt. 95. v. Ci-ic/c, 5 Esp. 196, ace. 
 
 (i) Pleasant v. Benson, 14 East, 234 ; 
 
638 EJECTMENT. 
 
 after the proper time of giviBg it (o). A lease contained a proviso 
 making it determinable by a notice in -writing given by the lessor 
 or his executors under his or their respective hands. Held, that a 
 notice signed by two only of three executors of the lessor to whom 
 he had devised the freehold as joint-tenants, expressing the notice 
 to be given on behalf of themselves, and titjie third executor, was 
 not good ; for the notice to quit being such as the tenant was to 
 act upon at the time, no subsequent recognition of the third exe- 
 cutor would make it good by relation ; nor was his joining in the 
 ejectnient evidence of his original assent to bind the tenant by the 
 notice. A mode was specifically pointed out to be pursued, in 
 order to put an end to a subsisting term (p), and that mode required 
 the concurrence of all the joint-tenants ; hence a notice by some of 
 the joint-tenants only would have no operation (q). But, as a 
 general rule, a notice to quit signed by one of several joint-tenants, 
 on behalf of all, is sufficient to deteimine a tenancy as to all ; for 
 such a notice would clearly operate upon his own share, and the 
 confining it to that share might work great injustice to the terre- 
 tenant, who, however willing he might be to be sole tenant of land, 
 would not probably be equally willing to hold undivided shares of 
 it ; and as the tenant is entitled to- treat such a notice as deter- 
 mining the tenancy as to the whole, the lessors must have a cor- 
 responding right (r). So a notice to quit given by a person 
 authorized by one of several lessors, joint-tenants, determines the 
 tenancy as to all (s), and if the tenant has paid the entire rent to 
 such person (e. g. the clerk to a board of trustees) it is not enough 
 for him to show that they (the trustees) were appointed at different 
 times, as evidence that they were tenants in common (f). Where 
 there is a mere tenancy at will, any thing which amounts to a 
 demand of possession, although not expressed in precise and 
 formal language, is sufficient to indicate the determination of the 
 landlord's will (u). 
 
 A receiver appointed by the Court of Chancery, with a general 
 authority to let the land to tenants from year to year, has also 
 authority to detei-mine such tenancies by a notice to quit (x) ; and 
 an agent to receive rents and let has been held to have a similar 
 authority {y) ; but a mere receiver of rents, as such, has no autho- 
 rity to determine a tenancy (z). A verbal notice to quit given by 
 the steward of a corporation is sufficient, without evidence that he 
 had an authority under seal (a) ; but a notice to quit given by an 
 
 (0) Doe V. Goldwm, 2 Q. B. 143. (t) Doe v. Grant, 12 East, 221. 
 
 (p) Ace. Cadbyy. Martinez, 11 A. &E. («) Doe v. Price, 9 Bingh. 356. 
 
 720. ' (xJDoev. Mead, 12 mst, 57. 
 
 (q) Bight v. Outhell, 5 East, 491 ; Doe (y) Doe v. Miaem, 2 M. & Bob. 56. 
 
 V. Wallers, 10 B. & C. 626, ace. \z) Doe v. Walters, 10 ,B. & 0. 633, ;)W 
 
 (r) Doe V. Swnmer^ett, 1 B. & Ad. 135. Pa/rke, J. , 
 
 (s) Doe V. Hughes, 7 M. & W. 139. (a) Roe v. Pierce, 2 Campb. 96. 
 
EJECTMENT. 639 
 
 agent pf an agent is not sufficient without the authority of, or 
 recognition by, the principal (6). 
 
 Waiwr of Notice. — Where a notice to quit has been given, the 
 lessor must be careful not to do any act which may be constnied as 
 an aflfirmance of the tenancy and a waiver of the notice. A distress 
 for rent, which accrued after the expiration of the time, at which, 
 by the notice, the tenant is to quit, is an acknowledgment of the 
 tenancy (c) ; so is, priTud facie, the acceptance of rent so due (d) ; 
 but it shall be left to the jury to say whether the money received 
 was received simpliciter as rent, without any stipulation at the time 
 of payment ; for whether it shall be a waiver of the notice depends 
 on the intention of the parties, which iS a matter of fact to be left 
 to the jury (e). Thus a demand of rent is not m law a waiver of 
 notice, but only evidence for the jury of an intention to waive it (/). 
 A landlord of premises, about to sell them, gave his tenant notice 
 to quit, on the 11th of October, 1806, but promised him not to turn 
 him out unless they were sold; the premises were not sold till 
 February, 1807, when the tenant refused, on demand, to deliver 
 up possession ; on ejectment brought, laying the demise on the 
 12th of October, 1806, it was held, that the promise (which was 
 performed) was no waiver of the notice, nor operated as a licence 
 to be on the premises otherwise than subject to the landlord's 
 right of acting on such notice, if necessary ; and, therefore, that 
 the tenant, not having delivered up possession on demand, after a 
 sale, was a trespasser from the expiration of the notice to quit (gr). 
 
 Where, during the pendency of an ejectment, the lessor delivered 
 a second notice to quit, and it was objected, at the trial, (before 
 Lawrence, J.,) that the second notice was a waiver of the first, 
 being a recognition of the tenancy still subsisting ; the learned 
 judge overruled the objection, and a verdict was found for the 
 plaintiff. The court concurred ip opinion with Lawrence, J., ob- 
 serving, that it had been admitted, that if the plaintiff had not 
 intended the second notice to operate as a waiver of the first, he 
 might have so explained his intention, by adding that the second 
 notice was to enable him to recover the premises at a subsequent 
 assizes, if, by any accident, he should fail at those then ensumg. 
 And the defendant must have so understood this notice ; for he 
 could not suppose that the plaintiff intended to waive the first 
 notice, when he knew that the plaintiff was, on the foundation ot 
 that notice, proceeding by ejectment to turn him out of the farm (/i). 
 But a notice, delivered to the assignee of a tenant after the assign- 
 
640 EJECTMENT. 
 
 ment, is a waiver of a prior notice served upon the original tenant (i). 
 So where, after the expiration of a notice to quit, the landlord gave 
 the defendant a fresh notice, that, unless he quitted in fourteen 
 days, he would be required to pay double value, it was held, that 
 the second notice was not a waiver of the first (k). Where rent is 
 usually paid at a banker's, if the banker, without any special 
 authority, receives rent accruing after the expiration of notice to 
 quit, it will not operate as a waiver (I). 
 
 A tenant held under a demise from the 26th day of March for 
 one year then next ensuing, and so from year to year, for so long 
 as the landlord and tenant should respectively please. The tenant, 
 after having held more than one year, gave a parol notice to the 
 landlord less than six months before the 25th day of March, that 
 he would quit on that day, and the landlord accepted and assented 
 to the notice ; it was held, that the tenancy was not thereby deter- 
 mined, there not having been either a sufficient notice to quit, or a 
 surrender in writing, or by operation of law, within the Statute of 
 Frauds (m). So where after a similar notice which the landlord at 
 first acquiesced in, but ultimately refused to accept, the tenant 
 quitted according to his notice, and the landlord entered and did 
 some repairs, it was held, that the tenancy was not determined ('«.). 
 In the case of a tenancy from year to year, if the landlord consents 
 to accept another person as his tenant, the first tenant is thereby 
 discharged, although he has not given any notice to quit, or made 
 any surrender of his interest in writing within the Statute of 
 Frauds ; for this amounts to a surrender by operation of law (o). 
 
 Waiver of Forfeiture. — Here it may be proper to take notice of 
 a doctrine analogous to the subject of the preceding remarks, viz. 
 that acceptance of (p), or distress for (q), rent, due after condition 
 broken, with notice of the breach (?'), is a waiver of the forfeiture. 
 If the forfeiture be for the breach of a continuing covenant, e. g. a 
 covenant to keep insured (s), to repair (t), not to underlet (w), &c., 
 such acceptance or distress operates as a waiver of past breaches 
 only, and therefore a lessor, who has a right of re-entry reserved 
 on a breach of covenant not to underlet, does not, by waiving his 
 re-entry on one underletting, lose his right to re-enter on a subse- 
 quent underletting (cc) ; but, where the condition is in its nature 
 
 (i) Doe V. Palmer, 16 East, 53. See Doe v. Priichard, 5 B. & Ad. 765. 
 
 (k) Doe V. Steel, 3 Campb. 117 ; Mes- (g) Doe v. Peck, 1 B. & Ad. 428. 
 
 senger v. Armstrong, 1 T. K. 53, ace. (r) Oregson v. Harrison, 2 T. K. 425 ; 
 
 (I) Doe V. Calvert, 2 Campb. 387. Doe v. Bmh, 1 M. & W. 402. See Croft 
 
 (m) Johnstone v. Hudlestone, 4 B. & C. v. Lumley (H. of Lords}, 27 L. J., Q. B, 
 
 922 ; see Doe v. Milward, 3 M. & W. 328. 321. 
 
 (n) Bessel v. Landsberg, 7 Q. B. 638. (s) Doe v. Peck, 1 B. & Ad. 428. 
 
 (o) Nickells y. Aiherstone, 10 Q. B. 944 ; (l) Doe v. Jones, 5 Exch. 498. 
 
 Sparrow v. Hawkes, 2 Esp. 505. (v) Doe v. Bliss, 4 Taunt. 735. 
 
 ijp) Goodright v. Damds, Cowp. 803. (a;) Ibid. 
 
EJECTMENT. 641 
 
 single and complete, e. g. a covenant not to assign {y), to effect one 
 policy of insurance {z), &c., there the acceptance of rent or a dis- 
 tress is a waiver of the covenant or condition itself.' An absolute, 
 unqualified demand of rent by a person having sufficient authority 
 amounts (semhle) to a waiver of a forfeiture (a), but it is only evi- 
 dence to be left to a jury of a waiver of notice to quit (6). An 
 ejectment once brought for a forfeiture operates as a final election 
 by the lessor to determine the term, and he cannot afterwards 
 (although there has been no judgment in the ejectment) sue for 
 rent due or covenants broken (c). So an action for rent, due sub- 
 sequent to a breach, operates as a final election on the part of the 
 lessor to treat the defendant as a tenant, and not as a trespasser ; 
 and an action of ejectment cannot therafore be brought against him 
 subsequently ; for if it could the lessor would recover his rent twice 
 over ; first in the action for the rent, and then in the action for 
 mesne profits (d). But the mere acceptance of rent after ejectment 
 brought is not, it seems, a waiver of a forfeiture (e). 
 
 The law will always incline against forfeitures, as courts of equity 
 relieve against them : and the general rule is, that a clause of 
 re-entry be construed strictly (/). Proviso, that on non-payment 
 of rent for twenty-one days after demand, the lease should " cease, 
 determine, and be utterly void;" held, that a forfeiture could be 
 waived by a subsequent receipt of rent nevertheless (gr). A proviso 
 giving power of re-entry if the lessee " shall do, or cause to be done, 
 any act, matter, or thing, contrary to, and in breach of, any of the 
 covenants," does not apply to a breach of the covenant to repair, 
 the omission to repair not being an act done within the meaning 
 of the proviso (h). In ejectment for not insuring according to co- 
 venant; it was held, that it was incumbent on the plaintiff to 
 prove that no insurance had been effected, and that the fact that 
 the defendant refused to show the policy, when the plaintiff re- 
 quired him, and did not produce it on the trial after notice, was 
 not primd facie evidence against him ; for the plaintiff had chosen 
 to make the forfeiture depend on a condition peculiarly within the 
 knowledge of the defendant, and had therefore brought the diffi- 
 culty on himself (i). So on ejectment for non-payment of rent, a 
 demand of the rent must be proved (Jc). It has been held, that_ a 
 landlord does not waive a forfeiture by merely lying by and wit- 
 nessing the act, but that there must be some act affirming the 
 tenancy (I). 
 
 (y) Per Patteson, J., Doe v. Pritcliard, (e) Doe v. Me-ux, 1 C. & P. UG. 
 
 5B. &Ad. 781. (/) P'ii' Tenterden, C. J., m Doe v. 
 
 (z) Doe v. Peck, 1 B. & Ad. 428. Marchetti, 1 B. & Ad. 720. 
 
 {a) Doe V. Birch, 1 M. & W. 408, per (g) Amsby v. Woodward, 6 B. &; O. 
 
 Parke, B. ; Deruly v. Nwholl, ace. 519. „ t> ,l a j onn 
 
 (I) Blyth V. Dennett, 13 C. B. 178. (h) Doe v. SUvens, 3 B. & Ad. 299. 
 
 (c) Jones V. Carter, 15 M. & W. 718. (i) Doe v. Whitehead, 8 A. & Ji. 571. 
 
 (d) Dendy v. NichoU, 27 h. J., C. P. {k) Doe v. Hobson, 2 0. & P 245. 
 220, (I) Doe V. Allen, 3 Ta.wt.7S. 
 
 '..,. . T T 
 
64a EJECTMENT. 
 
 An indenture of lease contailied a general covenant to repair, and 
 a further covenant that the tenant should, mthin three months after 
 notice, repair all defects, of which notice should be given. The 
 lease contained the usual clause of re-entry. It was held, that the 
 landlord, who had served a notice to repair forthwith, might main- 
 tain ejectment, before the expiration of the three months, for a 
 breach of the general covenant to repair ; for the notice was not 
 any waiver of the forfeiture (m). But where the notice required 
 the tenant to repair within three months ; this was held to operate 
 as a waiver of the forfeiture (%). From this last decision it appears 
 that, in cases where a notice to repair has been given, it will be 
 prudent not to bring ejectment until the time allowed by the notice 
 has expired. In a case where there was a general covenant to 
 repair, but no specific power of re-entry for breach of that covenant, 
 but a proviso for re-entry in case of non-repair within three months 
 after notice, or in case of breach of the other covenants: notice 
 (dated 6th of January) was given to repair within three months; 
 and ejectment was brought before the expiration of the three 
 months. At the trial an order of court was made by consent, that 
 a juror should be withdrawn, and the repairs performed on or before 
 the 24th of June. The repairs not being performed on that day, 
 another ejectment was brought, and the plaintiff had a verdict, and 
 the court refused a rule for a new trial, for the right of entry was 
 at all events only suspended, Parke, J., observing, that "the 
 plaintiff had put an end to the first action by consenting, to the 
 order of court. It was the same as if the parties, after the 6th 
 of January, and before the expiration of the three months, had 
 agreed, that the time for repaii'ing should be extended to the 24th 
 of June : it was merely a consent to postpone the time of com- 
 pleting the repair for the benefit of the defendant : and on his fail- 
 ing to comply with the terms, the plaintiff might justly insist on his 
 right of entry, and bring a new ejectment after the expiration of 
 the enlarged time " (o). 
 
 Where notice to quit is not required. — The doctrine relative to 
 notices to quit is only applicable to those tenancies where the 
 time of quitting is not agreed upon between the parties ; for, 
 where a lease is determinable upon a certain event, or at a fixed 
 time, it is not necessary to give such notice, both parties being ap- 
 prized of the determination of the term {p). And this is so, where 
 the tenant holds under an invalid agreement, e. g. a lease void 
 under 8 & 9 Vict. c. 106, as not being by deed (q), or under an 
 agreement not amounting to a demise. A. agreed to demise a 
 house to B., during the joint lives of A. and B. : B. entered in 
 
 (m) jRoe V. Padna, 2 Campb. 520. (p) Per Lord MamfieU, C. J., in RigU 
 
 (n) Doe V. Meux, 4 B. Sd C. 606. See v. Darly, 1 T. R. 162. 
 Doe J. Lewis, 6 A. & E. 289. (q) Tress v. Savage, 4 E. & B. 36. 
 
 (o) Doe V. Brindley, 4 B. & Ad. 84. 
 
EJECTMENT. 643 
 
 pursuance of the agreement, and, before any lease was executed, 
 died ; after which B.'s executor took possession of the house : it 
 was held thatA. might maintain ejectment against the executor, 
 without a notice to quit ; because the death of B. determined his 
 interest, and, consequently, there was not any interest vested in 
 the executor (r). So where the tenant had occupied under an 
 agreement for a lease for seven years, which period had expired (s). 
 Neither is such notice necessary in a case where the possession is 
 adverse (t), or where the relation of landlord and tenant does not 
 subsist ; e. g., if the tenant has attorned to some other person, or 
 done some other act disclaiming to hold as tenant to the land- 
 lord (u) ; and, in the case of a tenancy from year to year, it does 
 not appear to be necessary that any adt should be done as distin- 
 guished from a verbal disclaimer ; a disavowal by the tenant of 
 the holding under the particular landlord by words only is suffi- 
 cient. But, in order to make a verbal or written disclaimer suffi- 
 cient, it must amount to a direct repudiation of the relation of 
 landlord and tenant, or to a distinct claim to hold possession of 
 the estate upon a gi'ound wholly inconsistent with the existence of 
 that relation (x) ; for a tenant honestly inquiring into the title of a 
 claimant is not thereby guilty of a disclaimer (y) ; and if the acts 
 done by the tenant do not amount to a disavowal of the landlord's 
 title, e. g., a refusal to pay rent to a devisee under a contested 
 will, accompanied with a declaration that he (the tenant) was 
 ready to pay the rent to any person entitled to receive it, then the 
 tenant is entitled to notice (z). Secus, however, if in addition to 
 such a declaration the tenant sets up an adverse title as the 
 ground of his refusal to pay rent to the plaintiff ; or if the tenant, 
 without setting up an adverse title, refuses to pay rent to the 
 person under whom he claims, although he accompanies his refusal 
 by such a declaration (a). It is sometimes said that a tenancy 
 from year to year is forfeited by disclaimer; but it would be 
 more correct to say that a disclaimer furnishes evidence in answer 
 to the disclaiming party's assertion, that he has had no notice to 
 quit ; as it would be idle to prove such a notice where the tenant 
 has asserted that there is no longer any tenancy (6). But where 
 no notice to quit is necessary, as in the case of a term of years, 
 a tenant does not forfeit his teim by orally refusing, upon demand 
 made by his landlord, to pay the rent, and claiming the fee as 
 his own (c). - 
 
 M Doe V. Smith, 6 East, 530. 1 M. & G. 138. ,. „ , , vr p p 
 
 (s) Doe y.Stratton, i Bingh. 446. («) Doe v. Pasgmh, Peake s W. i^. O. 
 
 (t) DoeY. Williams, Cowp. 623. 196. . ^ tj loa 
 
 («) Throgmmtmi v. Whelpdale, Bull. (a Doe v. mhiigs, 4 C. B. 18»- 
 
 up' 9g_ (J) Per Patteson, J., m Doe v. Wells, 
 
 (x) Per Pwrke, B., Doe v. Stmiion, 1 10 A. & E. 427. 
 
 M. & W. 703. («) -S- C. 
 {y) Per Tindal, C. J., Doe v. Cooper, 
 
 T T 2 
 
644 EJECTMENT. 
 
 A mortgagor in possession stands in a peculiar character ; and 
 is liable to be. treated as tenant or trespasser at the option of the 
 mortgagee (d), and consequently, is not entitled to a notice to quit, 
 or even to a demand of possession (e). Where a mortgagee under 
 a special power in the mortgage deed to distrain "as for rent" 
 distrained after the ejectment for arrears of interest accrued due 
 before; it was held, that he might maintain the ejectment without 
 giving a notice to quit (/). If a mortgagor lets another person 
 iiito possession, as tenant from year to year after the mortgage, 
 such tenant is not entitled to a notice to quit, either from the 
 mortgagee (g), or his assignee, although the tenant has been let 
 into possession before the assignment of the mortgage (h) ; unless 
 from the conduct of the mortgagee or his assignee, and the tenant 
 in possession, a tenancy can be inferred (i). But where a mortgagor 
 before mortgage let a farm to P. as tenant from year to year, and 
 after the mortgage P. let the defendant into possession in his stead, 
 and informed the mortgagor of the fact, and the mortgagor subse- 
 quently received the rent from the hands of the defendant, it was 
 held that the tenant's term was still in P., and consequently that 
 the mortgagee could not maintain ejectment against the defendant 
 without a notice to quit (/c). 
 
 Where a person obtains possession of a house without the privity 
 of a landlord, and afterwards a negotiation takes place for a lease, 
 upon the terms of which the parties eventually differ, a notice to 
 quit is not necessary (l). So where a person enters under ah 
 agreement for a lease, without a stipulation that in case a lease is 
 not executed he shall hold for one year certain ; if a lease be ten- 
 dered to the occupier and he refuses to execute it, the lessor may 
 eject him without any notice to quit (m). But where the plaintiff 
 had put the defendant into possession under an agreement for the 
 purchase of the land ; it was held, that he could not, without a 
 demand of possession and a refusal by the defendant, or some 
 wrongful act by him to determine his lawful possession, treat the 
 defendant as a wrong-doer and a trespasser, as he assumed to do 
 by the ejectment (n). A minister of a dissenting congregation, 
 after his election, was put into possession of a chapel and dwell- 
 ing-house, by persons in whom the legal fee was vested, in trust 
 to pennit and suffer the chapel to be used for the purpose of reU- 
 
 (d) Doe V. Maisey, 8 B. & C. 767. Doe v. Sayer, 3 Campb. 8. A vendee of 
 
 (e) Doe V. Giles, 5 Bingh. 421. land, let into possession before the com- 
 (/) Doe V. Goodier, 10 Q. B. 957. See pletion of the contract, is a bare tenant at 
 
 West V. Fritche, 3 Excli. 216. will ; per Parke, B., in Doe v. Slanim, 1 
 
 (g) Keech v. Hall, Doug. 22. M. & W. 700 ; and suoli tenancy con- 
 
 (h) -Thunder v. Belcher, 3 East, 449. tinues, however long the vendee remains 
 
 (i) Brown v. Storey, 1 M. & G. 117. in possession, till some circumstance 
 
 (k) Gadle v. Moody, SOL. J., Ex. 385. arises ; e. g., the payment of rent, from 
 
 {I) Doe V. Quigley, 2 Campb. 505. which a tenancy from year to year may 
 
 (m) Per Cur. Hegan v. Johnson, 2 be inferred. Doe v. Bock, 4 M. & G. 30. 
 
 Taunt. 148. See RiseUy v. Rile, 11 M. & "W. 25. 
 (n) Right v. Beard, 13 East, 210. See 
 
EJECTMENT. 645 
 
 gious worship ; afterwards, at a meeting of the congregation, it 
 was determined that the minister should be changed ; but another 
 was not elected. Possession of the premises, demanded on behalf 
 of the trustees, was held sufficient, without any notice to quit ; as 
 the minister was a mere tenant at will to the trustees (o) ; and it 
 makes no difference that such a minister is paid by an' annual 
 salary, nor is he entitled to a reasonable time for the removal of 
 his furniture (p). It is not necessary that this demand should be 
 made on the premises ; and even where made on a Sunday, it was 
 held good (q). 
 
 VI. Of the Proceeding in Ejectment. 
 
 The mode of proceeding in the action of ejectment is now 
 governed by the Common Law Procedure Act, 1852, s. 168, et seq. 
 — The mode of commencing the action by the issuing of a writ has 
 been already described. 
 
 By the I70th sect, it is provided, that the writ shall be served 
 " in the same manner as an ejectment " (i. e. the declaration 
 in ejectment) " has heretofore been served, or in such manner as 
 the court or a judge shall order ; and in case of vacant posses- 
 sion, by posting a copy thereof upon the door of the dwelling- 
 house or other conspicuous part of the property." It was for- 
 merly necessary, on service of the declaration, to explain to the 
 tenants in possession the nature of the proceeding, and to read 
 over and explain the meaning of the notice appended to the 
 declaration (r). But as this was on the ground that they were 
 " unintelligible to common people," — for if the tenant admitted 
 he understood it, no explanation was necessary (s) ; and so where 
 the person upon whom the declaration was served was an attor- 
 ney (i), — such explanation would not now seem necessary, and, at 
 all events, it is waived by the defendant attorning to the plaintiff 
 after serving of the writ (u). 
 
 The tenant or tenants in possession may be served personally at 
 any place. But in cases where the tenant in possession cannot be 
 served, service on the wife of such tenant must be either on the 
 land in question, or at the dwelling-house of the husband. In this 
 case, from the fact of the wife being served on the premises, or at 
 the dwelling-house of the husband though not on the premises, the 
 court presumes that the parties are living together as man and 
 wife, and that the husband has notice of the proceedings — and on 
 
 (o) Doe V. Jones, 10 B. & C. 718. (r) Doe v. Roe, 6 Dowl. 51. 
 
 <j>) Doe V. M'Kaeg, 10 B. & C. 721. {s) Doe v. Roe, 1 Dowl. 518. 
 
 (?) Doe V. BenallacJc, B. E. E. 10 Geo. (t) Doe v. Roe, 3 M. & G. 397. 
 
 IV. (M) Edwards v. Qriffith, 15 G, B. 397. 
 
646 EJECTMENT. 
 
 this presumption, such service is deemed good (x). Where premises 
 demised to one person have been underlet to others, it is necessary 
 to serve separately all the under-tenants (y). Service on one of 
 several joint-tenants has been held sufficient (z). So service on 
 the messenger in possession of the premises, and on the official 
 assignee, the tenant being bankrupt (a). Where the tenant in 
 possession had rendered the premises inaccessible, and had evaded 
 personal service, the court held it sufficient to leave the declaration 
 and notice at the counting-house of the tenant in possession (b). 
 Where a tenant in possession had absconded, leaving the key of his 
 house in the hands of a broker, with instructions to let the house ; 
 it was held, that service on the broker, and fixing a copy on the 
 door of the house, was sufficient (c) ; but wherever the service is 
 upon the agent of the person in possession, the agency ought to be 
 distinctly sworn to in moving for judgment (d). Where lodgers in 
 a house cannot be served, service on the keeper of the house at the 
 house is sufficient (e). Personal service on a lunatic in an asylum, 
 no committee having been appointed, and a copy of the declaration 
 having been also served upon the lunatic's servant upon the pre- 
 mises, has been held sufficient (/). In ejectment for part of the 
 bed of a canal, service of the declaration. on the clerk of the canal 
 company (which was a corporation), at their office, was held suf- 
 ficient (g). 
 
 Service on the servant, child, or niece, of the tenant in posses- 
 sion, on the premises, is good service, provided the service be after- 
 wards acknowledged by the tenant himself Qi) ; an acknowledgment 
 by his wife is not sufficient {%). If the tenant or his wife refuse to 
 receive the writ, a copy of it should be left for them, or affixed to 
 the premises : so, if there be not any person in possession of the 
 thing demised, a copy of the writ should be affixed to some con- 
 spicuous part. Where there is any thing unusual in the manner 
 of sei-ving the writ, it should appear (by affidavit) to the coiirt or 
 judge on moving for the rule or order for judgment ; and if the 
 court or judge be satisfied that the tenant has had notice of the 
 declaration, the rule or order may be absolute in the, first in- 
 stance (Jc) ; if doubtful, a rule or order will be granted requiring 
 the tenant to show cause why the service should not, under the 
 special circumstances, be deemed sufficient, and they will prescribe 
 the mode of serving the rule or order (L). 
 
 By 112 R G. Hil. T. 1853 — No judgment in ejectment for want 
 of appearance or defence shall be signed without first filing an 
 
 (x) JDoe, V. Bayliss, 6 T. E. 765. (/) Doe v. Roe, 3 M. & G. 87. 
 
 (ij) Doe V. Cock, 4 B. & C. 259. {g) Doe v. Roe, 10 M. & W. 21. 
 
 (z) Doe V. Roe, 6 Dowl. 291. (h) Doe v. Roe, 14 East, 441 ; Doe v. 
 
 (a) Doe V. Roe, 6 Dowl. 456. Roe, 2 M. & W. 374. 
 
 (6) Doe V. Roe, 1 M. & G. 238. (i) 1 B. & P. 384. 
 
 (c) Doe v. Roe, 6 B. N. C. 207. (h) Doe v. Roe, 7 Dowl. 121. 
 
 {d) Doe J. Roe, 4 M. & 6. 28. (I) See Sprightley v. Dimch, 2 Burr. 
 
 (e) Doe V. Roe, 1 D. N. S. 261. 1116 ; Fern v. Denn, 2 Burr. 1181 ; Les- 
 
EJECTMENT. 647 
 
 affidavit of the service of the writ, or, where personal service has 
 not been effected, without first obtaining a judge's order or rule of 
 court authorizing the signing of such judgment, the rule or order 
 or duplicate thereof to be filed, together with a copy of the writ. 
 No time is fixed within which this appHcation must be made ; but 
 it may be made at all events in the term following the expiration 
 of the time limited for appearance, and (semble) within a reason- 
 able time, without reference to any term (m). 
 
 Where the tenant in possession is merely an under-tenant to 
 some other person, as soon as the writ in ejectment is delivered to 
 him, he is obliged by the Common Law Procedure Act, 1852, s. 
 209 {n),_ to give notice of such delivery to his landlord, under pain 
 of forfeiting three years' improved or* rack rent of the premises 
 holden, i. e., not the rent actually reserved, but such a rent as the 
 landlord and tenant might fairly agree upon at the time of serving 
 the writ, if the premises were then let (o). This penalty does not 
 attach to the tenant of a mortgagor, who omits to give him notice 
 of an ejectment brought by the mortgagee ; for the statute only 
 extends to cases where ejectments are brought inconsistent with 
 the landlord's title (j)). 
 
 By sect. 172 — Any person not named in the writ shall, by leave 
 of the court or a judge, be allowed to appe'ar and defend, on an 
 affidavit that he is in possession of the land, either by himself or 
 his tenant (q). Actual possession under a claim of right is, it 
 seems, sufficient, but not mere legal possession, e. g. a plaintiff in 
 ejectment who has obtained judgment but has not been put into 
 possession (?'). Where, however, the landlord complies with the 
 requisites of the 172nd section, he is entitled to be let in to 
 defend (s). Under the 11 Geo. II. c. 19, s. 12, the following per- 
 sons were admitted to defend : — Devisee in trust (t) : — Mortgagee 
 under the defendant (u). . The following were not deemed land- 
 lords within the meaning of the Act : — A devisee, where ejectment 
 was brought by the heir (x) ; — ^A mortgagee, who had never re- 
 ceived rent (y). — The question to be considered in all cases is, 
 whether the party applying to defend as landlord be himself 
 interested in the event of the suit, or whether he be merely set in 
 motion for the pui-poses of some oth^r person : if the latter be the 
 case, the court will not permit a mortgagee to defend as land- 
 see of MetJwU V. Noright, 1 Bl. E. 290 ; ejectment under 11 Geo. II. c. 19, s. 13; 
 Gulliver v. Wagstaff, 1 Bl. E. 317 ; Doe or with the tenant, of common right. 
 
 'v. JRoe, 3 Dowl. 22. FenwiCh v. Oravenor, 7 Mod. 70. 
 
 ,', (m) Doe V. Eoe, 9 M. & W. 426. (r) Orofl v. Immley, 4 K & B. 608. 
 
 '•' (») This section is an adaptation of the (s) Butler v. Meredith, 11 Exch. 85. 
 
 11 Geo. II. 0. 19, s. 12. (t) LovelocJc v. Dancaster, i T. E. 122. 
 
 ■ (o) Crocker v. Fothergill, 2 B. & Aid. (tt) Doe v. Cooper, 8 T. E. 645.;^ 
 
 662. . (x) Roe d. LeaJce v. Doe, M. 29 Geo. II. 
 
 (p) Buckley v. Buckley, 1 T. E. 647. C. B., Bull. N". P. 95, 
 Iq) A landlord might, previously to {y) Hid. 
 
 this enactment, be made defendant in 
 
648 EJECTMENT. 
 
 lord (z). — Cestui que trust, not having been_ in possession (a). In 
 cases of vacant possession, no person claiming title was formerly 
 let in to defend (6), and, it seems, could not be now; not being able 
 to make the necessary affidavit. Permission was refused to a 
 parson to defend for right to enter and perform divine service 
 only(c). If a party should be admitted to defend as landlord, 
 whose title is inconsistent with the possession of the tenant,, the 
 plaintiff may apply to the court or a judge, and have the rule dis- 
 charged with costs (d) ; bixt, if that course be not adopted, and the 
 party continue upon the record as defendant, he will not he 
 allowed to set up such inconsistent title as a defence at the trial, 
 as where the tenant in possession came in under the plaintiff, and 
 had paid rent to him under an agreement that had expired (e), for 
 if a person defends as landlord, in the right of the tenant, and that 
 fails, his right must fail too (/). 
 
 By sect. 173 — Ajiy person allowed to defend for property, of 
 which he is in possession by his tenant only, shall state in his 
 appearance that he defends as landlord, " and such person shall be 
 at liberty to set up any defence which a landlord appearing in an 
 action of ejectment has heretofore been allowed to set up, and no 
 other." He cannot, for instance, set up the want of a notice to 
 quit from the plaintiff to the tenant in possession, where the 
 tenant has suffered judgment by default (g^). Secus (semble), 
 where the tenant defends with him (h). Generally, however, the 
 landlord may set up any defence that the tenant might himself 
 have set up (i). , 
 
 By the 15 & 16 Vict. c. 76, s. 113, — ^which is an adaptation of 
 the 1 Geo. IV. c. 87, s. 1, — ^Where the term or interest of any tenant 
 holding under a lease or agreement m writing for any term or 
 nu/mher of years certain, or from year to year, shall have expired, 
 or been determined either by the landlord or tenant by regular 
 notice to quit, and such tenant, or any one holding or claiming 
 by or under him, shall refuse to deliver up possession, after lawful 
 demand in writing, Tnade and signed by the landlord or his agent, 
 and served personally upon or left at the dwelling-house or usual 
 place of abode of such tenant or person, and the landlord shall 
 thereupon proceed by ejectmemt for the recovery of possession, he 
 may, at the foot of the writ in ejectment, address a notice to such 
 tenant or person, requiring him to find bail if ordered by the 
 court or a judge, for the purposes thereafter specified ; and upon 
 appearance, on affidavit of service of the writ or notice, the landr 
 
 (2) JDoe V. Soe, 6 Bingh. 613. (e) Don v. Smithe, 4 M. & S. 347. 
 
 (a) Lovelock v. Bancaster, 3 T. E. 783. (/) Per LittUdale, J., Doe r. Litlwr- 
 
 (l) Exp. Beauchmnp, Bames, 4to. edit. land, 4 A. & E. 785. 
 177. (g) Doe v. Creed, 6 Bingh. 327. 
 
 {c) Martin v. Davis, 2 Str. 914. (h) Doe v. ffom, 3 M. & W. 333. 
 
 (d) Doe V. Shys, 2Y.&.J. 88. (i) Doe r. LUherland, 4 A. & E. 785. 
 
EJECTMENT. 649 
 
 lord, producing the lease or agreement, or some counterpart or 
 duplicate thereof, and proving the execution by affidavit, and upon 
 affidavit that the premises have been enjoyed under such lease or 
 agreement, and that the interest of the tenant has expired or been 
 determined by regular notice to quit, and that possession has been 
 lawfully demanded in manner aforesaid, may move the court, or 
 apply by summons to a judge at chambers, for a rule or summons 
 for such tenant or person to show cause within a time to be fixed 
 by the court, on a consideration of the situation of the premises, 
 why such tenant or person should not enter into a recognizance by 
 himself and two sufficient sureties, in a reasonable sum, con- 
 ditioned to pay the costs and damages recovered by the claimants 
 in the action ; and the court, on cause shown, or affidavit of ser- 
 vice, if no cause be shown, may make the rule absolute in the 
 whole or in part, and order such tenant or person, within a time 
 fixed, to find such bail, with such conditions, and in such manner, 
 as shall be specified in the rule or summons, or such part of the 
 same so made absolute ; and if the party shall neglect or refuse so 
 to do, and shall lay no ground to induce the court or a judge to 
 enlarge the time for obeying the same, then upon affidavit of ser- 
 vice, of the rule or order, and that it has not been complied with, 
 the lessor or landlord may sign judgment for recovery of possession 
 and costs. 
 
 The object of this statute is to save the landlord the necessity 
 of going to trial when the tenant holds over vexatiously, and when 
 the trouble and expense of an ejectment may be very dispropor- 
 tionate to the value of the premises. A tenancy by virtue of an 
 agreement for three months certain, is a tenancy "for a term" 
 within the meaning of the statute (Jc) ; but a tenancy for years, 
 determinable on lives, is not (Z) ; and where the tenant holds from 
 year .to year without a lease or agreement in writing, that is not a 
 case within the meaning of the statute (m) : and when the tenant 
 holds under an agreement in writing from quarter to quarter, the 
 tenant to quit possession at the end of any three months on re- 
 ceiving notice in writing, or, in the event of his losing his licence 
 to sell ale, &c., at any time during the term, then forthwith to quit, 
 on request by the landlord without any notice ; the tenancy was 
 held to be neither for a term certain, nor from year to year, within 
 the meaning of this act {n). The statute does not apply to cases 
 where the title is disputed by the tenant, who himself claims the 
 land (o), nor to the case of a tenant who holds over after notice to 
 quit given by himself, where his tenancy has not expired by efflux 
 of time (p) ; nor to the case of a tenant who has surrendered his 
 term, but refuses to quit the premises (q). 
 
 (Tc) Doe V. Moe, 5 B. & Aid. 766. (o) Doe v. iJoe, 1 Dowl. i. 
 
 Z) Doe V. Eoe 7 B. & C. 2. (p) Doe v. m, 1 D. & Ky- 5*0. 
 
 m) Doe V. Roe, 5 B. & Aid. 770. (?) Doe v. Jtoe, 1 Dowl. 142. 
 (m) Doe V. Eoe, 10 M. & "W. 670. 
 
650 EJECTMENT. 
 
 VII. Of the Proceedmgs under IS & 16 Vict c. 76, s. 210, in 
 order to obviate the Difficulties attending Re-entries at 
 Common Law, for Non-payment of Bent Arrear. 
 
 By 15 & 16 Vict. c. 76, s. 210 (r)— In all cases between land- 
 lord and tenant, whenever half a year's rent shall be in arrear, and 
 the landlord has a right of entry for non-payment thereof (s), he 
 may, without a formal demand or re-entry, serve a writ in eject- 
 ment (t) ; or, in case the same cannot be legally served, or no 
 tenant be in actual possession, affix a copy thereof upon the door 
 of any demised messuage ; or, in case such ejectment shall not be 
 for the recovery of any messuage, then upon some notorious place 
 of the lands, &c., comprised in such writ ; and such affixing shall 
 be deemed legal service ; and in case of judgment against the. de- 
 fendant for non-appearance, if it shall appear by affidavit, or be 
 proved on the trial,, in case the defendant appears, that half a 
 year's rent was due before the writ was served, and that no suffr 
 cient distress was to be found on the premises countervailing the 
 arrears then due, and that the lessor had power to re-enter ; then, 
 and in every such case, the lessor shall recover judgment and exe- 
 cution, in the same manner as if the rent in ari'ear had been 
 legally demanded and re-entry made ; and in case the lessee shall 
 suffer judgment and execution without paying the rent and with- 
 out proceeding for relief in equity within six months after execu- 
 tion, the lessee shall be foreclosed from all relief in equity other 
 than appeal, and the landlord shall hold the demised premises 
 discharged from the lease, provided that a mortgagee not in posses- 
 sion shall not be barred if he pay the rent and arrears within six 
 months of execution. By sect. 212 — If the tenant, at any time 
 before the trial, shall pay or tender to the landlord or his attorney, 
 or pay into court, the rent arrear and costs, all further proceedings 
 on the ejectment shall be discontinued («). 
 
 These sections are supplemented by the first eleven sections of 
 the Common Law Procedure Act, 1866. By sect. 1 : "In the case 
 of any ejectment for a forfeiture brought for non-payment of rent, 
 the court or a judge shall have power upon rule or summons 
 to give relief in a summary manner, but subject to appeal as here- 
 inafter mentioned, up to and within the like time after execution 
 executed, and subject to the same terms and conditions in all 
 
 (r) This and the 112th section' are Hill v. ICempshall, 1 C. B. 975. 
 
 adaptations of 4 Geo. II, c. 28, ss. 2, 4. (m) Before the 4 Geo. II. ,c. 28, courts 
 
 (s) By the common law the demand of of law and equity exercised a disore- 
 
 rent must have been made— upon the tionary power of staying the lessor from 
 
 exact day when the forfeiture aocraed, — proceeding at law, in cases of forfeiture 
 
 for the precise rent,— at the proper place for nonpayment of rent, by compellmg 
 
 of payment,— and at a convenient hour him to taKe the money due to him. 
 
 before sunset. See 1 Wms. Saund. 286, b, -Archer v. Snapp, Andr. 341 ; 2 Salk. 597 ; 
 
 n- (16)- 2 Vern. 103; 1 Vils. 75; 2 Str. 900. 
 
 (t) He cannot e-nUr without a demand. 
 
EJECTMENT. 651 
 
 respects as to payment of rent, costs, and otherwise, as in the 
 Court of Chancery ; and if the lessee, }iis executors, administra- 
 tors, or assigns, shall upon such proceeding be relieved, he "and 
 they shall iold the demised lands according to the lease thereof 
 made, without any new lease." This section enables the courts of 
 common law to administer relief after the trial, and within the six 
 months limited by s. 210 of the Common Law Procedure Act, of 
 1852, for the intervention of a court of equity. 
 
 The statute (of 1852) only applies to cases where the right of 
 re-entry is absolute, and the lease upon such re-entry forfeited, and 
 not to a right to re-enter and hold " tUl the rent be satisfied," 
 although in such a case the landlord might maintain ejectment at 
 common law, complying with the requisite formalities of demand {v). 
 So, if the time (if any) allowed to the tenant for payment of the 
 rent, after it becomes due and before the right of re-entry accrues, 
 has not expired when the writ is served, the ejectment is too 
 early {x). The right of re-entry must be taken to have accrued on 
 the day when the forfeiture would have accrued at common law, if 
 the rent had been then duly demanded (2/). The words, " no suf- 
 ficient distress to be found on the premises," mean no sufiicient 
 distress which can be got at ; hence, where the outer door was 
 locked, so that the landlord could not get at the premises, it was 
 held, that there was not any sufficient distress ; for there was not 
 any available distress {z). Goods are not " to be found " on 
 premises within the statute, unless a broker using reasonable dili- 
 gence would be able to find them {<£). " Countervailing the arrears 
 then due," — i. e. all the arrears, and not merely half a year's rent 
 where more is due (b). A landlord does not waive his right of 
 re-entry by taking an insufficient distress, nor by continuing in 
 possession under such distress after the expiration of the time for 
 the payment of the rent (c) ; unless by taking such distress the 
 amount due is reduced to less than half a year's rent. It is suffi- 
 cient for the plaintiff to show that on some day between the time 
 when the right of re-entry accrued and the service of the writ there 
 was no sufficient distress on the premises, and it then lies on the 
 defendant to show the contrary (d). 
 
 Landlord, having a right of re-entry for non-payment of rent, 
 brought an ejectment, and proved a demand of half a year's rent, 
 after the day on which it was due, and a refusal on the part of the 
 defendant to pay it before the re-entry. It appeared that there 
 was a sufficient distress on the premises during the whole time. 
 It was held, that the plaintiff could not recover, either at common 
 
 (v) Doe V. Bowditch, 8 Q. B. 973. But (y) Doe v. Shawcross, 3 B. & C. 752. 
 
 where the relationship of landlord and \z) Doe v. Dyson, M. & M. 77. 
 
 tenant does not exist, no demand is, it {a) Doe v. Franks, 2 C. & K. 678. 
 
 seems, necessary. Doe v. HorsUy, 1 A. (J) Gross v. Jordan, 8 Exch. 149. 
 
 & E. 766. fc) Doe v. Johnson, 1 Sta. 411. 
 
 (x) Doe V. Roe, 1 C. B. 134. {d) Doe v. Fuchan, 15 East, 386, 
 
653 EJECTMENT. 
 
 law, or under the statute ; not by the former, because the rent was 
 not demanded on the day .when it became due ; nor by the latter, 
 because there was a sufficient distress on the premises (e). Upon 
 a lease reserving rent payable quarterly, with a proviso, .that if the 
 rent were in arrear twenty-one days after the day of payment, 
 being lawfully derrianded, the lessor might re-enter : it was held, 
 that, five quarters being in arrear, and no sufficient distress on the 
 premises, the lessor might re-enter without a demand (/) ; for the 
 words so used refer to a lawful demand at common law, which 
 the statute expressly dispensed with (g). It would, it seems, be 
 otherwise, if the lease contained an express covenant that the 
 landlord would not re-enter without demand (h) ; i. e. not a demand 
 made with all the strictness of the common law, but an effectual 
 demand (*), and it is clear, that at common law a demand may be 
 dispensed with by the stipulation of the parties (/c). 
 
 The application to the court on the part of the tenant, to stay 
 proceedings, must, by the very terms of the act, be made before 
 trial (Z). In ejectment by a landlord, the tenant moved to stay 
 proceedings, upon payment of the rent and costs. On a rule to 
 show cause, it was insisted, for the plaintiff, that the case was not 
 within the preceding statute ; because it was not an ejectment 
 founded singly on the statute, but it was brought likewise on a 
 clause of re-entry in the lease for not repairing, and the lease was 
 produced in court. However, the rule was made absolute, with 
 liberty for the plaintiff to proceed upon any other title (m). 
 
 Where the Possession is vacant. — In cases between landlord and 
 tenant, where one half year's rent is in arrear, and the landlord has 
 a right of entry, the mode of proceeding, where the premises are 
 untenanted, is marked out by the preceding statute. But it must 
 not be supposed that possession is vacant, merly because no one 
 is in actual possession of the premises. A. made a lease of an ale- 
 house in London, for years (n). The lessee, before the expiration 
 of the term, left it, and took another house in Wapping ; but there 
 was some liquor and old vessels left in the first-mentioned house, 
 and the doors were locked. Upon this the landlord brought eject- 
 ment, as on a vacant possession, and had judgment; to set aside 
 which, a motion was made. Lord Hardwiclce, C. J. — " Though a 
 tenant does not live on the premises, yet it cannot, from that cir- 
 cumstance alone, be called a vacant possession ; as if a person uses 
 one house and lives in another, that will be a good possession of 
 
 (e) Doe V. Wandlass, 7 T. R. 117. Alexander. 
 
 (/) Doe V. Alexander, 2 M. & S. 525. (k) Doe v. Masters, 2 B. & C. 490. 
 
 __ (?) See Doe v. Shawcross, 3 B. & C. {1} Ibid. 
 
 ''^?-,\ r, .11 ^ ^ '™) Purev. Sturdy, Bull. N. P. 97. 
 
 (/(,) Per Abbott, C. J., Doe v. Wilson, 5 (re) Savage v. Dent, M. 10 Geo. II. B. 
 
 ,^ "^^'^- ?.^f , R- MS.; 2 Str. 1064; Bull. N. P. 97. 
 
 (t) Per Ellenborough, C. J., Doe v. 
 
EJECTMENT. 653 
 
 both._ Here the tenant had actual possession of the premises, by- 
 keeping his liquor there, and, as appears, was such a person as the 
 landlord might have'served personally with an ejectment." — Probyn, 
 J., mentioned a case where hay was left in a barn by a tenant, and 
 that was held sufficient to keep the possession. Where the pre- 
 mises consisted of unfinished houses, it was held, that the course 
 was to proceed as on a vacant possession (o). These proceedings 
 formerly differed from those of an ordinary ejectment, but under 
 the C. L. P. Act, 1852, there is no difference, except in the service 
 of the wiit, which, in cases of vacant possession, may, witho;it any 
 leave of the court, or a judge, be " by posting a copy thereof upon 
 the door of the dwelling-house, or other conspicuous part of the 
 property," sect. 170 ; and except, perl»aps, that, in such cases, no 
 one not mentioned in the writ can be let in to defend ; ante, 
 pp. 648, 649. 
 
 The 11 Geo. II. c. 19, s. 16, authorizes two or more Js. P. — in 
 cases where tenants holding premises at rack rent or three quarters 
 » of the yearly value, who are in arrear " one year " (altered to half a 
 year by 57 Geo. III. c. 52 (p)), desert them and leave them unoc- 
 cupied so asjno sufficient distress can be had — on the request of the 
 lessor, to view and affix on the most notoriotis part of the premises 
 a notice in writing what day (at the distance of fourteen days at 
 least) they will return to take a second view ; and if, upon such 
 second view, the tenant or some person in his behalf does not ap- 
 pear and pay- the rent, or there shall not be sufficient distress upon 
 the premises, then the justices may put the landlord into possession. 
 By the 17th sect, (of the 2 Geo. II. c. 19) a summary appeal is 
 given to the judges at the next assize, who may order restitution to 
 be made ; but if they dismiss the appeal, they cannot award costs 
 against the tenant exceeding 5l. 
 
 It is not necessary that any complaint should be made on oath, 
 in order to justify the interference of the magistrates. The request 
 of the landlord .or his bailiff is sufficient (g). Although the tenant 
 has a summary remedy by appeal to the justices of assize, yet the 
 record of the proceedings in pursuance of the statute unappealed 
 from, is conclusive as to the magistrates, and will afford a complete 
 defence to them in an action of trespass (r). Where the magistrates 
 had adjudicated eiToneously on the fact of desertion, and the judges 
 of assize on appeal had made an order for the restitution of the 
 farm to the tenant with costs ; and the tenant afterwards brought 
 trespass for the eviction, against the magistrates, the constables, 
 and the landlord ; it was held, that the record of the proceedings 
 before the magistrates was an answer to the action on behalf of all 
 the defendants (s). 
 
 (o) Doe V. Roe, 2 C. M. & E. 42. (g) Basim v. Oarew, 3 B. & 0. 649. 
 
 (p) And extended to cases where the ir) Ibid. „ t> «. aj <,oi 
 
 . landlord has no right of re-entry. (s) Ashcrofl v. Bourne, 3 B. & Ad. 684. 
 
654 EJECTMENT. 
 
 Under the above section the judges act as individuals and not 
 as commissioners of assize ; any order of restitution they make, 
 therefore, should be signed by themselves and not by the clerk of 
 assize (0; and directed to the sheriff (m). On appeal, under the 
 above section, against an order made by twp magistrates, giving 
 possession to a landlord under sect. 16, the order made by the 
 judges for restitution was not directed to any person. It was held, 
 that a irnanda'mus could not issue commanding the two magistrates 
 to make restitution (a;). 
 
 VIII. Of the Statutes of Limitations, 21 Jac. I. c. 16; 3 & 4i 
 Will. IV. c. 27 {y). 
 
 As an action of ejectment is founded on a right of entry in the 
 party claiming title, if the defendant can show that such right has 
 been barred, it will be a sufficient defence to the action. 
 
 • 
 
 21 Jac. I. c. 16. — By the statute of James, no person could 
 make an entry into any lands, tenements, or hereditaments, but 
 within twenty years next after his right or title first descended or 
 accrued. The plaintiff, therefore, in ejectment, must have proved 
 either actual possession or a right of entry within twenty years, or 
 have accounted for the want of it ; for, by force of that statute, an 
 uninterrupted possession for that period, if adverse (z), operated as 
 a complete bar, except in cases under the second section, viz., 
 infancy, coverture, non compos mentis, imprisonment, and absence 
 beyond seas. Notwithstanding the foregoing statute, however, the 
 right of bringing an ejectment frequently existed long after the 
 power of trying a real action had determined ; for either when dis- 
 abilities lasted for sixty years after the death of the ancestor, or 
 when estates in remainder did not come into possession until after 
 that time, real actions were barred by the 32nd of Hen. VIII. c. 2, 
 but the right of entry was saved by the 21 Jac. I. c. 16, the pos- 
 session not being (in the latter case) adverse. These questions are 
 now set at rest (a) by the, — 
 
 3 tfe 4 Will. IV. c. 27. — By the 2nd section of which, no person 
 shall make an entry or distress, or bring an action to recover any 
 land (b) or rent, but within twenty years next after the time at 
 
 it) R. V. Sewell, 8 Q. B. 161. (a) See Nepem v. JDoe, 2 M.& W. 894. 
 
 (m) Cole on Ejectment, 680. But the 7 "Will. IV, & 1 Viot. c. 28, has 
 
 (x) B. v. Traill, 12 A. & E. 761. revived the doctrine of adverse possession 
 
 {y} See Doe v. Morris, 2 B. N. C. 189, in the case of a mortgagee. See Doe v. 
 
 on the construction of the 21 Jac. I. c. JEyre, 17 Q. B. 366 ; post, p. 657. 
 
 14, limiting the right of the crown to (5) Possession of the surface is primd 
 
 twenty years. /aoie possession of the minerals ; Seysev. 
 
 (s) Fairclaim v. ShacMeton, 5 Burr. Powell, 2 E. & B. 144 ; hut this is re- 
 
 2604. , , hutted by showing a distinct grant of the 
 
EJECTMENT. 655 
 
 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 any person 
 through whom he claims, then within twenty years next after the 
 time at which the right to make such entry or distress, or to bring 
 such action, shall have first accrued to the person making or bring- 
 ing the same. — The above section does not apply to rent reserved 
 on a demise, but only to rents existing as an inheritance distinct 
 from the land, such as ancient rent service, fee farm rents, and the 
 Uke (c) ; and, as to these, the statute, by the conjoint operation of 
 sects. 2 and 3, runs from the last receipt of the rent, and not from 
 the time when the right of distress for non-payment first accrued (cf). 
 
 By sect. 3, the right to make an eStry or distress, or bring an 
 action to recover any land or rent, shall be deemed to have first 
 accrued — 
 
 1. When the person claiming such land or rept, or some person 
 through whom he claims, shall, in respect of the estate or interest 
 claimed, have been in possession or in receipt of the profits of 
 such land, or m receipt of such rent, and shall, while entitled 
 thereto, have been dispossessed, or have discontinued such posses- 
 sion or receipt, then such right shall be deemed to have first 
 accrued at the time of such dispossession or discontitmance of pos- 
 session, or at the last time at which any such profits or rent were 
 so received. 
 
 2. When the person claiming such land or rent shall claim the 
 estate or interest of some deceased person who shall have con- 
 tinued in such possession or receipt, in respect of the same estate 
 or interest, until the time of his death, and shall have been the 
 last person entitled to such estate or interest, who shall have been 
 in such possession or receipt, then such right shall be deemed to 
 have first accrued at the time of such death. 
 
 3. When the person claiming such land or rent shall claim in 
 respect of an estate or interest in possession, granted, appointed, 
 or otherwise assured by any instrument (other than a will) to 
 hi/m, or some person through whotn he claims, by a person being 
 in respect of the same estate or interest in the possession or 
 receipt of the profits of the land, or in the receipt of the rent, and 
 no person entitled under such instrument shall have been in such 
 possession or receipt, then such right shall be deemed to have first 
 accrued at the time at which the person claiming, or the person 
 through whom he claims, became entitled to such possession or 
 receipt by virtue of such instrument. 
 
 mines, ffodgkimon y. Fletcher, ST) ougl. statute. Smith v. Lloyd, 9 'Exoh. 562. 
 
 31. ' Bee-Taylor v. Parr}/, 1 M. & G. 604. (c) Grant v. Mlis, 9 M. & W. 113. 
 
 Mere non-user for forty years, where no (d) Owen v. De Beauvoir, 10 M. & W. 
 
 other party has been in possession, as in 547 ; (m error) 5 Exch. 166. 
 the case of mines, is no har under the 
 
656 EJECTMENT. 
 
 4. When the estate or interest claimed shall have -been an estate, 
 01- interest in reversion or remainder, or other future estate or 
 interest, and no person shall have obtained the possession or re- 
 ceipt of the profits of such land, or the receipt of such rent vn 
 respect of such estate or interest, then such right shall be deemed 
 to laave first accrued at the time at which such estate or interest 
 became an estate or interest in possession; notwithstanding 
 (sect. 5) the person claiming, &c., shall, previously to the creation 
 of the estate which shall have determined, have been in possession 
 or receipt of the profits of such land or in receipt of such rent.— 
 The above clause of the third section only applies to cases where 
 another person than the reversioner is entitled to the particular 
 estate (e). 
 
 5. When the person claiming such land or rent, or the person 
 through whom he claims, shall have become entitled by reason of 
 any forfeiture or breach of condition, then .such right shall be 
 deemed to have first accrued when such forfeiture was incun-ed or 
 such condition broken (i.e. as far as any re-entry during the lease is 
 concerned (/). But by sect.. 4, if the land or rent shall not have 
 been recovered by virtue of such right, the right to make an entry, 
 &c., shall be deemed to have first accrued in respect of such estate 
 or interest, at the time when the same shall have become an estate 
 or interest in possession, as if no such forfeiture or breach of con- 
 dition had happened (g). 
 
 The object and intent of the third section is "to explain and 
 give a construction to the enactment contained in the second 
 clause, as to ' the time at which the right to make a distress for 
 any rent shall be deemed to have first accrued,' in those cases only, 
 in which doubt or difficulty might occur ; leaving every case which 
 plainly falls within the general words of the second section, but is 
 not included among the instances given by the third, to he 
 governed by the operation of the second " Qi). Therefore, a dis- 
 tress or action for an annuity accruing by will, and charged on 
 land, must be resorted to within twenty years from the death of 
 the testator (i). 
 
 The right of possession accrues to a mortgagee from the time of 
 the execution of the mortgage deed, when there is no agi'eement 
 that the mortgagor shall remain in possession until default, or any 
 thing in the deed operating as a redemise from the mortgagor to 
 the mortgagee for a determinate period (k) ; and this rule holds 
 whenever there is no express agreement to that effect, as where 
 the mortgage deed contains a covenant from the mortgagor for 
 
 (e) Doe V. Moulsdale, 16 M. & W. 689. (A) Per Tindal, C. J., delivering judg- 
 
 See sect. 20, post. ment in Jones v. Salter, 3 B. N. C. 653. 
 
 if) Doe V. Bingham, 8 Ir. L. E. 456. (i) James v. Salter, 3 B. N. C. 553. 
 
 (g) This is in accordance with the (h) Doe v. Day, 2 Q. B. 147. 
 former law. Don. Dajtvers, TEast, 299. 
 
EJECTMENT. 657 
 
 quiet enjoyment by the mprtgagee after default (i), and although 
 (semble) there ^ is a covenant by the mortgagee not to enter until 
 after a month's notice (m). And the rule, it seems, would hold, 
 although there were in terms an agreement of redemise, if such 
 agi-eement were inconsistent with the obvious intention of the 
 parties, as appearing by the deed itself (ti). By the 7 WiU. IV. & 
 1 Vict. c. 28, reciting that doubts had been entertained as to the 
 effect of the foregoing act, so far as the same related to mort- 
 gages (o), it is declared and enacted, that any person claiming 
 under any mortgage of land, within the definition contained in the 
 &st section of the act, may make an entry or bring an action at 
 law or suit in equity, to recover such land, at any time within 
 twenty years next after the last payment of any part of the princi- 
 pal 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. — This statute preserves to a mortgagee the 
 same right of entry as if the 3 & 4 Will. IV. c. 27, had not passed, 
 and, therefore, a mortgagee may, within twenty years after the 
 payment of part of the principal or interest,, recover against a 
 tenant let into possession by the mortgagor before the mortgage, 
 although the mortgagor's right as against such person be barred 
 by the latter statute ; the question in such cases being whether 
 the possession of the tenant was adverse to the title of the mort- 
 gagee, as before that statute (p). The purchaser of- property 
 under mortgage, to whom the mortgagor and mortgagee have 
 joined in conveying the property, is a person " claiming under a 
 mortgage " within the above statute (q). 
 
 With regard to cetteux que trust, whose position towards their 
 trustees is, at law, that of tenants at will (r), the Court of Queen's 
 Bench, in one case (s), seemed to think that the case of trustee 
 termors would come under the terms of the 3rd clause of the 3rd 
 sect., and, consequently, that their right of entry would accrue im- 
 mediately on the execution of the trust deed. But in a case in 
 the Common Pleas (t), it was held, that that clause applied only 
 to cases where the person holding the land did not hold it under 
 or in privity with the person in whom the right of entry was sup- 
 posed to be ; that it could not be said in the case of a person 
 so building under or in privity that " no person entitled under the 
 instrument had been in possession," for that the cestui que trust 
 held possession virtually under the trust deed ; that their case, being 
 thus unaffected by the 3rd sect, and expressly excluded from the 
 7th, was that of an ordinary tenancy at will, on which the right of 
 
 (I) Doe V. UgMfoot, 8 M. & "W. 553 ; (p) Doe v. Eyn, 17 Q. B. 366. 
 
 Sogers v. Qranebrook, 8 Q. B. 895, oux. (q) Doe v. Massey, 17 Q. B. 343. 
 
 (to) Doe V. Day, 2 Q. B. 147. (»■) Freeman v. Barnes, 1 Ventr. 80. 
 
 (n) Walker v. Giles, 6 C. B. 652. (s) Doe v. Phillips, 10 Q. B. 130. 
 
 (o) See Doev. Williams, 5 A. & E. 291. (t) Garrard v. Tuck, 8 C. B. 231. 
 
 TOI,. I. ^ U 
 
(158 EJECTMENT. 
 
 entry under the 2nd sect, would only accrue (as in other tenancies) 
 on the determination thereof, viz., by demand of possession or 
 otherwise. The above doctrine, however, only applies to the case 
 where the cestui que trust is the actual occupant. If he be only 
 allowed to receive the rents, or otherwise deal with the estate in 
 the hands of occupying tenants, he stands in the relation merely- 
 of an agent or bailiff of the trustees ; and if, under such circum- 
 stances, the actual occupier is permitted to occupy for more than 
 twenty years without paying rent, the title of the trustee is barred,, 
 as in the ordinary case of landlord and, tenant (u). ■ '.'• 
 
 Where the lessor permits his lessee, during the continuance of 
 the lease> to pay no rent for twenty years (but there ha.^ been no 
 adverse claim, and no payment of rent to any other person), the 
 lessor is not therefore barred from recovering the premises in eject- 
 ment. The case falls within the latter branch of the 3rd sect, (of 
 the 3 & 4 Will. IV.c. 27), which, in the case of an estate in rever- 
 sion, provides, tha.t the right shall be deenied to have first accrued 
 when it became an estate or interest in possession. The lessor 
 therefore may recover at any time within twenty years after the 
 determination of the lease (a;). But by sect. 9, when any person 
 shall be in possession, &c., " by virtue of '.a lease in writing (y), by 
 which a rent, amounting to the yearly sum of twenty shillings or 
 upwards', shall be reserved," and the, rent so ' reserved shall have 
 been received by some person wrongfully claiming to be entitled 
 to the land or rent (z), on the determination of the lease, and no 
 payment in respect of the rent reserved shall aftei-wards have been 
 made to the person rightfully entitled, the right of the person 
 entitled to such land or rent (a), subject to such" lease, accrues "at 
 the time at which the rent reserved by such lease 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 " (6). 
 
 When any person, shall te in possession, &c., " 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, accrues " at the determination of the first of such 
 years or other periods, or at the last time when any rent payable in 
 respect of such tenancy shall have been received (which shall last 
 happen)," sect. 8 — This section applies to tenancies from year to 
 year existing at the passing of the act (c). The plaintiff proved a 
 conveyance to himself fifty years before the action ; he had not occu- 
 pied; but a person who had, proved payment of rent by himself to 
 
 (k) Melling v. Leak, 16 C. B. 662. {z) The word "rent" here meansrent- 
 
 (x) Doe V. Oxmkam, 7 M. & "W. 131. charge. Doe v. Angell, 9 Q, B. 356. 
 
 (y) i. e., an instrument passing an in- (a) Ibid. 
 
 terest, not a mere memorandum of the (6) See Doe v. Angell, 9 Q. B. 356. 
 
 terms of the tenancy. Doe v. Gower, 17 (c) Doe v. Sumner, 14 M. & W. 39. 
 
 Q. B. 589. 
 
EJECTMENT. 659 
 
 the plaintiff within thirty-three years of action brought, at which 
 time H. came into possession. No lease to H. was shown, lout it 
 was proved that within twenty years before the action H. declared 
 he was then paying rent to the plaintiff, and that afterwards, and 
 before action brought, the defendant had said that he was tenant 
 to H. H. died before the trial. Held, a sufficient proof of pay- 
 ment of rent by H. under the above section, and that the defendant 
 was bound by evidence good as against H. (d). 
 
 When any person shall be in possession, &c., as tenant at will, 
 the right of the person entitled, subject thereto, accrues "either at 
 the determination of such tenancy, or at the expiration of one year 
 next after the commencement of such tenancy, at which time such 
 tenancy shall be deemed to have dettrmined : Provided that no 
 mortgagor or cestui que trust shall be deemed to be a tenant at will 
 within the meaning of this clause, to his mortgagee or trustee," 
 sect. 7 — "The object of this section obviously is to fix a defi- 
 nite period, after the commencement of a tenancy at will, beyond 
 which the tenancy shall not be presumed to have had a continu- 
 ance " (e). But if the tenancy at will be determined (as by an 
 entry by the landlord on the land without the consent of the 
 tenant (/), but the tenant continues in occupation, it is a question 
 for the jury whether a new tenancy at will be created between the 
 parties (gr). In such a case a fresh right of re-entry accrues, for the 
 7th sect, provides that the right of action shall accrue at the end of 
 the first year next after the commencement of such tenancy, i.e. of 
 the tenancy under which the tenant is actually holding, not of any 
 preceding tenancy Qi). Where, during the continuance of the 
 tenancy at will, the landlord turns out the tenant, but the tenant 
 immediately resumes possession, without, however, any fresh 
 tenancy being created or any payment of rent, the landlord is en- 
 titled to twenty years from such resumption of possession (i). 
 The proviso in sect. 7 applies to express trusts only, and not to 
 persons let into possession under agreements for purchase or a 
 lease (Jc). 
 
 In 1801, D. being seised in fee of land, permitted his daughter 
 J. and her husband M. to occupy it as tenants at will. D. died in 
 1837, after the passing of the act (24th of July, 1833), but before 
 the expiration of the five years allowed by sect. 15. He devised 
 the land to his daughter J. for life, with remainder to W. in fee. 
 He also devised to J. an annuity charged on other land. J. and 
 
 (d) Doe V. Beckett, 4 Q. B. 601. of the assessors of land tax, signed an 
 
 («) Per Cur. Garrard y. Tuch, 8 C. B. assessment in whioli he was named as 
 
 251. occupier of the land, and the plamtifl as 
 
 (/) Turner V. Bennett, 9 M. & W. 643. proprietor. Turner v. Bennett, 9 M. & 
 
 (g) Slight evidence is sufficient ; e.g., W. 643. „ ,^ . w „„» 
 
 a promise on one occasion to pay rent, (h) Doe v. Turner, 7 M. & W. 226. 
 
 though never perfoimcd. Doe v. Rock, (i) Raiidall v. Stemns, 2 E. & B. 641. 
 
 infra. So where the tenant, being one (k) Doe v. Boch, 4 M. & Or. 30. 
 
 u u 2 
 
660 EJECTMENT. 
 
 M. occupied from 1801 to J.'s death in 1843, without paying rent. 
 After J.'s death M. continued in occupation. In 1844, W., the 
 remainder-man, brought ejectment. It was held, that W. was not 
 entitled to insist that J. and M. had held under the devise to J., 
 but that M. might rest his defence upon the occupation, under 
 the tenancy at will, and that W.'s right was barred by the above 
 section (I). 
 
 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. Sect. 10 (m). — Where the possession is 
 adverse, as by an encroachment on the wastes of a manor, nothing 
 short of some act (within the twenty years) which divests the pos- 
 session out of the tenant, and revests it in the lord, is sufficient 
 under this section (n) ; thougli if the possession is in fact resumed 
 by the lord, the time for which this is done, whether for an hour or 
 a week, is immaterial (o). Secus, where the possession is not ad- 
 verse, as in tenancies at will, in which case any entry by the lord, 
 which would otherwise be a wrongful act, is sufficient ; for it de- 
 termines the tenancy (p). No continual or other claim upon or 
 near any land, shall preserve any right of making any entry or 
 distress, or of bringing an action. Sect. 11. 
 ' When any one or more of several persons entitled as coparceners, 
 joint-tenants, or tenants in common, shall have been in possession 
 of the entirety, or more than his share, for his own benefit, or for 
 the benefit of any person other than the person entitled to the other 
 share, such possession shall not be deemed to have been the pos- 
 session of such last mentioned person ; sect. 12. — This section has 
 relation back, and makes the possession of one coparcener, joint- 
 tenant, or tenant in common, who has been in possession of the 
 entirety, separate, from the time of his coming into possession, and 
 not merely from the time of the act passing {q) ; and, consequently, 
 the entry of one coparcener cannot vest the possession in the 
 other, as formerly (r). The possession of a younger brother or 
 other relation of the person entitled is no longer to be deemed the 
 possession of that person. Sect. 13. 
 
 When any acknowledgment of the title of the person entitled 
 shall have been given to him or his agent, in writing, signed by the 
 person in possession, &c., such possession of the person, by whom 
 such acknowledgment shall be given, shall be deemed to be the 
 possession of the person to whom such acknowledgment shall have 
 been given, at the time of giving the same, and the right of such 
 last-mentioned person shall be deemed to have first accrued at the 
 time at which such acknowledgment, (or the last, if more than one,) 
 
 (I) Doe V. Moore, 9 Q. B. 655. {p) Turner v. Bennett, 9 M. & W. 6i3. 
 
 (m) See Brassington v. Llewellyn, 27 (j) CuUey v. Taylerson, 11 A. & D. 
 
 L. J., Ex. 297. 1008. 
 
 (») Doe V. Coomles, 9 C. B. 714. (r) Woodroffe v. Daniel, 15 M. & "W. 
 
 (o) Randall v. Stevens, 2 E. & B. 641. 769, p. 793. 
 
EJECTMENT. 601 
 
 was given ; sect. 14. — Whether a writing amounts to an acknow- 
 ledgment of title under this section is a question for the judge and 
 not for the jury to decide (s). "Although if matters were con- 
 tested, I am of opinion that I should establish a legal right to the 
 premises, yet, under all the circumstances, I have made up my 
 mind to accede to the proposal you made of paying a moderate 
 rent, &c." Held, an insufficient acknowledgment, there being no 
 final bargain (t). But where in answer to an application for rent, 
 the tenant wrote that he had been involved in law expenses with 
 regard to the land, and " it was reasonable the lords of the fee 
 should make him some recompense accordingly," that he had ap- 
 plied to the plaintiff's testator to defend " his title to the land," 
 concluding by begging "compassion, %iercy and pity, and recom- 
 pense in a satisfactory manner," it was held sufficient (u). An 
 .acknowledgment of the plaintiff's title by a person through whom 
 the defendant claims on an answer to a bill in equity, filed by the 
 plaintiff is a sufficient acknowledgment within the section (v). 
 
 By sect. 16 — If when the right of any person to make an entry, 
 &c., shall first accrue, such person shall have been an infant, covert, 
 idiot, lunatic, of unsound mind, or absent beyond seas, then such 
 person, or the person claiming through him, may, notwithstanding 
 the twenty years have expired, make an entry or bring an action, 
 within ten years next after the time at which the person to whom 
 such right shall first have accrued shall have ceased to be under 
 such disability, or shall have died, which shall first happen. Pro- 
 vided (sect. 17), that no entry shall be made, or action brought by 
 any such person, but within forty years next after the time at 
 which such right shall have first accrued, although such person 
 may have remained under disability during the whole forty years, 
 or although the ten years, &c., shall not have expired. Sect. 18 — 
 No further time is allowed for a succession of disabilities or dif- 
 ferent persons. Sect. 19 — No part of Great Britain and Ireland, 
 nor the Islands of Man, Guernsey, Jersey, Alderney, or Sark, nor 
 any island adjacent to any of them, (being part of the dominions 
 of his Majesty,) shall be deemed to be beyond seas, within the 
 meaning of the act. 
 
 Sect. 20— When the right of any person to make an entry, &c., 
 for an estate or interest in possession, shall have been barred by the 
 determination of the period before limited, and such person shall, 
 during the said period, have been entitled to any other estate, 
 interest, right, or possibility in reversion, or otherwise, in the same 
 land or rent, no action shall be brought in respect of such other 
 estate, interest, &c., unless, in the mean time, such land or rent 
 shall have been recovered by some person entitled to an estate 
 or interest, which shall have been limited, or taken effect, after 
 
 (s) Doc V. Edmonds, 6 M. & W. 295. (») Fursdon v. Clogg,WlL& W 572. 
 
 \t) Ibid. (") '^""^^^ "•'■ •'""' ■^^ ■'■'■ ''■' '■ 
 
C62 EJECTMENT. 
 
 or in defeasance of such estate or interest in possession. In 
 I7i98, copyhold lands were surrendered to the use of husband and 
 wife for their lives, with remainder to the heirs of the husband. 
 In 1805, the husband absconded, and was never afterwards heard 
 of. In 1807, a commission of bankruptcy issued against him, and 
 the usual assignment of his estate was made by the commissioners 
 to his assignee. The wife occupied the copyhold estate until her 
 death in 1841, when the assignee was admitted, and brought eject- 
 ment. It was held, that the action was brought in time, the case 
 being that of a future estate within the 3rd section of the statute, 
 and that, supposing the 20th section to apply, the proviso at the 
 end thereof applied also (x). 
 
 When. the right of a tenant in tail to make an entry, &c., shall 
 have been barred by the same not having been made within the 
 period before limited, no entry, &c., shall be made by any person- 
 claiming any estate, interest or right, which such tenant in tail 
 might lawfully have barred ; sect. 21. — ^When a tenant in tail of 
 any land or rent, entitled to recover the same shall have died be- 
 fore the expiration of the period limited for making an entry, &c;, 
 no person claiming any estate, interest, or right, which such tenant 
 in tail might lawfully have barred, shall make an entry, or bring 
 an action, but within the period during which, if the tenant in tail 
 had lived, he might have made such entry or brought such action ; 
 sect. 22. — In 1788, estates were settled by marriage settlement, to 
 the use of the wife for life, with remainders to her issue in tail, 
 with remainder to the settlor (whose heiress at law she was) in fee. 
 In 1818, by deeds to which the husband and wife, and their only 
 son, K. G., were parties, and by a recovery suffered in pursuance 
 thereof, the estates were limited to the use of the husband for life, 
 remainder to the wife for life, remainder to R. G. the son for life, 
 remainder to his issue in tail, remainder to J. S. his sister for life, 
 with other remainders over. The husband died in 1819, the wife 
 in 1822, and R. G. in 1828 ; it was held, that inasmuch as the 
 estate of J. F. was carved out of the estate tail of R. G., she had 
 the same time for bringing an ejectment as he would have had if 
 he had continued alive, viz. twenty years from the year 1822, when 
 his remainder came into possession (y). 
 
 Sect. 23 — ^When a tenant in tail shall have made an assurance, 
 which shall not operate to bar an estate to take effect after or in 
 defeasance of the estate tail, and any person shall, by virtue of such 
 assurance, at the time of its execution, or afterwards, be in posses- 
 sion of the land, or rent, and the same person, or any other person 
 (other than some person entitled to such possession in respect of 
 an estate, which shall have taken effect after or in defeasance of 
 the estate tail), shall continue in such possession for twenty years 
 next after the time at which such assurance, if then executed by 
 
 (x) Doe V. Uversedge, 11 M. & "W. 517. {y) Doe v. Edmonds, 6 M. & "W. 295. 
 
EJECTMENT. 663 
 
 the tenant in tail, or the person who would have been entitled to 
 his estate tail, if such assurance had not been executed, would, 
 without the consent of any other person, have operated to bar such 
 estate or estates as aforesaid, then, at the expiration of such period 
 of twenty^ years, such assurance shall be effectual as against any 
 person claiming any estate, interest, or right, to take effect after- or 
 in defeasance of such estate tail. 
 
 Sect. 29 — Any archbishop, &c., or other corporation sole may 
 make an entry within such period next after the time at which 
 the right shall first have accrued, (that is to say,) the period during 
 which two persons in succession shall have held the office or bene- 
 fice, in respect whereof the land or rent is claimed, and six years 
 after a third person shall have been afipointed thereto, if the times 
 of such two incumbencies, and such term of six years, taken toge- 
 ther, shall amount to sixty years ; and if such times, taken together, 
 shall not amount to sixty years, then during such further number 
 of years, in addition to such six years, as will, with the time of 
 the holding of such two persons, and such six years, make up sixty 
 years ; and no entry, &c., shall be made or brought at any timie 
 beyond the determination of such period. 
 
 Sect. 6 — " For the purposes of this act " an administrator clgiim- 
 ing the estate or interest of a deceased person, shall be deemed to 
 claim as if there had been no interval between the death of the 
 deceased person and the grant of administration. 
 
 ;Sect. 34 — ^At the determination of the period limited to any 
 person for making an entry, or distress, or bringing any writ of 
 quare impedit, or other action or suit, the right and title of such 
 person to the land, &c., for the recovery whereof such entry, &c., 
 might have been made within such period, snail be exUnguisIied. 
 
 Former statutes of limitations did not extinguish the right, but 
 only barred the remedy (z). " The effect of this act is to make a 
 parliamentary conveyance of the land to the person in possession 
 after the period of twenty years has elapsed" (a) ; that is, if the same 
 person, or several persons, claiming one from another have been in 
 possession for the twenty years (&). , And no re-entry, or, it seems, 
 re-possession, by a claimant will revest his title on the doctrine of 
 rernitter, after the lapse of the statutable period (c). 
 
 By sect. 35, the receipt of the rent payable by any tenant from 
 ■year to year, or other lessee, shall, as against such lessee, or any 
 -person claiming under him (but subject to the lease), be deemed 
 to be the receipt of the profits of the land for the purposes of the 
 act. 
 
 (z) gee Miggins v. Seoit, 2 B; & Ad. (b) Doe v. Barnard, 15 Q. B. 952. 
 
 413/ (c) Brassington v. Llewellyn, 27 L. J., 
 
 (a) Per Parlce, B., Doe v. Sumner, 14 Exch. 297. 
 M. & "W. 42. 
 
664 EJECTMENT. 
 
 IX. Of the. Statute of Inheritance. 
 
 By 3 & 4 Will. IV. c. 106, s. 2, descent shall be traced from the 
 purchaser ; and the person last entitled to the land shall be con- 
 sidered to have been the purchaser, unless it shall be proved that 
 he inherited the same, in which case the person from whom he 
 inherited the same shall be considered to have been the purchaser, 
 unless it shall be proved that he inherited the same ; and in like 
 manner, the last person from whom the land shall be proved to 
 have been inherited, shall in every case be considered to have 
 been the purchaser, unless it shall be proved that he inherited the 
 same. — Where land descended to the son of an illegitimate father, 
 who was proved to have been the purchaser thereof, and the son died 
 seised and intestate and without issue, such land did not devolve 
 on the heir ex parte maternd, notwithstanding the above section (d). 
 Now, however, by 22 & 23 Yict. c. 35, s. 19, " where there shall be 
 a total failure of the heirs of the purchaser, or where any land shall 
 be descendible as if an ancestor had been purchaser thereof, and 
 there shall be a total failure of the heirs of such ancestor, then and 
 in every such case the. land shall descend, and the descent thereof 
 shall be traced from the last person entitled to the land as if he 
 had been the purchaser thereof;" and by sect. 20, the last pre- 
 ceding section (19) is to be read ^ part of 3 & 4 Vict. s. 108. 
 
 By sect. 3, when land shall have been devised by any testator to 
 his heir, such heir shall take as devisee, and not by descent ; and 
 when land shall have been limited by any assurance to the person 
 or to the heirs of the person who shall thereby have conveyed the 
 same, such person shall be considered to have acquired the same 
 as a purchaser, and not to be entitled thereto as his former estate. 
 
 By sect. 4, when any person shall have acquired any land by 
 purchase, under a limitation to the heirs, or to the heirs of the 
 body of any of his ancestors, contained in an assurance, or under 
 a similar limitation contained in a will ; such land shall descend and 
 thedescent thereof shall be traced, as if the ancestor named in such 
 limitation had been the purchaser. 
 
 By sect. 5, no brother or sister shall inherit immediately from 
 brother or sister, but every descent from a brother or sister shall 
 be traced through the parent. 
 
 By sect. 6, eveiy lineal ancestor is made capable of being heir 
 to any of his issue ; and where there shall be no issue of the pur- 
 chaser, his nearest lineal ancestor shall be his heir in preference to 
 any person who would have been entitled to inherit, either by 
 tracing his descent through such lineal ancestor, or in consequence 
 of there being no descendant of such lineal ancestor, so that the 
 father shall be preferred to a brother or sister, and a more remote 
 
 {d) Doe V. Blackhurn, 1 M. & Eob. 547. 
 
EJECTMENT. 6O5 
 
 lineal ancestor to any of his issue other than a nearer lineal an- 
 cestor or his issue. 
 
 By sects. 7 and 8, it is declared that the male line is to be pre- 
 ferred, and the mother of the more remote male paternal ancestor 
 to be preferred to the mother of the less remote ; and the mother 
 of the more remote male maternal ancestor to the mother of the 
 less remote. 
 
 By sect. 9, persons of the half blood are made capable of in- 
 heriting; those of the half blood on the part of the male ancestor 
 to inherit next after the relation in the same degree of the whole 
 blood and his issue ; and those of the half blood on the part of a 
 female ancestor next after such female^ncestor. * 
 
 By sect. 10, when a person through whom a descent is to be 
 traced shall have been attainted, and died before such descent shall 
 have taken place, the attainder shall not prevent the heir from in- 
 heriting, unless the land shall have escheated in consequence of 
 such attainder, before the 1st January, 1834. 
 
 The act does not extend to any descent taking place on any 
 death before the 1st January, 1834. Sect. 11. And where the heir 
 or heirs of any person t9;ke an estate by purchase, under an assur- 
 ance executed before the 1st January, 1834, or a will of any 
 testator dying before the same day, such heir or heirs will be 
 determined by the old law, whether the person named as the an- 
 cestor shall be living or not on the 1st January, 1834. Sect. 12. 
 
 X. Evidence. 
 
 For the Plaintiff. — The evidence required to support an eject- 
 ment will vary according to the title of the plaintiff. 
 
 Possession is primd facie evidence of seisin in fee simple : the 
 declaration of a deceased possessor that he was tenant to another, 
 makes most strongly against his own interest, and consequently is 
 admissible to cut down his o\vn title (e) ; but it must be shown that 
 he was then in possession of the premises (/), for the declaration 
 of a deceased tenant, who had parted with his interest, is not admis- 
 sible to cut down the title of his alienee (g). So the admission of a 
 deceased person in receipt of the rent, that he held under another, 
 whether as tenant by sufferance, or as receiver of the rents, is 
 evidence that he himself was not the owner of the legal estate, and, 
 evidence being given aliunde of the title of the plaintiff, the plain- 
 tiff had judgment Qi). In order to prove that the land for which 
 ejectment was brought was part of the estate of the plaintiff's 
 ancestor, the counterpart of a lease purporting to demise the land 
 
 (e) PeaceabU v. Watson, i Taunt. 16 ; 931, per Parke, B. 
 Came y. Nkoll, 1 B. N. C. 430. (rj) Doe v. M^ebber, 1 A. & E. 733. 
 
 (/) Crease v. Barrett, 1 C. M. & R. (h) Doe v. CouUhred, 7 A. & E. 239. 
 
666 EJECTMENT. 
 
 in question, which was dated -in the lifetime of the ancestor, and 
 apparently executed by the lessee, but by no one else, was produced 
 from the muniment room of the ancestor. The evidence was held 
 admissible, although no reason was given for the non7production 
 of the lease itself, and no privity was shown to exist between the 
 lessee and the defendant in ejectment (i). 
 
 It is not competent to a party, who has taken a beneficial interest 
 under a deed, to dispute its execution (k). Therefore, where in an 
 action by the lessee against the assignee of a lease, the plaintiff 
 having proved the delivery of the original lease to the defendant, 
 and the execution of the cpunterpa-rt, the defendant put in the 
 original lease, which was produced by a party to whom defendant 
 had assigned it by a deed reciting the lease ; it was held, that it 
 was not necessary for the plaintiff to call the subscribing witness 
 to prove the execution of the lease (I). But the interest taken 
 must be an abiding one ; and therefore, where, to prove a partner- 
 ship between the plaintiff and defendant, the defendant produced 
 a contract for work to be done, purporting to be made by them as 
 partners with a third party ; it was held, that proof of execiition 
 must be given (m). To the general rule that regulates the proof of 
 deeds there are two exceptions, 1. Where they are of a certain 
 age ; 2. Where an adverse party produces, on notice, a deed under 
 which he claims an interest (n). 8ecus, -where it is produced from 
 the custody of the other party (o). Where a notice to produce is 
 given, and not complied with, and it appears on the plaintiff pro- 
 ducing a copy that there was an attesting witness to the original, 
 such witness need not be called (p). 
 
 Devisee of a Term(q). — Where the plaintiff is devisee of a 
 term, he must produce in evidence the probate of the will (r), and 
 prove the assent of the executor to the devise ; foir where a person 
 devises, either specially or, generally, goods or chattels, real or 
 personal, and dies, the devisee cannot take them without the 
 assent of the executor (s). Lessee for years devised the term to 
 his executor for hfe, paying 50Z. to J. S., remainder to the plaintiff. 
 The executor dying, his executrix entered upon the residue of the 
 lease,, and possessed herself o^f the terin. ,An ejectment hp-ving 
 
 (i) Doe v. Fnlmer, 3 Q. B. 622. formerly requisite, t e., in all devisds of 
 
 ,{Ic) Carr y. Burdiss, 1 C. M. &E. 782. real property, other ithaK chattels 'real, 
 
 (I) Burnett y. Lynch, H B. & C. 589. the probate, or an office copy, .thereof is 
 
 (m) Collins v. Bayntun, 1 Q. B. Il7. made evidence of the will, unless, within 
 
 (n) Laythearp v. Bryant, 1 B. N. C. four days of receipt of notice that such 
 
 421. proof will be gWen (which notice must be 
 
 (o) Vacher v. Coch, 1 B. & Ad. 145. given ten days before trial), the parly 
 (p) Poole V. Warren, 8 A. & E. 582. ' receiving gives notice that he disputes its 
 
 (q) For evidence on ejectment brought validity. By sect. 65i if the original-ffill 
 
 by, the devisee . of land, see post, tit. be produced', the judge may direct by 
 
 "Statute of Frauds." Sect. III. which of the parties the costs of such 
 
 (r) See 20 & 21 Yict. c. 77, establish- production and proof shall be paid. 
 
 ing a Court of Probate. By sect. 64, in (s) 1 Inst. Ill, a. See ante, p. 626. 
 
 cases where proof of the original will was , 
 
EJECTMENT. 667 
 
 been brought, it was held, that the executor took as executor, and 
 not as legatee ; and then the remainder over was not executed, 
 and that it was incumbent on the remainderman to prove a special 
 assent thereto, as to a legacy ; whereupon plaintiff proved payment 
 of the 501. ; and that was held to be a sufficient assent, and the 
 plaintiff recovered (t). To prove the title of the plaintiff in eject- 
 ment, claiming as executor, the will was produced from the re- 
 gistrar's office, with a memorandum at the foot of it, signed by the 
 surrogate, that the executor had proved the will, and that the 
 probate had been sealed. The probate was not produced or 
 accounted for ; but it was proved that such a memorandum was 
 never made till probate had been granted, and that, by the practice 
 of the particular court, no other recoift of such grants was kept. 
 The evidence was held sufficient (u). 
 
 Ad/ministrator. — Where the plaintiff claims title as administra- 
 tor, in strictness he ought to produce the letters of administration 
 under the seal of the Ecclesiastical Court — now the Court of Pro- 
 bate, estabUshed by the 20 & 21 Vict. c. 77 (see sect. 23). But 
 before that act it was held that the original book of acts, wherein 
 the orders of the Ecclesiastical Court for granting letters of ad- 
 ministration were entered (x), or an examined copy of the entry in 
 that book {y), or a certified copy of such book, under the 14 & 15 
 Vict. c. 99, s. 14 (z), or an exemplification of the letters of adminis- 
 tration, if the originals were lost (a), were also evidence. 
 
 Boundary. — Keputation is admissible evidence in questions of 
 boundary. Hence where the question was, whether land was in 
 the parish of A., or in the parish of B., the land in B. being tithes- 
 free ; it was held, that ancient leases granted. by the ancestor of the 
 plaintiff's landlord, in which the land was described as being in 
 parish B., were admissible as evidence of reputation that the iland 
 was in that parish (&). So verdicts and presentments at a manor 
 court are admissible, but not awards (c). 
 
 Copyholds. — If the plaintiff make title in the lessor as lord of a 
 manor, who has a right by forfeiture of copyhold, he ought to 
 prove that his lessor is lord, and the defendant a copyholder ; and 
 that he committed a forfeiture: but the presentment of the for- 
 feiture need not be proved, nor the entry or seizure of the lord for 
 the forfeiture (d). 
 
 Tenant by Elegit— As under an elegit the sheriff cannot deliver 
 the land extended (e), the tenant by elegit must bring an eject- 
 
 (0 Young v. ffolmes, 1 Str. 170. (6) Pla^ton v. i)are, 10 B. & C 17. 
 
 (u) Doe Y. Mew, 7 A. & E. 240. (c) Evans v. Jiees, 10 A. & E. 151. See 
 
 (x) EUm V. KeMM, 8 East, 187. DanUl v. TTiZfe-ji, 7 Exoh. 429. 
 (y) Bay v. Clerk, 13 East, 238. (d) Peters v. mils, Bull. N. P. 107. 
 
 (z) Dorrett v. Meux, 15 C. B. 142. (e) Per Lord Kenyo^, C. J., in Taylor 
 
 \a) Shepherd v. Shorthose, 1 Stra. 412. v. Cole, 3 T. E. 295. 
 
C68 EJECTMENT. 
 
 ment (/) ; to support which he must either produce in evidence an 
 examined copy of the judgment ; of the writ of elegit taken out 
 upon it, and the inquisition and return thereupon ; or an examined 
 copy of the judgment roll, containing the award of elegit and re- 
 turn of the inquisition ig). If the writ of elegit is bad on the face 
 of it, as if it be sued out for part only of the sum recovered with- 
 out showing that the residue has been satisfied or otherwise dis- 
 posed of (A), the objection may be taken at the trial at Nisi 
 Prius {%). If at the time of the judgment the elegit debtor is 
 entitled to the whole property sought to be recovered in the eject- 
 ment by the elegit creditor, other parties, who with the elegit 
 debtor are in possession when the ejectment is brought, must 
 prove their title, and, if they do not, the elegit creditor is entitled 
 to judgment against all (h). The writs, with the inquisition and 
 return thereupon, stating that the defendant was possessed of the 
 property, are sufficient evidence of the plaintiff's right to recover, 
 and, it seems, conclusive as between the judgment creditor and 
 judgment debtor, at all events down to the date of the return ; so 
 that the defendant cannot set up a title in a third party (Q. 
 
 A verdict was found for the plaintiff, who claimed under a judg- 
 ment recovered against the defendant, and writ of elegit and in- 
 quisition thereon taken and returned. Upon motion to enter a 
 nonsuit, the objection was, that by a deed executed before the 
 judgment was recovered, the legal estate was vested in trustees for 
 the purpose of securing an annuity to the defendant's mother, with 
 permission to the defendant to take the rent, until the annuity 
 should be in aiTear. The trustees were empowered to enter in 
 case the annuity were in arrear, which they had done. But at the 
 time of the execution of the elegit, and of commencing the action, 
 there was nothing in arrear.. It was contended that the case fell 
 within 29 Car. II. c. 3, s. 10 (by which the sheriff can take under 
 an elegit such lands as the party against whom it issues is legally 
 or beneficially entitled to), as the premises were held in trust for 
 the defendant. It was adjudged that the plaintiff could not re- 
 cover, because the estate was vested in trustees, though partly for 
 the defendant's benefit (m). 
 
 (/) "I am aware that it has in several actual possession ; where it is in the pos- 
 
 places been said, that the tenant by elegit session of a tenant the sheriff sets it out, 
 
 cannot obtain possession without an eject- &o., and the tenant is bound thencefor- 
 
 ment, but I have always been of a differ- ward to pay rent to the tenant by elegit." 
 
 ent opinion. I have no doubt that the Per Gibbs, C. J., 6 Taunt. 206. 
 
 sheriff may deliver actual possession of a (g) Samsbottom v. Bucklmrst, 2 M. & 
 
 moiety (all now by 1 & 2 Vict. c. liO, s. S. S65. 
 
 l\),ixce-^tt\iaX, where tlie land is under a {h) See Sherwood v, Clark, 15 M. & 
 
 previous demise, he cannot disturb the W. 764. 
 
 previous title of the tenant in possession. (i) Fenny v. Durant, 1 B. & Aid. 40. 
 
 All he can do is to put the avowant into (fc) Doe v. Owen, 2 C. & J. 71. 
 
 the state of landlord ; if the land had (l) Martin v. Smith, 27 L. J., Exch. 
 
 been in the possession of the former 317. 
 
 owner the sheriff might liave delivered {m) Doe v. Qremhill, 4 B. & Aid. 684. 
 
EJECTMENT. 669 
 
 Judgment.— Wheve the plaintiff claims under an assignment 
 from the sheriff, if he be a party in the original action in which 
 the execution issues, he must not only produce the writ of fi, fa 
 but also the judgment (n). A judgment recovered by the defendant 
 in a former ejectment is admissible in evidence against the plain- 
 tiff, on the trial of a second ejectment, Avhere the plaintiff and the 
 defendant are the same parties, but it is not conclusive, because a 
 party may have a title to possession at one time and not at 
 another (o). 
 
 Landlord. — In ejectment by a landlord against his tenant, it is 
 not necessary for the landlord to give any evidence of his title an- 
 terior to the lease ; for the tenant will ^ot be permitted to impeach 
 the title of the person under whom he came into possession. In 
 ejectment upon a clause of re-entry in a lease, for non-payment of 
 rent, against the assignee of the term, the lessor proved, by the 
 subscribing Avitness, the execution of the counterpart of the lease ; 
 this was held to be sufficient proof of the holding upon the con- 
 dition of re-entry in case of non-payment of rent, without produc- 
 ing the lease itself, or proving that notice had been given to the 
 defendant to produce it (p). So a lessee cannot dispute the ad- 
 missibility or validity of the counterpart on the ground that the 
 original is not properly stamped (g). 
 
 It is sufficient to prove the assignment of a lease by the sub- 
 scribing witness, without calling the subscribing witness to the 
 original lease (r). In this case the assignment was by indorsement. 
 In ejectment for a leasehold estate, the lessor of the plaintiff pro- 
 duced the original lease, which was for a term of 1000 years, 
 granted in the time of Queen Elizabeth, and one mesne assignment 
 in the time of King James ; and then proved possession in himself 
 and those under whom he claimed for seventy years prior to the 
 ejectment ; it was held, that the jury might be directed to pre- 
 sume all the mesne assignments (s). 
 
 In ejectment by landlord against tenant, the landlord proved 
 payment of rent and half a year's notice to quit. But on the 
 cross-examination of the plaintiff's witness, he was asked, whether 
 there was not an agreement in writing relative to the holding of 
 these lands ? to which he answered, that an agreement in writing 
 relative to these lands was produced at the last trial of this 
 ejectment (this being the second trial) ; but he did not know the 
 contents of it ; and then another witness was called, who proved 
 that he had seen the same paper in the hands of the plaintiff's 
 attorney, on the same morning (i. e. of this trial). Whereupon it 
 was objected, on the part of the defendant, that no parol evidence 
 
 (ii) Doe y. Smith, Holt, 589. (g) Paul v. Meeic, 2 Y. & J. 117. 
 
 (o) Doe V. Seataii, 2 C. M. & E. 728. (r) Nash v. Turner, 1 Esp. 217. 
 
 ip) Roe V. Davis, 7 East, 363; Hough- (s) Earl v. Baxter, 2 W, BI. 1228. 
 ton V. Kcenig, 18 C. 235, ace. 
 
670 EJECTMENT. 
 
 of the tenancy could be given, when it appeared that there was 
 an agreement in writing concerning it ; and it did not appear that 
 the landlord had any right to determine the tenancy in the man- 
 ner he had done. Lord Mlenborough, C. J., — "If there were any 
 writing relative to this holding, in the possession of the landlord, 
 the defendant ought to have given him a regular notice to produce 
 it ; otherwise, in this collateral way, he would get the whole 
 benefit of it, without giving such a notice : when if notice had 
 been given, and the paper were produced, it might not support the 
 objection. Enough, at least, ought to appear to show that the 
 paper not produced was better evidence of the terms of the tenancy 
 than the evidence which was received ; but it did not appear that 
 it was an agreement between these parties, or that it was an exist- 
 ing agreement at this time ; it might have been an agreement be- 
 tween the defendant and his former landlord; or it might have 
 related to a former period of the tenancy. The witness did not 
 profess to know any thing of the contents of the paper, only that 
 it was an agreement relative to the lands in question " (t). But 
 where the plaintiff's witness proved an acknowledgment by the 
 defendant that he held under T., and stated that he (witness) had 
 drawn an agi'eement touching the premises between plaintiff and T., 
 it was held, that the plaintiff was bound to produce the writing 
 or be nonsuit (u). " The rule is very clearly settled, that; if it 
 comes out on the cross-examination of the plaintiff's witnesses that 
 there is a written instrument,, he must produce it, but if the 
 plaintiff makes out a primd facie case without showing that there 
 was any written contract, the other party, if he relies on that 
 contract, must produce it ; " (x) ; and if, when produced, it is inad- 
 missible for want of a proper stamp, the plaintiff is entitled to 
 a verdict (i/). < 
 
 Defendant enclosed a small piece of waste land by the side of a 
 pubHc highway, and occupied it for thirty years without paying 
 any rent ; at the expiration of that time the owner of the adjoining 
 land demanded 6c?. rent, which defendant paid on three several 
 occasions ; it was held, that this, in the absence of other evidence, 
 was conclusive to show that the occupation of defendant began by 
 permission, and entitled plaintiff to a verdict {z). This case was 
 decided on the ground that the defendant's possession was not ad- 
 verse to that of the plaintiff, a doctrine now abolished. (See ante, 
 p. 654) Such facts, however, would still, it seems, be admissible, 
 as evidence of an assertion of right and act of owinership, acqui- 
 esced in by the tenant, on the part of the person to whom the rent 
 was paid (a). The possession of the tenant is the possession of the 
 
 (t) Doc T. Morris, 12 East, 237 ; Ste- B. & Ad. 208. 
 vens V. Pinney, 8 Taunt. 327, ace. (y) Magnayy. Knight, 1 M. & G. 944 ; 
 
 (u) Fcnn v. Griffith, 6 Bingh. 533 ; Fielder v. Reay, 6 Bingh. S32. 
 Doe T. Harvey, 8 lb. 239. (s) Doe v. Wilkinson, 3 B. & C. 418. 
 
 (x) Per Parke, J,, R. v. Padstow, 4 (a) Doe v. Edwards, 5 A. & E. 95. 
 
EJECTMENT. 671 
 
 owner (6) ; and a licensee is in this respect in the same'positioh as 
 a tenant (c). So where a, cottage standing in a meadow (belonging 
 to the lord. of a manor), but separated from it and from the high 
 road by a ditch, had been occupied for more than twenty years 
 without payment of rent ; then the lord demanded possession, 
 which was reluctantly given ; and the occupier was told, that if he 
 were allowed to resume possession, it would only be during plea- 
 sure. He was allowed to resume, and kept possession for fifteen, 
 years more, but did not pay any rent ; it was held, that it was 
 a question for the jury, whether the possession commenced and 
 continued by adverse title, or by the permission of the lord : and 
 the jury having found that the occupation was by permission of the 
 lord, the court refused to disturb th^verdict (d). This case was 
 also decided on the ground of adverse possession, but similar cir- 
 cumstances would still (semble) entitle the plaintiff to a verdict ; 
 for, under the 3 & 4 Will. IV. c. 27, a right of entry accrues on the 
 resumption of possession (e). In that case, however, the twenty 
 years had not expired before the resumption of possession. 
 
 "Where the question was, whether a slip of land between some 
 old inclosures and the highway vested in the lord of the manor or 
 in.the owner of the adjoining freehold ; it was held, that evidence 
 might be received of acts of ownership by the lord of the manor, 
 on the greens and wastes in other parts of the manor, at a distance, 
 although the lord was not the owner of the adjoining freehold, 
 pirovided such evidence were confined to the road, which passed by 
 the spot claimed by the plaintiff (/). So, although not lying along 
 the same road, if they are contiguous to or communicate with open 
 commons or larger portions of waste land of a manor ; for the evi- 
 dence which applies to the larger portions in that case applies also 
 to the narrow strip which communicates with them (g). But the 
 mere fact that on other parts of the waste of the manor, situate 
 between a private enclosure and a public road, the lord has exer- 
 cised acts of ownership, is not sufiicient Qi). 
 
 Payment of the same and a small sum of money, annually, for 
 a -Iflng series of years, for a piece of land, to the lord of a manor, 
 has been held not to be evidence of a title to the land, but to the 
 rent only. It had been paid nearly forty years, and the judge 
 said, the presumption was, that it was a quit rent (*). 
 . Where the plaintiff proved that the premises had been leased to 
 him and a year's possession, and that the defendant ousted him ; this 
 was held sufficient, although it was not shown what the title of the 
 demising parties was ; the defendant being a mere wrong-doer (k), 
 and this, although the plaintiff sets up a title which he fails to 
 
 (6) Bushby v. Dixmi, 3 B. & C. 298 Dencly v. Simpson, 18 C. B. 831, ace. 
 (c) Doe V. Baytup, 3 A. & E. 188. ig) Grose v. West, 7 Taunt. 39. 
 
 id) Doe V. Olark, 8 B. & C. 717. (K) Doe. v. Kmxp, p. 107, per Cur. 
 
 (e) Ramdall v. SUvens, 2 E. & B. 641. (i) Doe v. Johnson, Gow. 173. 
 
 (/) Doe V. Kemp, 2 B. N. C. 102 ; (t) Doc r. DijebaU, M. & Malk. 346. 
 
673 EJECTMENT. 
 
 establish (Q. The plaintiff proved, that his father and himself had 
 held the premises for twenty-two years, and during that time 
 received and increased the rent. It did not appear that the father 
 had any other son. The defendant proved, that he had been in 
 possession for ten years before ejectment brought. Held, that the 
 plaintiff was entitled to recover ; Tindal, C. J., observing, that the 
 earlier presumption must prevail, until better title is shown (m). 
 •But care must be taken in these cases not to prove too much, for 
 where the plaintiff proved thirteen years' possession, which it was 
 admitted by the court would have entitled her to a verdict as 
 prima facie evidence of a seisin in fee, no other interest appearing 
 in proof, but proved also, that her husband had been in possession 
 for eighteen years previously, and had died, leaving children ; it 
 was held, that she had established a prknd facie case of title in 
 his heir, and by her own showing had proved the title to be in 
 another, of which the defendant, though producing no evidence of 
 title in himself, was entitled to take advantage. Nonsuit ac- 
 cordingly (n). 
 
 Legiti/macy. — In this action, the legitimacy of the parties fre- 
 quently comes in question. An opinion appears to have prevailed 
 at one time, that unless the husband was out of the kingdom 
 during all the time of the wife's going with child, access must be 
 presumed, and the child must be deemed legitimate (o). But, on 
 examination of this doctrine, it was found unsatisfactory ; and it is 
 now held, that non-access may be proved to bastardize the issue, 
 although it should appear that the husband was within the king- 
 dom during the period of gestation (p). So where the husband, in 
 the course of nature, cannot have been the father of his wife's child, 
 the child is by a law a bastard, whether the husband be within 
 reach of access or not ; as in the case of a natural impossibiUty, 
 the husband being within the age of puberty (q) ; or disabled by 
 bodily infirmity (r). So where it was proved that the husband had 
 not access, until a fortnight before the birth of the child, the child 
 was adjudged illegitimate (s). The circumstance of the wife living 
 in notorious adultery is not sufiicient evidence alone of the hus- 
 band's non-access to warrant a finding of illegitimacy (t). 
 
 The wife is a witness of necessity, as to the fact of adulterous 
 intercourse, because that lies within her own knowledge, and she 
 is the only person who may be supposed privy to it, except the 
 adulterer (u). But non-access must be proved by other testimony 
 than that of the wife (x) ; and this rule holds, although the husband 
 
 (V) Davison v. Gent, 1 H. & K. 744. (r) 1 EoU. Abr. 359 (B.) 18. 
 
 (m) Doe V. Cooke, 1 Bingh. 346. \s) B. v. Luffe, 8 East, 193. 
 
 (m) Doc V. Barnard, 13 Q. B. 945. yt) M. v. Mamfiild, 1 Q. B. 444. 
 
 (o) Queen v. Murrey, Salk. 122. (u) R. v. Bool!:, 1 Wils. 340. 
 
 (p) B. V. Bcdall, 2 Str. 1076. (x) R. v. Beading, Eep. Temp. Hardw. 
 
 (q) 1 Hen. VI. 3, b. 79. 
 
EJECTMENT. 673 
 
 be dead (x). It is clear and indisputable law, that, for the purpose 
 of proving non-access, neither husband nor wife can be a witness ; 
 and this rule excludes all questions which have a tendency to prove' 
 access or non-access (y). This rule is founded " on decency, morality, 
 and policy," per Mansfield, C. J. {£) ; and is not, it seems, affected 
 by the recent statutes to amend the law of evidence {a). 
 
 The fact of the birth of a child from a woman united to a man 
 by lawful wedlock, is generally, by the law of England, primd facie 
 evidence, that such child is legitimate. Such prvmd facie evidence 
 of legitimacy may be rebutted by satisfactory evidence that such 
 access did not take place between the husband and wife, as by the 
 laws of nature is necessary, in order for the man to be in fact the 
 father of the child. The physical ^ct of impotency, or of non- 
 access, or of non-generating access, as the case may be, may always 
 be pi-oved by means of such legal evidence as is admissible in every 
 other case in which it is necessary, by the law of England, that a 
 physical fact be proved. After proof given of such access of the 
 husband and wife, by which, according to the laws of nature, he 
 might be the father of a child, (by which is to be understood proof 
 of sexual intercourse between them,) no evidence can be received, 
 except it tend to falsify the proof that such intercourse had taken 
 place. Such proof must be regulated by the same principles as are 
 applicable to the establishment of any other fact. In every case 
 where a child is born in lawful wedlock, the husband not being 
 separated from his wife by a sentence of divorce, sexual intercourse 
 is presumed to have taken place between the husband and wife, 
 until that presumption is encountered by such evidence as proves, 
 to the satisfaction of those who are to decide the qtiestion, that 
 such sexual intercourse did not take place at any time when, by 
 such intercourse, the husband could, according to the laws of 
 nature, be the father of such child. Where the legitimacy of a 
 child in such a case is disputed, on the ground that the husband 
 was not the father of such child, the question to be left for the jury 
 is, whether the husband was the father of such child ; and the 
 evidence to prove that he was not the father, must be of such facts 
 and circumstances, as are suflficient to prove, to the satisfaction of 
 a jury, that no sexual intercourse took place between the husband 
 and wife at any time when, by such intercourse, the husband could, 
 by the laws of nature, be the father of such child (6). A child be- 
 gotten after a divorce a mensd et thoro (c), shall be taken to be a 
 bastard ; otherwise after voluntary separation, unless found that 
 the husband had no access (d). 
 
 (x) Rv.Kea, n^aat, 132. 153. 
 
 iy) R. V. Sourton, 5 A. & E. 180. (c) Now, a judicial separation. 20 &21 
 
 {z) OoodrigM v. Moss. Cowp. S94. Vict. o. 85. See sect. 7. 
 
 (a) Legge v. Edrmmds, 25 L. J., Ch. (d) Parishes of St. Gem-geandSt. Mar- 
 125. garet's, Westminster, 1 Salk. U6. 
 
 (b) BanMry Peerage, 1 Sim. & Stii. 
 
 VOL. I, ^ ^ 
 
674 EJECTMENT. 
 
 Upon the question of marriage, it is part of the law of England 
 that the law of the country where the marriage is solemnized shall 
 be adopted ; and the same observation applies to the distribution 
 of personal property according to the law of the domicile. But the 
 same principle does not apply to the inheritance of real property ; 
 to that the lex loci is alone applicable. Legitimacy, according to 
 the law of a foreign country, is not sufficient to make a person 
 inherit socage lands in England ; the heir must, in aceordaiice mth 
 the law of this country, be a child born after marriage. Hence a 
 child born in Scotland of unmarried parents, domiciled in that 
 country, and who afterwards intermarry there, is not by such mar- 
 riage rendered capable of inheriting lands in England (e). 
 
 Mortgagee. — In ejectment by a mortgagee, if the mortgagor 'be 
 in possession, proof of the execution of the mortgage deeds by the 
 subscribing witness will be sufficient to support the mortgagee's 
 title ; but if a third person is in possession (under a lease prior to 
 the mortgage) the mortgagee should also prove, that such third 
 person has paid rent to, or otherwise acknowledged the title of, the 
 mortgagor (/) ; and that his tenancy has been determined by a 
 notice to quit, forfeiture, or otherwise {g). It is not necessary to 
 prove either a notice to quit or a demand of possession against a 
 mortgagor Qi), he being only a tenant on sufferance (*), unless the 
 mortgage deed contains any proviso, amounting in effect to a re- 
 demise for k ctertaih period, or a tenancy from year to ^ear, or at 
 will Qi). A- tenant let into possession subsequent to the mortgage, 
 without the privity of the mortgagee, cannot be in a better position 
 in this respect than the mortgagor (?) ; and no notice to quit oh de- 
 mand of possession is necessary (to). Where, however, the mort- 
 gagee recognizes a party as being in lawful possession of the pre- 
 mises at a given time, it iS not competent to him to say' afteiwards 
 that at that time he was a trespasser (n) ; but mere payment of 
 interest by the mortgagor in respect of the original debt, for a 
 period covering the date mentioned in the writ, is not a recog- 
 nition of the right of the mortgagor, or his tenant, to hold 
 possession (o). 
 
 Rector. — In ejectment by a. rector for a rectory, it seems that it 
 is not; necessary for the plaintiff to prove that he subscribed and 
 publicly read the Thirty-nine Articles ; for where any act is re- 
 quired to-be done, so that the party neglecting it Would be guilty 
 of a criminal neglect of duty in not having done it, the law pre- 
 sumes the affirmative, and throws the burthen of proving the con- 
 
 (e) Doe. V. Yardill, 5 B. & C. 438 ; {1c) Doe v. Goldwim, 2 (J. B. 141V 
 
 (Dom. Proc.) 6 B. N. C. 385. {l) Weaver v. Belcher, 3 East, 449. 
 
 (/) Peake's Evid. 324. (m) Keeeh v. Hall, 1 Dougl. 21. 
 
 (g) Doe V. Wharton, 7 T. R. 2. (n) Doe v. Hales, 7 Bingh. 322. 
 
 (7i) Doe V. Giles, 5 Bingh. 421. (o) Doe v. Cadwallader, 2 B. & Ad. 
 
 (i) Doe V. Massey, 8 B. & C. 767. 473 
 
EJECTMENT. 075 
 
 trary on the other side {p). Hence, where a prebendary brought 
 ejectment for a house, belonging to his prebend, and was required 
 to show that he had performed the requisites necessary by law to 
 make him prebendary ; Wilmot, J., held, that it ought to be pre- 
 sumed that he had performed them, until something appeared to 
 the contrary (g). 
 
 The parish register, or an examined copy thereof, or a certified 
 copy, under 14 & 15 Vict. c. 99, s. 14, will be evidence to prove 
 baptisms, marriages, or burials. A register of baptism is not, per 
 se, evidence of the place of the birth of the party baptized (r). Re- 
 putation is sufficient evidence of marriage, even where the party 
 adducing it seeks to recover as heir at law to his brother, the per- 
 son last seised, and the father is stii living (s). Under the 6 & 7 
 Will. IV. c. 86, for providing means for a complete register, by 
 sect. 38, certified copies of entries, sealed or stamped with the seal 
 of office, are to be received as evidence of the birth, death, or 
 marriage, to which the same relates, without any further or other 
 proof of such entry. 
 
 If persons for whose lives estates have been granted, remain be- 
 yond the seas, or absent themselves in this realm, for seven years 
 together, and no sufficient proof be made of the lives of such per- 
 sons, in any actions commenced by the lessors or reversioners for 
 the recovery of the estates, they shall be accounted as naturally 
 dead, and the judge shall direct the jury accordingly. 19 Car. it. 
 . c. 6. Proof of absence in such a case may be given by a person 
 residing near the estate, though not a member of the family (t). 
 Where a party has been absent seven years without having been 
 heard of, he is presumed, at common law, to be dead ; but there is 
 not any legal presumption as to the particular time of his death 
 within that period. The presumption of law relates only to the 
 feet of death ; the time of death, whenever it is material, must be 
 the subject of distinct proof (w). 
 
 The original visitation-books of heralds, compiled when pro- 
 gresses were solemnly and regularly made into every part of the 
 kingdom, to inquire into the state of families, and to register such 
 marriages and descents as were verified to them on oath, are al- 
 lowed to be good evidence of pedigrees (x). But a pedigree pur- 
 porting to be compiled from monumental inscriptions, family records, 
 and history, is not admissible, except for the purpose of showing 
 the relationship of those persons who were described by the framer 
 of the pedigree as living, and who might be presumed to be per- 
 sonally known to him (y). 
 
 (p) See Monk v. Sutler, 1 EoU. Eep. to marriage, see ante, tit. "Adultery." 
 
 83 ; Williams v. JEast India, Company, 3 (i) Doe v. Deakin, 4 B. & Aid. 433. 
 
 East, 199. in) Nepean v. Doe, 2 M. & W. 914. 
 
 ((?) SherarcHs case, cited 2 AV. Bl. 853. (x) Matthew v. Port, Comb. 63. 
 
 M E. V. ISforth Petherton, 5 B. & C. {y) Davies v. Lowndes, 5 B. N.C. 167; 
 
 508. (m error) fi JT. ^- G. 471. 
 
 (s) T)oey. Plemivg, 4 Riiigli. 26(1 As 
 
676 EJECTMENT. 
 
 Although it is a general rule that hearsay evidence is not admis- 
 sible; yet in some cases, where a strict adherence to that rule 
 would utterly prevent the party from establishing his case, the law 
 sanctions a departure from it. " Hearsay is good evidence to 
 prove, who was my grandfather, when he married, what children 
 he had, &c., of which it is not reasonable to presume that I have 
 better evidence; so to prove that my father, mother, cousin, or 
 other relation beyond the sea is dead ; and the common reputation 
 and belief of it in the family, gives credit to such evidence " (z). 
 Where it was proved by one of the family, that, many years before, 
 a younger brother of the person last seised had gone abroad, and 
 according to the repute of the family had died, and that witness 
 had never heard in the family of his having been married. This 
 was held to be sufficient primd facie evidence that the party was 
 dead without lawful issue (a). So the declarations of the members 
 of a family are received in evidence as to pedigrees ; but evidence 
 of what a mere stranger has said has ever been rejected in such 
 cases (&). So the declarations of an illegitimate child have been 
 rejected (c). So the dying declarations of a person, who had, as 
 she stated, been servant to M. W., through whom the pedigree was 
 traced, as to the relationship of the plaintiff to the person last 
 seised, have been rejected (d). Declarations of sei-vants and inti- 
 mate acquaintances are not admissible; the rule is confined to 
 members of the family (e). 
 
 The husband has been considered as a member of the wife's , 
 family within the exception; and, consequently, his declarations as 
 to the illegitimacy of his wife are admissible in evidence (/). So a 
 widow has been allowed to prove the declarations of her deceased 
 husband in support of her son's title, although the husband, if 
 living, would have had the right which the declarations went to 
 establish (g). So declarations of a person entitled to a remainder 
 upon failure of issue of the then possessor are admissible, although 
 the title of the plaintiff was that which the person making the de- 
 clarations would have had, if living (Ji). But in all cases, if it 
 appears that the declarations have been made post litem motam, 
 that is, not merely after the commencement of the suit, but after 
 the dispute has arisen, they are not to be received (i). An inquiry 
 before a Master in Chancery as to who was the proper person to 
 be committee of a lunatic, and to certify who was his next of kin 
 and heir at law, to whom notice was directed to be given, is not a 
 lis mota within the above rule, and depositions of members of the 
 
 (s) Gilb. Ev. 212, edit. 1761. see Doe v. Dairies, 13 Q. B. 314. 
 
 (o) Dae V. Grijin, 16 East, 293; Doe (/) Vowles v. Young, 13 Yes. 143; 
 
 V. Woolley, 8 B. & C. 22, cue. Doe v. Harvey, Ey. & M. 297. 
 
 (b) Per Lord Kenyan, G. J., in R. ^. (g) Peerage case cited \)y AUoU, C. J., 
 Eriswell, 3 T. R. 723. in Doe v. Tarver, Ey. & M. 141. 
 
 (c) Doe V. Barton, 2 M. & Eob. 28. (h) Doe v. Tarver, supra. 
 
 (d) Doe V. Ridgway, 4 B. & Aid. 53. (i) Walker v. Beauchamp, 6 C. & P. 
 
 (e) Johnson v. Lawson, 2 Bingh. 86 ; 560. 
 
EJECTMENT. 677 
 
 family taken upon oath before the Master upon such an inquiry 
 are admissible (k). i ^ 
 
 An entry in an almanack, by the father, of the time of the birth 
 ot his son, has been admitted to be good evidence, to show that 
 the son was under age at the time of making his will ; on the 
 ground, as it should seem, of the peculiar means of knowledge of 
 the fact by the father, and the absence of all interest in him at the 
 time of the memorandum made (I). A written memorandum (m), 
 by a deceased accoucheur, stating that he had delivered a woman 
 of a child on a certain day, and referring to his ledger, in which a 
 charge for his attendance on that occasion was marked as paid, 
 was held to be good evidence, upon an issue as to the child's age '; 
 on the ground, that if a person have*peculiar means of knowing a 
 fact, and make a declaration of that fact, which is against his in- 
 terest, it is evidence after his death (n). It will be observed, that 
 in this case, the memorandum of the payment of the midwife's 
 charge was held to be evidence of the date of the birth (o) ; so the 
 entry of charges paid for a lease, as drawn on a certain day, was 
 held to be evidence that the lease was drawn on that day, which 
 proof by an eye-witness of the same payment on account of such 
 charges would not have been ; and there are other cases to the 
 same effect. The result of these authorities is, that the entry of a 
 payment against the interest of the party making it, may have the 
 effect of proving the truth of other statements contained in the 
 same entry, and connected with it (p). So receipts are evidence 
 not only of the fact of pajrment having been made, but also of the 
 account on which it was made(g'). The rule that entries of receipts 
 are admissible, because against the interest of the party making 
 them, does not apply to entries in discharge of the party making 
 them, for they make for his interest (r). 
 
 Bills in equity, whether seeking relief or not, and depositions, 
 are not admissible as evidence of the facts therein mentioned or as 
 declarations respecting pedigree ; nor are depositions taken in the 
 Court of Chancery, in consequence of a bill to perpetuate the tes- 
 timony of witnesses, or otherwise, receivable in evidence to prove 
 the facts sworn to, in any cause in which the parties are not the 
 same as in the cause in the Court of Chancery, or do not claim 
 under some or one of such parties ; and, generally speaking, a bill 
 in Chancery cannot be received in evidence in a court of law, to 
 prove any fact either alleged or denied in such bill : though to this 
 there may be some exceptions (s). Where the plaintiff tendered 
 
 (k) Gee v. Ward, 7 E. & B. 509. See Gleadow v. Atkins, 1 Cr. & M. 423. 
 
 {1} fferbertY. Tuckal, Sir T. Raym. 84. (o) Doe v. Boison, 15 East, 32. 
 
 See per Elleniorough, C. J., in Soe v. (p) Per Parke, B., Davies v. Bum- 
 
 RawUngs, 7 East, 290. phretjs, 6 M. & W. 166. 
 
 (m) That an oral declaration is admis- (?) Per Parke, B., Percivaly. Nansmi, 
 
 sible (semUe). Stapylton v. Oloucjh, 2 E. 7 Exch. 4. 
 
 & B. 933. {r) Doe v. Seviss, 7 0. B. 456. 
 
 (n) Higham v. Bidgwmj, 10 East, 116. (.?) Banbury Peerage, D. P., opinionsof 
 
678 EJECTMENT. 
 
 in evidence the answer of the defendant to a bill in equity, tod 
 the defendant insisted that the bill should be produced and read(i), 
 Tvndal, C. J., said, he thought he must order the whole bill to be 
 read if the defendant required it, though it was certainly unusual 
 to require this to be done ; and he should tell the jury, that the 
 statements in the bill were not to be considered- as admissions of 
 the facts so stated, it being notorious that allegations^, not corre- 
 sponding with the facts, were frequently introduced into bills for 
 the purpose merely of eliciting the truth from the other party. 
 
 If the question be, whether a certain manor be ancient demesne 
 or not, the trial shall be by Domesday Book, which will be ia- 
 spected by the court {v). An ancient writing, found among the 
 court rolls of a manor, stated to be ex assetisu om/m/u/m t&netiti%m, 
 and proved to have been delivered down from steward to steward, 
 is admissible evidence, although not signed by any person, to prove 
 the course of descent within the manor (a;) ; for the quality of the 
 hearsay itself raises a natural inferencfe that it was derived from 
 persons acquainted with the subject {y). And the same rule holds 
 with respect to an entry in the court roUs of a presentment, made 
 by the homage, of the customary mode of descent withiii the 
 manor, although no instances be proved of any person having 
 taken according to the mode of descent pointed out in the present- 
 ment {z). Custom is of the very essence of a copyhold ; and if 
 the custom be silent the common law must regulate the course of 
 descent. Customs are to be taken strictly, and cannot be extended 
 by implication. Hence, where the custom is, that the elder sister 
 shall inherit, yet, by that custom, the eldest aunt of the eldest 
 niece shall not inherit the land (a). So if the custom be that the 
 youngest son shall inherit, and a man has issue two sons and dies, 
 and the land descends to the younger son, who dies without issue, 
 the eldest son of the eldest brother shall have the land ; because 
 the ciistom does not hold in the transversal line, but only in the 
 lineal descent (6). Evidence of reputation of the custom of the 
 manor, that, in default of sons, the eldest daughter, and in default 
 of daughters, the eldest sister, and in case of the death of all, the 
 deseendcmts of the eldest daughter or sister respectively of the 
 person last seised should take, is proper to be left to the jury of 
 the existence of such a custom, as applied to a great nephew ("the 
 gi-andson of an eldest sister) of the person last seised ; although 
 the instances in which it was proved to have been put in use 
 extended no further than those of eldest daughter and eldest 
 sister, and the son of an eldest sister (c). On a question as to the 
 
 thejudges, 30th May, 1809. See remarks 486. 
 
 on this case in Gee v. Ward, 7 E. & B. 609. (a) Jioe v. Parker, 5 T. E. 26 ; Creaie 
 
 (t) Pennell v. Meyer, 2 M. & Eoh. 98. v. Barrett, 1 C. M. & E. 919, ace. 
 
 («) Hob. 188. (a) Eatdiff t. Chajnnan, i Leon. 242. 
 
 {x) Derm v. Spray, 1 T. E. 466. (b) 1 EoU. Ahr. 624, pi. 2. 
 
 iy) See Freeman^. Phillips, 4 M. & S. (c) Doe v. Sisson, 12 East, 62. 
 
EJECTMENT. 679 
 
 existence of a custom in a particular manor, evidence of a like 
 custom in an adjoining manor, though within the same parish and 
 leet, is not admissible {d). 
 
 To an indenture of feoffment by the Bank of England, the seal 
 of the bank was affixed by a paper, wafered to the indenture, on 
 which was written, " Sealed by order of the Court of Directors of 
 the Governor and Co. of the Bank : J. K., Secretary:" it was held, 
 that J. K. was not an attesting witness, and that the execution of 
 the feoffment might be proved by the seal, without calling J. K. (e) ; 
 but the seal should, it seems, be proved to be the seal of the corpo- 
 ration (/). 
 
 For the Defendant. — If the defeSdant prove a title out of the 
 plaintiff, it is sufficient, though he have not any title himself : but 
 he ought to prove a subsisting title ; for producing an ancient lease 
 for 1000 years will not be sufficient, unless he likewise prove pos- 
 session, under such lease, within twenty years (g). So if the 
 defendant produce a mortgage deed, where the interest has not 
 been paid, and the mortgagee never entered, it will not be suffi- 
 cient to defeat the plaintiff, who claims under the mortgagor ; be- 
 cause it will be presumed that the monej^ was paid at the day, and 
 consequently, that it is not a subsisting title ; but if the defendant 
 prove interest paid upon such mortgage, after the time of redemp- 
 tion, and within twenty years (see ante, p. 658), it will be sufficient 
 to nonsuit the plaintiff (/;-). And the rule is the same if the plain- 
 tiff prove the title out of himself (i). No less time than twenty 
 years will raise a presumption that a mortgage term has been 
 assigned or surrendered ; although the defendant does not prove 
 that interest continues to be paid (k). Note, that in this case the 
 defendant had possession of the mortgage deed. 
 
 The defendant produced a mortgage for years, by deed, from 
 the plaintiff's ancestor, upon which was an endorsement in licec 
 verba, " Eeceived of M. 0. 500Z. on the within recited mortgage, 
 and all interest due to this day ; and I do hereby release to the 
 said M. 0., and discharge the mortgaged premises from the said 
 term of 500 years." On a case reserved, the court held, that these 
 words amounted to a surrender of the term ; and that such sur- 
 render might be by note in writing, without deed, by the Statute 
 of Frauds, 29 Car. II. c. 3, s. 3 {I). By 8 & 9 Vict. c. 106, s. 3, a 
 surrender in writing of an interest in any hereditaments not bemg 
 
 (d) Marquis of Anglesey v. Lord Ha- per Lawrence, J. See 8 & 9 Vict. o. 113. 
 therton, 10 M. & W. 218. ig) Bull. N. P. 110. „ ,, „ „ 
 
 (e) Doe v. Ohamhers, i A. & E. 410. (A) Wilsmi v. Witlierliy, Bull. K X . 
 But now Idv the Com. Law Proc. Act, 110. , ,„ r> t) mr t 
 1854, s. 26, it is "not necessary to prove (i) Doe v. Barnard,, 13 ti. a. y4&, anu, 
 by the attesting witness any instrument p. 672. 
 
 to the validity of which attestation is not W Doe v. CaUert, 5 la^M- 1 ' 2; , ^ „ 
 
 requisite." ~ (0 Farmer v. Mocjers, Bull. N. P. 110. 
 
 (/) Maises v. Thornton, 8 T. E. 307, 
 
680 EJECTMENT. 
 
 copyhold, " and not being an interest which might by law have 
 been created without writing," shall be void, unless made by deed. 
 The Statute of Frauds excepted surrenders by act or operation of 
 law, which, therefore, being valid, though not made " by note in 
 writing " within that act, need not now be made by deed. Any 
 instrument in writing used as evidence of a surrender must be 
 duly stamped (under 13 & 14 Vict. c. 97 (m). Such an indorse- 
 ment as the above, however, would, without a stamp, be evidence 
 of the satisfaction of the term within the 8 & 9 Vict. c. 112, and, 
 therefore, the defendant relying on possession only (see the facts 
 stated 2 Wils. 26), would entitle the plaintiff to a verdict, as the 
 law stands at present (n). 
 
 XI. Verdict — Judgtrient, &c. 
 
 Verdict. — By sect. 180 of the Common Law Procedure Act, 
 1852, the question at the trial is, whether the statement in the 
 writ of the title of the claimants is true or false; "and if true, then 
 which of the claimants is entitled, and whether to the whole or part, 
 and if to part, then to which part of the property in question," 
 and the verdict is to be entered accordingly. In cases of joint 
 tenants, tenants in common, and coparceners, the additional ques- 
 tion, of whether an actual ouster has taken place, shall be tried. 
 Sect. 188. 
 
 Previous to the above act, in an ejectment for a messuage, 
 where it was found that a small part of the house was built, by 
 encroachment, upon the land of the plaintiff, and not the residue, 
 yet the plaintiff recovered for that parcel by the name of a mes- 
 suage (o). So where the declaration was of a fourth part of a fifth 
 part ; and the title of the plaintiff was only to one-third of one- 
 fourth of one-fifth, being only one-third of what was declared for, 
 and it was said, that the plaintiff could not have a verdict, because 
 the verdict ought to agree with the declaration; — but per Cwr., 
 the verdict may be taken according to the title (p). So where the 
 declaration was for a moiety of land; and the question was, 
 whether the plaintiff could recover a third part, per Lord Mans- 
 field, C. J., — " The plaintiff shall recover according to his title, and 
 it is not any objection to his recovering what he 'has really a title 
 to, that he has demanded more, though the reverse, indeed, will 
 not hold, viz., that if he demands less, he shall, nevertheless, be 
 entitled to recover more" (q). So if an ejectment be brought for 
 100 acres, plaintiff may recover forty (r). If the jury find for the 
 
 (m) Williams v. Sawyer, 3 B, & B. 70. MS. ; see Comb. 101. 
 
 (n) Doe V. Mousdale, 16 M. & W. 689. {r) Guy v. Bavd, Cro. Eliz. 12. See 
 
 (o) Roll. 2 Abr. 704, pi. 22. Meredith v. Rand, Dyer, 115, b., pi. 67, 
 
 (p) Ablett V. Skinner, 1 Sidf. 229. in marg. 
 
 (q) Denn v. Pwrvis, 1 Burr. 326, and 
 
EJECTMENT. 681 
 
 plaintiff for part, they should find as to the residue for the defend- 
 ant (s). As between landlord and tenant, the jury may also find a 
 verdict for the amount of the damages for mesne profits down to 
 the day of trial or some previous day ; Common Law Procedure 
 Act, 1852, s. 214, post, p. 685 ; but this is at the option of the 
 landlord, who may exercise such option at the trial, although the 
 writ and issue do not contain any claim in respect of them (t). It 
 is not necessary for him, in such case, to prove due notice of 
 trial (u). 
 
 If the title of the claimant appear to have existed as alleged in 
 the -writ, and at the time of service thereof, but has expired before 
 trial, the claimant is entitled to a verdict accordingly, and to a 
 judgment for his costs of suit. Common Law Procedure Act, 
 1852, s. 181. If the defendant appears and the claimant does not 
 appear, the claimant shall be nonsuited. If the claimant appears 
 and the defendant does not appear, the claimant shall be entitled 
 to recover as heretofore without any proof of his title. Sect. 183. 
 By 114 R. G., H. T. 1853— If the plaintiff appears and the de- 
 fendant does not appear, the defendant shall be taken to have 
 admitted the plaintiff's title, and the verdict shall be entered for 
 the plaintiff without producing any evidence, and the plaintiff 
 shall have judgment for his costs as in other cases. By 30 PI. R, 
 T. T. 1853 — If the plaintiff appear and the defendant does not 
 appear, the plaintiff shall be entitled to a verdict without pro- 
 ducing any evidence, and shall have judgment for costs as in other 
 cases. 
 
 Judgment. — Upon a finding for the claimant, judgment may be 
 
 signed and execution issue for the recovery of the possession of the 
 
 property, or such part thereof, as the jury shall find the claimant 
 
 entitled to, and for costs, within such time not exceeding the fifth 
 
 day in term after the verdict, as the court or judge before whom 
 
 the cause is tried shall order ; and if no such order be made, then, 
 
 on the fifth day in term after the verdict, or within fourteen days 
 
 after such verdict, whichever shall first happen. Sect. 185. Upon 
 
 a finding for the defendants, or any of them, judgment may be 
 
 signed and execution issue for costs against the claimants named 
 
 in the writ, within such tjme, &c. (as in the preceding section). 
 
 If the plaintiff be nonsuited, the defendant shall be entitled to 
 
 judgment for his costs of suits, 29 PI. R, T. T. 1853. If the 
 
 defendant wishes to move for a new trial, he should apply to the 
 
 judge for an order to stay judgment and execution until the fifth 
 
 day of next term {v). When a landlord obtains a verdict against 
 
 a tenant who has found security for costs and damages under sect. 
 
 213, the judgment cannot be stayed by order of the judge, unless 
 
 (s) Doe V. Ellis, 13 M. & W. 241. {u) Thompson v. Hodgson, 12 A. & E. 
 
 (t) Smith V. TeU, 9 Exch. 307. 135. 
 
 (v) Cole on Ejectment, 336. 
 
682 EJECTMENT. 
 
 the verdict be, in the opinion of the judge, contrary to evidence, or 
 the damages excessive, or by consent, or except the defendant shall 
 find security not to commit waste, sell standing crops, &c. Sect. 215. 
 Where an infant defendant appeared by attopey and not by 
 guardian, this was held to be error in fact, for which the judgment 
 must be reversed as to all the defendants in the action (x). ' 
 
 The court will make every possible intendment to support the 
 judgment. A bare possibility of title, consistent with the judg- 
 ment, will be sufficient (y). 
 
 Eooecution.^— it was formerly the practice for the plaintiff to in- 
 demnify the sheriff (z), but the sheriff could not, demand it (a), and 
 it is not now usual (6). The sheriff delivers possession at the 
 showing of the plaintiff', who is, at his peril, to take possession of 
 no more than he is entitled to (c). If the plaintiff take out execution 
 for more than the recovery warrants, the court wiU interpose in a 
 summary way, and restore the tenant to the possession of such 
 part as was not recovered (d). By the 221st section of the Com- 
 mon Law Procedure Act, 1852, the equitable jurisdiction thereto- 
 fore exercised by the court over actions of ejectment, "so as to 
 ensure a trial of the title and of actual ouster when necessary, 
 only, and for all other purposes for which such jurisdiction may at 
 present be exercised," is expressly preserved, and the statutes not 
 inconsistent with the Act are to remain in force and be applied 
 thereto. If the execution be for twenty acres, the sheriff must 
 give possession of twenty acres, according to the estimation of the 
 county where the lands lie (e). It is at the election of the plaintiff 
 whether the sheriff shall return the writ of hah. fac. pass, or 
 not (/). But the sheriff is bound to execute the writ when, he is 
 required to do it, and nothing occurs to prevent him : and where, 
 iu taxing costs, the master disallowed certain expenses, on the 
 ground that the writ was not executed ; it was held, that the costs 
 which were disallowed through the sheriff's default in not exe- 
 cuting the writ might be recovered Jn an action on the case 
 against the sheriff (gr). The court will not oblige the sheriff to 
 return it, except at the instance of the plaintiff. But, after pos- 
 session has been given under the writ, the plaintiff cannot sue out 
 another writ, although he is disturbed by the same defendant, and 
 though the sheriff have not returned the former writ ; for an ahas 
 cannot issue after a writ is executed ; if it could, the [plaintiff, by 
 omitting to call on the sheriff to make his return to the writ, 
 
 (x) Greene v. Leclen, Ir. R. C. L. 1, (c) Ooniior v. West, 5 Burr. 2673.-: 
 
 457. (ci) 1 Burr. 629 ; per Lord Mansfield, 
 
 (y) Morres v. Sarry, 2 Str. 1180; Soe C. J., Doe v. Dawson, 3 WUs. 49. 
 
 V. Power, 2 N. R. 1. (e) 1 Roll. Abr. 886, (H.) pi. 4. 
 
 f ) Gilb. Eject. 110. (/) MoUnevsa v. Fulgam, Palm. 289. 
 
 (a) See Mason v. PaynUr, 1 Q. B, 974. (g) Mason v. Paynter, 1 Q. B. 974. 
 
 (6) Cole on Ejectment, 845. 
 
EJECTMENT. 683 
 
 might retain the right of suing out a new hab. fac. poss., as a 
 remedy for any trespass which the same tenant might commit 
 within twenty years next after the date of the judgment Qi). But 
 he may in such a case apply to the court for a rule for a fresh 
 writ (i). A writ ot possession is not necessary, if the defendant 
 acquiesces in the judgment, and goes out of his own accord (k). 
 
 Costs. — The court will, in tlie exercise of their equitable juris- 
 diction, compel the real defendant to pay the costs, although he is 
 not a party to the record (I) ; but it must be shown that the de- 
 fence was conducted for his benefit, and it is not enough to show 
 that he is interested, as an equitable mortgagee of part of the pre- 
 mises, and that he has endeavoured tJ'make terms with the plain- 
 tiff since the judgment (m). Where three ejectments were brought 
 against a landlord and his two tenants, and the landlord obtained 
 a rule for the consolidation of the three actions, and that the eject- 
 ment against one of the tenants (a pauper) should abide the event 
 of the ejectment against the other, and that action was tried, and 
 the plaintiff obtained judgment, and took possession of all the 
 three tenements, the court compelled the landlord to pay the costs 
 of that ejectment (n). One of several defendants in ejectment 
 appear to defend in respect of part of the premises claimed, but 
 he did not confess plaintiff's title under s. 205, and plaintiff ob- 
 tained a general verdict against all the defendants. It was held, 
 that he was liable to the general costs of the action as well as the 
 cost of his own particular defence (o). 
 
 XII. Urror. 
 
 By the C. L. P. Act, 1852, s. 208 (p), error may be brought 
 after a special verdict, bill of exceptions, or by consent aftpr, a 
 special case (q), but execution shall not be thereby stayed, un- 
 less the plaintiff in error shall within four days of lodging the 
 memorandum of error, or after judgment, or before execution, be 
 bound to the claimant in double the yearly value of the property, 
 and double the costs recovered, on condition to pay such costs, 
 damages, and sums of money, as shall be awarded, upon or after 
 such judgment affirmed, or discontinuance. Although the words 
 of the statute seem to require a recognizance by the plaintiff, in 
 
 (h) I)oe V. Boe, 1 Taunt. 55 ; but see 110. 
 
 " '! v. Mamn, 1 Salk. 321. (o) Jolmson v. Mills, L. K. 3, G. P. 
 
 (i) Doe V. Roe, 2 D. N. S. 407. 22. 
 
 (k) Wilkinson v. Kirhy, 15 C. B. 430 ; (p) This is substantially a re-enact- 
 
 per Parke, B., 11 Exch. 32. ment of 16 & 17 Car. II. c. 8, s. 3.. 
 
 (Z) Doe V. Qray, 10 B. & C. 615; (q) By the Com. Law Proc. Act, 1864, 
 
 EuicUnson v. Greenwood, 4 E. & B. 324, s. 32, error may be brought upon a spe- 
 
 acc. cial case in the same manner as upon a 
 
 (m) Anstey v. Edwards, 16 C. B. 212. special verdict, imless the parties agree 
 
 fe) Thrmtout v. Shenton, 10 B. & C. to the contrary. 
 
084 EJECTMENT. 
 
 error kiTnself, yet it has been held, that the intention of the legis- 
 lature will be satisfied by the plaintiffs in error procuring respon- 
 sible persons to enter into the obligation required (r). The plain- 
 tiff in en-or is not bound to give the defendant ,in error notice of 
 his entering into the recognizance (s). By the same section, in 
 case of affirmance or discontinuance, the court may, on the appli- 
 cation of the claimant, issue a writ to inquire of the mesne profits, 
 and of the damage by any waste committed after the first judg- 
 ment ; and are, on the return thereof, to give judgment, and award 
 execution for the same, and costs. The bail in error are not 
 chargeable for mesne profits in an action upon their recognizance, 
 unless the amount be ascertained as above directed (f). In cases 
 between landlord and tenant this security is in addition to the bail 
 for the damages and costs required by section 213 (w). 
 
 XIII. Of the Action of Trespass for Mesne Profits (x). 
 
 The judgment in ejectment under the Common Law Procedure 
 Act, 1852 (see Sched. A., Form 14 et seq), is for the recovery of 
 possession of the property and costs only ; and no damages are 
 recoverable except in cases between landlord and tenant under 
 sect. 214, and then only at the option of the landlord. For the 
 damage sustained by the plaintiff in being kept out of the rents and 
 profits of the land, the law has provided another remedy, namely, 
 by an action which may be brought by the plaintiff in ejectment 
 against the person in actual possession, or the landlord who has 
 been let in to defend the ejectment {y), for mesne profits. This 
 action is, in form, one of trespass, because, by bringing ejectment, 
 the plaintiff treats the defendant as a trespasser, on and from the 
 day mentioned in the writ {z) ; and in it the plaintiff may declare, 
 not only for the loss of the mesne profits, but also for the costs of 
 the ejectment, where the case requires it, as after judgment for 
 default of appearance to the writ (a) (sect. 177), or where the 
 plaintiff has incurred costs in a court of error in reversing a judg- 
 ment of ejectment obtained by the defendant (6). This action is 
 local in its nature, and must be brought in the county where the 
 lands lie. It may be brought by one tenant in common, who has 
 recovered in an action of ejectment by default, against his com- 
 panion (c). 
 
 (r) Keene v. Beardon, 8 East, 298. ferred by an order of Nisi Priua to such 
 
 (s) Doe V. Goundry, 7 Taiint. 427. arbitrator. Smalley v. BlacTclura Bail- 
 
 (t) Doe V. Reynolds, 1 M. & S. 247. way, 27 L. J. , Exch. 65. 
 
 («) Roe V. Moore, 7 Bingh. 124. {y) Doe v. Challis, 17 Q. B. 166. 
 
 (x) This action is not maintainable {«) Per Ashhurst, J., Birch v. Wright, 
 
 after an award by an arbitrator of a cer- 1 T. R. 387. 
 
 tain sum for land which has been wrong- (a) Doe v. Buddart, 2 C. M. & K. 316. 
 
 fully taken by a railway company, an (J) Nowell v. Roake, 7 B. & C. 404. 
 
 ejectment brought therefor, and the ao- (c) Goodtitle v. Tombs, 3 Wils. 118. 
 
 tion and all matters in difference re- 
 
EJECTMENT. 685 
 
 By the Common Law Procedure Act, 1852, s. 214 (cZ),— " Where- 
 ever it shall appear on the trial of any ejectment, 'at the suit 
 of a landlord against a tenant, that the tenant or his attorney has 
 been served with due notice of trial, the judge before whom such 
 cause shall be tried shall, whether the defendant shall appear or not, 
 permit the claimant, after proof of his right to recover possession 
 of the premises mentioned in the writ, to go into evidence of the 
 mesne profits, which shall or might have accrued from the determi- 
 nation of the tenant's interest to the time of the verdict, or to 
 some preceding day to be specially mentioned therein : and the 
 jury shall, in such case, give their verdict both as to the recovery 
 of the premises, and also as to the amount of the damages to be 
 paid for such mesne profits, &c. Providgd that nothing hereinbefore 
 contained shall be construed to bar any landlord from bringing any 
 action for the mesne profits, which shall accrue from the verdict, 
 or the day so specified, down to the delivery of possession of the 
 premises recovered." See ante, p. 681, 
 
 Evidence. — The evidence necessary to support this action, after 
 judgment against the tenant in possession is as follows : — an ex- 
 amined copy of the judgment in ejectment, or an office copy where 
 the action is in the same court, and the parties are the same (e) ; 
 proof of the length of time during which the defendant has, either 
 actually or constructively, occupied ; of the value of the mesne pro- 
 fits and of the costs of executing the writ of possession. Before the 
 Common Law Procedure Act, 1852, where the judgment was 
 against the tenant in possession after verdict, it was, it seems, suf- 
 ficient to produce the judgment without proving actual entry by 
 the plaintiff, either under the writ of possession, or otherwise ; be- 
 cause, by entering into the consent rule, the defendant admitted 
 lease, entry, and ouster (/). But where the judgment was by de- 
 fault against the casual ejector, and so no rule entered into, it was 
 held, that the plaintiff could not maintain trespass without an 
 actual entry, and, therefore, ought to prove the writ of possession 
 executed (g). Since that act, therefore, the plaintiff should be 
 prepared with an examined copy of the writ of possession and re- 
 turn of execution (A). But if the plaintiff has been let into pos- 
 session by the defendant, that will supersede the necessity of 
 proving that the writ of possession has been executed (i). 
 
 The judgment in ejectment will be conclusive evidence against 
 the tenant in possession of the plaintiff's title, from the day men- 
 tioned in the writ thenceforward, unless its determination on some 
 
 (d) This is an adaptation of the 1 ((/) Thorpe v. Fnj, BiiU. N. P. 87. 
 Geo. IV. c. 87, s. 2. {h) Beeper Parlce, B., Barnett v. Earl 
 
 (e) Taylor on Evidence, sect. 1383. of GuiUford, 11 Exch. 32. 
 
 {/) See Doe v. Wright, 10 A. & E. (i) WilMnson v. Kirby, 15 C. B. 430. 
 
 763. 
 
686 EJECTMENT. 
 
 subsequent day appear by the pleadings (k) ; consequently, in the 
 action for mesne profits, it is not necessary for the plaintiff to be 
 prepared with proof of title, except where he seeks to recover the 
 profits antecedent to the day mentioned in the writ, or brings his 
 action against a precedent occupier (I). But in order to render 
 the judgment by default conclusive evidence of the title, it must be 
 pleaded as an estoppel (m) ; for a judgment is in no case conclusive 
 unless pleaded by way of estoppel (n). 
 
 If the plaintiff declares against. the defendant for having taken 
 the mesne profits for a longer period of time than six years before 
 action brought, the defendant may plead the Statute of Liniitations, 
 and thereby protect himself from all but six years (o). An execu- 
 tion creditor is not -entitled to the rent which accrues due after the 
 delivery of the writ of elegit to the sheriff, but before the inquisi- 
 tion is taken {p). This action being for the recovery of damages, 
 which are uncertain, the bankruptcy of the defendant cannot be 
 pleaded in bar (g) ; and on the same principle a plea of discharge 
 under an insolvent debtors' act is no bar (r). Nor is the pendency 
 of a writ of error in parliament a bar in law to such an action (s). 
 
 A judgment, recovered in ejectment against the wife, cannot be 
 given in evidence in an action against the husband and wife, for 
 the mesne profits ; because the husband was no party to that 
 suit(i). So a recovery in ejectment against a former tenant in 
 possession is not producible in evidence, against a person who is 
 afterwards found in possession, without proving that he came in 
 under the defendant in ejectment, so as to make him a privy to 
 the judgment in ejectment ; the rule of law being, that judgments 
 bind only parties and privies, and as to strangers are considered 
 as res inter alios actoe and consequently not producible against 
 them (tt). But where the judgment was against the casual 
 ejector, the ejectment having been served on the tenant, it was 
 held, that the judgment was admissible against the landlord, if he 
 had notice of the ejectment, or subsequently promised to pay the 
 rent and costs {v). And so e converso where the judgment in eject- 
 ment was against the lessor, and the action for mesne profits 
 against the lessor, lessee [and under lessee ; it was held, that the 
 judgment was admissible against the lessee, and that, it being 
 proved that the lessee was in actual possession during the time for 
 which mesne profits were claimed, through his under-lessees (from 
 whom he had received rent, and whom he declared to be his tenants 
 when possession was demanded by the plaintiff), the plaintiff was 
 
 {h) Wilkimon v. Kirly, 15 C. B. 430. (p) Sharp v. Key, 8 M. & W. 379. 
 
 (I) DecostaY. AtUns, Bull. N. P. 87. (q) Goodtitle v. North, 2 Doug. 683. 
 
 (m) Doe V. Huddart, 2 C. M. & R. M Lloyd v. Peell, 8 B. & Aid. 407. 
 
 316- (s) Doe V. Wright, 10 A. & E. 763. 
 
 (n) Per Parlce, B., Doe v. Seatm, 2 C. (i) Demi v. White, 7 T. E. 112. 
 
 ^f • & R- 732. , („) j5ge y. Haney, 8 Bingh. 242. 
 
 (") 1^"11- N^- P- ^^- (V) ffimUrT. Brills, 3 Oiimpb. 454. 
 
EJECTMENT. 687 
 
 entitled to retain the verdict he had obtained against the three 
 defendants (a;). 
 
 The plaintiff brought ejectment, and judgment for defendant, 
 which was afterwards reversed on error. The plaintiff afterwards 
 brought an action for mesne profits, and claimed to recover by- 
 way of damages the costs in error ; it was held {y), that he was 
 entitled to recover those costs as part of the damage sustained, on 
 the ground, it seems, that the court of error could not award costs 
 to the plaintiff, and that such costs could not otherwise have been 
 recovered at all {£) ; but now by sect. 42 of the Common Law Pro- 
 cedure Act, 1854, the Court of Appeal, which by sect. 36 includes 
 the court of error, has power to adjudge payment of costs, and 
 to order restitution, &c. It was alsojield, that the jury might 
 consider the costs between attorney and client as the measure 
 of damage ; -and this is so, where there has been no taxation, but 
 where there has, though at the instance of the defendant, the 
 plaintiff is bound by it (a.) 
 
 (x) Doe V. Harlow, 12 A. & E. 40 (n.). v. Page, 1 C. &. J. 34. 
 
 (y) Nowell V. Boahe, 7 B. & C. 404. (a) Doe v. Filliter, 13 M. & W. 47. 
 
 (s) See per Vaughcm, B., in Symonds 
 
688 
 
 CHAPTER XIX. 
 
 EXECUTORS AND ADMINISTRATOES. 
 
 PAGE 
 
 I. Of Probate 688 
 
 II. Of the Interest of an Executor or Administrator in 
 
 the Estate of the Deceased 691 
 
 In tohat Gases it is transmissible .... 694 
 
 Wliere an Administration de bonis non is necessary . . 695 
 
 III. Of Li/mited or temporary Administrations . . 696 
 
 During Minority ........ 696 
 
 During Absence ....... 697 
 
 Pendente Lite ........ 698 
 
 During Lunacy . . . . . . .698 
 
 IV. Of an Executor de son Tort 699 
 
 V. Of the Disposition of the Estate of the Deceased . . 701 
 
 VI. Of Admiission of Assets 707 
 
 VII. Of Actions hy Executors and Administrators . . 710 
 
 What Actions may be brought . . . . . 710 
 
 Executors and Administrators must join . . .71+ 
 
 Of joining several Causes of Action . . . . . 715 
 
 VIII. Of Actions against Executors and Administrators . 716 
 
 What Actions may be maintained . . . . . 716 
 
 What Causes of Action may be joined . . . .719 
 
 What Executors are to be Defendants . . . . 720 
 
 IX. Of the Pleadings 721 
 
 Jiight of Retainer ........ 724 
 
 X. Evidence 726 
 
 IX. Judgment 728 
 
 Costs 729 
 
 I. Of Probate. 
 
 By the 20 & 21 Vict. c. 77, ("the Court of Probate Act, 1857,") 
 the testamentary jurisdiction of all ecclesiastical, peculiar, ma- 
 norial and other courts, having authority to grant or revoke pro- 
 bate of wills or letters of administratioii, (and therewith the whole 
 doctrine of bona notabiUa,) is abolished (sect. 3) ; and the juris- 
 
EXECUTOE. 689 
 
 diction and authority of granting or revoking probate, &c. is vested 
 in the Court of Probate established under that act, to which all 
 the powers then vested in any court or person for those purposes 
 are transferred (sect. 4). By sect. 23, such court shall have the 
 same powers, and its grants and orders the same effect, in relation 
 to the personal estate of deceased persons, as the Prerocative 
 Court had within the province of Canterbury at the time of the 
 passing of the act. And by sect. 25, the same power of enforcing 
 its decrees, orders, &c. as the Court of Chancery. 
 
 "It is well established, that in the case of a British subject 
 dying intestate in the colonies or in foreign countries, a prerogative 
 administration extends to all the personal property of the intestate, 
 wherever situate, at the time of his death, whether in Great Britain, 
 or in the colonies, or in any country abroad " (a). There is, it is 
 presumed, no distinction in this respect between probate and let- 
 ters of administration. Assets in Ireland are to be considered as 
 assets abroad. But by 20 & 21 Vict. c. 79, ss. 94, 95, Irish pro- 
 bates or letters of administration may be produced to the English 
 Probate Court, and when sealed with the seal of the court, and 
 stamped, have the same effect as a probate here ; and so of English 
 probates, &c. produced in Ireland to the court there. Adminis- 
 tration was granted in Bengal to B. as attorney to A., a creditor 
 in Bengal, and he received money under that. Afterwards C. 
 obtained 'administration in England. A. sued B. for money had 
 and received to his use ; and it was held, that he was entitled to 
 recover (6). So where a widow of an officer obtained administra- 
 tion in Bombay, and transmitted effects of the deceased obtained 
 thereunder to her agent in England, and a creditor of the deceased 
 afterwards took out administration in England and sued such agent 
 for money in his hands, it was held, that the action would not lie 
 at his suit, but only at that of the widow (c). If one take ad- 
 ministration to a person who was felo de se, and receive effects 
 under it, he shall be liable to creditors, though, by law, the effects 
 belong to the king (d). An executor who after the testator's death 
 is convicted of felony, is nevertheless entitled to probate (e). 
 
 By sect. 46 of the 20 & 21 Vict. c. 77, the district registrars 
 appointed under the act may grant probate or administration in 
 common form, in the name of the Court of Probate, on an affidavit, 
 that the testator or intestate had a fixed place of abode within the 
 district, such probate to have effect over the personal estate of the 
 deceased in all parts of England; "and every probate and ad- 
 ministration granted by any such district registrar shall effectually 
 discharge and protect all persons paying to or dealing with any 
 
 (a) Per Cur. WJvyte v. Rose, 3 Q. B. (d) Megit v. JoKrmn,fDoug 542. 
 
 ggi. ' " (e) Smeihurst v. Tomlm, 30 L. J., li. 
 
 (h) Famngdon v. CUrk, 3 Doug. 124. & Mat. 269. 
 (c) Currie v. Bicsham, 1 D. & E. 35, 
 
690 EXECUTOE. 
 
 executor or administrator thereunder, notwithstanding the want of 
 or defect in such affidavit, as is hereby required." Sect. 47. 
 
 By sect. 62, when probate of a will affecting real estate is granted 
 in solemn form, or its validity declared by a decree in a contentious 
 matter, the probate or decree shall enure for the benefit of all per- 
 sons interested in the real estate affected by the will, and the pro- 
 bate copy of the will, or the letters of administration with the will 
 annexed, or a copy thereof, stamped with the seal of the court, 
 shall, in all courts, and in all suits relating to real estate, (except 
 appeals under the act,) be received as conclusive evidence of the 
 contents and validity of the will, in like manner as a probate is 
 received in evidence in matters relating to personal estate. By 
 sect. 64, where probate has not been granted in solemn form, or 
 the validity of the wiU so established, the probate, or a copy, is to 
 be sufficient evidence of the contents of the will and its validity, 
 provided notice has been given to the other side, ten days at least 
 ijefore the trial, that it is intended to give it in evidence, and the 
 party receiving such notice has not, within four days after such 
 receipt, given notice that he disputes the validity of the devise. 
 Sects. 64 and 62 are to be read together, and the construction of 
 sect. 64 is, that where there has been a notice of the intention of 
 one party to use the probate as a proof of a devise of real estate, 
 and no counter notice within four days by the other side, the pro- 
 bate in common form shall have the force as a probate after proof 
 in solemn form, that is, shall be conclusive evidence of the validity 
 of the will (/). By sect. 64, the costs of producing and proving the 
 original will in any such action are in the discretion of the judge 
 at the trial. 
 
 After any grant of administration no person shall have power to 
 prosecute any suit, &c. until such administration shall have been 
 revoked ; sect. 75 ; but in case of proceedings being commenced 
 against a temporary administrator, and the administration being 
 subsequently revoked, a suggestion may be made on the record of 
 such revocation, and of the grant of probate, &c. consequent thereon, 
 and the action may proceed against the new executor or adminis- 
 trator, subject to such conditions as the court may direct. Sect. 76. 
 
 By sect. 86, all grants of probates and administrations made 
 before the commencement of the act, (25th August, 1857,) which 
 may be void or voidable by reason only that the courts from which 
 respectively the same were obtained had not jurisdiction to make 
 such grants, shall be as valid as if the same had been obtained 
 from courts entitled to make such grants. — This provision does not 
 apply to grants, by courts having competent jurisdiction, to the 
 wrong person. Such grants, however, " are not void, but only void- 
 
 (/) Barraclough v. OreenJumgli, 2 L. E. 1 Q. B. 
 
EXECUTOR. 691 
 
 able." " Where administration is granted in a wrong diocese, it 
 is void : where to a wrong person, voidable" (g). So payment of 
 money to an executor who has obtained probate under a forged 
 will, is a discharge to the debtor, though the probate be afterwards 
 declared void, for the law will never compel any person to pay a 
 sum of money a second time, which he has once paid under the 
 sanction of a court of competent jurisdiction (h). And the 20 & 21 
 Vict. c. 77, contains a similar provision (sect. 77) as to payments 
 bond fide made to any executor or administrator under a probate 
 or administration subsequently revoked under that act, which pay- 
 ments are to be " a legal discharge to any person making the same." 
 A probate, as long as it remains unrepealed, cannot be impeached 
 in the temporal courts (i). • 
 
 II. Of the Interest of an Executor or Administrator in the 
 Estate of the Deceased. 
 
 Executors or administrators so entirely represent the personal 
 estate of the testator or intestate (Jc), that they are Hable to the 
 payment of all debts, covenants, &c., of the deceased, as far as the 
 assets which have come to their hands will extend {I). The execu- 
 tors more actually represent the person of the testator, than the 
 heir does the person of the ancestor ; for if a man bind himself, his 
 executors are bound though they are not named ; but the heir is 
 not bound, unless he be expressly named (m). 
 
 Before probate, and before any seizure, the law adjudges the 
 property of the goods of the testator in the executors. Hence if 
 any person take the goods of the testator before the executors 
 have seized them, the executors shall have an action of trespass (2 
 Inst. 398) or replevin {n). So if a man die possessed of goods, a,nd 
 a stranger takes and converts them to his own use, and afterwards 
 administration is granted to J. S. ; J. S. may maintain trover for 
 this conversion (o). Executors may release, or take a release 
 before probate, if they prove afterwards ( 2?) . So executors may 
 commence an action before probate, and it was sufificient, formerly, 
 if at the time of declaring they produced in court the letters testa- 
 mentary (q) ; and, profert not being now necessary in pleading (r), it 
 would seem to be sufiScient, if the probate be obtained before trial (s). 
 
 (g) Per Holt, C. J., Blackborough v. Plowd. 281, ». 
 Dams, Salk. 38. Per Weston, Baron, in (o) 2 Roll. Abr. 399, (A.) pi. 1. 
 
 ' psora V. Tmfon Bull. N. P. 141. {p) 1 Roll. Abr. 917, (A.) pi. 1; 
 
 (h) Allen v. Dundas, 3 T. R. 125. See Plowd. 281, a., S. P. 
 
 Pond V. Underwood, Lord Raym. 1210, (?) 1 Roll. Abr. 917, (A.) pi. 2. 
 
 post, p. 693. (r) 15 & 16 Vict. o. 76, s. 55. 
 
 (i) Allen v. Dvmdas, 3 T. R. 125. (s) See Wills v. Rich, 2 Atfc. 285, per 
 
 (k) 1 Inst. 208, b. Lord HardwkTce, C. Ace. in eqmty, 
 
 Q) See per Parke, B., Siboni v. Kirk- Humphreys v. Hvm^hreys, 3 P. wms. 
 
 mwn, 1 M. & W. 423. 351 ; Bateman v. Margerison, 6 Hare, 
 
 (m) 1 Inst. 209, a. 504. 
 {n) By Walsh, J., and Dyer, 0. J., 
 
693 EXECUTOR. 
 
 Each executor lias the entire control of the personal estate of 
 the testator, and may release or pay a debt, or transfer any part of 
 the testator's property, without the concurrence of the other exe- 
 cutor (s). If two have a lease for years as executors, and one sells 
 the whole, this shall bind the other ; and the whole shall pass ; for 
 each had the entire power of disposing of the whole, both being 
 possessed in the right of the testator (f). So if one dispose of all 
 the goods of the testator without the other (u). And it seems that 
 the same rule holds with respect to administrators (v). 
 
 Although one of several executors may bind the others in the 
 administration of the effects, he is not the agent of the others so 
 as to bind them by his several contract (x). 
 
 Executors and administrators have a joint interest in the estate 
 of the deceased. Hence, if there are two or more executors (y) or 
 administrators (z), and one or more of them die, the administration ' 
 of the estate of the deceased belongs to the survivor or survivors ; 
 and it seems, that an action may be brought by a surviving admi- 
 nistrator without procuring a new grant of letters of administra- 
 tion (a). By s. 79 of the Probate Court Act of 1857, the rights of 
 an executor renouncing are to cease as if he had not been named 
 in the will, and by s. 13 of the Probate Act of 1858, an executor 
 not acting or not appearing to a citation, is to be treated as if he 
 had renounced. 
 
 As an executor is not entitled in his own right, but in auter 
 droit (2 Inst. 236) to the property of the deceased, the goods of a 
 
 (s) Per Sir /. Strange, M. E., 2 Ves. other judges were inclined to the same 
 sen. 267. . opinion, hut as the case was new, and 
 
 (t) Pannell v. Fenn, 1 Roll. Ahr, 924, of general consequence, they ordered it 
 
 (0.) pi. 1 ; Gonldsb. 1S5, S. G. to he argued again. According to Sir /. 
 
 (m) Dyer, 23, b., in niarg. Strange, M.E,, in Jacomb v. Harwood, 
 
 (i>) Willcmd V. Fenn, E. 11 Geo. II. 2 Ves. 267, the case was decided in the 
 B. E. , MS . In that case a question alhrmative after the third argument ; hut 
 arose, whether the release of one admi- from a MS. note in my possession, it ap- 
 nistrator would bind his companion ? pears to have been compromised before 
 The case was argued in E. 11 Geo. II. the third argument took place. In Mr, 
 when the court, entertaining doubts, J. Gundry's MS. note, 13 Gundr , 33, a, 
 directed a second argument. The so- it is . said to have been adjudged for 
 cond argument was heard Trin. 11 & 12 defendant ; that is, that the release of 
 Geo. II., when Lee, C. J., expressed a one administrator did bind his corn- 
 strong opinion in favour of the affinna- panion. But see Hudson v. ffudsoTi, 1 
 tive, observing, that it was extremely Atk. 460, West's Reports from Lord 
 difficult to form a distinction between Hardwioke's MSS. p. 165, S. C; and 
 executors and administrators upon any the observations of Sir J. Nichol, in 
 -reasonable foundation ; and that although Warwick v. Greville, 1 Phillim. 126 ; 
 it had not ever been determined at law, Stanley v. Bemes, 1 Hagg. Ecc. E. 222. 
 that the administration survived, yet (x) Turner v. Hardey, 9 M. & W. 770. 
 having been so determined in equity, in (y) Flanders v. Clarke, 3 Atk. 510. 
 Adams v. BucMwnd, 2 Vern. 514, cited (z) Hudson v. Hudson, Ca. T. Talb. 
 2 P. Wms. 121, n. : and by Lord Talbot, 127 ; Adams v. Buckland, 2 Vern. 514. 
 in the case of Hmson v. Hudson, Ca. {a) Per Sir /. Strange, M. E,, 2 Ves. 
 Temp. Talbot, 127 ; he thought those 268, cites Rastall; 660, which was re- 
 autliorities were so strong, that they plevin by a surviving administrator, but 
 ought not to be departed from, The no judgment. 
 
EXECUTOR. 693 
 
 testator, in the hands of "his executor, cannot be seized in execution 
 for the proper debt of the executor (6). So " if an executor be- 
 come bankrupt, the commissioners cannot seize the specific effects 
 of his testator." Per Lord Mansfield, C. J., 3 Burr. 1369. But 
 where an executrix used the goods of her testator as her own, and 
 afterwards married, and then treated the goods as the property of 
 the husband, it was held that she could not object to their being 
 taken in execution for the husband's debt (c). The mere use, 
 however, of the intestate's goods in his house by his adminis- 
 trator for three months after the death of the intestate was, in a 
 later case held, at Nisi Prius, by Lord Tenterden, C. J., not suf- 
 ficient to authorize an execution against them for the adminis- 
 trator's own debts (d). * 
 
 Formerly where testators, by their wills, appointed executors 
 without making express disposition of the residue of their personal 
 estate, the executors became by law entitled to the whole residue, 
 and courts of equity to a certain extent followed the law; but 
 now, by 1 Will. IV. c. 40, executors shall be deemed by courts of 
 equity to be trustees for the persons entitled under the statute of 
 distributions, in respect of the residue not expressly disposed of, 
 unless it shall appear by the will or codicil, that the executor was to 
 take the same beneficially. But by sect. 2, it is provided, that the 
 executor's right shall not be affected where there is not any person 
 entitled to the residue. 
 
 In an action of indebitatus assumpsit, brought by the plaintiff, 
 as executor of J. S., deceased, for money due to the testator, but 
 received by the defendant, after the testator's death, it appeared 
 in evidence, that before the will was found administration had 
 been granted, and that the administrator had made a warrant of 
 attorney to the defendant to receive the money, which he had 
 done accordingly, and had paid it over to the administrator with- 
 out notice of the will. Holt, G. J,, was of opinion, that although 
 all acts done by an administrator, where there is a will, are void, 
 and consequently in this case an action might have been main- 
 tained against the administrator, yet the defendant, having paid 
 over the money without notice of the will, was not liable (e). 
 
 The property of a deceased person vests in the executor from 
 the time of the death ; in an administrator from the time of the 
 
 lb) Parr r. Newman, 4 T. E. 621. 132. , t j r. w, 
 
 (c) Quick V. Staines, 1 B. & P. 293. It (c) Pond v. Underwood, Ld. Kaytii. 
 is to be observed thattHs was a question 1210. See Allen v. Dimdas,ante, p. 691. 
 between the executrix and one of her Trevor, C. J., had ruled differently m 
 husband's creditors, and not between a Jacob y. Allen, Salk. 27: bntm aaa^er 
 creditor of the original testator pursuing v. Pvans, i Burr. 1986 Lord Mansfield, 
 the assets, and a creditor of the exe- C. J., expressed his disapprobation ot 
 cutrix, or of the hiisband of the execu- the decision m Jacob v. Allen, and re- 
 Ij.^ ' cognised Pont^ V. Underwood. 
 
 (d) Gaskell v. Marshall, 1 M. & Rob. 
 
694 EXECUTOK 
 
 grant of the letters of administration. Where, therefore, A. had 
 obtained probate of a will, by which he was appointed executor, 
 and after notice of a subsequent will, sold the goods of the tes-' 
 tator : it was held, that the rightful executor, in an action of 
 trover, was entitled to recover the full value of the goods sold, and 
 that A. was not entitled, in mitigation of damages, to show that 
 he had administered the assets to that amount (/). But the title 
 of an administrator, though it does not exist until the grant of 
 administration, relates back to the time of the death of the intes- 
 tate ; and he may recover against a wrong doer who has seized or 
 converted the goods of the intestate after his death, but before the 
 grant of administration, in an action of trespass {g), or trover (A) ; 
 but detiQue cannot be maintained by an administrator against a 
 person who has had possession of the goods of the intestate, but 
 has ceased to hold them prior to the grant of administration (i). 
 la actions for trespass to chattels real, an entry must, it seems, 
 have been made before action (fc). An administrator may also 
 obtain the benefit of a contract, intermediately made, by a person 
 acting on behalf of the intestate's estate, and for its benefit (Q, by 
 suing on the contract (m) ; and may bring an action for money 
 had and received against a stranger, who has paid over the money 
 of the intestate in discharge of the intestate's debts and funeral 
 expenses {n). So e converso, if one sanctions an expensive funeral, 
 ordered by a relation of the deceased, and afterwards takes out 
 administration, he is liable in the capacity of administrator, for 
 the expenses (o). But it has been held, that where a landlord is 
 entitled to a term of years, and dies withoiit appointing an execu- 
 tor, a distress for rent made after his death and before administra- 
 tion gi-anted, cannot be justified (p). An administrator may also 
 bring ejectment (g). 
 
 In what Oases the Executor's Interest is transmissible. — The 
 interest vested in B., the sole executor named in the will of A., is 
 (if B. has proved the will (r) ) transmissible to C, the executor of 
 B. ; that is, the executor of an executor having proved the will is 
 the executor or personal representative of the first testator (s). 
 By 25 Edw. III. stat. 5, c. 5 — "Executors of executors shall have 
 actions of debts, accounts, and of goods carried away of the first 
 testators; and execution of the statutes merchants, and recog- 
 
 (/) Woolky V. Clar!c,5 B, & Aid. 7ii. (m) Foster v. Bates, 12 M. & W. 226 ; 
 
 See post, p. 724. £odger v. Arch, 10 Exch. 333. 
 
 (g) Thorpe v. Stallwood, 12 L. J., C. (») Welchmam, v. Sturgis, 13 Q. B. 552. 
 
 P. 241 ; 5 M. & G. 760, S. 0. (o) Luiyy y. Walrond, S B. N. C. 841. 
 
 (h) Long v. Rebb, Style, 341 ; 2 Eoll. (p) Keem v. Dee, AIo. & Nap. 496, n. 
 
 Abr. 399, tit. Relation (A. ). See Wms. on Exors. 659 (5th ed.) in 
 
 (i) Crossfield v. Such, 8 Exch. 825. Tiota. 
 
 (i) Barnett v. Ea/rl of Guildford, 11 (5) AnU, p. 621. 
 
 Ex*- 19- (r) Saytonr. Wolfe, Cro. Jae. 614. 
 
 {I) Morgcm v. Thomas, 8 Exch. 302. («) Bro. Abr. Administration, pi. 7. 
 
EXECUTOE, 695 
 
 nizances made in courts of record to first testator, in the same 
 manner as the first testator should have had if he were living — 
 and the executors of executors shall answer to others for as much 
 as they have recovered of the goods of the first testators, as the 
 first executors should do, if they were living." This statute was, it 
 seems, only in confirmation of the common law, except as to the 
 action of account and trespass and to resolve doubts as to the 
 action of debt (t). The executor of the administrator of A. is not 
 the personal representative of A. (w) ; for the administrator of A. is 
 merely the ofiicer of the ordinary, in whom the deceased has not 
 reposed any trust, and, therefore, on the death of such administra- 
 tor, it results back to the ordinary to appoint another. Neither is 
 the administrator of the executor of^., the personal representative 
 of A. (x). In these cases, when the course of representation from 
 executor to executor is interrupted by an intestacy, it becomes 
 necessary that the ordinary (Court of Probate) should grant a new 
 administration of the goods of the deceased, not administered by 
 the former executor or administrator, as the case may be. Such 
 administrator, usually termed an administrator de bonis non, is 
 the legal personal representative of the deceased. The English 
 executor of a foreign executor is not the representative of the 
 original testator (y). 
 
 Where an Ad/ministration de bonis non is necessary. — An ad- 
 ministration de bonis non is necessary : — 1. Where the executor of 
 the deceased, having proved the will, dies intestate. N'ote.—Ii an 
 executor die before probate, although he should have administered 
 part of the personal estate of the testator, an immediate adminis- 
 tration, and not an administration de bonis non, must be granted (z). 
 2. Where there are several executors, and the surviving executor, 
 having proved the will, dies intestate (a). 3. Where there are 
 several executors, and all renounce except one, who proves the will 
 and dies intestate (6). 4. Where an administrator dies before he 
 has administered the whole personal estate of the deceased. 
 
 In assumpsit by an administrator de bonis non the promise was 
 alleged in the declaration to have been made to J. H. the first 
 administrator of the intestate, without stating any promise to the 
 plaintiff. After verdict for the plaintiff, an exception was taken m 
 arrest of judgment, that it was not sufiicient to allege the promise 
 made to the former administrator, between whom and the plaintiff 
 there was not any privity ; and that it ought to have appeared on 
 the record, that the promise was made either to the intestate or to 
 the plaintiff But the court refused to grant a rule to show cause, 
 
 (t) Chapmari v. DaUon, Plowd. 286, {z)Per Eolt^ C J., in Wanhford v. 
 
 oqn Wankford, Salk. 305. 
 
 (,i\ Th-rl («) Bro. Abr. Executors, pi. 149. 
 
 W Ley V. AndeHon, Sty. 225. (\ l'^X\ifyf^t Tr^ ' 
 
 (y) Twyford v. TraU, 7 Sim. 92. Exch. 033 ; 20 & 21 Vict. c. 77, s. 7». 
 
696 EXECUTOE. 
 
 observing, that there was a privity of estate in law between the 
 former administrator, from whom the plaintiff deduced his title, 
 and the plaintiff (c), 
 
 By 17 Car. II. c. 8, made perpetual by 1 Jac. II. c. 17, s. 6 — 
 "Where any judgment after a verdict shall be had, by or in the 
 name of any executor or administrator, in such case an adminis- 
 trator de bonis non may sue forth a scire facias and take execution 
 upon such judgment." — It has been held to be within the equity 
 of this statute, that an execution commenced by an administrator 
 may be perfected by an administrator de bonis non (d). By the 
 Common Law Procedure Act, 1852, s. 129, et seq., a writ of re- 
 vivor or a suggestion on the roll are in most cases substituted for 
 the proceeding by scire facias. 
 
 The 23 & 24 Vict. c. 145, s. 30, enacts, that " it shall be lawful 
 for any executors to pay any debts or claims upon any evidence 
 that they may think sufficient, and to accept any composition or 
 any security real or personal for any debts due to the deceased, 
 and to allow any time for payment of any such debts as they shall 
 think fit, and also to compromise, compound, or submit to arbitra- 
 tion all debts, accounts, claims, and things whatsoever relating to 
 the estate of the deceased ; and for any of the purposes aforesaid to 
 enter into, give and execute such agreements, instruments of com- 
 position, releases, and other things,, as they shall think expedient, 
 without being responsible for any loss to be occasioned thereby." 
 
 III. Of li/mited or tevnporary Administrations. 
 
 1. During the Minority of Executor. — An infant, however young, 
 may be an executor ; but administration shall be granted to another 
 during his minority. At the common law, such administration 
 determined as soon as the infant executor attained the age of 
 seventeen years, for then the infant was considered as capable of 
 administering (e). But by 38 Geo. III. c. 87, s. 6—" Where an 
 infant is sole executor, administration with the will annexed shall 
 be granted to the guardian, &c., or to such other person as the 
 (spiritual) court shall think fit, until such infant shall attain the age 
 of twenty-one years, &c." A general administrator, ratione minoris 
 cetatis, shall not only have an action to recover debts and duties, 
 and be liable to all actions, &c., but may also grant leases (/), 
 provided it be not to the prejudice of the infant (g). An adminis- 
 trator, durante minore estate of an admiinistrator, may act and sue 
 until the administrator be of the age of twenty-one years (h). If 
 
 (c) Eirsi v. Smith, 7 T. E. 182. (/) 6 Rep. 67, b. 
 
 {d) Clerk v. Withers, Salk. 323. See Ig) Bac. Abr. ExecutorjS (B. 1), 2. 
 
 ■Wms. on Exprs. 427 (5th ed.). (ft) Preke v. Thomas, Salk. 3y. 
 
 (e) Prince's case, 5 Eep. 29, b. 
 
EXECUTOR. 697 
 
 an administrator durante Wiinore oetate bring an action, he 
 must aver in the declaration that the infant is still under age (i) ; 
 though no such averment is necessary in an action against such 
 administrator (fc). But if the defendant do not take advantage of 
 the omission by plea or demurrer, he cannot object to it after join- 
 ing issue on another point, which admits the continuance of the 
 authority (Z). 
 
 2. During the Absence of Hxecutor beyond Sea. — When the 
 executor, or next of kin, is out of the realm, administration may be 
 granted during his absence ; for the debt due to the intestate might 
 be lost, if such an administration could not be granted (m). Such 
 limited administration is grantable at common law before probate 
 has been obtained, or letters of administration granted to the ab- 
 sent executor or next of kin, but not after. To remedy this, by 
 38 Geo. III. c. 87, s. 1 — If at the expiration of twelve calendar 
 months after the death of the testator, the executor, (extended to 
 administration by sect. 74 of Probate Act, 1857,) to whom probate 
 has been granted, is residing out of the jurisdiction of the king's 
 courts, the [Ecclesiastical] court, which has granted the probate, 
 may, upon the application of any creditor, next of kin, or legatee, 
 on affidavit, grant a special administration to such creditor, &c., for 
 the purpose of being made a party to a bill in equity, to be 
 exhibited against him and to carry the decree into effect, and no 
 further, or otherwise. And by the 18th section of Probate Act, 
 1857i these provisions are extended to all executors and adminis- 
 trators residing out of the jurisdiction, whether it be or be not 
 intended to institute proceedings in the Court of Chancery. By 
 sect. 4, of the Act of Geo. III., the court of equity, in which the 
 suit shall be depending, may appoint any person to collect the 
 debts due to the estate, and give discharges. 
 
 In an action by a person to whom such administration is granted, 
 the absence of the executor in parts beyond the seas ought to be 
 averred in the declaration {n). The plaintiff, having taken out 
 letters of administration under the preceding statute, and having 
 been appointed by the Court of Chancery, under sect. 4, to collect 
 the debts of the deceased, brought an action to recover a debt due 
 to the testator ; the defendant pleaded, that on a day prior to the 
 commencement of the action, the executor, to whom probate of the 
 will had been granted, died. On demurrer, the plea was held bad 
 by Rooke and Chambre, Js. (Alvanley, C. J., diss.), on the ground, 
 that the authority of the special administration continued until the 
 appointment of a new representative, notwithstanding the death of 
 
 {i) PigoU's case, 5 Eep. 29. (m) Clare v. ffedges, cited 2 P. "Wms. 
 
 (k) Walthall V. AUrich, Cro. Jac. 590. 580. „tj-d -m^i 
 
 (Z) Bac. Abr. Executors (B. 1), 2 ; (n) Slater v. May, 2 Ld. Kaym. 1071. 
 £eale v. Simpson, Ld. Eaym. 408. 
 
698 EXECUTOR 
 
 the executor (o). However, where a common law administration 
 has been granted to one as the attorney, and for the benefit of the 
 absent executor named in a will, he, and not the executor, is the 
 legal representative of the testator, and he continues to be so during 
 the life of the executor, or, at all events, until he himself takes out 
 probate ; but the grant ceases ipso facto on the death of the exe- 
 cutor (p). An administration durante absentid, granted at common 
 law, is at an end the moment the executor, or next of kin, returns (q). 
 But if in such a case a debtor of the deceased has paid the tem- 
 porary administrator, without notice of the return of the executor or 
 next of kin, such payment is good (r). Declarations made by the 
 executor, previous to the proceedings for the appointment of a tem- 
 porary administrator under the act, are not evidence against such 
 administrator in an action brought by him ; but the acts of the 
 executor are (s). 
 
 3. Pendente Lite, or Pending Litigation. — When a suit is com- 
 menced in the Ecclesiastical (Probate) Court touching the validity of 
 a will, or right of administration, an administration may be granted 
 pending the suit, and the person to whom it is granted may bring 
 actions to recover debts due to the deceased, averring that the suit 
 is still depending (i), or he may bring ejectment (u) ; and such ad- 
 ministrator may be swed, inasmuch as he is for the time complete 
 administrator (sc). 
 
 4. During Lunacy. — Where a sole executor, or next of kin, 
 happens to be a lunatic at the time of the testator's or intestate's 
 decease, the practice is to make a limited grant of administration 
 to his committee, if he has been found a lunatic by inquisition (y) ; 
 if not, to a residuary legatee in the case of a will {z), or to the next 
 of kin of the person entitled to administration in the case of intes- 
 tacy (a). In a case where a widow administratrix became lunatic, 
 the court declined to revoke the administration, but granted ad- 
 ministration to the son of the deceased, the letters granted to the 
 widow being first brought into and impounded in the registry, in 
 order to be re-delivered out in case of her recovery (i). In a case 
 where one of two executors became lunatic, the court granted a 
 fresh probate, (the former probate having been brought in,) with 
 power reserved of making a like grant to the lunatic, when he 
 should become of a sound mind and apply (c). 
 
 (o) Taynion y. ffanmy, 3 B. & P. 26. (y) In the goods of Phillips, 2 Add. 
 
 (p) SuwerJcrop v. Day, 8 A. & E. 624. 336, n. (b). 
 
 Iq) Wms. on Exors. 444 (5th ed.). (a) In the goods of Milnes, 3 Add. 55. 
 
 (r) Glare v. Sedges, cited 2 P. Wms. (a) Exp. Evelyn, 2 M. & K, 3. 
 
 580. (J) 7to the goods of SincJees, 1 Curt, 
 
 (s) Rush V. Peacock, 2 M. & Bob. 162. 286 ; and see 1 Cas. Temp. Lee, 625. 
 
 (t) Woollasion v. WalUr, Str. 917. (c) In the goods of Marshall, 1 Curt. 
 
 (M) WilU V. Rv:h, 2 Atk. 285. 297. 
 (x) Impe V. Pitt, 2 Show. 69. 
 
EXECUTOE. 699 
 
 IV. Of an Executor de son Tort: 
 
 An executor de son tort is a person who, without any authority 
 derived from the deceased or ordinary (Court of Probate), does 
 such acts as belong to the office of an executor or administrator. 
 As to the acts which will render a person liable as executor de son 
 tort, it will be observed : — 
 
 1st. In the case of intestacy, if a stranger takes the goods of 
 the intestate, and uses or sells them, this will make such stranger 
 an executor de son tort (d) ; although it be done by the order of the 
 intestate himself (e). But a person who knowingly receives a chattel 
 from an executor de son tort, and de^s with it as his own, does not 
 thereby become such executor (/). 2ndly. In the case of a will, 
 and a regular appointment of an executor, who proves the wiU ; if 
 a stranger takes the goods, and, claiming to be executor, pays debts, 
 &c., and intermeddles, as executor, he may, for such express admi- 
 nistration as executor, be charged as an executor de son tort, although 
 there is another executor of right (g). But, if, after the executor 
 has proved the will, and administered, a stranger takes any of the 
 goods, and, claiming them as his own, uses and disposes of them 
 accordingly, this will not make him in construction of law an 
 executor de son tort; because there is a rightful executor, who 
 may be charged with these goods so taken from his possession, as 
 assets, and to whom the stranger will be answerable in trespass for 
 taking the goods. Srdly. In the case of a will, if a stranger 
 takes the goods before the rightful executor has proved the will or 
 taken upon him the execution thereof, the stranger may be charged 
 as an executor de son tort; for the rightful executor shall not be 
 charged with any goods except those which came to his hands 
 after he had taken upon him the charge of the will (h). 
 
 The slightest acts have been deemed sufficient to constitute an 
 executor de son tort ; as where a widow milked her late husband's 
 cows, or took a dog (i). But locking up the goods of the intestate 
 for preservation, making an inventory of his property, feeding his 
 cattle, &c., are not sufficient, for these are offices merely of kindness 
 or charity (k). So living in the house and carrying on the trade of 
 the deceased, a victualler, was held sufficient (i). But where the 
 trade was one depending on personal skill, as that of a hair- 
 dresser, and though the shop was kept open, it was shown that 
 the entry to the house lay through it, and no evidence was given 
 
 (d) Mead's case, 5 Eep. 33, b. and an executor de son tort at the same 
 
 (e) PadgetY. Priest, 2 T. E. 97. time. But see Cottle T. Aldnch, 4 M. 
 (/) Paull V. Simpson, 9 Q. B. 365. & S. 175, post, p. 700. 
 
 (a) This was denied by Lord Kenyon, (h) Read's ease, 5 Eep. 34, a. 
 
 in Hall Y. Elliott, Peake's K. P. C. 87, (i) Dyer, 166, b., in marg 
 
 and by Sir T. Plumer, in Tomlin v. Beck, (.Jc) Wms. on Exors. 230 (Sth ed.). 
 
 T. & E. 438 ; those judges maintaining (I) Hooper v. Summerset, Wightw. 16 
 that there cannot be a rightful executor 
 
700 EXECUTOE. 
 
 of any articles being sold ; it was held, that the widow of the 
 hairdresser was not executrix de son tort (m). If a creditor takes 
 an absolute bill of sale of the goods of his debtor, but agrees to 
 leave them in his possession for a limited time, and in the mean- 
 time the debtor dies, whereupon the creditor sells the goods, he 
 thereby becomes an executor de son tort {n). 
 
 Where a party receives a debt due to the estate of a person 
 deceased for the purpose of providing the funeral, he will not 
 thereby become chargeable as executor de son torf, unless he 
 receive a greater sura than is reasonable for that purpose, regard 
 being had to the estate and condition of the deceased, which is a 
 question for the jury (o). But a single act of wrong in taking the 
 goods of the intestate, though it may be sufficient to make the 
 party an executor de son tort, with respect to creditors who may 
 choose to sue him in that character, yet will not give him any 
 right to retain them as against the lawful administrator. In trover 
 for a quantity of iron, it appeared that the goods in question had 
 been originally sold by the defendant to the intestate ; that on his 
 death, they not having been paid for, the intestate's widow delivered 
 them back to the defendant in satisfaction of his demand. No 
 other acts were stated to have been done by the widow, to show 
 that she had before taken upon herself to act as executrix. It was 
 held, that the plaintiff, as rightful administrator, was entitled to 
 recover the value of the goods (p). Where, however, the executor 
 de son tort is really acting as executor, and the party with whom 
 he deals has fair reason for supposing that he has authority to act 
 as such (which is a question for the jury), his acts (done in due 
 course of administration (q)) will bind the rightful executor (r). 
 So where a debtor of the deceased handed over money and secu- 
 rities to a feme covert executrix, whose husband subsequently 
 dissented from her acting ; it was held, that the debtor was dis- 
 charged as against the co-executor (s). 
 
 A. pledged goods to B. for a debt; B. died, and the parish 
 officers took the goods, and gave them to J., the carpenter, who 
 made B.'s coffin, on condition of his paying B.'s rent and the 
 funeral expenses ; it was held, that, by taking these goods, the 
 parish officers became executors de son tort; and that, if they 
 sold the goods to J., they would be liable to A. in trover, because 
 such a sale was so inconsistent with the bailment, as to revest the 
 right of possession in A. (t). A person who possesses himself of 
 
 (m) SerU v. Waterworth, i M.. SqW. (p) Mountford v. Cfiison, i East, iil. 
 
 9. The jury are to determine whether (q) JBiicMey v. Barber, 6 Exch. 164. 
 
 the acts are sufficiently proyed ; but the (r) Thomson v. Harding, 2 E. & B. 
 
 question, whether executor de son tort, 630. 
 
 or not, is a conclusion of law. 2 T. E. (s) Pemberton v. Chapman, 27 L. J., 
 
 89- Q. B. 429 {m error), diss. Bramwell, Bi, 
 
 (n) Edwards v. Sarben, 2 T. R. 587. and Oockbum, C. J. 
 
 (o) Camden v. Fletcher, 4 M. & W. It) Samuel v. Morris, 6 C, & P. 620. 
 378. 
 
EXECUTOR. 701 
 
 the effects of the deceased, under the authority, and as agent for, 
 the rightful executor, cannot be charged as an executor de son 
 tort (u). But as soon as the principal in such a case dies, the 
 agent, if he continues to act, 'although by the advice of another 
 executor who has not proved, is liable (pc). A person who sets up 
 in himself a colourable title to the goods of the deceased, e. g. a 
 lien, though he may not be able to make out his title completely, 
 is not liable as executor de son tort (y). 
 
 The plaintiff having received a horse belonging to the intestate 
 from the defendant in remuneration of services performed at the 
 request of the defendant about the funeral of the intestate, after- 
 wards administered to the estate, and brought trover against the 
 defendant for the vahie of the horse, so received by himself before 
 he became administrator. It was held by Bolben and JEyre, JJ., 
 that the plaintiff, being a particeps criminis in the very act he 
 complained of, should not be permitted to recover upon it against 
 the person with whom he had colluded. But Holt, C. J., was of 
 a different opinion, conceiving that in this case, if a stranger, or 
 third person, had taken out letters of administration, an action 
 might have been maintained against the defendant by such an ad- 
 ministrator for the recovery of the horse ; and here the plaintiff 
 was a third person ; for being adTninistrator, he sued, and should 
 recover, in the right of the intestate {z). An act done by a person 
 as executor de son tort will not bind him after he becomes rightful 
 administrator (a). The general principle is, that the administra- 
 tion has relation back only in those cases where the act to be 
 ratified is for the protection and benefit of the estate (6). An 
 executor de son tort must be declared against as a rightful execu- 
 tor (c). See further on the subject of executor de son tort, post, 
 " Of the Right of Retainer." 
 
 V. Of the Disposition of the Estate of the Deceased. 
 
 The order of payment, which ought to be observed by executors 
 and administrators in the disposition of the estate of the deceased, 
 is as follows : — 
 
 1. Funeral charges, and expenses of probate, or taking out 
 letters of administration (cQ. — An executor who gives no order for 
 the funeral, is liable only to the extent of the expenses suitable to 
 
 M Eall V. Elliott, Peake's N. P. C. dUton's case, 5 Kep. 28, b. See Lucy v. 
 
 gg Walrond, ante, p. 694. 
 
 te) Cottle V. Aldrich, 4 M. & S. 175. {b} Morgan v. Thomis, 8 Exch 305 ; 
 
 ■ (y) Flemings v. Jarrat, 1 Bsp. 336. seemUj. Cwiu, 35 L. J^ Ch. 133. 
 
 (z) Whitehall y. Squire, Carth. 103; (c) Alexander v. Lane, Yebr. 1S7. 
 
 JkmSordy. GiLn, 4 Ea.t, 445 ; 3 (d) 1 Epll. Abr. 926, (S.) pi. 1 ; Dr. 
 
 B N C 841 * ^^^^- ^^^^- ^' "■ 
 
 \a) jjoe T. 'aienn, 1 A. & E. 49 ; Mid- 
 
703 EXECUTOR 
 
 the rank and circumstances of the testator, unless he, aS an indi- 
 vidual, and not in his character of executor, ratifies the orders 
 given, in which case he is liable for the whole expense (e). Whether 
 the funeral is ordered by the executor or another person, the estate 
 must pay the reasonable expenses, and can in no event be liable 
 beyond them (/). But if there are assets, the allowance shall be 
 according to the estate and degree of the deceased. The testator 
 having desired to be buried at a church thirty miles distant, and it 
 not being clear that there would be a deficiency. Lord Hardwicke, 
 Ch., allowed 60Z. for funeral expenses {g). So in another case Qi), 
 600Z. were allowed, in respect of the testator's quality, and his 
 having been buried in his own country. 
 
 Lord Holt said, that as against a creditor no funeral expenses 
 are in the case of an insolvent estate in strictness allowed, except 
 for the cofl&n, ringing the bell, the parson, clerk, and bearers' fee ; 
 but not for the pall or ornaments (i). At first 40s., then 51., and 
 afterwards IQl. was allowed (^). Mr. Justice Bayley said, that as 
 against a creditor, the rule of law is, that no more shall be allowed 
 for funeral expenses than is necessary ; and in considering what is 
 necessary, regard must be had to the degree and condition in life 
 of the party (Q. 
 
 2. Debts due to the king, by record or specialty. — Fines and 
 amerciaments, in the king's courts of record, are debts of record. 
 Went. Off. Exor. ch. 12. By 33 Hen. VIIL c. 39, s. 50, it is 
 enacted, that all obligations and specialties for any cause concern- 
 ing the King shall be taken doTnino regi, and shall be of the same 
 force and effect as a statute staple. By the 55 Geo. III. c. 184, s. 
 45., the Commissioners of Stamps may give credit for the duties on 
 probate, &c. ; and by sect. 48, the duty for which credit is so given 
 shall be a debt to the Crown, and be paid in preference to any 
 other debt whatsoever. 
 
 3. Debts due by certain statutes, e. g. to the post-office, not ex- 
 ceeding bl. (m) ; from an overseer of the poor ; 17 Geo. II c. 38, 
 s. 3 ; by which act executors of an overseer are directed to pay, out 
 of his assets, all monies due received by virtue of his office " before 
 any of his other debts are paid and satisfied " (n). A similar pro- 
 vision is contained in 18 & 19 Vict. c. 63, s. 23 (o), respecting exe- 
 cutors of persons intrusted with the monies or effects of friendly 
 
 («) Brke v. Wilsm, 8 A. & E. 349, n. (I) Hancock y. Podmore, 1 B. &Ad. 
 
 (/) Green v. Salmon, 8 A. & E. 348. 260, in which case 79?. was held to be 
 
 See also Zucy v. Walrond, 3 B. N. C. too large a sum as against a creditor for 
 
 841, ante, p. 694, the fUneral expenses of a captain in the 
 
 {g) Stag v. Punter, 3 Atk. 119. armv on half-pay. See Edwards v. Ed- 
 
 (h) Offley v: Offley, Preo. Oh. 26. wards, 2 Cr. & M. 612. 
 
 (i) Shelley's case, Salk. 296. (m) 9 Ann. o. 10. s. 30. 
 
 (Jc) See Smith t. Davis, Midd. Sitt. (n) See Wms. on Exors. 897 (5th ed.). 
 
 after Mich. Term 10 Geo. II. MS. See (o) A re-enactment in substance of i 
 
 also Bull. N. P. 143. & 5 Will. 4, o. 40, s. 12. 
 
EXECUTOE. 703 
 
 societies ; and by 3 & 4 Will. IV. c. 14, s. 28, respecting executors 
 of oflScers of savings banks. By 58 Geo. III. c. 73, s. 1, the regi- 
 mental debts of officers and soldiers dying in actual service are to 
 be paid in preference to any other debts whatsoever. 
 
 4. Debts by judgments in the Court of King's Bench, Common 
 Pleas, and Exchequer ; by judgments in other courts of record ; by 
 decrees in courts of equity (p) ; according to their respective priori- 
 ties. By 1 & 2 Vict. c. 110, s. 18 — All decrees and orders of 
 courts of equity, and all rules of courts of common law, and all 
 orders of the Lord Chancellor, or Court of Keview in bankruptcy, 
 or of the Lord Chancellor in lunacy, whereby any sum of money or 
 any costs, &c., are payable to any per^n, have effect as judgments 
 of the superior courts of common law. An order of a court of 
 equity for the payment of money into the Bank, in the name of the 
 Accountant-General, to the credit of a cause, is not an order within 
 this section (q). But a judge's order (under 6 & 7 Vict. c. 73, s. 
 43), on the taxation of an attorney's bill, ordering judgment to be 
 entered up for the amount found by the master's allocatur, has 
 the same effect as a rule of court under this section (r). 
 
 At common law, executors and administrators were bound at 
 their peril to take conusance of debts of the testator upon record. 
 Hence, to an action on a judgment recovered against the testator 
 or intestate, executors or administrators could not plead, that they 
 had exhausted the assets in payment of debts of an inferior nature 
 without notice of the judgment (s). To obviate the mischiefs to 
 which personal representatives were liable, from the difficulty of 
 finding such judgments, the 4 & 5 W. & M. c. 20 (made perpetual 
 by 7 & 8 Will. III. c. 36, s. 3), directed, that the proper officers of 
 the Courts of Common Pleas, King's Bench, and Exchequer, should 
 make a doggett of all judgments (sect. 2), and that no judgments 
 not doggetted should have any preference against executors and 
 administrators in the administration of their testator's or intestate's 
 estates (sect. 3). The construction put on this section was, that 
 the judgments not doggetted were thereby placed on a level with 
 simple contract debts (t). Hence, to an action on a simple contract 
 debt of a testator or intestate, the personal representative could not 
 plead an outstanding judgment recovered against the testator or 
 intestate, if it had not been doggetted under the above statute (u). 
 But now, by 2 & 3 Vict. c. 11, s. 1, no judgment shall hereafter be 
 docketed under the provisions of the foregoing statute ; and by 
 sect. 2, no judgment already docketed shall, after the 1st Aug. 1841,. 
 affect 'any lands, tenements, or hereditaments, as to purchasers, 
 
 (») SearU v. Lmie, 2 Vem. 88 ; Bishop (s) lAttUon v. Hiblins Cro. Eliz. 793. 
 
 y. GodU, Prec. in Chanc. 179 (Finch's (t) Huhey y-S^yler^S Jv^^Jf Ht,. 
 
 ed.) ; 1 & 2 Vict. c. 110, s. 18. . H Steel v. Borke IB & P. 307, cited 
 
 (V) Oibbs V. Pi&e, 8 M. & W. 223. in Mall v. Tapper, 3 B. & Ad. 655. 
 
 (r) Griffith V . ffughes, 16 M. & W. 809. 
 
704 EXECUTOK. 
 
 mortgagees, or creditors, until such a memorandum thereof as is 
 prescribed by 1 & 2 Vict. c. 110, s. 19, shall be left with the 
 senior Master of the Court of Common Pleas, who shall forthwith 
 enter the same, &c. By sect. 4, all judgments of any of the supe- 
 rior courts, decrees or orders in any court of equity, rules of a court 
 of common law, and orders in bankruptcy, or lunacy, registered 
 under the 1 & 2 Vict. c. 110, shall be void after five years from 
 entry, unless a like memorandum is left with the senior Master, 
 who shall re-enter, and so, toties quoties, at the expiration of every 
 five years. See also 3 & 4 Vict. c. 82, s. 2. 
 
 If a judgment be satisfied, or only kept on foot to injure other 
 creditors, or if there be any defeasance of the judgment then in 
 force, then the judgment will not avail to keep off other creditors 
 from their debts. Went. Off. Exor. c. 12. Between one judg- 
 ment and another, precedency or priority of time is not material, 
 but he who first sueth the executor must be preferred ; and before 
 execution sued, it is at the election of the executor to pay whom 
 he will first. Went. Off Exor. c. 12. 
 
 5. Recognizances at common law ; statutes merchant and 
 staple (x) ; and recognizances in the nature of statute staple, pur- 
 suant to 23 Hen. VIII. c. 6 {_y). This must be understood of 
 recognizances and statutes forfeited, where the I'ecognizances are 
 for keeping the peace, good behaviour, &c., and the statutes are for 
 performing covenants, &c. A recognizance not enrolled was con- 
 sidered (z) as a bond, (the sealing and acknowledging of the recog- 
 nizance supplying the want of delivery,) and to be paid as a spe- 
 cialty debt. A recognizance, in its proper sense, is nothing more 
 than a debt of record to the crown, defeasible in a particular 
 event (a). 
 
 6. Arrears of rent due at the death of the testator or intestate, 
 either on a parol lease or lease by deed ; debts by specialty, as 
 bonds ; damages upon covenants broken (6), &c. 
 
 Arrears of rent on a parol lease, which is determined, are in 
 equal degree with a bond debt ; because the contract remains in 
 the realty, though the term be determined (c). A debt due for rent 
 reserved upon a demise by deed, or by parol {d), is in equal degree 
 ■yyith a bond debt (e). 
 
 A bond with a penalty conditioned for the payment of a less 
 sum of money, on a day not arrived at the death of testator, may 
 
 (x) 4 Eep. 59, b. ; 1 Roll. Abr. 925. takes precedence of specialty debts in 
 
 (y) These securities are obsolete. See certain cases. Twrwin v. (Hbson, 3 Atk. 
 
 ■Wms. onExors. 906 (5th ed.). 720. 
 
 (z) Bofhomly v. Fairfax, 1 P. Wms. (c) Newport v. Godfrey, 3 Lev. 267. 
 
 334. (d) Brown v. Eolyoak,, Barn. 290. 
 
 (a) Sex V. Mayor of Dover, 1 C. M. & (e) Gage v. Adon, Garth. 5H; cited 
 
 R. 726. by Denmam,, 0. J., and Littledale, J., in 
 
 (5) The lien of a solicitor in a cause Davis v. Gyde, 2 A. & E. 626. 
 
EXECUTOR. 705 
 
 be pleaded by his executor as a specialty debt (/), as well as a for- 
 feited bond ; but there is this distinction between them, — ^that in 
 the case of a bond forfeited, the penalty is the legal debt, and 
 assets may be covered to that amount ; but in the case of a bond 
 not forfeited, as the executor by discharging it may save the 
 penalty, the assets can be covered only to the amount of the sum 
 mentioned in the condition {g). Where there are several debts by 
 specialty, all due and payable at the death of the testator, if suit is 
 not commenced by any of the creditors, and notice thereof given 
 to the executor, he may give the preference to whom he pleases : 
 and if he be a creditor himself, he may pay -himself first. Went. 
 Off. Exor. c. 12. 
 
 With respect to contingent securi^^es, — such as bonds to save 
 harmless, for the performance of covenants, &c. — ^before any breach 
 of condition, they shall not stand in the way of debts of an inferior 
 degi-ee {h). And if, subsequently to the payment of the simple 
 contract debt, the contingency should happen, and the bond be put 
 in suit, it will be a good defence for the executor, that he has paid 
 the simple contract debt, and has no more assets wherewith to 
 satisfy the bond {%). Any voluntary bond is good against an exe- 
 cutor or administrator, unless some creditor be thereby deprived of 
 his debt. Indeed, if the bond be merely voluntary, a real debt, 
 though by simple contract only, shall have the preference ; but if 
 there be not any debt, then a bond, however voluntary, must be 
 paid by an executor. Voluntary bonds given to be paid after 
 death take the place of legacies, but not of debts by simple con- 
 tract (Jc). A voluntary bond is postponed in equity to debts by 
 simple contract (I). 
 
 Covenants running with the land are binding on the executors, 
 although not expressly named (m). 
 
 By 22 & 23 Vict. c. 35, s. 27, where an executor or adminis- 
 trator, liable as such to the rents, covenants, or agreements con- 
 tained in any lease or agreement for a lease granted or assigned to 
 the testator or intestate whose estate is being administered, shall 
 have satisfied all such liabilities under the said lease or agreement 
 for a lease as may have accrued due and been claimed up to the 
 time of the assignment hereafter mentioned, and shall have set 
 apart a sufficient fund to answer any future claim that may be 
 made in respect of any fixed and ascertained sum covenanted or 
 agreed by the lessee to be laid out on the property demised or 
 agreed to be demised, although the period for laying out the same 
 may not have arrived, and shall have assigned the lease or agree- 
 
 ( f) Lemun v. Fooke, 3 Lev. 57. Wood, MS. Cases in Chancery, p. 84, 
 
 (a) Bank of England v. Morice, 2 Str. Lincoln's Inn Library, Bookcase A. 
 IQlg ■' " {1} Cases Temp. Hardwioke, by West, 
 
 <h) Ifawkins v. Day, Amhl. 160. V- ^^^- ™. , ^a. - -r- i-a 
 
 (i) Collins V. Crouch, 13 Q. B. 542. (m) See Went. Off. of Exors. p. 1/8, 
 
 (k) Per Ld. Ch. Harcourt, Powell v. edit. 1763. 
 
 VOL. I. 
 
 z z 
 
706 EXECUTOR 
 
 ment for a lease to a purchaser thereof, he shall be at liberty to 
 distribute the residuary personal estate of the deceased to and 
 amongst the parties entitled thereto respectively, without appro- 
 priating any part, or any further part, (as the case may be,) of the 
 personal estate of the deceased to meet any future liability under 
 the said lease or agreement for a lease ; and the executor or admi- 
 nistrator so distributing the residuary estate shall not, after having 
 assigned the said lease or agreement for a lease, and having, where 
 necessary, set apai-t such sufficient fund as aforesaid, be personally 
 liable in respect of any subsequent claim under the said lease or 
 agreement for a lease; but nothing herein contained shall pre- 
 judice the right of the lessor or those claiming under him to foUow 
 the assets of the deceased into the hands of the person or persons 
 to or amongst whom the said assets may laave been distributed. 
 
 By sect. 28, in like manner, where an executor or administrator 
 liable as such to the rent, covenants, or agreements contained in 
 any conveyance on chief rent or rent-charge (whether any such 
 rent be by limitation of use, grant, or reservation,) or agreement 
 for such conveyance, granted or assigned to or made and entered 
 into with the testator or intestate whose estate is being adminis- 
 tered, shall have satisfied all such liabilities under the said convey- 
 ance, or agreement for a conveyance, as may have accrued due and 
 been claimed up to the time of the conveyance hereafter men- 
 tioned, and shall have set apart a sufficient fund to answer any 
 future claim that may be made in respect of any fixed and ascer- 
 tained sum covenanted or agreed by the grantee to be laid out on 
 the property conveyed, or agreed to be conveyed, although the 
 period for laying out the same may not have arrived, and shall 
 have conveyed such property, or assigned the said agreement for 
 such conveyance as aforesaid, to a purchaser thereof, he shall be at 
 liberty to distribute the residuary personal estate of the deceased 
 to and amongst the parties entitled thereto respectively, without 
 appropriating any part or any further part (as the case may be) of 
 the personal estate of the deceased to meet any future liability 
 under the said conveyance or agreement for a conveyance ; and the 
 executor or administrator so distributing the residuary estate shall 
 not, after having made or executed such conveyance or assignment, 
 and having, where necessary, set apart such sufficient fund as afore- 
 said, be personally liable in respect of any subsequent claim under 
 the said couveyance, or agreement for conveyance ; but nothing 
 herein contained shall prejudice the right of the grantor, or those 
 claiming under him, to foUow the assets of the deceased into the 
 hands of the person or persons to or among whom the said assets 
 may have been distributed. 
 
 7. Debts by simple contract, as bills of exchange, promissory 
 notes, &c. (n) ; of which those due to the king shall, it seems, be 
 
 (m) Yeomans v. Sradskaw, Cartli. 373. 
 
EXECUTOR. 707 
 
 satisfied before those due to subjects (o). A breach of trust is 
 considered but as a simple contract debt (p) ; and the damages 
 recovered in an action against an executor, under 3 & 4 Will. IV. 
 c. 42, s. 2, for the injury by the deceased to the real or personal 
 property of another, are by that statute directed to be paid in the 
 same order as simple contract debts. 
 
 8. Damages for dilapidations, payable by the executors, &c., of 
 an incumbent, are to be postponed to the debts of the deceased of 
 every description (q). 
 
 9. Legacies, &c. — Formerly, if an executor paid away a residue 
 he did it at his own risk, and he was held personally liable (to the 
 extent of the assets received) to th'e payment of debts, even al- 
 though he had no notice at the time of distribution (r) ; but now, 
 after having given a notice to send in claims, similar to what is 
 given by the Court of Chancery in an administi-ation suit, an 
 executor may, at the expiration of the time named in the notice, 
 distribute the assets without being liable for debts of which he 
 had no notice (s). 
 
 VI. Admission of Assets. 
 
 While an executor is passive, he is chargeable only in respect of 
 the assets ; but if he promises to pay a debt of the testator at a 
 future day, he thereby makes it his own debt, and it shall be satis- 
 fied by his own goods (t). 
 
 All separate debts, mentioned in the inventory, shall be deemed 
 assets in the executor's hands ; but the executor may discharge 
 himself by showing the demand and refusal of them (u). In the 
 inventory, which the defendant had exhibited, were inserted se- 
 veral debts due and outstanding, which defendant charged herself 
 with when received or recovered ; Lord Hardwiche, C. J., put the 
 defendant on proof, that she could not recover those debts ; for 
 she ought in her inventory to have set forth which debts were 
 sperate and which desperate. The defendant proved by a wit- 
 ness, who went to demand several of them, that he could not 
 recover them ; and accordingly they M'ere allowed as desperate (x). 
 But Lord Ellenhorough, C. J., held, that some proof, presumptively 
 at least, must be given that debts not mentioned in the inventory 
 
 (o) 3 Bac. Atr. 80, (L.) 2. (s) 22 & 23 Vict. c. 36, s. 29 
 
 (p) Vernmi v. Vawdry, 2 Atk. 119. (t) Per Yelverton, J., m Ooring v. 
 
 (q) Bn/cm v. Clay, 1 E. & B. 38. Gon7igi, Yelv. 11. „ , „ ^ 
 
 (r) SmUh v. Day, 2 M. & AV. 684. (u) Shelley's case, per Molt, C. J., 
 
 ^cc. in equity, iinless the executor has Salk 296. _ 
 
 passed his acbounts in Court. Knateh- (x) Smith v. JOavis.MiM. Sitt. after 
 
 Lll V. Fearnhead, 3 M. & Cr. 122 ; Mill M. T. 10 Geo II., MS., recognized m 
 
 V. Oomme, 1 Beav. 540 ; Newcastle Bank- Young v. Oawdrey, 8 Taunt. /34. 
 ing Co. v.' Mymers, 22 Beav. 367. 
 
 z z 2 
 
708 EXECUTOR 
 
 as desperate had been paid, and said, that on the issue of plerte 
 admiiiistravit that was the univei'sal. practice (y). The amount 
 of the probate stamp is not, it seems, even prima facie evidence of 
 the receipt of assets to that extent (z). " I cannot see how a man's 
 saying that assets will come to his hands is evidence, that assets 
 have come to his hands" (a). The stamp is, however, admissible 
 in evidence. 
 
 A judgment by default against an executor is an admission of. 
 assets to satisfy the demand ; and if a fi. fa. be sued out on such 
 judgment, and the sheriff cannot find goods of the testator suffi- 
 cient to answer the demand, the sheriff may return a devastavit (6). 
 So a judgment for the plaintiff after verdict, on a plea by the 
 executor of non est factutn, is an admission of assets (c). So where 
 an administrator being sued in a manor court pleaded " no assets," 
 upon which issue was taken, and there was judgment for the 
 plaintiff. Execution was then issued, and nulla bona returned. 
 The plaintiff then declared, in a superior court, in debt, setting 
 forth the above proceedings, and alleging that the defendant had 
 assets, but had eloigned and wasted them. The defendant pleaded 
 that he had fully administered, and had not wasted, &c., upon 
 which issue was taken. It was held, that the defendant could 
 not, on the trial of this issue, prove that all assets which had 
 come to his hands at the time of the former recovery had been 
 duly administered, and that the plaintiff might take the objection, 
 without having replied the former recovery as an estoppel {d). 
 " If an executor will not take advantage by pleading, but suffers 
 judgment to go by default, such judgment is an admission of 
 assets, and is as strong against an executor, as if assets were found 
 by verdict on a plene administravit" (e). On the authority of 
 the preceding cases it Was held, that, where an executor had 
 pleaded payment to an action of debt on bond, which plea was 
 found against him, and judgment accordingly, it operated as an 
 admission of assets ; and a writ of fi. fa. having been sued out on 
 the judgment, to which the sheriff had returned a devastavit, and 
 an action having been brought against the executor on the judg- 
 ment suggesting a devastavit ; it was held, that the production of 
 the record of the judgment, the writ oi-fi. fa. and the sheriff's 
 return, was sufficient evidence to support the action (/). 
 
 If an executor pay interest on a bond due from his testator, it 
 will not conclude him from alleging want of assets to pay the 
 principal, but it relieves the creditor from the necessity of proving 
 
 (y) Oyles v. Dyson, 1 Sta. N. P. C. 690. 
 
 32. Ace. per Lord Denman, C. J., in (c) liamsdenY. Jackson, 1 Atk. 292. 
 
 Steam v. Mills, 4 B. & Ad. 657. {d) Dawson y. Gregory, 7 Q. B. 756. 
 
 (z) Mann v. Lang, 3 A. & E. 699. (e) Per Lee, C. J., Skelton v. Hailing, 
 
 {a) Per Patteson, J., S. C. MS. ; 1 "Wms. Saund. 219, d., S. C. ■■ 
 (t) Rock T. Leighion, cited 3. T. R. (/) Erving v. Peters, 3 T. E. 685. 
 
.EXECUTOE. 709 
 
 assets, and throws the omis on the other side (g). Where a de- 
 fendant binds himself as administrator to abide by an award 
 touching matters in dispute between his intestate and another, and 
 the arbitrator awards, that the defendant as administrator shall 
 pay a certain sum, it operates as an admission of assets between 
 those parties, and the defendant cannot plead plene administravit 
 to an action of debt on the bond ; because the giving such bond is 
 an undertaking to pay whatever the arbitrator may award (A). 
 And in such case, if an attachment be moved for against the admi- 
 nistrator for the non-payment of the money awarded, he cannot 
 defend himself against it, by suggesting a deficiency of assets ; for, a 
 submission to arbitration by a personal representative is considered 
 as a reference, not only of the cause of action, but also of the 
 question, whether or not he has assets. And when the arbitrator 
 awards that the personal representative do pay the amount of the 
 plaintiff's demand, it is equivalent to determining as between those 
 parties, that the personal representative had assets to pay the 
 debt('i). But a mere submission to arbitration is not of itself an 
 admission of assets ; for in a case where the arbitrator only ascer- 
 tained the amount of the demand, without ordering the adminis- 
 trator to pay it, it was held, that the administrator might plead 
 plene administravit (Jc). 
 
 By 3 & 4 Will. IV. c. 104 — When any person shall die, seised 
 of or entitled to any estate or interest in lands, tenements, or 
 hereditaments, corporeal or incorporeal, or other real estate, which 
 he shall not have charged with or devised subject to the payment 
 of his debts, the same shall be assets to be administered in equity 
 for the payment of the debts of such persons, as well those due on 
 simple contract as on specialty ; and the heirs and devisees of such 
 debtor shall be liable to all the same suits in equity at the suit of 
 the creditors, whether by simple contract or by specialty, as the 
 heirs or devisees of persons who died seised of freehold estates 
 were before the passing of the act liable to in respect of such free- 
 hold estates, at the suit of creditors by specialty in which the heirs 
 were bound. Provided, that in the administration of assets under 
 the act, all creditors by specialty, in which the heirs are bound, 
 shall be paid before any of the creditors by simple contract or by 
 specialty, in which the heirs are not bound. 
 
 (g) Cleverly v. Brett, cited 5 T. E. 8. 453 ; Biddell v. Sutton, ,6 Bingh. 200, 
 
 As to payment of interest on legacy being «<^-^ „ „ r m x, r Qn 
 
 an admission of assets in equity, see , {k) ^f^''^''^ ^l^^"'"^''/ J- ?/;.,°° 
 
 ■PostUth'wcdte V. Momisey, 6 Hare, 34, n. m equity executors 'pay "nder them- 
 
 (h) Barry v. Rush, 1 T. E. 691 ; CMd selves personally liable to pay legacies, 
 
 y. Mmmg, 2 B. & b! 460, ««;. by admitting assets. Se« cases collected 
 
 (i) Workinglm v. Barlow, 7 T. E. in a note to Payne y. mU,22 BeB.y. 72. 
 
710 EXECUTOR 
 
 VII. Of Actions by Executors and Administrators. 
 
 1. What Actions may he brought by Executors and Admi/nis- 
 trators. — By the common law, executors might maintain actions 
 to recover debts due to their testator, but they could not maintain 
 actions for a wrong done to their testator in his lifetime ; e.g.& 
 trespass in taking his goods, &c. But by 4 Edw. III. c. 7 — "the 
 executors in such cases shall have an action against the trespassers, 
 and recover their damages in like manner as they, whose executors 
 they be, should have had, if they were in live — ." 
 
 This statute has been expounded largely, with respect to the 
 persons and the actions. With respect to the persons, it has been 
 held, that an administrator is within the equity of the statute, and 
 shall have trespass for goods carried away in the lifetime of the 
 intestate (Z). With respect to the actions, it has been resolved 
 that where, upon a church becoming void, the bishop collated 
 wrongfully and the patron died, the executor of the patron might 
 on the equity of this statute maintain a quare im,pedit (m). And 
 an ejectio firmoB will Ue at the suit of an executor for the ouster of 
 his testator (nri). So an executor may have an action of trover for 
 the conversion of the testator's goods in his lifetime (o) ; or an 
 action on the case against the sheriff for a false return made in 
 the life of the testator to Sbfi.fa., viz., that he levied only part of 
 what he had in fact taken (p); or an action of debt on a judg- 
 ment against an executor, suggesting a devastavit in the lifetime 
 of the plaintiff's testator (cj). In like manner, it has been held, 
 that an administrator may maintain an action against the bailiff 
 of a liberty for executing a,fi. fa. and removing the goods off the 
 premises, before the landlord (the intestate) was paid a year's rent, 
 pursuant to 8 Ann. c. 14 (r). By the 25 Edw. III. stat. 5, c. 5, the 
 remedy given by the above statute (4 Edw. III. c. 7) was extended 
 to executors of executors. 
 
 Formerly no remedy was provided by law for injuries to the real 
 estate of any person deceased, committed in his lifetime; but by 
 3 & 4 Will. IV. c. 42, s. 2—" An action of trespass, or trespass on 
 the case, as the case may be, may be maintained by the executors 
 or administrators of any person deceased for any injury to the real 
 estate (s) of such person committed in his lifetime, for which an 
 action might have been maintained by such person, so as such 
 injury shall have been committed within six calendar months 
 
 (I) Smith V. Colgay, Cro. Eliz. 884. (q) Berimch v. Anok-ews, Ld. Eaym. 
 
 (m) A'^on., i Leon, 15, cited in JLe 973. 
 Mason v. Dixon, Sir W. Jones, 174. (r) Palgrave v. Windham, Str. 212. 
 
 (n) 7 Hen. IV. 6, h. ; Bro. Abr. Exor. (s) "Whether this includes chattel in- 
 
 46, & C. terests, queere! See Wins, on Exors. 
 
 (o) Sutlwnd V. Sutland, Cro. Eliz. HO {5th. edit.) ; Adam \. Inhabiianis of 
 
 3";- _ Bristol, 2A. &E. 889. 
 
 (P) Williams v. Grey, Ld. Eaym. 40. 
 
EXECUTOE. 711 
 
 before the death of such deceased person : and provided such 
 action shall be brought within one year after the death of such 
 person ; and the damages, when recovered, shall be part of the 
 personal estate of such person " (t). 
 
 No action lay at common law by the executor for an injury to 
 the person of the deceased. But by 9 & 10 Vict. c. 93, s. 1 — Whenso- 
 ever the death of a person shall be caused by wrongful act, neglect 
 or default, such as would (if death had not ensued) have entitled 
 the party injured to maintain an action, the person who Avould 
 have been liable if death had not ensued, shall be liable to an 
 action for damages, notwithstanding the death of the person in- 
 jured, and although the death shall^ave been caused under such 
 circumstances as amount in law to felony. Sect. 2 points out 
 the persons for whose benefit the action is to be brought, and the 
 mode of assessing the damages, and directs that it shall be brought 
 by the executor or administrator. By 27 & 28 Vict. c. 95, s. 1, if 
 there is no executor or administrator, the action may be brought 
 by any of the persons for whose benefit it would have been brought 
 if there had been. If the deceased has accepted compensation for 
 his claims the executors cannot maintain an action, for although 
 sect. 2 provides a new principle for the assessment of the damages, 
 it does not give any new right of action (u). By the 3rd section, 
 the action must be commenced within twelve calendar months 
 of the death of the deceased person. 
 
 Every action brought by. an executor, that is founded upon a 
 duty accrued in the testator's lifetime, must be brought in the 
 detinet only (x), that is, in his representative capacity. Where 
 the cause of action accrues after the testator's death, the executor 
 may sue as such, or in his individual capacity, at his option (i/). 
 And generally, whenever the subject-matter of the action would, 
 when recovered, be assets, the executor may sue in his representa- 
 tive capacity (z) ; as for money paid over by the executor by mis- 
 take (a). But where the executor or administrator takes a bond 
 from a simple contract debtor of deceased, though it be given to him 
 as executor, yet he cannot sue in his representative capacity on the 
 bond, for the bond operates as a merger of the simple contract debt, 
 and creates a new and personal obligation of a higher nature (6). 
 
 P. orally agi-eed to grant defendant a lease for sixty years. De- 
 fendant paid part of the consideration money, but P. died before 
 the contract was carried into effect. Plaintiffs, P.'s executors, then 
 granted the lease, which recited that P.'s agreement had been 
 
 {t) See Powell v. Bees, post, p. 716. {y) Gallant v. Boutefiower, 3 i^oug. 36, 
 
 (u) Bead V. The Great Eastern Mail- per Bulhr, J. , „ .l t 
 
 way, L. E. 3 Q. B. 658 ; see Blake v. («) Marshall v. Broadhurst, 1 Or.& J. 
 
 The' Midland Bailway, 18 Q. B. 109; 406. „ b s n iaq 
 
 Pym V. The Great Northern Bailway, i {a) Olarh v. Sougharn, 2 ti. &l..iiy. 
 
 b! & S. 406 • 32 L. J., Q. B. 379. [i) hosier v. Lord Armdell, 3 B. & 
 
 (x) 1 Wms. Saund. Ill, a., n. (1). P. 7. 
 
713 EXECUTOE. 
 
 treated as void by the Court of Chancery, and that the lease was 
 granted pursuant to a proposal of the plaintiffs. Plaintiffs having 
 paid their own attorney his charges for drawing the lease, it was. 
 held, that they were entitled to sue the defendant for money paid, 
 in their own right (c). Where A. contracted with the defendant to 
 perform certain work for a specified sum, to be paid for when the 
 work was completed, but died before its completion, and his admi- 
 nistrator agreed with the defendant to complete, and did complete, 
 the work, and then sued the defendant, alleging that the defendant 
 in A.'s lifetime was indebted to A., in his lifetime, for goods sold 
 and delivered, work and labour, &c. ; it was held, that the facts 
 did not support the declaration, for that, the contract being entire, 
 and the work unfinished at A.'s death, no debt ever accrued from 
 the defendant to A., although the new agreement between the 
 plaintiff and the defendant amounted as between them to a rescind- 
 ing of the original contract with A, which would entitle the plain- 
 tiff, as administrator, to recover (if the declaration had been pro- 
 perly framed) on a quantum msrwit for the work done by A. (d). 
 
 By 11 Geo. II. c. 19, s. 15, the executor or administrator of a 
 tenant for life, on whose death any lease of lands determines, may 
 recover from the under-tenant the whole or a proportion of the rent 
 reserved, according to the time such tenant for life lived of the last 
 year, quarter, &c., in which the rent was growing due. By the 
 4 & 5 Will. IV. c. 22, s. 1, this provision was extended to persons not 
 strictly tenants for life, and to all other payments of every descrip- 
 tion coming due at fixed periods, and the determination by any 
 means whatsoever of any person's interest therein. See the sec- 
 tions at length, ante, p. 542, tit. " Debt : " " Eviction." By stat. 
 1 Vict. c. 26, s. 6, — If no disposition by will shall be made of 
 any estate pur autre vie of a freehold nature, the same shall be 
 chargeable in the hands of the heir, if it shall come to him by 
 special occupancy, as assets by descent, as in the case of freehold 
 land in fee simple ; if there shall be no special occupant, the estate 
 shall go to the executor or administrator of the party that had the 
 estate by virtue of the grant (e) ; and if the same shall come to the 
 executor or administrator, either by reason of a special occupancy 
 or by virtue of the act, it shall be assets in his hands, and shall be 
 distributed as the personal estate. 
 
 By the common law, an executor or administrator could not have 
 an action of account ; because it was founded on a matter in the 
 privity of a testator (/) ; but by 13 Edw. I. c. 23, an executor 
 shall have an action of account upon an account with his testator. 
 By 25 J5dw. III. stat. 5, c. 5 — " Executors of executors shall have 
 
 (c) arissell T. RoMnson, 3 B. N. 0. 10. (e) Bearpark v, Hutchinson, 7 Bingh. 
 
 (d) Crosthwaite v. Qardner, 18 Q. B. 178. 
 
 640. Semble, that the declaration might (/) 2 Inst. 404. 
 
 have been amended. Per Erie, J., S. C, 
 
EXECUTOE. 713 
 
 actions of debts, accompts, and of goods catried away of the first 
 testators, &c., in the same manner as the first testator should have 
 had." 
 
 Administrators derive their authority to bring actions from the 
 31 Edw. III. stat. 1, c. 11, -which provides, that " where a man 
 dieth intestate, the ordinaries shall depute the next and most law- 
 ful friends of the dead person intestate to administer his goods, 
 which deputies shall have an action to demand and recover, 
 as executors, the debts due to the intestate, &c." A subsequent 
 statute, 21 Hen. VIII. c. 5, s. 3, in case of intestacy or executors 
 refusing to prove, directs the ordinary to grant administration to 
 the widow or next of kin, or both ; an(^ where two or more stand 
 in equal degrees of relationship, to accept which he pleases. This 
 jurisdiction is now exercised by the Court of Probate. 
 
 Plaintiff, as administrator, declared in assumpsit, that the defen- 
 dant, for certain fees to be paid to him by the intestate, undertook 
 as an attorney to investigate the title of premises about to be con- 
 veyed to intestate. Breach, that he omitted to do so, and that in- 
 testate, in consequence, took an insufficient title, whereby his 
 personal estate was injured. A demurrer to this declaration was 
 overraled {g). And where a vendor omits to make out a good 
 title within the stipulated time, and the vendee dies, his executor 
 may sue for damage accruing to the personal estate by loss of 
 interest on the deposit-money (h), and the expense of endeavouring 
 to procure the title (i). An administrator cannot have an action 
 for a breach of promise of marriage to the intestate, where no 
 special damage to the personal estate is alleged (h). Although the 
 decisions in the last-mentioned three cases turned upon the damage 
 to the personal estate, yet it seems, the right of an executor or ad- 
 ministrator to sue on a breach of contract made with the deceased 
 is not confined to cases in which such damage can be stated. For 
 instance, an executor is entitled to sue the lessee of his testator 
 for the breach of a covenant, purely collateral, committed in the 
 lifetime of the testator, without alleging special damage to the per- 
 sonal estate in his declaration (I). But an executor cannot sue on 
 a breach of a covenant which runs with the land, where a formal 
 breach only has taken place in the testator's lifetime ; in that case 
 the real representative is entitled to recover for any substantial 
 damage incurred after his death (m). 
 
 An executor may sue the Bank of England for not transferring 
 stock of the testator into the names of himself or his appointee, 
 
 {g) KnigM v. Quarles, 2 B. & B. 102. (l) Rm/mond v. Fikh, 2 C. M. & E. 
 
 \h) From the day when the contract 588 ; RickUts v. Weaver, 12 M. & W* 
 
 should have been completed. De Ber- 718, ace. , ,, » o or? 
 
 nales y. Wood, 3 Campb. 258. (m) Kingdon v. Nottle, 1 M. & b. 355 ; 
 
 (i) Orme v. Sroughton, 10 Bingh. 533. and 4 M. & S, 53 ; King v. Jones, i M. 
 
 (&) Ohamberlam v. Williamson, 2 M. & S. 188. 
 & S. 408. 
 
7U EXECUTOR. 
 
 notwithstanding such stock has been specifically bequeathed (n) ; 
 for the Bank has nothing to do with the distribution of the fund, 
 but is bound to pay to the executor, who is the legal owner (o). 
 And now, by 8 & 9 Vict. c. 91, s. 1, it is expressly enacted, that all 
 stock standing in the name of any .deceased person may be trans- 
 ferred by the executors, notwithstanding any specific bequest 
 thereof, but the probate, &c., must be first left at the Bank for 
 registration, and the Bank may require all the executors to join in 
 the transfer. 
 
 2. Executors and Administrators Tnust join in bri/ngi/ng Ac- 
 tions. — It is a general rule, that if there are two or more executors, 
 and one proves the will, they must all join in bringing actions ; and 
 if they do not, the defendant may plead in abatement, that there 
 are other executors living not named (p). In this plea it is not 
 necessary to aver, that the executors not named have adminis- 
 tered ; because they may administer at their pleasure (q). So 
 where there are two or more administrators, it is necessary that 
 they should join in bringing actions (r). And this rule, viz., that 
 all the executors shall join, holds even where some of the executors 
 refuse before the ordinary (s), because the refusLog executors may 
 come in at any time (t) and' administer notwithstanding their 
 refusal, either during the lives of their co-executors, who have 
 proved, or after their death (u). The like law is, where some of 
 the executors are infants ; they must all join, and they can all 
 appear by attorney : for those of full age may appoint an attorney 
 for those within age (v). The plaintiffs were entitled to leasehold 
 property as executors of one J. S. To prove their title, they pro- 
 duced the probate of the will of J. S., which was gi-anted to one 
 of them, liberty being reserved to make the like grant to the two 
 others named in the will. This was held sufficient (w). 
 
 One of two executors, having alone proved the will, received a 
 debt due to the testator, which by his will was appropriated to the 
 payment of specific legacies to his grandchildren, with interest 
 thereon, and afterwards permitted the money to be lent out to a 
 third person, by whom it was paid to A. A., on being applied to 
 by the executor, acknowledged that he had received the money, 
 and that it belonged to the testator's grandchildren, but refused to 
 pay it over to the executor ; it was held, that both executors might 
 
 (n) Franklin y. Bank of England, 9 also 3 Atk. 239. 
 
 B. & C. 156. (i!) Bro. Exors. 117; Fitz. Abr. Exors. 
 
 (o) Churchill v. Bank of E-tiglamd, 11 26. 
 
 M. & W. 323. (m) 21 Edw. IV. 23, t., 24 a., recog- 
 
 (p) Reg. 140, b. ; Bro. Abr. Exors. pi. nized in Wankford v. Wankfmd, Salt. 
 
 69 ; Fitz. Abr. Exors. pi. 48. 307, and Walters v. Pfeil, M. & M. 362. 
 
 (ff) 41 Edw. III. 22, a. (k) Foxwist v. Tremaim, 2 Saund. 212. 
 
 (r) Reg. 140, b. (w) Walters v. Pfeil, M. & M. 362. 
 
 (s) Eensloe's ease, 9 Rep. 36, b. See 
 
EXECUTOR 715 
 
 join in an action brought against A. to recover the money (x). 
 But where A. received money under a written authority from two 
 out of three executors who alone had proved the will ; it was 
 held, that the action for the money should be at the suit of the 
 two only, unless it were found by the jury that they contracted 
 with A. both on their own account and as agents for the other 
 executor, or generally on account of the estate, with a view to the 
 interference of the other executor, if he chose to take part in the 
 management of it (y). So if one of several executors sell the 
 goods of the testator, he may sue alone for the price, not suing as 
 executor (z). And two out of three executors may recover in 
 ejectment on a joint demise, the third not having proved (a). 
 
 3. Of joining several Causes in one Action hy Executors. — In 
 order to join several causes in one action, the action must be 
 brought as to all such causes in the same right (6). Hence, a 
 plaintiff cannot join in the same action, a demand, as executor or 
 administrator, with another demand, which accrued in his own 
 right. The reason is, because the funds, to which the money and 
 costs, when recovered, are to be applied, or out of which the costs 
 are to be paid, are different ; and, the damages and costs being 
 entire, the plaintiff cannot distinguish how much he is to have in 
 his representative character, and how much he is to hold as his 
 own. 
 
 After much discussion, it is now finally settled, that in all actions 
 by executors or administrators, if the money recovered on each of 
 the counts will be assets, the counts may be joined in the same 
 declaration (c). Thus, for instance, a count for work by the 
 plaintiff as administrator, may be joined with counts for goods sold 
 and work done by the intestate {d). So also counts on promises 
 made to an intestate may be joined with counts on promissory 
 notes, given to the administrator as administrator, since the death 
 of the intestate (e). The counts so joined to counts on promises 
 to the testator should state, that the duty accrued to the plaintiff 
 in his representative character "as executor" {f). "Where, in a 
 declaration by executors {g), a count stating that the defendant 
 had accounted with the plaintiffs, "executors as aforesaid," was 
 joined with counts stating promises to the testator : after verdict 
 and judgment for plaintiffs, a writ of error was brought upon the 
 ground of misjoinder, but the judgment was affirmed. 
 
 (a) Webster t. Spencer, 3 B. & Aid. (d) Edwards v. Qrace, 2 M. & W. 190. 
 
 360. (e) Partridge t. Court, 5 Price, 412 ; 
 
 (y) Heath v. Chiltm, 12 M. & W. 632. {in error) 7 Price, 591. 
 
 (2) Brassington v. AuU, 2 Bingh. 177. (/) 2 Wms. Saund. 117, h. (6th ed.). 
 
 (ffl) 2)06-7. Wheeler, 15 M. & "W. 623. ig) Zancefield v. Allen, 1 Bligh, N. 
 
 (J) Com. Law Proo. Act, 1852, s. 41. S. 592. 
 (c) 2 Wms. Saund. 117 g. (m.) 
 
716 EXECUTOR 
 
 VIII. Of Actions against Executors and Administrators. 
 
 1. WMt Actions may he maim^tavned against Executors. — For- 
 merly an action, wherein the testator might have waged his law, 
 could not be maintained against his executors or administrators (h). 
 Hence, debt on a simple contract, as on a promissory note (*), 
 would not lie against an executor or administrator. But now 
 wager of law is abolished (h) ; and debt on simple contract is 
 maintainable in any court of common law against any executor or 
 administrator (f). Assumpsit might always have been brought (Wi). 
 By 4 Ann. c. 16, s. 27 (n), an action of account is given against 
 the executors and administrators of guardians, bailiffs, and receivers, 
 and also by one joint-tenant and tenant in common, his executors, 
 and administrators, against the other, as bailiff, for receiving more 
 than his share, and against the executor and administrator of such 
 joint-tenant or tenant in common. 
 
 Assumpsit will not lie against an executor for a legacy payable 
 out of the general funds of the testator, although assets be aven-ed 
 in the declaration ; for the law will not, from the mere circumstance 
 of an -executor's being possessed of assets, imply a promise by him 
 to pay such legacy (o). But an action may be maintained by the 
 legatee of a specific chattel, against an executor, after his assent to 
 the bequest (p). So an action at law cannot be maintained for a 
 distributive share of an intestate's property against the adminis- 
 trator, nor against his executor, although such executor may have 
 expressly promised to pay (g). But where an executor has stated 
 an account with a legatee, and debited himself absolutely with a 
 certain sum as retained ip. his hands for such legatee, he ceases to 
 hold the money in his character of executor, and an action on an 
 account stated will lie against him (r). " It is quite clear that, so 
 long as no other relation exists between two parties than that of 
 trustee and cestui que trust, no action can be maintained by the 
 latter against the former, for any money in his hands. The trastee 
 is in such a case the only person entitled at law to the money, and 
 the remedy of the cestui que trust is exclusively in a court of 
 equity. When indeed there is no trust to execute, except that of 
 paying over money to the cestui que trust, the trustee by his con- 
 duct, as, for instance, by admission that he has money to be paid 
 over, or by settling accounts on that footing, may, and often does, 
 make himself liable to an action at law at the suit of the cestui 
 
 (h) Bro. Exora. 80. Jac. 662. 
 
 (i) Barry v. Sobinson, 1 N. E. 293. (n) See amte, pp. 2, 3. 
 
 (Jc) 3 & 4 Will IV. c. 42, s. 13. (o) Deei^ v. Strutt, 5 T. R. 690. 
 
 (I) Jbid. s. 14. (p) Doe v. Guy, 3 East, 120. 
 
 (m) Palmer v. Lwwson, 1 Lev, 201 ; (y) Jones v. Tcmner, 7 B. & C. 542. 
 
 Norwood V. Read, Plowd. 181 ; CarUr v. (r) Hart v. Minars, 2 Cr. & M. 700 ; 
 
 Possett, Palm. 329 ; Pinchoris case, 9 Bond v. Nurse, 10 Q. B. 244. 
 Eep. 86, b. ; Fawceti v. Charter, Cro. 
 
EXECUTOE. 717 
 
 que trust, for money had and received, or for money due on an 
 account stated " (s). 
 
 The neglect or refusal of the administrator to distribute the 
 surphis or residue of the effects of the intestate among the next of 
 kin, according to the Statute of Distributions, without the previous 
 decree or sentence of the court, is not a breach of the condition of 
 the administration bond (i). 
 
 An acting executor having once received, and fully had under 
 his control, assets of the testator applicable to the payment of a 
 debt, is responsible for the application thereof to that purpose ; and, 
 such application having been disappointed by the misconduct of his 
 co-executor, -vvhom he employed to make the payment in question, 
 he is liable at law for the consequences of such misconduct, as much 
 as if the misapplication had been made by any other agent of a less 
 accredited and inferior description (u). If one co-executor lends 
 the testator's money which has come to his hands, and which the 
 testator had directed to be laid out on good security, to the other 
 executor on his bond, it is a devastavit (ai). 
 
 Formerly, no remedy was provided by law for wrongs done by a 
 person deceased in his lifetime to another, in respect of his property, 
 real or personal {y) ; but by 3 & 4 Will. IV. c. 42, s. 2 — "^^An action 
 of trespass, or trespass on the case, as the case may be, may be 
 maintained against the executors or administrators of any person 
 deceased, for any wrong committed by him in his lifetime to another, 
 in respect of his property, real or personal, so as such injury shall 
 have been committed within six calendar months before such per- 
 son's death, and so as such action shall be brought within six 
 calendar months after such executors or administrators shall have 
 taken upon themselves the administration of the estate and effects 
 of such person ; and the damages to be recovered in such action 
 shall be payable in like order of administration as the simple con- 
 tract debts of such person." An intestate was lessee of some coal 
 mines of the plaintiffs', and had worked the coal under a portion 
 of land excepted from the demise; part of such coal was raised 
 more than six months before the intestate's death, and part within 
 
 (s) Per Rolfe, B., Pardee v. Price, 16 able ; but the rule as to executors has 
 
 M. & "W. 451. been in some degree relaxed. See per 
 
 {t) The ArchMshop of Canterbury v. Lord Mdon, Ch., in Chambers v. Min- 
 
 8 B. & C. 151. chin, 7 Ves. 197. In Walker v. Sy- 
 
 (m) Crosse v. Smith, 7 East, 246. By inonds, 3 Swans. 64, the same learned 
 the old law, there was a distinction be- judge said, " It may be laid down now, 
 tween executors and trustees. It was as in Brice v. Stokes (11 Ves. 319), that 
 laid .down as a general rule, that where though one executor has joined in a re- 
 executors joined in a receipt, both hav- ceipt, yet whether he is liable shall de- 
 ing the whole power over the fund, both pend on his acting." Terrell v. Mat- 
 were chargeable ; where trustees joined, thews, 1 Mc. & G. 433, ace. 
 each not having the whole power, and (x) Gleedon v. Atkin, 7 Tyrw. 598. 
 the joining being necessary, only the (y) Eambly v. Trott, Cowp. 371. 
 person receiving the money was charge- 
 
718 EXECUTOK. 
 
 six months; it was held, that the plaintiffs might bring trespass 
 under the statute for so much as was raised within the six months, 
 and also money had and received for so much as was raised before, 
 the acts being distinct, and, therefore, the two actions not incom- 
 patible {z). The foregoing statute is confined in terms to injuries 
 in respect of property, real or personal ; the law, therefore, in 
 respect of injuries to the person remains unaltered, as to which see 
 note (1) to Wheatley v. Lane, 1 Wms. Saund. 216, a. 
 
 By 29 Car. II. c. 3, s. 4 — "No action shall be brought to charge 
 any executor or administrator upon any special promise, to answer 
 damages out of his own estate, unless the agreement upon which 
 such action shall be brought, or some memorandum or note thereof, 
 shall be in writing, and signed by the party to be charged there- 
 with, or some other person thereunto by him lawfully authorized." 
 At the common law, an executor or administrator could not have 
 been charged on any special promise to answer damages out of his 
 own estate, unless such promise had been made on a sufficient 
 consideration. The statute has not made any alteration in this 
 respect. The promise, though in writing, still requires a sufficient 
 consideration to support it (a), e. g. the possession of assets (6). 
 The consideration as' well as the promise need no longer be ex- 
 pressed in the written memorandum or note (c). 
 
 The provisional assignee of the Insolvent Debtors' Court (under 
 1 Geo. IV. c. 119, s.- 7) assigned the estate of an insolvent to 
 an assignee, who assented to such assignment, and acted under it 
 as tenant of premises, which the insolvent held as lessee for years : 
 it was held, that the executor of such last-mentioned assignee was 
 liable to the lessor for breaches of covenants in the lease, subse- 
 quent to his testator's death ; if not appearing that the Insolvent 
 Debtors' Court had appointed fresh assignees (d). 
 
 By 20 Car. II. c. 7, s. 2, (made perpetual by 4 & 5 W. & M. c. 24, 
 s. 12,) — The executors and administrators of executors of their own 
 wrong, or administrators who have wasted and converted the assets 
 of the deceased to their own use, shall be chargeable in the same 
 manner as their testator or intestate would have been if living. A 
 doubt having arisen upon the preceding clause, whether it extended 
 to the executors and administrators of any executor or admiuistrator 
 of right, who, from want of privity, were not before answerable for 
 the debts due from the first testator or intestate, although such 
 executor or administrator of right had been guilty of a devastavit 
 or conversion, it was enacted, by 4 & 5 W. & M. c. 24, s. 12,-^that 
 the executor and administrator of such executor or administrator 
 
 (z) Powell V. Sees, 7 A. & E. 426. s. 3. See post, tit. " Statute of Frauds." 
 
 (a) Rarnn v. Hughes, 7 T. E. 350, u. (d) Abercrombie t. Hickman, 8 A. &E. 
 
 (J) Pewrson v. Henry, 5 T. E. 6. 683. 
 (o) Mercantile Law Amendment Act, 
 
EXECUTOE. 719 
 
 of right, who shall waste or convert to his own use the estate of 
 his testator or intestate, shall be chargeable in the same manner 
 as his testator or intestate would have been. 
 
 2. What Pauses of Action may he joined against Uxecutors. 
 
 Several demands, some of which accrue from the defendant in his 
 own right, and others in right of another, cannot be joined in the 
 same action ; because such demands require different pleas and 
 different judgments (e). Hence, if a declaration against an exe- 
 cutor or administrator contain counts which charge him in his 
 representative character, and also counts which charge him in his 
 own right, such declaration will be bad, for misjoinder of cause of 
 action, either on demurrer, or in arrest ftf judgment, or on error (/). 
 So counts on promises by the testator cannot be joined with counts 
 for money had and received by the defendant as executor (g) ; or 
 for money lent to the defendant as executor (h) ; or for interest for 
 the forbearance by the plaintiff to the defendant as executor, at his 
 request, of money owing from the defendant as executor to the 
 plaintiff (i) ; because the former charge the defendant in right of 
 the testator, whereas the latter charge him in his own right. But 
 where an action was brought against an administratrix, and the 
 three first counts of the declaration were on promises by the in- 
 testate, and the last was on an account stated between the plaintiff 
 and defendant, as administratrix, of money owing /rom the intes- 
 tate, with a promise by the defendant, as administratrix, to pay, the 
 court were of opinion, that there was not any misjoinder of action, 
 for that the defendant was charged as administratrix in all the 
 counts (k). So where, to a count for money had and received by 
 the defendant as execiitor was joined a count on an account stated, 
 of money due from the defendant as executor, it was held, that 
 there was a mig'oinder (I) ; for on the first count the judgment 
 would be de bonis propriis, but on a count averring an account 
 stated by the defendant of monies due from him as executor, the 
 judgment shall be de bonis testatoris. This count may, therefore, 
 be joined with counts on promises of the testator (m). So counts 
 for goods sold to, and work and labour done for, the defendant, as 
 executor, cannot be joined with a count for money found to be 
 due on an account stated with the defendant as executor; for 
 the two first counts are necessarily for debts due from the de- 
 fendant in his own right, and charge the defendant personally, 
 whereas the last count charges the defendant in his representa- 
 tive character (n). But a count for money paid to the use of the 
 
 (e) Jennings v. Nevmm, 4 T. R. 347. (i) Bignell v. ffarpur, 4 Exch. 773. 
 
 if) Brigdm v. Pa/rhs, 2 B. & P. 424. (k) Secar v. AtUnson, 1 H. Bl. 102. 
 
 See Com. Law Proc. Act, 1852, s. 41. (I) Ashby v. Ashby, 7 B. & C. 444. 
 
 (a) Briqden v. Pa/rles, 2 B. & P. 424. (m) PoweU v. Graham, 7 Taunt. 680. 
 
 (I) Rose V. Bowler, 1 H. Bl. 108. («) Corner v. SMw, 3 M. & W. 360. 
 
720 EXECUTOE. 
 
 defendant as executor, may be joined with counts on promises by 
 tbe testator (o). 
 
 A promise made upon good consideration by a testator, that his 
 executor shall pay, is a sufficient consideration for an action of 
 assumpsit against the executor. And in such action, it is neither 
 necessary to aver assets (the want of assets being matter of de- 
 fence) ; nor a promise by the executor (p). To a count in covenant 
 charging the defendants, as executors, for breaches of covenant by 
 their testator as lessee, who had covenanted for himself, his exe- 
 cutors and assigns, may be joined another count, charging them 
 that after the testator's death, and their proving the will, and during 
 the term, the demised premises came by assignment to one D. A, 
 against whom breaches were alleged ; and concluding, that so 
 neither the testator, nor the defendants after his death, nor D. A. 
 since the assignment to him, had kept the said covenant, but had 
 broken the same (q). 
 
 3. What Executors are to be made Defendants. — It has been 
 observed (ante, p. 712) that in actions brought by executors, it is 
 necessary that, where there are two or more, they should all join, 
 whether they administer or not, if one of them has proved the 
 will. But this is not necessary when actions are brought against 
 them, (r) ; for the mere circumstance of a person being named ex- 
 ecdtor does not compel the plaintiff to make him a defendant unless 
 he has administered. Hence, where executors, defendants, plead in 
 abatement, that there are other executors not named, they must 
 add, that the executors not named have administered; for the 
 plaintiff is bound to take notice of such executors only as have ad- 
 ministered (s). Although executors cannot sever in declaring, yet 
 they may in pleading. Hence, although infant executors may sue 
 by attorney with executors of full age, because those of full age 
 may appoint an attorney for those within age, yet they must defend 
 by guardian (t). If any of the executors die, actions must be 
 brought, not against the surviving executors and the executors of 
 the deceased executors, but against the surviving executors only (u). 
 If there are two or more administrators, they must all be made 
 defendants (x). An executor de son tort must be declared against 
 as a rightful executor (y). In an action against a married woman 
 executrix, the husband must be joined as a defendant (2;). 
 
 io) "Wms. Exors. 1607 (5th edit.), (u) 4 Leon. 193 ; Bro. Bxors. 99 ; Fitz. 
 
 (p) Powell V. Graham, 1 Taunt. 680. Abr. Exor. 22. Unless the executor of 
 
 (q) Wilson v. Wigg, 10 East, 313. the executor administer (with the other. 
 
 (»■) Bro. Exors. pi. 69. 1 RoU. Abr. 928, tit. Executors (Z). 
 
 (s) Swallow V. Emherson, 1 Lev. 161; (x) Reg. 140, a, b. 
 
 Jtyalls v. Bramall, 1 Exch. 734. (y) Alexander v. Lan^, Yelv. 137. 
 
 (t) Frescdbaldi v.Kinasfon, 2 Str. 783 ; (s) Com. Dig. Administration (D.). 
 
 Fitz. Abr. Exors. 22. 
 
EXECUTOR 721 
 
 IX. Of the Pleadings,— Right of Retainer. 
 
 An executor may plead the same plea in bar, that his testator 
 might have pleaded ; as, in an action of assumpsit, he may plead, 
 that his testator did not imdertake or promise ; or in covenant or 
 debt on bond, that it is not the deed of the testator (a). He may 
 also plead in bar, that he has fuUy administered all the goods and 
 chattels which were of the deceased at the time of his death. This 
 is termed a plea of plene adm/mistravit. 
 
 A testator being indebted to E., deposited with him a policy of 
 insurance on testator's life as a security for the debt, or for a fur- 
 ther advance then made by E., and died, leaving E. and M. his 
 executors. E, still holding the policy, applied to the insurers for 
 the amount due on it (200l) ; which they refused to pay, unless E. 
 and M. gave a receipt for it as executors. They did so ; E. making 
 protest that he signed as executor, merely to satisfy the insurers. 
 In an action by a judgment creditor, to which the executors pleaded 
 flene administraverunt, except as to 4<l. (the surplus out of the 
 200?. after payment to E.), it was held that the executors were not 
 chargeable with the 2001. as assets, but only with the surplus after 
 payment to E. (b). An executor must plead an outstanding debt, 
 e. g. a judgment, and cannot ^ive it in evidence under plene ad- 
 ministravit (c). In this plea it is not necessary for the executor 
 to aver that the judgment was had for a true and just debt ; for, if 
 it be not so, this shall come from the other side (d). So where an 
 executor pleaded, that his testator entered into a bond conditioned 
 for the payment of a sum of money at a day past, beyond which he 
 had not assets ; it was held sufficient, although it was not averred 
 that the bond was entered into for a true and just debt ; for it shall 
 be intended that it was (e). And the same intendment shall be 
 made, where an executor or administrator pleads a bond debt due 
 to himself and retainer (/). 
 
 When the day of payment, mentioned in the condition of the 
 bond, is past in the lifetime of the testator, the penalty is the legal 
 debt ; and although an executor, in pleading it as an outstanding 
 debt, sets forth the condition of the bond, yet that will not deprive 
 him of the advantage of covering the assets to the amount of the 
 penalty (g). But when the day of pajment is not arrived at the 
 
 (a) Com. Dig. Pleader (2 D. 8). much is due ; ParJcer v. Atfield, 1 Salk. 
 
 (61 Olaholm v. Rovmtree, 6 A. & E. 312 ; for the plaintiff may, it seems, 
 
 710. reply that the creditor would have ao- 
 
 (c) "Wms. Exors. 1787 (5th edit.) cepted a less sum, but that the defend- 
 
 (d) Palmer v. Lmeson, 1 Lev. 200. ant would not pay it, and kept the jndg- 
 
 (e) Lake v. Saw, Carth. 8. ment on foot by fraud, and under this 
 (/) Picwrd V. Brovm, 6 T. R. 550. plea may give evidence of such mat- 
 (g) But the best way . is to plead ter as will avoid the penalty. Wms. 
 
 honestly and truly, and though there is Exors. 1776 (5th edit.), 
 a judgment for a penalty to show how 
 
 ^„X T 3 A 
 
722 BXECUTOE, 
 
 death of the testator, if the executor sets forth the condition, the 
 assets can be covered only to the amount of the sum mentioned in 
 the condition ; for the force of the bond is suspended until the 
 condition is broken (h). To an action of debt on bond for 300Z. 
 against defendant, as executor, he pleaded that the testator was 
 bound in a statute for the same sum, and that he had assets to 
 the amount of 801. only, to satisfy that statute, which remained yet 
 in force and not paid. On demurrer, it was objected, that it was 
 not averred in the plea, that the statute was made for debt, and 
 that the debt was not satisfied ; for, if it were for the performance 
 of covenants, it was not reasonable that it should be a bar to a 
 debt on a bond already due, when, perhaps, the covenants would 
 never be broken (i), in which case there would not be any cause of 
 suit or extent thereon. But the court resolved, that the plea was 
 good ; for it was averred that the statute was in force, and the 
 money not paid ; it was good enough primd facie ; and it should 
 be intended to be made for a just debt, until the contrary was 
 shown (^). 
 
 If an action be brought against several administrators, they may 
 plead an outstanding judgment recovered against one of them, and 
 no assets ultra; for a recovery against one administrator shall bind 
 him and his companions (V). After the commencement of an action, 
 an executor cannot pay another creditor before such other creditor 
 has recovered judgment, but the executor may confess judgment 
 in another action for the damages laid in the declaration, without 
 ascertaining those damages by writ of inquiry, provided they do 
 not exceed the real debt. If they do, the plaintiff may reply that 
 such judgment was not for a true and just debt (m). An executor 
 may confess a judgment to a creditor in equal degree with the 
 plaintiff, pending the action, and plead it in bar (w). But if a plea 
 of judgment recovered on a simple contract be pleaded by an 
 executor to a debt on bond, it must be averred that such recovery 
 was had before notice of the bond debt (o). So an executor may 
 plead puis darrei/n continuance (p), judgments recovered against 
 him in suits commenced since he pleaded the general issue in bar 
 in the principal case (q). But a judgment confessed by an execu- 
 trix to a creditor of the testator, as well for his own debt as in 
 trust for the debt of other creditors, cannot be pleaded in bar 
 
 (h) Bcmk o/Englmd v. Morice, 2 Str. 295; 10 Mod. 496 ; 3 P. Wms. 401. 
 
 1028. (n) Wwmig-v. I>cmvers,lF.'Wma.i95 ; 
 
 {i) It was agreed that a statute for Morrice v. Bank of England, Ca. Temp, 
 
 performance of covenants was not a bar Talb. 225. Executors are bound to take 
 
 in debt on bond, if none of the covenants notice of debts of record, such as judg- 
 
 were broken. Neither is it to an action ments ; Wms. Exors. 927 (5th edit.) ; 
 
 on simple contract. Collins v. Crouch, and, it seems, whether registered or not. 
 
 13 Q. B. 542. Ibid. 903. 
 
 (4) Philips V. Echard, Cro. Jac. 8. (o) Sawyer v. Mereer, 1 T. E. 690. 
 
 (I) Further v. Further, Cro. Eliz. (471). (p) See ande, p. 167. 
 
 (m) Waring v. Danvers, 1 P. Wms. (q) Prime v. Nicholson, 5 Taunt. 665. 
 
EXECUTOE. 733 
 
 to an action brought against her by another creditor of the 
 testator (r). 
 
 To a plea of an outstanding judgment, the plaintiff may reply, 
 that the judgment was obtained by fraud ; and may upon this issue 
 give in evidence either that the debt is not a just one, or that less 
 is due than the sum for which the judgment has been given (s). 
 But evidence of the latter fact is not conclusive of fraud, for the 
 judgment might have been entered for more than was due by mis- 
 take (t). If it appear that the judgment creditor would have taken 
 less than is recovered, that is evidence of fraud ; but the executor 
 may show, in answer, that he has not assets sufficient to satisfy 
 even that amount, for that disproves the fraud (u). 
 
 "Where the Statute of Limitations is pleaded to an action brought 
 by an executor on a promise made to his testator, the six years are 
 computed from the time when the action first accrued to the tes- 
 tator, and not from the time of proving the will {x), and the 
 executor cannot maintain an action for a debt which accrued to 
 his testator, and for which he might have sued more than six 
 years before the issuing of the writ (3/). But where money 
 belonging to the estate of an intestate is received by A. after 
 the death of the intestate, and, more than six years afterwards, B. 
 takes out administration, the time of limitation must be computed 
 from the day on which the administration was granted ; and, con- 
 sequently, if B., within six years from that day, brings an action 
 for money had and received against A., the Statute of Limitations 
 will not operate as a bar (z). So in an action by an administrator 
 upon a bill of exchange, payable to the intestate, but accepted after 
 his death, the Statute of Limitations begins to run from the time 
 of granting the letters of administration, and not from the time the 
 bill becomes due, there being no cause of action until there is a 
 party capable of suing (a). " Where letters of administration have 
 been granted, the administrator is entitled to all the rights which 
 the intestate had at the time of his death vested in him ; but no 
 right of action accrues to the administrator, until he has sued out 
 the letters of administration " (6). An executor is not bound to 
 plead the Statute of Limitations to a just debt, even although the 
 personal estate is insufficient for the payment of his debts (c). 
 
 As to the proper mode in which an executor of an executor 
 
 (r) ToVputt v. Wells, 1 M. & S. 395. («) Curry v. Stephenson, Garth. 335 ; 2 
 
 y2Wms.Saund.50,ii. (3). ^ Salfc 421 ; 4 Mod 372 & (7. 
 
 (t) 'Pease v Naylor, 5 T. E. 80. In {a) Murray v. East India Company, 5 
 
 thiVcase the defendant had informed the B. & Aid. 204. But ^n executor ma.j 
 
 plaintiff of that fact before action. commence au action before probate. 
 
 (u) PmTcery. AtfieU, 1 Salk. 312, jjei- Wms. Exors. 260 (5th edit.)- . 
 
 Owr *■ •^ ' (J) Per Bayley, J., Pratt v. Swame, 8 
 
 (x) Bichnany. Walker, W^6S, 21. B.&C. 287. t u .i t? ..ki 
 
 (y) Permy v. Brice, 18 0. B. (N. S.) (c) Lowis v. Bomney, L. E. 4, Eq. 451. 
 
 393. 
 
 3 A 
 
724 EXECUTOE. 
 
 should frame his plea, the following case deserves attention : — 
 Plaintiff, assignee of lessee for years, sued the defendant as executor 
 of B., executor of A., the lessor, in covenant upon the original 
 indenture of lease, for a breach of the covenant for quiet enjoyment 
 by A., and since his decease by defendant. The defendant pleaded, 
 that he had fully administei'ed all the goods of A., the first testator. 
 On demurrer, it was held, that the plea was bad, inasmuch as it 
 only gave an answer to one part of a case which pointed at two 
 kinds of misapplication of those funds which were liable to the 
 plaintiff's demand (cf). Le Blanc, J., observed that the defendant 
 might discharge himself in two ways : either by showing that the 
 first executor fully administered all the goods and chattels of A. 
 which came to his hands, and that the defendant, since the death 
 of the first executoi-, had duly administered all that he had received 
 of A's assets ; or he might show that he had received no assets 
 of the first executor. But, as the plea now stands, he leaves un- 
 answered everything respecting the assets of the first testator which 
 came to the hands of his executor, and merely answers as to his 
 own application. Bayley, J., added that the plaintiff was entitled 
 to recover his debt in either of two events ; if the defendant had 
 received assets of the original testator, and had not properly applied 
 them ; or if the defendant had received assets of the first executor, 
 and the first executor had received assets of his testator, and had 
 not duly applied them. The defendant has only answered as to one 
 of those events, but the plaintiff may be entitled to satisfaction out 
 of both funds : and, therefore, he is entitled to have the issue so 
 framed, that if anything be forthcoming to him out of either fund, 
 he may be able to avail himself of it. As to pleading the Statute 
 of Limitations, and Statute of Set-off, by and against executors, 
 see ante, tit. " Assumpsit," and tit. " Debt." 
 
 Of the Right of Retainer (e). — A lawful executor or administra- 
 tor, when sued by a creditor of the deceased, may claim a right of 
 retaining the assets in satisfaction of a debt due to himself, pro- 
 vided such debt is equal or superior in degree to that claimed by 
 the creditor (/). And it is optional with the executor either to 
 plead the retainer, or to give it in evidence under a plea of plene 
 admi/nistravit (g). But an executor cannot retain for a demand, of 
 which no account can be taken by a jury, e.g. a partnership debt, 
 and which cannot, therefore, be controverted by the other party Qi). 
 Where an action is brought against a defendant as eoaecutor (which 
 
 (d)_ Wells y. Fyddl, 10 East, 315. Abr. Bxors. (D. 2) pi. 2. 
 
 (e) " The rule of this court in cases of (/) Pym v. Woollamd, ■ 2 Vent. 180 ; 
 
 retainer is, that unless the party can 1 Keh. 285 ; Sty. 337-; Vaughan v. 
 
 show a legal right to retain, we never Browne, infra. 
 give it him ; if he can show a legal right, (g) 1 Wms. Saund. 333, n. (6). 
 
 we never take it away from him." Per (A) De Tastet ■7. Sham, 1 B. & Aid. 
 
 '^crney, M. E., Chapman Y.Tv/mer, Vin. 664. 
 
EXECUTOE. 725 
 
 is the case, as well -where the defendant is charged as rightful 
 executor, as when he is charged as executor de son tort), and he 
 claims to retain as executor or administrator, he ought to allege 
 the grant of probate (i), or ^administration (k), in order that it may 
 appear to the court that he is such a person as is entitled to 
 retain ; for an executor de son tort is not so entitled (I). But 
 where the plaintiff sues the defendant as administrator, and he 
 claims to retain as administrator, it is not necessary that the letters 
 of administration should be set forth, because the plaintiff, by his 
 declaration, admits him to be lawful administrator (m). 
 
 An executor de son tort cannot retain for his own debt, although 
 of a superior nature ; neither will^the consent of the rightful 
 administrator to the retainer, given after action brought by a credi- 
 tor, alter the case ; nor can such executor avail himself of a de- 
 livery over of the effects of the deceased to the rightful adminis- 
 trator after action brought, and before plea pleaded, so as to 
 defeat the action of a creditor (n). In debt upon bond against the 
 defendant as executor he pleaded a judgment which he had reco- 
 vered against the deceased, and so justified by way of retainer. 
 Keplication, that the defendant was executor de son tort. Re- 
 joinder, that after the last continuance the defendant had obtained 
 fetters of administration. On demurrer, it was objected, that the 
 rejoinder was a departure from the plea. But the court held, that 
 it was well enough ; because the plea did not expressly admit, that 
 defendant had proved the will, but only admitted the defendant's 
 executorship according to the declaration. By the replication it 
 appeared, that the defendant was not charged as a rightful but as 
 a wrongful executor, which could not appear on the declaration, 
 the method of declaring against both of them being the' same. 
 And the rejoinder set forth a matter, which made the acting as 
 unlawful executor justifiable ; for the subsequent administration 
 related to the death of the intestate, and purged the precedent 
 wrongful executorship, so as to give the defendant the benefit of 
 retaining (o). To a declaration for trover and trespass for taking 
 goods of the plaintiff as administrator, the defendant pleaded, that 
 the claims arose by reason only of the defendant being executor 
 de son tort of the intestate before grant of administration to the 
 plaintiff, and that, before such grant, the defendant fully ad- 
 ministered all the assets which had come to his hands ; held, that 
 the plea was bad (p). But, although an executor de son tort 
 cannot avail himself of his own wrongful act in taking possession 
 of the goods of the deceased, in order to retain a debt for his own 
 benefit, yet he may plead, in answer to the claim of a simple con- 
 
 (i) Prince v. Bowson, 1 Mod. 208. (n) Vernon v. Curtis, 2 H. Bl. 18. 
 
 (J) Camerly v. Ellison, T. Jones, 23. (o) Yaughan v. Browne, 2 Str. 1106 ; 
 
 (l) Coulter's case, 5 Eep. 30 ; Alemn- Andr. 328 ; 7 Mod. 274, and MS. 
 
 der V.Lane, Yelv. 137. (p) Elworthy v. Sandford, 34 L. J. 
 
 (m) Picard v. Broim, 6 T. E. 550. Ex. 42, 
 
726 EXECUTOE. 
 
 tract creditor, that, after action brought, he had disposed of the 
 assets in that course of administration which the law allows, viz. 
 by discharging a debt of higher degree as a specialty debt ; for if, 
 at any time before plea pleaded, an executor comes to the know- 
 ledge of such a debt, he is bound to pay it before a simple contract 
 debt, whether he be a rightful or wrongful executor (g). Whether 
 he may show such payment in mitigation of damages (for he cannot 
 plead it in bar) in aa action brought against him by the rightful 
 executor is perhaps doubtful. It would seem that he may(r) ; pro- 
 vided he acted bond fide (s). In Woolley v. Clark, 5 B. & Aid. 
 744, where the point was decided differently, but without discus- 
 sion, the executor de son tort had sold, goods of the testator after 
 he had notice of a will subsequent to that under which he assumed 
 to be acting. At law an executor de son tort cannot discharge 
 himself unless he hands over the property to the rightful represen- 
 tative before action brought (t). 
 
 X. Evidence. 
 
 In all actions by and against executors or administrators, the 
 character in which the plaintiff or defendant is stated on the record 
 to sue or be sued, shall not in any case be considered as in issue* 
 unless specially denied, 5 PI. K. T. T. 1853. In all questions 
 respecting title to personalty, the probate or letters of adminis- 
 tration with the will annexed are, it is said, the only legal e'S'idence 
 of the will. Trespass for taking goods. On Not Guilty, the de- 
 fendant admitted that the goods had been in the possession of 
 the plaintiff, but insisted that he, the defendant, had a property in 
 them as executor of I. S., and then produced the original will, by 
 which he was appointed executor. But, per Saymond, C. J., " I 
 cannot allow the original wUl to be evidence to prove a property in 
 an executor; the probate must be produced ; for, perhaps, the 
 [Ecclesiastical] Court will not allow this to be the testator's will. 
 Besides, until probate, a man dies intestate ; and, if the executor 
 dies before probate, his executor shall not be executor to the first 
 testator" (u). 
 
 All that is requisite, however, either in the case of an exe- 
 cutor or administrator, is to show, by legitimate evidence, that 
 the (Probate) Court has given authority to the person to admi- 
 nister (a;). It is only the act of the (Probate) Court that is to be 
 
 (q) Oxenham v. Clapp, 2 B. & Ad. 309. v. Pinney, 8 B. & C. 335, aec. 
 
 (r) Wms. Exors. 236 (5th edit.). {x) There is an exoeptioii to this in the 
 
 (s) Per Lord CampbeU, C. J., 3%omp- case of actions for torts, (or substantially 
 
 son T. Hmiing, 2 E. & B. 630. for torts, as for money had and received 
 
 (0 Sill v. Curtis, 1 L. R. Eq. 90 ; 35 in certain cases ;) founded on the aduaX 
 
 L. J. Ch. 133. possession of the executor or administra- 
 
 (u) Coev. Westemham,'SoTM'k.&VLmm. tor, imvhich case the production of pro- 
 Ass. 1725 ; Serjt. Leeds' MSS. ; Pinney hate is not necessary. Oughton v. Sep- 
 
EXECUTOR. 7J27 
 
 proved {y). Hence, before the late Probate Act, it was held suf- 
 ficient to produce minutes of the proof of the will and sealing of the 
 probate, indorsed on the will by the surrogate and registrar of the 
 Ecclesiastical Court, it being shown that, by the practice of the court, 
 no other record of such grants was kept {z). If the probate be in 
 the hands of the opposite party, a copy of the will is admissible, after 
 notice to admit (a). So after notice to defendants' executors to 
 produce probate, and refusal ; it has been held, that an instrument, 
 produced by the officer of the [Ecclesiastical] Court, purporting to 
 be the will of the defendants' testator, and indorsed by the officer 
 as being the instrument whereof probate had been granted to the 
 defendants, and that they had sworn to the value of the effects, is 
 admissible in evidence in an action ^against defendants for money 
 had and received by their testator (6). So the original Act Book 
 in the Prerogative Court, containing the entry of probate having 
 been granted, &c. (c), or an examined {d), and now (by the 14 & 
 15 Vict. c. 99, s. 14) a certified (e) copy thereof, is admissible, 
 without giving notice to produce the probate or letters of adminis- 
 tration. So where a probate of a will is lost, an exemplification of 
 such probate is admissible (/). 
 
 Upon issue joined on a plea oi plene ad/ministravit, the amount 
 of the stamp upon the probate is admissible in evidence ; but it is 
 not, it seems, even primd facie evidence of the amount of assets 
 received (g). Probate is not admissible to prove declarations of 
 the testator as reputation in questions of pedigree (h). Where a 
 bill of exchange was endorsed, generally, but delivered to A., as 
 administratrix of B., for a debt due to the intestate, and A. died 
 intestate after the bill became due, and before it was paid : it was 
 held, that the administrators de bonis non of B. might sue upon 
 the bill ; and that their title was sufficiently proved by the letters 
 of administration de bonis non, without producing those granted 
 to A., the administratrix (i). A retainer may be given in evidence 
 on plene administravit(k) ; but debts of a higher nature subsisting 
 cannot (l). Upon plene administravit et issint riens inter mains, 
 if it be proved that the executor hath goods in his hands, which 
 were the testator's, he may give in evidence, that he bath paid to 
 that value of his own money, and need not_ plead it specially (m). 
 In case against executor, upon ^lene admvnistravit, the plaintiff 
 must prove his debt, otherwise he shall recover but one penny 
 
 pinqs, 1 B. & Ad. 241 ; MlMt v. Kemp, (e) Borrett v. Meux, 15 C. B. 142. 
 
 7 M & W 306 (/) Shepherd v. Shorihose, 1 Str. 413. 
 
 • (y) "Wms. Exors. 1745 (6th edit.). (?) Mann v. ion^, 3 A. & E. 699. 
 
 {z Doe V. Mew, 7 A. & E. 240. , (A) Doe y. Ormerod IM.& Eob. 466, 
 
 a) Goldstme v. Tovey, 6 B. N. C. (i) Oatherwood r. Ghdbaud, 1 B. & C. 
 
 274, 
 
 150. 
 
 (5) Grnion v. Dyscm, 1 B. & B. 219. (k) Plumer v. Marehmt, 3 Burr. 1380. 
 
 (cl Coxy. Allingham, Jacob, 514. (I) BuU. N. P. 141. 
 
 (d) Davis V. ■Williams, 13 East, 232. (m) 1 Inst. 283, a. 
 
728 EXECUTOR 
 
 damages, though there be assets ; for the plea admits the debt, but 
 not the amount {n). But in debt it is otherwise (o). 
 
 The allegation that an executor has assets, which the plaintiff 
 has to prove under a plea of pUne adrrvmistravit, means legal 
 assets (p) presently available. Where, therefore, A. made a pro- 
 missory note payable on demand to his son B., and by his will 
 devised a freehold house to B., charged with 240i. for payment of 
 debts, &c., to be raised within a year after his death (which period 
 had not elapsed at the time of the trial), and, having made B. and 
 C. his executors, died ; and B. afterwards endorsed the note to D., 
 who sued the two executors thereon, and C. pleaded that the note 
 was made payable to B. on demand, and that B., at the time of the 
 indorsement, bad assets of the testator in his hands, whereby the 
 note was satisfied ; but the only evidence of assets was the above- 
 mentioned charge of 240^. ; it was held, that the plea was not 
 proved, and that the plaintiff, the defendants having omitted to 
 plead plene ad/mMiistravit, was entitled to a verdict (5). 
 
 XI. Judgment — Costa. 
 
 On a plea of plene ad/ministravit generally, by an executor, the 
 plaintiff may immediately take judgment of assets quando acci- 
 dervnt (r). In debt or writ of revivor (s) on this judgment, evi- 
 dence of such assets only as have come to the executor's hands 
 since the judgment will be received (f). Judgment against an 
 executor, in covenant broken by himself, shall be de bonis testa- 
 toris ; for it is the testator's covenant which binds the executor as 
 representing him; and therefore he must be sued by that name(u). 
 In like manner, upon an obligation made by testator for the per- 
 formance of covenants, judgment in debt on the bond for a breach 
 of covenant by executor, shall be de bonis testatoris (x). So in 
 debt against an executor on a bond made by testator, if the de- 
 fendant plead wo-n, est factum, audit is iouad against him, judg- 
 ment shall be for the debt and damages de bonis testatoris; for 
 the executor cannot know whether it be the deed of the testator 
 or not (y). In debt on bond against an executor, if the defendant 
 plead " fully administered," and any assets are found in his hands, 
 
 (Ji) Shelhifs case, Salk. 296. the mles of eauity." Per Jervis, C. J., 
 
 (0) Saimderson v. Nicholle, 1 Show, 81. Lowe v. Peskett. 
 
 (p) " The true test whether assets are (q) Lowe v. Peskett, 16 C. B. 500. 
 
 legal or equitable, is, not whether the \r) Noell v. Nelson, 2 "Wms. Saund. 
 
 executor or administrator, hut whether 226. See the form, ihid. 216, a. 
 the claimant, can reach them without (s) Com. Law Proc. Act, 1864, s. 91., 
 
 resorting to a court of equity." Wms. \t) Twylor y. Sollmcm, Bull. N.P. 169. 
 
 Ezors. 1520 (5th edit.). "Legal assets ,{u) Collins v. Thoroughgood, Hoh. 188. 
 the executor is hownd to distribute, equit- (jc) Castilion v. Executor of Smith, Hob. 
 
 able assets he may distribute, but in the 283. 
 distribution of them he is governed by (y) Bro. Abr. Exor. pi. 109. 
 
EXECUTOR. 739 
 
 the plaiatiff shall have a verdict and judgment for so much de 
 honis testatoris in the hands of the executor, and judgment 
 quaifido, &c., for the residue {z). In debt against two executors, if 
 they plead, either collectively or severally, "fully administered," 
 and the jury find that the one has assets and the other has 
 not, the verdict and judgment shall be against him only -who is 
 found to have assets, and the other shall go quit (a). An execu- 
 trix, after probate and after judgment recovered against her for a 
 debt due from her testator, by deed assigned all his property and 
 effects to trustees for the benefit of his creditors ; it was held the 
 assignment was valid as between the trustees and an execution 
 creditor (6). 
 
 Costs. — Where the cause of action is such, that the executor 
 might have declared in his own right, he is liable for costs, if he is 
 nonsuited (c). Where an executrix pleaded ^xBt, non assumpsit ; 
 2ndly, ne unques executrix ; and Srdly, plene admiinistravit ; and 
 issues on the first pleas were found for the plaintiff, and on the 
 last for the defendant ; it was held, that, the last plea being a 
 complete answer to the action, the defendant was entitled to the 
 general costs of the trial {d). 
 
 Plaintiff sued as administratrix, upon promises to the intestate, 
 and upon an account stated with her as administratrix of monies 
 due to the intestate, and a promise to pay her : it was held, that it 
 thereby appeared that the contract was one made between the 
 plaintiff wad another person within the words of 23 Hen. VIII. 
 c. 15, and, therefore, that, after a nonsuit, the defendant was en- 
 titled to costs (e). Declaration stated, that the defendant being 
 indebted to the testator, at the time of his death, in consideration 
 thereof, promised the plaintiff as executor to pay him the amount. 
 The Statute of Limitations was pleaded; it was held, that the 
 plaintiff being nonsuited was liable to costs, although he did not 
 declare upon an account stated (/). But where the action was 
 brought by the executor upon a contract entered into by, or for a 
 wrong done to, the testator, the executor was not liable to costs 
 under the above act (g). Now, however, by .3 & 4 Will. IV. c. 42, 
 s. 81, in every action brought by any executor or administrator in 
 right of the testator or intestate, such executor or administrator 
 shall, unless the court in which such action is brought, or a judge 
 of any of the said superior courts, shall otherwise order, be liable 
 
 (k) Harrison v. Beedes, cited 3 T. R. pany v. Marston, 7 H. & N. 148. 
 
 688. Judgment was formerly entered in (c) Orimstead v. Shirley, 2 Tannt. 116 ; 
 
 such a case for the whole debt ; Lee v. Jones v. Jones, 1 Bingh. 249. 
 
 Sidford, 1 Roll. Rep. 68 ; but execution (d) Edwards v. Bethel, 1 B. & Aid. 
 
 taken out only for the sum found by the 254 ; Sagg v. Wells, 8 Taunt. 129, ace. 
 
 verdict. "Wms. Exors. 1790 (5th edit.). (e) Jobson v. Forster, 1 B. & Ad. 6. 
 
 (a) Bellew v. Juckleden, 1 Roll. Abr. (/) Slater v. Lawson, 1 B. & Ad. 893. 
 
 929, (B.) pi. 5 ; Parsons v. Hancock, 1 (g) Barnard v. Higdon, 3 B. & Aid. 
 
 M. &M.330. 213. 
 
 (5) The Wolverhampton Banling Com- 
 
730 EXECUTOR 
 
 to pay costs to the defendant, in case of being nonsuited or a 
 verdict passing against the plaintiff. An executor suing on a 
 count upon promises to himself as executor, stating a considera- 
 tion, partly of money due to testator in his lifetime, and partly 
 of an account stated with himself as execiitor, is liable to costs if 
 nonsuited, and cannot be relieved by the court or a judge under 
 this statute Qi). In order to induce the court to exempt an execu- 
 tor who has failed, from costs, it is not sufficient that the action 
 has been brought bond fide, under counsel's advice, and that it has 
 been defeated on a difficult point of law, unless there be improper 
 conduct on the part of the defendant. Unnecessary prolixity in 
 the pleadings is not such conduct : nor omitting to ' give the 
 plaintiff information, which might have prevented his proceeding 
 with the action, i.e. if the plaintiff did not apply for the in- 
 formation (i). 
 
 (K) SpencB v. Albert, 2 A. & E. 785. (i) F(wley v. Briant, 3 A. & E. 839. 
 
731 
 
 CHAPTER XX. 
 FACTOE. 
 
 PAGE 
 
 Of the Nature of his Employment . . ... 731 
 
 Power and Authority ........ 733 
 
 Lien • . ... 740 
 
 lAahUity of Principal ........ 742 
 
 6 Geo. I7.C.U 742 
 
 5 <fc 6 Fici. c. 39 . . . 746 
 
 Of the Nature of the Employment of a Factor. — A factor is an 
 agent, who is commissioned by a merchant or other person to sell 
 goods for him, and to receive the produce. Foreign factors are 
 agents residing here, commissioned by merchants resident abroad, 
 or the contrary. Home factors are agents resident in England, 
 commissioned by merchants also resident in England. A factor is 
 usually paid for his trouble by a commission of so much per cent. 
 on the goods sold. But sometimes he acts under a del credere 
 commission ; in which case, for an additional premium beyond the 
 usual commission, he undertakes for the credit of the persons to 
 whom he sells the goods consigned to him by his principal. 
 
 "Bel credere is an Italian mercantile phrase, which has the 
 same signification as the Scotch word warrandice, or the English 
 word guarantee. A factor, who has general orders to dispose of 
 goods for his principal to the best advantage, is bound to exercise 
 that degree of diligence which a prudent man exercises in his own 
 . affairs, and consequently, the factor is authorized to dispose of the 
 goods according to the best terms which can be obtained at the 
 time ; and if it shall appear that he has done ?o, and that he has 
 sold the goods to persons in reputed good circumstances at the 
 time, and to whom at that time he would have given credit in his 
 own affairs, he will not be liable to his principal, although some of 
 these should fail ; and for such trouble the fadtor is generally paid 
 by a commission of so much per cent, upon the goods sold. Ac- 
 cording to the above practice the principal runs all the risk, and 
 the factor is sure of his commission whether the event be favour- 
 able or not. Many merchants do not choose to run this risk, and 
 to trust so implicitly to the prudence and discretion of their 
 factor; and, therefore, the agreement called del credere was 
 invented, by which the factor, for an additional premium beyond 
 
732 FACTOE. 
 
 the usual commission, when, he sells his goods on credit, becomes 
 bound to warrant the solvency of the purchasers " (a). 
 
 In Qrove v. Dubois, 1 T. E. 112, the effect of a commission del 
 credere was discussed, and the court decided that it was not merely 
 a conditional undertaking and guarantee from the person taking it, 
 that he would pay if some other person did not, but that it was an 
 absolute engagement from him, and made him liable in the first 
 instance; and the same doctrine was acquiesced in, and acted 
 upon, in Bize v. Dichason, 1 T. E. 285, cited in Koster v. Eason, 
 2 M. & S. 112; but this doctrine has since been questioned, 
 and may now be considered to be overruled, later cases having 
 established, that the commission imports, that if the vendee does 
 not pay, the factor will, and that it is a guarantee from the factor 
 to the principal against any mischief to arise from the vendee's 
 insolvency (6). " A higher reward is paid, in consideration of their 
 taking greater care in sales to their customers, and precluding all 
 question whether the loss arose from negligence or not, and also 
 for assuming a greater share of responsibility than ordinary agents, 
 viz. responsibility for the solvency and performance of their con- 
 tracts by the vendees. This is the main object of the reward being 
 given to them, and though it may termi/rMte in a liabiUty to pay 
 the debt of another, that is not the irnimediate object for which 
 the consideration is given" (c). It is not necessary, therefore, 
 that the del credere commission should be evidenced by writing 
 under the Statute of Frauds. S. G. Where a factor, under 
 a commission del credere, sold goods, and took accepted bills from 
 the purchasers, which he indorsed to a banker at the place of sale, 
 and having received the banker's bill (payable to the factor's order) 
 on a house in London, indorsed and transmitted it to his principal, 
 who got it accepted ; it was held, that on the failure of the acceptor 
 and drawer of this bill, the factor was answerable for the amount (d). 
 
 A factor differs from a broker in some impoi-tant particulars. A 
 factor may buy and sell in his own name as well as in the name of 
 his principal. A broker is always bound to buy and sell in the 
 name of his principal, A factor is entrusted with the possession, 
 management, control, and disposal of the goods to be bought or 
 sold, and has a special property in them, and a lien on them. A 
 broker, on the contrary, has usually no such possession, manage- 
 ment, control or disposal of the goods, and consequently has no 
 such special property or lien. Storey on Agency, s. 34. But the 
 character of factor and broker is, in practical business, frequently 
 combined. 
 
 (a) Arg. Mackemw v. Scott, 6 Bro. P. (c) Per Parke, B., Cmtmier v. HastU, 
 
 C. 287, Tomlin's edit. 8 Exch. 56. 
 
 (J) ffmnby V. lacy, 6 M. & S. 171. {d) Mackenzie v. Scott, 6 Bro. P. C. 
 
 See Morris v. Oleasiy, 4 M. & S. 574 ; 280, Tomlin's edit. 
 BaJcer v. Lwnghorn, 6 Taunt. 519. 
 
FACTOE. 733 
 
 Power and Authority.— By the common law, a factor, as such, 
 had not any authority to pledge, so as to transfer his lien to the 
 pawnee, or to barter (e), but only to sell the goods of his princi- 
 pal (/). Hence, if a factor pledged the goods of his principal, the 
 latter might recover the value of them in trover, against the pawnee, 
 on tendering to the factor what was due to him, without making 
 any tender to the pawnee {g). The same rule held with respect to 
 a bill of lading which had been indorsed to a factor by his principal: 
 for the bill of lading, which is the symbol of the delivery of posses- 
 sion, cannot give a factor a greater authority than the actual pos- 
 session of the goods themselves. Hence, as a factor could not 
 pledge the goods of his principal by a delivery of the goods, so 
 neither could he do it by an indorsemint and delivery of the bill of 
 lading ; for, although the indorsement of a bill of lading gave the 
 indorsee an irrevocable right to receive the goods, where it was 
 intended as an assignment of the property in the goods, yet it would 
 not have that operation, where it was intended as a deposit only, by 
 a person who Avas not authorized to make such deposit (A). Nor 
 did the factor acquire an authority to pledge, where bills were 
 drawn by the principal in advance of a consignment made to the 
 factor for sale (i). But the law on this subject is now altered, see 
 •post, p. 740. 
 
 The mere relation of principal and factor confers ordinarily, and 
 in the absence of any special instructions, an authority to sell, at 
 such times and for such prices as the factor may, in the exercise of 
 his discretion, think best for his employer (Jc) ; and it is not, it 
 seems, his duty, in the absence of any special contract, to sell for 
 ready money only (Z). He has not, as a position of law, authority 
 to sell to repay himself advances made to his principal, after notice 
 that he (the factor) requires to be repaid, and contrary to orders 
 given him by his principal, although if there be a well-understood 
 practice with factors to sell to repay themselves advances, such a 
 practice would be evidence that the advances were made on the 
 footing of an agreement that the factor should have ah irrevocable 
 authority to sell, in case the principal made default (m). 
 
 Where goods are permitted to remain at a wharf in the name of 
 a broker, who is accustomed to deal in the article, and the broker 
 sells them, the principal will be bound by such sale, although he 
 did not expressly authorize the broker to sell (n). But this is not 
 so of a common person, not a general agent, and who is not in the 
 
 («) Ouerreiro v. Peile, 3 B. & Aid. (I) Boornum v. Brown, 3 Q. B. 511 ; 
 
 616. (ira error) 11 CI. & F. 1. 
 
 (/) Shipley v. Kyrmr, 1 M. & S. 484 ; (m) Smart v. Sandars, 5 0. B. 895 ; 
 
 Boysm. v. Coles, 6 M. & S. 14. Estabaru de Comas app. v. Prost resp., 12 
 
 (g) DauUgny v. Vmal, 3 T. K. 604. L. T. (N. S.) 682, Priv. Ca. 
 
 (h) Newsom\. Thornton, 6 East, 17. (n) Pichering v. Busk, 15 East, 38. 
 
 (i) Graham v. Syster, 6 M. & S. 1. See also Whitehead v. Tuckett, 15 East, 
 
 • (Jc) Sma/rty. Sandars, 3 C. B. 380. 400. 
 
734 FACTOE. 
 
 habit of buying and selling for third parties, unless the real owner, 
 by allowing such person to have the possession and vndicia of pro- 
 perty, holds such person out to the world as the real owner (o). 
 A factor may sell on credit, although not particularly authorized 
 by the terms of his commission so to do, for such is the daily 
 usage {p). 
 
 An agent employed generally, to do any act, is authorized to do 
 it only in the usual way of business. Hence, as stock is sold 
 usually for ready money only, a broker employed to sell stock 
 cannot sell it upon credit, without a special authority, although 
 acting bond fide, and with a view to the benefit of his principal (g). 
 A person who employs a broker on the Stock Exchange, impliedly 
 gives him authority to act in accordance with the rules there esta- 
 blished, although such principal may himself be ignorant of the 
 rules (r). So where a Liverpool broker, acting for both parties, 
 negotiated a sale by the plaintiff to the defendant of certain wool, 
 " the names of the vessels to be declared as soon as the wools were 
 shipped," and by the custom of Liverpool it was usual, where the 
 contract contained a stipulation that notice of an event should be 
 given by the vendor to the vendee, for the vendor to give notice to 
 the broker, who communicated it to the vendee, it was held that 
 the defendant was bound by such usage, although the broker 
 omitted to communicate such notice to the vendee (s). "I con- 
 sider it to be clear law, that if there is at a particular place an 
 established usage in the manner of dealing and making contracts, 
 a person who is employed to deal or make a contract there has an 
 implied authority to act in the usual way, and if it be the usage 
 that he should make the contract in his own name, he has autho- 
 rity to do so " (Q. 
 
 But " when such an usage or custom is intended to be rehed 
 upon, it ought to be clearly and distinctly proved to exist, and 
 to be so general and notorious that persons dealing in the market 
 could easily ascertain it, and must be presumed to have been 
 aware of it ; and in our judgment, in order, to bind persons who 
 were not aware of it, it must also appear to be a reasonable 
 usage " (tt). When goods are consigned to joint factors, they are 
 in the nature of co-obligors, and are answerable for one another for 
 the whole {x). 
 
 According to the general rule of law, a sale by a factor creates a 
 contract between the owner and buyer {y). This rule is not affected 
 
 (o) Dyer v. Pearson, 3 B. & C. 38. Moo. P. C. 361 ; but see Bowlby v. Bell, 
 
 (p) Per Willes, C. J., "WiUes, 406. 3 C. B. 284. 
 
 (q) Wiltshire v. Sims, 1 Campb. 258. (m) Per Bovill, C. J., deliyering the 
 
 (r) Sutton V. Tatham, 10 A. & E. 27 ; judgment of the court in Orissell v. Bris- 
 
 BayUy v. WilHns, 7 C. B. 886. tmoe, L. E. 3 C. P. 128 ; 37 L. J., C. P. 
 
 (s) Greames v. Legg, 11 Exch. 642. 99 ; ace. Coles Y.Brisfowe, L.K. 6, Eq. 149. 
 
 («) Per Parke, B., BaycUffe v. Butter- (x) Godfrey v. Saumders, 3 Wila. 114. 
 
 worth, 1 Exch. 428; see Lord Kimgs- {y) Scrimshwe y. Alderton, ^Str.llSi. 
 
 doion's judgment, Kmhner v. Temis, 12 But this is rather an exception to the 
 
FACTOR. 735 
 
 by a custom on a Stock Exchange, that a contract made by a 
 broker for an undisclosed principal, shall be regarded as the con- 
 tract of the broker only (z) ; and it holds even in cases where the 
 factor acts upon a del credere commission (a). Hence, if a factor 
 sells goods, and the owner gives notice to the buyer to pay the 
 price to him and not to the factor, the buyer will not be justified 
 in afterwards paying the factor ; and the owner will be entitled to 
 recover the price in an action against the buyer, unless the factor 
 has a lien on such price (&). If a factor sells goods in his own 
 name, the purchaser has a right to set off a debt due from the 
 factor to him in an action by the principal for the price of the 
 goods (c). And the rule is the same where the factor sells to an 
 agent without stating at the time that he is selling as factor, and 
 the real purchaser is ignorant of the fact, although his agent, by 
 previously acquired knowledge, knew it (d). Where a contract, 
 not under seal, is made with an agent in his own name, for an un- 
 disclosed principal, either the agent or the principal may sue upon 
 it ; the defendant, in the case where the principal sues, being en- 
 titled to be placed in the same situation at the time of the dis- 
 closure of the real principal, as if the agent had been the con- 
 tracting party. This is a weU-established rule of law, frequently 
 acted upon in sales by factors, agents, or partners, but it may 
 equally be appUed to other cases (e). Thus where a factor, acting 
 under a del credere commission, sells goods as his own, and the 
 buyer does not know of any principal, the buyer may, in an action 
 brought against him by the principal, set off a debt due to him 
 from the factor (/). But if goods are bought by a broker who 
 does not mention the name of his principal, the principal cannot 
 set off against the price of the goods a debt due to him from the 
 broker, but is still liable to the vendor {g). 
 
 There is, however, a distinction between a factor and a broker. 
 A factor is a person to whom goods are consigned for sale by a 
 merchant residing abroad or at a distance from the place of sale, 
 and he usually sells in his own name, without disclosing that of his 
 principal Qi) ; the merchant, therefore, with full knowledge of these 
 circumstances, tnists him with the actual possession of the goods, 
 and gives him authority to sell in his own name. But the broker 
 is in a different situation, he is not trusted with the possession of 
 the goods, and he ought not to sell in his own name. The principal 
 
 general rule of law, which is, that in (c) Per Lord Tmterdm, C. J., Taylor 
 
 order to bind a principal upon a written. v. Kyrmr, 3 B. & Ad. 334. 
 
 contract made by his agent, it should (d) Dmm v. Norwood, 8 L. T. (S. S.) 
 
 be in his own name, and appear to be 241. 
 
 Ms own contract. Storey^ on Agency, (e) Sims v. Bond, 5 B, & Ad. 389. 
 
 s. 181. * (/) Qeorge v. Glagett, 1 T. R. 359. 
 
 ' (2^ Bummhrm v. Lucas, 2 Car. & K. See Blackburn v. Scholes, 2 Campb. 343 ; 
 
 152 Pmchell v. Salter, 1 Q. B. 197. 
 
 (a) Hornby v. Lacy, 6 M. & S. 166. (g) Wa/rmg v. Faveiick, 1 Campb. 85. 
 
 il) See Drinkwaterv. Goodmim, Cowp. (h) See Johnstmr, v. Usbome, 11 A. & 
 
 251. E. 557. 
 
736 FACTOR. 
 
 "who trusts a broker has a right to expect that he will not sell in 
 his own name. Hence, where an action was brought by a mer- 
 chant to recover the price of his own goods, and the demand was 
 resisted on the ground that the defendants, who were buyers of the 
 goods, did not purchase them of the plaintiffs, but of Coles and Co., 
 and that they had a counter demand against Coles and Co., which 
 they were entitled to set off against the price of the goods ; it was 
 held, that the defendants had not any right of set-off; for the 
 plaintiffs had not enabled Coles and Co. to appear as proprietors 
 of the goods ; and although Coles and Co. had not disclosed the 
 name of their principal, and were merchants as well as brokers, 
 yet in this case they had delivered to the plaintiffs a sold note, in 
 the proper form, supposing them to have sold in their character of 
 "brohers, and they had delivered to the defendants a bought note, 
 and had not taken any counter note from the defendants ; there 
 was enough, therefore, to have raised a strong presumption in 
 the minds of the defendants that the sale was in the character 
 of brokers. Coles and Co. did not say they sold the goods as 
 ■their own ; the defendants did not ask any questions ; and further, 
 it appeared that the delivery order had been signed by the plain- 
 tiffs (i). 
 
 Where a factor to a person beyond sea buys or sells goods for 
 the principal in his own name, an action will lie against him or for 
 him, in his own name ; for the credit will be presumed to' be given 
 to him in the first case, and in the last the promise will be presumed 
 to be made to him — and the rather so, as it is so much for the 
 benefit of trade (ft). " Where the principal resides abroad, he is 
 presumed to be ignorant of the circumstances of the party with 
 whom his factor deals, and therefore the whole credit is considered 
 as subsisting between the contracting parties (Q." " There may be 
 a particular course of dealing with respect to trade in favour of a 
 foreign principal, that he shall not be liable in cases where a home 
 principal would be liable (m)." But the above presumption is one 
 of fact, and not of law. " Ordinarily, where an English agent con- 
 tracts on behalf of a principal residing abroad, the agent is pri/md 
 facie considered to pledge his own credit, because it is highly 
 improbable that the person he is contracting with would give credit 
 to the foreigner (n)." But there is no presumption of law to that 
 effect, and therefore, where an agent makes a contract expressly as 
 agent for a foreign principal, and nothing appears in the contract 
 indicative of an intention that the agent shall be personally liable, 
 no action will lie against the agent (o). 
 
 (i) Bwringv. Carrie, 2 B. & Aid. 137. (l) Per Ohambre, J., in Boughton v. 
 
 See Gordon v. BUis, 2 C. B. 821 ; War- Matthews, 3 B. & P. 490. 
 
 ner v. M'Kay, 1 M. & W. 591. (m) Per Bayley, J., 15 East, 69. 
 
 (Jc) Gonzales v. Sladen, Bull. N. P. (n) Mahoney v. KeJcuU, 14 C. B. 390. 
 
 130. (o) Grem v. K^ke, 18 0. B. 549. 
 
FACTOR 737 
 
 A bill broker who receives a bill merely for the purpose of pro- 
 curing it to be discounted for his customer, has no right to mix it 
 with bills of his other customers, and to pledge the whole mass as 
 a security for the advance of money (p). Parlce, B., delivering 
 judgment and commenting on the foregoing case in Foster v. 
 Pearson, 1 C. M. & R 856, observed, that in the absence of 
 evidence as to the nature of such an employment, a bill broker 
 must be taken to be an agent to procure the loan of money on each 
 customer's bill separately ; and that he had therefore no right to 
 mix bills together, and pledge the mass for one entire sum. In 
 truth, a bill broker is not a person known to the law with certain 
 prescribed duties, but his employment is one which depends entirely 
 upon the course of deaUng. It may differ in different parts of the 
 country ; it may have bounds more or less extensive in one place 
 than in another. What is the nature of its powers and duties in 
 any instance is a question of fact, and is to be determined by the 
 usage and course of dealing in the particular place. 
 
 The law has been settled, by a variety of cases, that an un- 
 known principal, when discovered, is liable on the contracts which 
 his agent makes for him, but this rule must be taken with some 
 qualification ; for a party may preclude himself from recovering 
 over against the principal, by knowingly making the agent his 
 debtor (g). " I agree that where the seller knows the principal at 
 the time, and yet elects to give credit to the agent, he must be 
 taken to have abandoned his right, and cannot afterwards charge 
 the principal." Per Bayley, J., S. G. Where, as on the Stock 
 Exchange, there is a general usage to give credit to the broker, 
 even though the principal be disclosed ; but credit is sometimes 
 given to the principal when the broker's credit is not thought 
 sufficient, it is a question for the jury, to which of the two the 
 credit is in fact given (r). 
 
 The above rule, as to the liability of an undisclosed principal, has 
 been applied to a case where the agent, at the time when he bought 
 the goods of the plaintiff at Liverpool, said that he bought them 
 for a house at Dumfries, for which house he had bought goods of 
 the plaintiff the season before, but did not name the principal, nor 
 did. the seller ask it ; and although the seller in the meantime 
 debited the agent with the price (s). The rule is subject to this 
 further qualification, that the state of the account between the 
 principal and agent has not been altered to the prejudice of the 
 principal, so as to make it unjust for him to be called upon by the 
 plaintiff for the money ; as where the seller by his words or conduct 
 induces the principal to believe that a settlement has been come to 
 
 {p) Per Lord Lyndhwst, delivering (r) Mortimer \. M'Callan, 6 M. & W. 
 
 ■judgment, Eaynes v. Foster, 2 Cr. & M. 58. , n r. . n 
 
 2397- (s) Thomson v. Davmport, 9 B. & C. 
 
 ( j) Per Lord JEUeniorough, in Paterson 78. 
 V. Oandaseqm, 15 East, 68. 
 
 VOL. I. ^ ^ 
 
738 FACTOR. 
 
 lietween him (the seller) and the agent of the purchaser, in con- 
 sequence of which the principal pays the amount of the debt to 
 the agent {f). So where the seller drew bills on the agent for; the 
 price of goods sold, and iufoi-med the principal thereof, who there- 
 upon made large remittances to the agent on account of these 
 goods (u). 
 
 Evidence is admissible, on behalf of one of the contracting 
 parties, to show that the other was agent only, though contracting 
 in his own name, and so to fix the real principal (v) ; but if the 
 agent contracts in such a form as to make himself personally re- 
 sponsible, he cannot aftenvards, whether his principal were or were 
 not known at the time of the contract, relieve himself from that 
 responsibility. Thus, where L. and Co., brokers at Liverpool, sold 
 hemp by auction at their rooms, and gave an invoice, describing 
 the goods as " bought of L. and Co.," and received part of the 
 price, but failed to deliver the goods. An action being brought 
 against them by the purchaser for the non-delivery, and for money 
 had and received ; it was held that L. and Co. had made themselves 
 responsible as sellers by the invoice ; and could not defend them- 
 selves by evidence tending to show that they sold as agents, and 
 had intimated that fact before and at the time of the sale, and that, 
 the principals being indebted to L. and Co., the invoice had been 
 made out in their names, according to a custom of brokers in 
 Liverpool, to secure the passing of the purchase-money through 
 their hands (x). 
 
 In the above case the agents failed to exonerate themselves from 
 liability by proving that the principal was liable. The converse is 
 also true, that the principal cannot exonerate himself by showing 
 that the agent is liable ; and in an action against a principal for 
 not accepting tallow (y) it was held, that it was not competent to 
 the defendant to give evidence that by the custom of the tallow 
 trade, under certain contracts, a party may reject the undisclosed 
 principal, and look to the broker for the completion of the con- 
 tract ; but where the action was against the broker, such evidence 
 was admitted (z). Where the agent expressly contracts as princi- 
 pal, e. g., by describing himself in a charter-party as " owner " of a 
 ship, the principal cannot sue upon the charter-party and give 
 evidence that it was made on his behalf (a). 
 
 A person who has made a contract as agent for a third person 
 cannot sue as principal without giving notice to the defendant, 
 
 (t) Heald v. Kewworthy, 10 Exch.' 739. the agreement in pursuance of his au- 
 
 {u) Smith v. Anderson, 7 C. B. 21. thority is in law the act of the principal." 
 
 Such a defence is admissible under the Per Parke, B., Higgins v. Senior, 8 M. 
 
 general issue, S. O. & "W. 844. 
 
 (d) " This evidence in no way contra- {x) Jones v. lAttUdale, 6 A. & E. 490. 
 
 diets the written agreement. It does not (y) Trueman v. Loder, 11 A. & E. 589. 
 
 deny that it is binding on those whom on («) Bvmfrey v. Dale, 7 E. & B. 266 ; 
 
 the face of it it purports to bind, but s&&post, p. 811. 
 
 shows that it also binds another, by rea- (a) HimbU v. ffunter, 12 Q. B. 310. 
 
 son that the act of the agent in signing See post, p. 811. 
 
FACTOE. 739 
 
 before action brought, that he is the party really interested (6). 
 " Perhaps it may be doubted whether that case " (Bickerton v. 
 Burrell) " was well decided on such a distinction, as it may fairly 
 be argued, that it would have been quite sufficient to pi-event any 
 possible inconvenience or injustice, and more in accordance Avith 
 former authorities, if the court had held, that a party named as 
 agent under such circumstances as existed in that case was entitled, 
 on showing himself to be the real principal, to maintain the action, 
 the defendant being, however, allowed to make any defence to 
 which he could show himself to be entitled, either as against the 
 plaintiff, or as against the person named as principal by the plaintiff 
 in the contract. In many cases, such as contracts, in which the 
 skill or solvency of the person, who is ^aifned as the princi/pal, may 
 reasonably be considered as a material ingredient in the contract, 
 it is clear that the agent cannot then show himself to be the real 
 principal, and sue in his own name ; and perhaps it may be fairly 
 urged, that this, in all executory contracts, if wholly unperformed, 
 or if partly performed, without the knowledge of who is the real 
 principal, is the general rule " (c). The above rule, however, does 
 not apply to cases where the contract is made by the plaintiff as 
 agent, but for an unnamed principal ; in such cases, therefore, the 
 plaintiff on showing that he is his own principal, is entitled to 
 recover (d). 
 
 Goods sold by a broker for a principal not named, upon the 
 terms, as specified in the usual bought and sold notes (delivered 
 over to the respective parties by the broker) of " payment in one 
 month, Tnoney," msLj be paid for by the buyer to the broker within 
 the month, and that payment may be made by a bill of exchange, 
 accepted by the buyer and discounted by him within the month, 
 although such bill had a longer time to run before it became 
 due (e). Where money is paid by an agent upon an agreement 
 made with him in his own name, the principal may recover it back 
 upon the rescinding of the agreement (/). The plaintiffs, who were 
 brokers, bought goods of the defendant on account of H. and by 
 his authority. The purchase was made in their own names, the 
 vendor being told that there was a principal, who, .however, was 
 not named. The plaintiffs afterwards, under a general authority 
 from H., contracted to sell the same goods, which the defendant 
 had not yet delivered. H., on hearing of the latter contract, told 
 the plaintiffs that he would have nothing to do with the goods, 
 either as buyer or seUer ; and to this the plaintiffs assented. The 
 defendant then refused to deliver the goods, and the plaintiffs sued 
 him for damages sustained by them in consequence ; it was held, 
 that the renunciation of the contract by H., and the plaintiffs' 
 
 • (6) Bickerton v. Binrell, 5 M. & S. 383. (e) Favenc v. Bennett, 11 East, 36. 
 
 (c) Fer Cur., Bayner v. Grote, 15 M. (/) Duke of Norfolk v. Woi-lhy, 1 
 
 & W. 359. Campb. 337. 
 
 {d) Schmaltz v. Avery, 16 Q. B. 6.'55. 
 
 3 B 2 
 
740 FACTOE. 
 
 assent thereto, formed no objection to the plaintiffs' right to re- 
 cover, of which the defendant could take advantage {g). 
 
 Lien. — By the general usage of trade, where there is a course of 
 dealings and general account between the merchant and factor, 
 and a balance is due to the factor, he has a lien on all goods in his 
 hands for such balance of the general account, without regard to 
 the time when, or on what account, he received the goods (A). 
 With respect to this general lien it is to be observed : — 
 
 1st. That it will not attach until the goods come into the pos- 
 session of the factor (*). 
 
 2ndly. The lien exists during such time only as the factor has 
 possession of the goods ; for if he should part with the possession 
 after the lien has attached, the lien is gone Qc). But where a factor 
 is in advance for goods by actual payment, or where he sells under 
 a del credere commission, whereby he becomes responsible for the 
 price, he has a lien on the price, although he should have parted 
 with the possession of the goods (V). And this rule holds, although 
 money should have been advanced by the factor, at the time when 
 he knew that the principal was in insolvent circumstances (m). The 
 owner of goods, being indebted to a factor in an amount exceed- 
 ing their value, consigned them to him for sale : the factor, being 
 also similarly indebted to J. S., sold the goods to him. The factor 
 afterwards became bankrupt ; and on a settlement of accounts 
 between J. S. and the assignees, J. S. allowed credit to them for 
 the price of the goods, and he then proved the residue of the claim 
 against the estate : it was held, that as the factor had a lien on 
 the whole price of the goods, such settlement of accounts between 
 the vendee and the assignee afforded a good answer to an action 
 against the vendee for the price of the goods, brought either by or 
 on account of the original owner (n). 
 
 But where a factor has not any special claim on the goods, and 
 he has disposed of them, whereby he has lost the advantage 
 arising from possession, the debt is to be considered as the debt of 
 the principal, and the factor has no lien on the price. The plain- 
 tiff, who was resident in Ireland, employed two persons, as his 
 factors in London, to sell goods for him, which he had sent to 
 them. _ The factors sold these goods to J. S. for a certain sum ; 
 the plaintiff not knowing to whom they were sold, and J. S. not 
 knowing that they belonged to the plaintiff, the goods having been 
 delivered to him as the goods of the factors. The factors, before 
 
 (g) Short v. SpacJcmm, 2 B. & Ad. ler, J., m Licklarrow v. Masm, 6 East, 
 
 962. 27, n. 
 
 (h) Kruger v. Wilcox, Ambl. 252 ; 1 (I) Drinhwater v. Goodwin, Cowp. 251. 
 
 Kenyon, 32, S. C. ; Gardiner v. Cole- See RoMnson v. EtitUr, 4 E. & B. 957. 
 inmi, cited 1 Burr. 494 ; and per Buller, (m) Foxcroft v. Devonshire, 2 Burr. 
 
 J., 6 East, 28, n. if. P. 931. . , 
 
 (i) Kvnlbch v. Craig, 3 T. E. 119, 783. («) Hudson v. Granger, 5 B. & Aid. 
 
 {k) Sweet v. Pym, 1 East, 4 ; and Bvl- 27. 
 
FACTOE. 741 
 
 payment, became bankrupts, and their debts were assigned by the 
 commissioners to the defendants, who afterwards received from 
 J. S. the money for the goods. The plaintiff having brought an 
 action against the defendants for money had and received, the 
 case was reserved by Holt, C. J., for the opinion of the Court of 
 King's Bench, who gave judgment, after argument, for the plain- 
 tiff (o). This case was afterwards cited before Parker, C. J., at 
 the London Sittings, and allowed to be law ; because, although it 
 was agreed, that payment by J. S. to the factors, with whom the 
 contract was made, would have discharged J. S. as against the 
 principal, yet the debt was not in law due to the factors ; hut to 
 the person whose goods they were ; and therefore it was not as- 
 signed to the defendants, by a general assignment of their debts, 
 but remained due to the plaintiff as before ; and having been paid 
 to the defendants, who had not any right to have it, it must be 
 considered in law as paid for the use of him to whom it was due ; 
 and, consequently, an action might be maintained by him as for 
 money had and received to his use. 
 
 The plaintiffs consigned a quantity of tar to R. S., as their fac- 
 tor. There had been mutual dealings between one of the plain- 
 tiffs and R. S., the accounts of which were then unsettled. On 
 the arrival of the goods, the factor having received the bill of 
 lading, sold the tar to J. S., to be paid for in promissoiy notes, 
 payable at four months, and the vendee accordingly gave the fac- 
 tor, in part payment, two promissory notes. Soon afterwards the 
 factor became bankrupt, and the defendants were chosen assignees ; 
 they received the money due upon the notes ; settled the account 
 with the vendee ; and received the balance. An action for money 
 had and received having been brought by the plaintiffs against the 
 assignees for the recovery of the money received on the notes, 
 and the money received on the settlement of the account, it was 
 held, that the plaintiffs were entitled to recover both sums ; 
 Willes, C. J. (who delivered the opinion of the court), observing, 
 as to the first, that the notes, having been in the hands of the 
 bankrupt at the time of his bankruptcy, were capable of being dis- 
 tinguished from the rest of the bankrupt's estate, and therefore 
 could not be applied to the bankrupt's debts ; consequently the 
 plaintiffs were entitled to recover the value of those notes 
 which had been received by the defendants, in like manner as if 
 the goods had i-emained in specie, unsold in the bankrupt's hands 
 at the time of the bankiniptcy, the plaintiffs might have recovered 
 them in an action of trover (p). As to the second sum, the general 
 rule was, that if a person received money which ought to be paid 
 to another, an action would lie as for money had and received ; 
 that the assignees having received the money, which belonged to 
 the plaintiffs, they ought to have paid it to the plaintiffs ; and not 
 
 (o) Garratt v. Ctdlum, cited Willes, (p) Taylor v. Plumer, 3 M. & S. 575, 
 
 405 ; Bull. N. P. 42, S. C. ace. 
 
742 FACTOE. 
 
 having done so, this action would lie against them for so much 
 money had and received to the use of the plaintiffs {q). 
 
 3rdly. A factor has not a lien in respect of debts which have 
 accrued previously to the time at which his character of factor 
 commenced. A., a factor, sold the goods of B., in his own name, 
 to 0. : Q, without paying for these goods, sent another parcel of 
 goods to A., to sell for him, not having employed A. as a factor 
 before. C. became bankrupt, and his assignees claimed the goods 
 sent by C. to A, which still remained unsold, tendering the charges 
 upon those goods. A. refused to deliver them, claiming a lien 
 upon them for the price of the former goods sold by him to C, the 
 balance between A. and B. being in favour of A. An action of 
 trover having been brought by the assignees against A., for the 
 value of the goods sent by C. ; it was held, that they were entitled 
 to recover (r). 
 
 LiabiUty of Principal. — The maxim that the principal is cwiUy 
 responsible for the acts of his agent (done in the course of the 
 agency), universally prevails both in courts of law and equity (s). 
 Upon this principle it was held, by Holt, C. J., that a merchant 
 was answerable for the deceit of his factor, who had sold some silk 
 to the plaintiff, as silk of a superior quality, knowing it to be silk 
 of an inferior quality {t). 
 
 Notice to the principal is notice to all his agents, if there be 
 reasonable time to communicate that notice to the agents before 
 the event which raises the question happens (u). So notice to the 
 agent is notice to the principal (v). 
 
 6 Geo. IV. c. 94. — The law, established by the decisions as to the 
 deposit and pledge of goods, (ante, p. 731,) and also that relating 
 to goods shipped in the names of persons who were not the actual 
 proprietors thereof, having been found injurious to the interests of 
 commerce, the 4 Geo. IV. c. 87 was passed to remedy the evil. 
 That act was substantially re-enacted and extended by the 6 Geo. 
 IV. C.-94!, usually called "The Factors' Act," by sect. 1 of which it 
 is provided, that — 
 
 Any person intrusted for the purpose of consignment or sale 
 with any goods, who shall have shipped such goods in his own 
 name, and any person in whose name any goods shall be shipped 
 by any other person shall be deemed to be the true owner, so far 
 as to entitle the consignee to a lien thereon, in respect of any money 
 or negotiable security advanced or given by such consignee to or 
 for the use of the person in whose name such goods shall be shipped, 
 or in respect of any money or negotiable security received by him 
 
 {q) Scott V. Surman, Willes, 400. avUe, tit. "Deceit." 
 
 (r) Houghton v. Matthews, 3 B. & P. (m) Mayhew v. Eames, 3 B. & C. 601 ; 
 
 486. Willis V. Bank of England, 4 A. & E. 
 
 (s) 4 T. R. 66, per Kenyan, C. J. 21. 
 
 (/!) Hern v. Nichols, Salk. 289. See (v) Per AsliJmrst, J., 1 T. B- 16. 
 
FACTOE. 743 
 
 to the use of such consignee, in like manner and to all intents and 
 •purposes, as if such person was the true owner ; Provided such 
 consignee shall not have notice by the bill of lading or otherwise, 
 at or before the advance or receipt of the money or security, that 
 the person shipping, or in whose name the goods are shipped, is 
 not the bond fide owner ; — Provided also, that the person in whose 
 name such goods are shipped, shall be taken to have been intrusted 
 therewith for the purpose of consignment or sale, unless the con- 
 traiy appear in evidence. 
 
 By sect. 2, — Any person intrusted with any bill of lading, India 
 warrant, dock warrant, warehouse keeper's certificate, wharfinger's 
 certificate, warrant or order for the delivery of goods, shall be 
 deemed to be the true owner of the goods described in the said 
 documents, so far as to give validity to any agreement thereafter 
 entered into by such person for the sale or disposition of the goods, 
 or for the deposit or pledge thereof, as a security for any money 
 or negotiable instrument advahced or given by other persons upon 
 the faith of such documents; Provided such persons, &c. shall 
 not have notice by such documents, or otherwise, that the person 
 intrusted is not the hona fide owner of the goods so sold or 
 pledged. 
 
 The above section only a,pplies to persons intrusted with such 
 documents as factors and agents, and not to the case, of a party in 
 possession in his own right (cc) ; and a clerk is not an agent within 
 the meaning of the act {y). It was held also to give validity only 
 to pledges by a factor of documents with which the real owner had 
 previously intrusted him, and that it did not extend to the pledge 
 of documents created by the factor himself (0) ; except where they 
 were necessary for the purpose of selling the goods, in which case 
 the owner would, in the absence of evidence to the contrary, be 
 held to have impliedly intrusted him with such documents (a). 
 " It is very clear," said Parke, B., in delivering the judgment of the 
 Court of Exchequer in Phillips v. Huth, " that this section relaxes 
 the rule of the common law only with respect to those who deal 
 with persons, who are not merely in possession of, but are also in- 
 trusted with, the symbol of property. However great the hardship 
 may be on innocent persons, and whatever they may have supposed 
 from finding another in possession of a document bearing the in- 
 dicia of property in himself, still the statute does not apply, and 
 they can acquire no title by virtue of it, unless the document has 
 been intrusted to that person — ^not that it is necessary that the 
 owner should have had personal possession of the document so as 
 to be able to mark it with his name, and himself delivered it to the 
 
 (a;) Jeiikyns v. Usborne, 7 M. & G. 2 M. & Rob. 25 ; but see the observation 
 
 678. oiAlderson, B., in Phillips v. Huth, 6 
 
 (v) Lamb v. Atleniomigh, 1 B. & S. M. & W. 580. 
 
 831. (a) Hatfield v. Phillips, 9 M. & W. 
 
 (2) PerAlderson, B. , inClose v. Holmes, 647 ; {in error) 14 M. & "W. 665. 
 
744 FACTOR 
 
 factor ; for if his own agent, general or special, puts it into the 
 hands of the factor with the factor's name on it, or if the factor be 
 instructed by the owner to obtain the document in that state, and 
 does so, no doubt he is 'intrusted' by the owner with it within the 
 meaning of the act. But in order to constitute an intrusting of 
 such a document, it is necessary that the owner should have in- 
 tended the factor to possess it in that form, at the time when he 
 had the possession. Intrusting with the document is essentially 
 different from enabling a person to become possessed of it — 
 from giving him the means of obtaining it." The 5 & 6 Vict. 
 c. 39 (post) was passed to obviate the difficulties raised by this 
 construction. 
 
 Persons who would avail themselves of the provisions of the act, 
 must prove the agreement (6). In this case the defendant had re- 
 ceived, by way of pledge, India warrants from the plaintiff's 
 broker, who had been intrusted with them, without any authority 
 to pledge or sell, under a written agreement. It was held, that the 
 defendant was bound to produce the agreement, on which he relied. 
 East India warrants are not negotiable securities within the above 
 section (c). 
 
 By sect. 3, — In case any person shall accept any such goods in 
 deposit or pledge from any person so intrusted, without notice as 
 aforesaid, as a security for any debt or demand due from the person 
 so intrusted before such deposit or pledge, then such person, so 
 taking such goods in deposit or pledge, shall acquire no further 
 right in the goods or any such document, than was possessed by 
 the person so intrusted at the time of such deposit or pledge ; but 
 such person shall and may acquire and enforce such right as was 
 possessed by the person so intrusted. "The act says, without 
 notice from the documents 'or otherwise.' A person may have 
 knowledge of a fact either by direct communication or by being 
 aware of circumstances which must lead a reasonable man, applying 
 his mind to them and judging from them, to the conclusion, that 
 the fact is so" (d). Where A. deposited dock warrants as a secu- 
 rity for the advance of money and afterwards withdrew them and 
 substituted other dock warrants, it was held, under this section, 
 that the pledgee obtained no greater right to the dock warrants so 
 substituted than A. had at the time of the pledge ; and that A. 
 had no right, there having been no advance of money on the faith 
 of such warrants (e). 
 
 By sect._ 4, — Any person, &c. may contract with any agent in- 
 trusted with any goods, or to whom the same may be coiisigned, 
 for the pwrchase of any such goods, and receive the same of, and 
 
 (6) Evajis V. Trmnam,, 2 B. & Ad. 886. {d) Emiis v. Trmrtum, 1 M. & Kob. 
 
 (c) Taylor v. Kijnm; 3 B. & Ad. 320, 12, 'per Lord Tenterden, C. J. 
 
 where see as to what is a sale or disposi- (e) Bonzi v. Stewart, 4 M. & G. 295 ; 
 
 tion within the section. But see 5 & 6 but see 5 & 6 Vict. c. 39, post, p. 744. 
 Vict. c. 39, post, p. 744. 
 
FACTOE. 745 
 
 pay thesame to, such agent ; and such contract and payment shall 
 be binding against the owner of such goods, notwithstanding such 
 person shall have notice, that the person making such contract or 
 on whose behalf such contract is made, is an agent, provided such 
 contract and payment be made in the usual and ordinary course of 
 business, and that such person shall not, when such contract is 
 entered into or payment made, have notice that such agent is not 
 authorized to sell the goods or to receive the purchase-money. It 
 is difficult to say precisely what is meant by " an agent intrusted 
 with goods : " but a wharfinger is not such a person (/). 
 
 The plaintiffs, cloth manufacturers, were applied to by K, who 
 was a factor and commission agent, for a sample of their cloths on 
 the representation that S. would ;^rchase a certain number of 
 ends. E. had no authority from S., and having obtained possession 
 of the cloth, for purchasing which he was to receive one shilling an 
 end, sold it to the defendants, who bought the cloth bond fide: it 
 was held, that E. was an agent " intrusted " with the cloth within 
 s. 4 (g). 
 
 By sect. 5, — Any person, &c. may take any such goods or docu- 
 ment in deposit or pledge from any such factor or agent, notwith- 
 standing such person sfiall have notice, that the person making 
 such deposit or pledge is a factor or agent ; but then such person 
 shall acquire no further right to the goods, or document for the 
 delivery thereof, than was possessed or might have been enforced 
 by the factor or agent at the time of such deposit or pledge ; but 
 such person shall and may possess and enforce such right as was 
 possessed and might have been enforced by such factor or agent at 
 the time of such deposit or pledge. The right of a factor to pledge 
 under this section depends upon the question whether, upon the 
 whole account between them, the principal is indebted to the 
 factor (li). A broker having accepted bills for his principal on the 
 security of goods then in his hands, pledged the goods with a person 
 who had notice of the agency, but did not inform the principal of 
 this transaction ; it was held, that under this section the broker 
 could transfer such right only as he had, which was a right to be 
 indemnified against the bills which he had accepted, and that the 
 principal, having satisfied those bills, was entitled to have back his 
 goods from the pawnee without paying the amount for which they 
 were pledged (i). The provision in this section refers to a deposit 
 or pledge only, made distinctly as such (Ic). 
 
 It is, however, provided, by sect. 6, that nothing shall be con- 
 strued to prevent the true owner of the goods from recovering the 
 same from his factor or agent before a sale, deposit, or pledge, or 
 
 (/) Monk V. WJiUlenhtry, 2 B. & Ad. (h) Robertson v. Kensiiiglon, 5 M. & 
 
 486. Seo as to the meaning of the word Ey. 381. . 
 
 "intrusted," anU, p. 741, Phillips v. (i) Fletcher v. Heath, 7 B. & C. 517. 
 
 ffuth, 6 M. & W. 580. ^ (ic) Thompson v. Farmer, M. & Malk. 
 
 (q) Baine v. Swainson, 4 B. & S. 270. 48. 
 
746 FACTOK. 
 
 from the assignees of such factor or agent in the event of his bank- 
 ruptcy ; nor to prevent the owner from recovering from any person 
 the price agreed to be paid for the purchase of such goods, subject 
 to any right of set-off on tbe part of such person against the factor 
 or agent; nor to prevent the owner from recovering from such 
 person the goods deposited or pledged, upon repayment of the 
 money, or on restoration of the negotiable instrument advanced to 
 the factor or agent, and upon payment of such further sum of 
 money or on restoration of such other negotiable instrument (if 
 any) as may have been advanced by the factor or agent to the 
 owner, or on payment of money, equal to the amount of such in- 
 strument ; nor to prevent the owner from recovering from such 
 person any balance remaining in his hands as the produce of the 
 sale of the goods, after deducting the money or negotiable instru- 
 ment advanced : Provided that in case of the bankruptcy of the 
 factor or agent, the owner of the goods so pledged and redeemed 
 shall be held to have discharged pro tanto his debt to the estate of 
 such bankrupt (V). 
 
 5 t& 6 Vict. c. 39. — It being afterwards considered desirable that 
 the same protection should be afforded to bona fide advances upon 
 goods, as by the 6 Geo. IV. c. 94, s. 4, was given to sales ; and 
 much uncertainty having arisen on the construction of that act (see 
 Fhillips V. Huih, ante, p. 741), which, moreover, did not extend to 
 protect eocchanges of securities bond fide made (see Bonzi v. Stew- 
 art, ante, p. 742), it was enacted, by 5 & 6 Vict, c.39, s. 1 — That 
 any agent who shall be intrusted with the possession of goods, 
 or of the documents of title to goods, shall be deemed to be the 
 owner of such goods and documents, so far as to give validity to 
 any agreement by way of pledge, lien, or security bond fide made 
 by any person with such agent, as well for any original loan, ad- 
 vance, or payment made upon the security of such goods or docu- 
 ments, as also for any further or continuing advance in respect 
 thereof ; and such agreement shall be binding upon the owner of 
 such goods, and all other persons interested therein, notwith- 
 standing the person claiming such pledge or lien may have had 
 notice that the person with whom such agreement is made is only 
 an agent. Furniture in a furnished house is not " goods " within 
 the act(m). The plaintiff, a manufacturer, consigned goods to 
 C, his agent. C. being liable, together with the defendant, on 
 a bill of exchange, obtained from him SOOl. for the purpose of 
 taking up the bill, at the same time depositing with him the plain- 
 tiff's goods. In trover by the plaintiff for his goods, it was held, 
 that, if the jury thought the transaction was only a circuitous mode 
 of paying the bill, it was not a transaction within the statute {n). 
 The act does not apply to the case of master and servant, and 
 
 , {D See 12 & 13 Vict. c. 106, s. 179. (it) learoydv. itoSimsoft, 12 M.&W. 745. 
 
 (m) Wood V. Rowcliffe, 6 Hare, 191. 
 
FACTOR. 747 
 
 therefore a clerk authorized by his master to receive dock warrants 
 is not an agent within the meaning of the act (o). 
 
 By sect. 2, — Where any such agreement for pledge, lien, or 
 security shall be made in consideration of the delivery to such 
 agentof any other goods or merchandize, or document of title or 
 negotiable security, upon which the person so delivering up the 
 same had at the time a valid lien and security in respect of a pre- 
 mous advance, by virtue of some agreement made with such agent, 
 such agreement, if horiA fide on the part of the person with whom 
 the same is made, shall be deemed to be a contract made in con- 
 sideration of an advance within the meaning of the act, and shall 
 be as valid as if the consideration for the same had been a bond 
 fide present advance of money : Provided, that the lien acquired 
 under such last-mentioned agreement upon the goods or documents 
 deposited in exchange shall not exceed the value at the time of the 
 goods, which (or the documents of title to which, or the negotiable 
 security which) shall be delivered up and exchanged (p). 
 
 Sect. 3 provides, — " That this act shall give validity to such 
 contracts and agreements only and to protect only such loans, 
 advances, and exchanges as shall be made honA fide, and without 
 notice that the agent making such contracts or agreements as 
 aforesaid, has not authority to make the same, or is acting malA 
 fide in respect thereof against the owner of such goods and mer- 
 chandize ; and nothing herein contained shall be construed to 
 extend to or protect any lien or pledge for or in respect of any 
 antecedent debt (g), owing from any agent to any person with or 
 to whom such lien or pledge shall be given, nor to authorize any 
 agent intrusted as aforesaid in deviating from any express orders 
 or authority received from the owner ; but that, for the purpose 
 and to the intent of protecting all such bond fide loans, advances, 
 and exchanges as aforesaid (although made with notice of such 
 agent not being the owner, but without any notice of the agent's 
 acting without authority), and to no further or other intent or pur- 
 pose, such contract or agreement as aforesaid shall be binding on 
 the owner and all other persons interested in such goods." In 
 order to deprive a transaction of the protection given by the 1st 
 section, and to bring it within the proviso of the 3rd section, that 
 the jury should find categorically that the lender had notice of the 
 agent's mala fides or want of authority (r). 
 
 By sect. 4,^—" Any bill of lading, India warrant, dock warrant, 
 warehouse keeper's certificate, warrant or order for the delivery of 
 goods, or any other document used in the ordinary course of 
 business as proof of the possession or control of goods, or autho- 
 rizing or purporting to authorize, either by indorsement or by 
 
 (o) Lamb v. Attenboroiigh, 1 B. & S. 831. (r) Gobar Ohunder Sein v. The Admi- 
 
 (p) See Sonzi v. Stewart, amie, p. li'i. nistrator-Gsneral of Bengal, 8 Jur. 343, 
 (?) See Taylor Y. Kymer, 3 B. & Ad. 320. Priy. C. 
 
748 FACTOK. 
 
 delivery, the possessor of such docu/ment to trcmsfer or receive 
 goods thereby represented," shall be deemed to be a document of 
 title within the act ; and any agent intrusted with and possessed 
 of any such document, whether immediately from the owner, ■' or 
 obtained by reason of such agent's having been intrusted with the 
 possession of the goods, or of any other document of title thereto " (s), 
 shall be deemed to have been intrusted with the possession of the 
 goods represented by such document of title ; and all contracts 
 pledging or giving a lien upon such document shall be deemed to 
 be pledges of and liens upon the goods to which the same relates, 
 and such agent shall be deemed to be possessed of such goods or 
 documents, whether the same shall be in his actual custody or shall 
 be held by any other person subject to his control or on his behalf ; 
 and where any loan or advance shall be bond fide made to any 
 agent intrusted with and in possession of any such goods or docu- 
 ments, on the faith of any agreement in writing to consign, deposit, 
 transfer, or deliver, such goods or documents, and such goods or 
 documents shall actually be received by the person making 
 such loan or advance without notice that such agent was not 
 authorized to make such pledge or security, every such loan or 
 advance shall be deemed to be a loan or advance on the security 
 of such goods or documents within the act, though such goods or 
 documents shall not actually be received by the person making 
 such loan or advance till the period subsequent thereto ; and any 
 agreement, whether made direct with such agent, or with any other 
 person on his behalf, shall be deemed an agreement with such 
 agent ; and any payment made, whether by money or bills of ex- 
 change, or other negotiable security, shall be deemed to be an 
 advance within the meaning of the act ; and an agent in possession 
 as aforesaid of such goods or documents shall be taken to have 
 been intrusted therewith by the owner, unless the contrary be 
 shown in evidence. 
 
 By sect. 5, — Nothing is to lessen the civil responsibility of an 
 agent for any breach of duty or contract, or non-fulfilment of his 
 orders or authority in respect of any such agreement, lien, or 
 pledge. Section 7 provides for the redemption of the goods by 
 the owner before sale upon repayment of the lien (both to the 
 defendant and the agent) and restoration of the securities ; for his 
 recovery from the pledgee of the balance of the proceeds, after 
 deducting the pledgee's lien ; and for the case of the bankruptcy 
 of the agent {t). 
 
 (s) See Close v. Holmes, 2 M. & Eoli. {t) See the Bankrupt Law Consolida- 
 
 25 ; and Hatfield v. Phillips, 14 M. & tion Act, 12 & 13 Vict. c. 106, s. 179. 
 W. 665, ante, p. 741. 
 
749 
 
 CHAPTEE XXL 
 FISHERY. 
 
 PAGE 
 
 I. Of the Right of Fishery in the Sea, and in the Creeks 
 
 and Ai'nis thereof, and in Fresh Rivers . . . 749 
 
 IT. Of the different Kinds of Fishery 751 
 
 Several Fishery . . . . . . . . 751 
 
 Free Fishery ........ 753 
 
 Common of Fishery ....... 755 
 
 I. Of the Right of Fishery in the Sea, and in the Creelcs and 
 Arms thereof, and in Fresh Rivers. 
 
 " The right of fishing in the sea (a), and the creeks and arms 
 thereof, is originally lodged in the crown, in like manner as the 
 right of fishing in a private or inland river is originally lodged in 
 the owner thereof But although the king is the owner, and, as a 
 consequence of his property, hath the primary right of fishing in 
 the sea, or creeks or arms thereof, yet all the king's subjects in 
 England have regularly a liberty of fishing in the sea, and the 
 creeks and arms thereof, as a public common of piscary, and may 
 not, without injury to their right, be restrained of it, unless in 
 such places, creeks, or navigable rivers, where the king, or some 
 particular subject, hath gained a propriety exclusive of that 
 common liberty, either by the king's charter or grant, or by cus- 
 tom and usage, or prescription." It appears from this passage, 
 that Lord Hale thought an exclusive right of fishery in an arm of 
 the sea might belong to a subject (6). And of this opinion were 
 the Court of B. R. in another case (c), where it was decided, that 
 a plea, which prescribed for a several fishery in an arm of the sea, 
 was good ; but it was there said, that, as the presumption in such 
 case was in favour of the king and public, it was incumbent on 
 the plaintiff to prove his exclusive right, agreeable to the rule laid 
 down by Lord Hale, in 1 Mod. 105, that if any one will appro- 
 priate a privilege to himself, the proof lies on his side. • So it was 
 
 (a) Lord HaU, De Jure Maris, p. 1, c. E. 439, S. P., admitted by Kenym, C. J., 
 
 4 ; Hargrave's Tracts, vol. 1, p. 11. See and Ashhurst, J. 
 
 also the case of The Evyal FisUry of the (c) Carter and another v. Mmcot and 
 
 " ,e, Dav. B. 65. anotlier, 4 Burr. 2162. 
 
 (J) See also 8 Edw. IV. 19, u. ; 4 T. 
 
750 FISHEEY. 
 
 held (d), that all the subjects of England, of common right, might 
 fish in the sea, it being for the good of the commonwealth, and for 
 the sustenance of the people of the realm, and that therefore a 
 prescription for it, as appurtenant to a particular township, was 
 void, and as absurd as a prescription would be for travelling the 
 king's highway, or for the use of the air as appurtenant to a par- 
 ticular estate. To trespass for fishing in the plaintiff's fishery, 
 defendant pleaded, that the place was an arm of the sea, in which 
 every subject had a right to fish ; the plaintiff in his replication 
 claimed an exclusive right by prescription, traversing the general 
 right. It was held, that this was a bad and immaterial traverse, 
 and might be passed over by the defendant, and that it was com- 
 petent to him to traverse the prescriptive right of the plaintiff 
 stated in the replication (e). The preservation of the spawn, fry, 
 or brood of fish, has been, for centuries, a favourite object of legis- 
 lation, and the statutes passed for the purpose are extremely 
 numerous ; thus dredging for oyster spat in a common navigable 
 river is illegal under the stat. 13 Ric. II. stat. 1, c. 19, which has 
 never been repealed, but frequently recognized (/). In one 
 case (g) the Court seem to have been of opinion, that pri/md facie 
 every subject has a right to take fish found on the sea shore 
 between high and low watermark, but that such general right 
 might be restrained by an exclusive right in an individual. 
 
 The bed of all navigable rivers, and of estuaries, is vested in the 
 crown, but the ownership of the crown is for the benefit of the 
 subject, and is subservient to the paramount right of the subject 
 to free navigation, and the right to anchor is a necessaiy part of 
 the right of navigation. The grantee of the crown takes the soil 
 subject to the same public right of navigation. Where, therefore, a 
 subject claims anchorage tolls in respect of ships, it is not enough to 
 prove a grant of the soil and immemorial user, for such a claim 
 can only be sustained by proving that some consideration was 
 given for the right to levy tolls, or a corresponding advantage to 
 the public, such as the right of haven. Where, therefore, the 
 proprietors of an oyster fishery clainied to levy tolls on all ships 
 anchoring within the limits of their fishery, and proved imme- 
 morial user, it was held that such a claim could not be sustained 
 without proof of a consideration given (h). 
 
 Fresh rivers, of what kind soever, of common right belong to the 
 owners of the soil adjacent (i) ; so that the owners of the one side 
 
 (d) Ward v. Cresswell, ■Willes' Rep. (A) Oawn v. Free Fishers of Whitsta- 
 265, and 16 Vin. Abr. 354, tit. " Pis- lie, 34 L. J., C. D. 29. 
 
 caiy," (B.). (i) Lord Sale, De Jure Maris, p. 1, c. 
 
 (e) Sichwrdson v. TJie Mayor, &c., of 1 ; Hargraye's Tracts, vol. 1, p. 5; Da- 
 Oxford, 2 H. Bl. 182. vis's E. 57, ». b. See as to the evidence 
 
 (/) Mayor, <fcc., of Maldon v. Wool- of ownership of rivers, /owes v. Williams, 
 vet, 12 A. & E. 13. 2 M. & W. 326. 
 
 (gf) Bagott y. Orr, 2 Bos. & Pul. 472. 
 
FISHERY. 751 
 
 have, of common right, the propriety of the soil, and consequently 
 the right of fishing, usque filum aquas, and the owners of the other 
 side the right of soil or ownership, and fishing unto the filum 
 aquce on their side. And if a man be owner of land on both sides, 
 in common presumption he is owner of the whole river and hath 
 the right of fishing according to the extent of his land in length. 
 But special usage may alter that common presumption ; for one 
 may have the river, and others the soil adjacent ; or one may have 
 the river and soil thereof, and another the free or several fishery 
 in that river. "Where a private river is the boundary of two 
 persons' lands, the soil ad filum aquce belongs to the owners of 
 the lands on each side, unless there have been immemorially acts 
 of ownership exercised by one or the #ther " (]c). 
 
 II. Of the different Kinds of Fishery. 
 
 Several Fishery, p. 751. 
 Free Fishery, p. 753. 
 Common of Fishery, p. 755. 
 
 A several fishery is where a person has an exclusive right of 
 fishery, either in his own soil or in the soil of another (Z). " In 
 order to constitute a several fishery, it is requisite that the party 
 claiming it should so far have the right of fishing independently of 
 all others, as that no person should have a co-extensive right with 
 him in the object claimed. But a partial independent right in 
 another, or a limited liberty, does not derogate from the right of 
 the general owner " (m). He who has a several fishery is not 
 necessarily the owner of the soil {n) ; but as the exclusive right of 
 fishing is an incident to the ownership of the soil, it will be pre- 
 sumed, until the contrary be shown, that such right resides in the 
 owner of the soil(o). Trespass lies for an injury to a right of 
 several fishery (p), the allegation of a several ^skery primd facie 
 importing ownership of the soil {q), but it is a good plea that the 
 soil and freehold belong to the defendant. To this, however, the 
 plaintiff may reply title to the several fishery, either by prescrip- 
 tion or grant, thereby rebutting the presumption of the right of 
 several fishery being still vested in the owner of the soil (r). The 
 description of such a fishery " as a sole and exclusive fishery," is 
 
 (Tc) Per Wilmot, J., Sparks v. Lloyd, (o) See 5 B. & C. 886. 
 
 "Worcester Spring Ass. 1757, MSS. (p) Hol/ord v. Smley, 13 Q. B. 426 ; 
 
 (I) Mtz. Abr. Baixe, pi. 27, cites M. S. O. (in error), 18 L. J., Q. B. 109. 
 20 Hen. VI. 4. (?) Marshall v. The Ulleswater Steam, 
 
 (m) Per Lord Mamfield, C. J., deliver- Namgaiion Company, 3 B. & S. 732. 
 ing the resolution of the court, Seymour (r) 17 Edw. IV. 6, b. ; 18 Edw. IV. b. 
 
 amd others v. Lord Comtenay and others, Per Paston, J., 18 Hen. VI. 30, a. ; Fitz. 
 
 5 Burr. 2814. -^Ir. Barre, pi. 20. S. C. See also Bol- 
 
 (n) Hargrave's Notes, Oo. Litt. 122, a. ford v. Bailerj, 18 L. J., Q. E. 109. 
 n. (7). 
 
752 FISHERY. 
 
 sufficient, and equivalent to that of a several fishery (s). Where a 
 subject was owner of a several fishery in a navigable river, where 
 the tide flowed and reflowed, which fishery had been granted to him 
 before Magna Charta, by the description of separalis piscaria ; 
 it was held, that it was an incoi-poreal and not a territorial here- 
 ditament, and that a term for years in it could not be created 
 without deed (f). 
 
 If a person be seised of a river, and by deed grant a several 
 fishery in the same, and makes livery of seisin secundutn formam 
 cartce, the soil does not pass ; and if the river becomes dry, the 
 grantor may take the benefit of the soil, for a particular right only 
 passed to the grantee (u). A prescriptive right to a several fishery 
 in a navigable river may pass as appurtenant to a manor (x). A 
 right of fishery is divisible, and may be abandoned as to part, 
 while another part is preserved. Hence, an exclusive right to 
 dredge for oysters may subsist as appurtenant to a manor, although 
 it be lawful for all the king's subjects to catch floating fish therein. 
 Trespass for breaking and entering his close, and fishing in separali 
 piscaria sud, and for taking pisces suos. After verdict, exception 
 was taken to the declaration in an-est of judgment, because it is 
 said pisces suos. But the Court were of opinion, that being in 
 separali piscaria, it might well be said pisces suos, because they 
 could not be taken by any other person (y). Where (z) the decla- 
 ration stated that defendant, in separali sud pisca/rid piscatus 
 fuit, et pisces cepit, after verdict for plaintiff, an exception in 
 arrest of judgment, directly the reverse of that in the foregoing 
 case, was taken, viz., that the declaration had omitted the word 
 suos ; but the Court thought the objection entitled to very little 
 weight ; because the plaintiff having' alleged that it was his fishery, 
 the fish there should be intended pri/md fojcie to be his fish. A, 
 being seised of a mill, and having a sole fishery in the waters of 
 the mill, granted the mill, with all waters, streams, &c., necessaiy 
 in working the same, " excej^t, and always reserving, the right and 
 privilege of fishing in the waters of the said mill." It was held, 
 that this was an exception of the sole fishery, and not a reserva- 
 tion of a new easement (a). 
 
 Though Magna Charta made illegal all grants by the crown of a 
 several fishery in a navigable river which had not been in existence 
 in the reign of Henry II., yet if evidence now be given of long 
 enjoyment of a fishery there to the exclusion of others of such a 
 character as to establish that it has been dealt with as of right as 
 a distinct and separate property, and there is nothing to show that 
 
 (s) Eolford V. Bailey, supra. (y) Child v. Oreenhill, Cro. Car. 553 ; 
 
 {t) Duke ofSmrmset v. Fogwell, 5 B. & Sir W. Jones, 440, -S. C. 
 
 C. 875. (z) Fontleroy v. Ayliner, Ld. Kaym. 
 
 (m) 1 Inst. 4, b. But see Hargrave's 239. 
 
 note. (a) Lord Paget v. Milles, 3 Doug. 43. 
 
 {x) Rogers v. Allen, 1 CampU 309. 
 
PISHERY. 753 
 
 its origin was modern, the reasonable presumption is that it be- 
 came such in due course of law, and therefore must have been 
 created before legal memory (b). 
 
 Free Fishery. 
 
 It is to be lamented that the books do not afford materials for 
 an accurate description of a free fishery. That this subject is in- 
 volved in doubt and uncertainty, will appear from the following 
 passages, extracted from the writings of Mr. Justice Blackstone and 
 Mr. Hargrave: — 
 
 Mr. J. Blackstone, having defined common of fishery to be a 
 liberty of fishing in another man's wHer (c), states a free fishery to 
 be an exclusive right of fishing in a public river, and adds, " that 
 it is a royal franchise, and is considered as such in all countries 
 where the feodal polity has prevailed ; though the making such 
 grants, and thereby appropriating what seems to be unnatural to 
 restrain, the use of running water, was prohibited for the future by 
 King John's great chaiie^ {d) ; and the rivers that were fenced in 
 his time were directed to be laid open. This opening was ex- 
 tended by the second and third charters of Henry III. to those 
 also which were fenced under Richard I., so that a franchise of free 
 fishery ought to be as old as the reign of Henry II. This differs 
 from a several fishery, because he that has a several fishery must 
 also be (or at least derive his right from) the owner of the soil, 
 which in a free fishery is not requisite. It differs from a common 
 of piscary, in that the free fishery is an exclusive right ; the com- 
 mon of .piscary is not so ; and therefore, in a free fishery, a person 
 has a property in the fish before they are caught ; in a common of 
 piscary, not until afterwards. Some, indeed, have considered a 
 free fishery, not as a royal franchise, but merely as a private grant 
 of a liberty to fish in the several fishery of the grantor. But the 
 considering such right as originally a flower of the prerogative, till 
 restrained by Magna Charta, and derived by royal grant, previously 
 to the reign of Richard I., to such as now claim it by prescription, 
 and to distinguish it, as we have done, from a several and a com- 
 mon of fishery, may remove some difficulties, in respect to this 
 matter, with which our books are embarrassed." On this passage 
 Mr. Hargrave made the following remark (e) : " Both parts of this 
 ■description of a free fishery seem disputable. With regard to the 
 first part, although for the sake of distinction it might be more 
 convenient to appropriate free fishery to the franchise of fishing in 
 public rivers by derivation from the crown ; and although in other 
 countries it may be so considered, yet, from the language of our 
 books, it seems as if, in our law, practice had extended this kind of 
 
 (6) Malcomsm v. O'Dea, 10 H. of L. {d) See Mayor of Colchester v. BrooTce, 
 
 Cases, 593. 7 Q. B. 339. 
 
 (c) 2 Bl. Com. 39, 40; Edn. 12. (e) Hargrave's Co. I,itt. 122, a. n. 7. 
 
 VOL. I. ^ ^ 
 
754 FISHERY. 
 
 fishery to all streams, whether private or public : neither the 
 register nor other hook professing any discrimination. Eeg. 95, b. 
 F. N. B. 88, Gt. ; Fitz. Abr. Ass. 422; 17 Edw. IV. 6, b. ; 7, a ; 7 
 Hen. VII. 13, b. With respect to the second part, it is true, that 
 in SwAth V. Kemrp, 2 Salk.' 637 ; Garth. 285, the court held free 
 fishery to import an exclusive right equally with several fishery, 
 chiefiy relying on the writ in the Register, 95 b., and the 46 Edw. 
 III. 11, a. But theii this was only the opinion of two judges (/) 
 against one {g), who strenuously insisted, that the word libera ex 
 vi termini, implied common, and that many judgments and prece- 
 dents were founded on Lord Coke's so construing it. That the 
 dissenting judge was not wholly unwarranted in the latter part of 
 his assertion, appears from two determinations a little before the 
 case in question, viz. Upton v. Bawhin, 3 Mod. 97, where judg- 
 ment was arrested in trespass for breaking and entering a free 
 fishery ; because the declaration alleged the fish taken to be the 
 fish of the plaintiff; and Peake v. Tucker, cited in margin, Carth. 
 286, where judgment was arrested on the same ground." After 
 the preceding remarks were published, Mr. J. Blackstone, with 
 that candour and liberality which are the inseparable companions 
 of tnie learning, added the following observation, in a subsequent 
 edition of his Commentaries : " It must be acknowledged, that the 
 right and distinctions of the three species of fishery are very much 
 confounded in our law books : and there are not wanting respect- 
 able authorities (see them well digested in Hargrave's notes' on Co. 
 Litt. 122 (23), ) which maintain that a several fishery may exist 
 distinct from the property of the soil, and that a free fishery im- 
 plies no exclusive right, but is synonymous with common of piscary." 
 Whatever be the natiire of free fishery,' whether it be, as Mr. J. 
 Blackstone supposes, an exclusive right, or as Mr. Hargrave seems 
 to think, only the same with common of fishery ; since the case of 
 Smith V. Kem/p, before mentioned, it is too late now to contend, 
 that an action of trespass, vi et armis, will not lie for an ihjmy to 
 it. It should be remarked, however, that the declaration in Smith 
 V. Kemp, was for breaking and entering the close of the plaintiff", 
 and fishing in the free fishery of the plaintiff in the said close. 
 See Carthew's Rep. p. 285. It may admit of a question, whether 
 the declaration ought to state the fish taken to be the fish of the 
 ■plaiyntiff. It seems, that such allegation ought to be made. 
 
 The Prescription Act, 2 & 3 Will. IV. c. 71, does not apply to 
 easements or profits d, frendre in gross, e. g. to a claim of " a free 
 fishery " in the waters of another (h). Nor can a profit d prendre 
 be claimed by custom because of the tendency, of such a claim to 
 exhaust the profit of the land, and leave nothing for the owner, 
 which is deemed unreasonable (i). Hence a general custom to 
 
 (/) Molt, C. J., Solben, J. B. (N. S.) 687 ; 34 L. J., 0. P. 309. 
 
 (g) Eyre, J. (i) Mce v. Ward, i E. & B. 702 ; 26 
 
 (h) Shutttewm-th v. De Fleming, 19 C. L. J., Q. B., 133. 
 
FISHERY. 755 
 
 angle for fish is void (j), at any rate without payment. Perhaps 
 the fact of paynaent might be deemed to be a sufficient restriction 
 on the one hand, and satisfaction for the profit taken on the other, 
 to make the custom reasonable (k). But there can be no right to 
 obtain leave and licence .to fish upon payment founded upon 
 custom ; for every act of fishing must have been by licence, and so 
 there can have been no enjoyment as of right, which is necessary 
 equally in the case of custom as in that of prescription (I). 
 
 Common of Fisliery. 
 
 A common of fishery is a right of fishing in common with other 
 persons in a stream or river, the soi# whereof belongs to a third 
 person. This does not differ in any respect from any other right 
 of common, and trespass will not lie for ah injury to it (m). A 
 person having a common of fishery in another's land, cannot cut 
 the grass growing on the bank (n). Under ancient deeds recog- 
 nizing a right in the owner of an estate to have a weir across a 
 river for taking fish, if it appear that such weir was heretofore 
 made of brushwood, through which the fish might escape into the 
 upper part of the river, he cannot convert it into a stone weir, 
 whereby the possibility of escape is debarred, except in times of 
 extraordinary flood (o). Weirs erected in public rivers before the 
 time of Edw. I., although an obstruction to navigation, are legalized 
 by subsequent acts of the legislature {jp). The right of the public 
 to navigate a public river is paramount to any right of property in 
 the crown, which never had the power to grant a weir so as to ob- 
 struct the public navigation ; and if a weir, which was legally 
 granted in such a river caused obstruction at any subsequent time, 
 it became a nuisance (g). 
 
 The effect of the statutes relating to weirs, from Magna Charta 
 to 12 Edw. IV. c. 7, is to make weirs in navigable rivers illegal, 
 unless they existed before the time of Edward I., in which case 
 they are rendered legal by virtue of 25 Edw. III. st. 4, c. 4 ; but 
 these various statutes do not prevent the right to erect a weir in a 
 non-navigable river from being acquired as an easement (r). 
 
 Evidence. 
 
 M. brought an action against 0. for breaking his several 
 fishery in a public navigable river. At the trial, M., who was 
 tenant of the corporation of L., gave in evidence a reconveyance 
 by P. to the corporation of the fishery in question, dated 1684, 
 
 0') Sland v. Lipscorribe, 4 E. & B. (o) Weld, v. Hornby, 1 'Mast, 395. 
 
 713, n. Ip) Williams v. Wilcox, 3 Nev. & P. 
 
 (k) Tyson v. Smith, 9 Ad. & E. 405. 606. 
 
 (I) Mills \. Mayor of Colchester, L. R., (q) 8. O. ^ee also Mayor of Colchester 
 
 2 C. P. 486. v. Brooke, 7 Q. B. 339. 
 
 (m) Salk. 637. W RoUe v. Whyte, L. R. 3, Q. B. 302. 
 
 (n) 13 Hen. VIII. p. 15, b. 
 
756 FISHEEY. 
 
 and in order to show there had been previously a pending suit 
 between P. and the corporation, each claiming under conflicting 
 grants from the crown, M. gave in evidence a bill filed by P. in the 
 Court of Chancery against the corporation, with their answer, 
 dated 1674. On exception, to this evidence it was held by the 
 House of Lords (reversing the decision of the Irish Exchequer 
 Chamber) that such evidence was admissible as part of the history 
 of the adverse claim of P., which ended in P.'s reconveyance to the 
 corporation. At the trial, in order to prove the ancient possession 
 of the fishery, M. gave in evidence an assembly book of the cor- 
 poration, containing entries showing that the fishery was then let 
 for certain rents to a tenant. It was also held that such book was 
 admissible, for the rule is that ancient documents coming out of the 
 proper custody, and purporting on the face of them to exercise 
 ownership, such as a lease or a licence, may be given in evidence 
 without proof of possession or payment of rent under them, as 
 being in themselves acts of ownership and proofs of possession (s). 
 
 The mere circumstance of the owners of an oyster fishery having 
 for a period of one hundred and fifty years received a fee of two 
 guineas for a licence for four dredges, will not, in the absence of 
 all evidence on the subject, warrant the assumption that three 
 guineas is an unreasonable sum to demand for such a licence (t). 
 
 The English sea, oyster, and salmon fisheries are regxilated by 
 the following statutes : sea and oysters, by 31 & 32 Vict. c. 45 
 (except as to the Medway) ; salmon, by 24 & 25 Vict. c. 109, and 
 28 & 29 Vict. c. 121. 
 
 ' (s) Malcomscm v. O'Dea, 10 H. of L. (t) Mills v. The Mayor of Colchester, 
 
 Cases, 593. L. R. 3, C. P. 575, iu error. 
 
 EUD OP VOL. I. 
 
 BRADBURY, EVANS, AND CO,, PRINTmS, WlirTEFRIARS.